JUDGMENT A.K. Sharma, M. - Ram Sewak and Smt. Bahasi (District Shahjahanpur), have come up in second appeal, against the decree and judgment dated May 11, 1971, passed by the Additional Commissioner, Rohilkhand Division, Bareilly, whereby he set aside the order of lower court dated September 24, 1968 and decreed the suit of Smt. Lekhni plaintiff-respondent here with costs. The appeal arose out of a suit for partition under section 176 Z.A. and L.R. Act and was dismissed with costs by the learned trial court. 2. Briefly, the facts are that the plaintiff, claiming to be recorded co tenant with Ram Sewak, defendant No. 1, prayed for partition of her half share. The suit was contested by Ram Sewak and on his instance Smt. Bahasi was ordered to be impleaded as defendant No. 3 later on. Ram Sewak claimed that Smt. Bahasi was the daughter-in-law of Smt. Lekhni and that she was the rightful co-tenant. He also claimed that plot Nos. 533 and 544 were exclusively acquired by him, Smt. Bahasi contested as the rightful successor of Munshi, her husband. 3. The learned counsel for the appellant argued that the learned Addl. Commissioner had fallen into an error as he had gone beyond the case as given in the plaint filed on April 28, 1966 which was only that she was the co-Bhumidhar along with defendant No. 1 Ram Sewak and in possession and that she was entitled to share. He said that in the plaint she had not stated how she became the co-tenant of Ram Sewak, nor had she stated how Smt. Bahasi had been ousted from the co-tenancy with Ram Sewak; nor was there any pleading regarding the fact of her name having been entered in consolidation proceedings,(and yet the learned Addl. Commissioner had in that Smt. Bahasi had remarried and her para 6 of his judgment given a finding that Smt. Bahasi had remarried and her rights were extinguished and the same devolved on Smt. Lekhni. He contended that in doing so he had exceeded his jurisdiction in going beyond the pleadings of the party. He also pointed out that the learned Addl. Commissioner could not have held that section 49 of the C.H. Act was a bar for Smt. Bahasi, because no issue was framed about it. He referred to 1969 A.L.J. (H.C.) 766. He contended that in doing so he had exceeded his jurisdiction in going beyond the pleadings of the party. He also pointed out that the learned Addl. Commissioner could not have held that section 49 of the C.H. Act was a bar for Smt. Bahasi, because no issue was framed about it. He referred to 1969 A.L.J. (H.C.) 766. in which it was laid down that the court could not cull out a new case for a party and that no amount of evidence on a matter which had not been alleged, could be accepted in evidence. He contended that the learned Addl. Commissioner should have framed issues and afforded opportunity to the parties to lead evidence on the findings given by him, which he had not done and a material irregularity had been committed resulting in miscarriage of justice. 4. The learned counsel for the respondent argued that as Smt. Lekhni was a recorded co-tenant, all that she had to plead in the plaint was that she was the recorded co-tenant along with defendant No. 1 and that her share was . He stated that she was recorded in Khatauni of 1371-1373F along with Pimma, father of defendant No. 1, and that the allegations in the plaint were sufficient for a suit of partition. He pointed out that it was only on July 15, 1966 that a written statement was filed by defendant No. 3 in which it was alleged that Munshi's widow Smt. Bahasi was alive and she was a co-tenant with Ram Sewak, defendant No. 1, and the plaintiff had no title and that the suit was bad for non-joinder of Smt. Bahasi. He added that after Smt. Bahasi been ordered to be impleaded, she filed a written statement on November 10, 1966. He contended that the plaintiff could not have alleged anything against Smt. Bahasi until she had been impleaded on the initiative of defendant No. 1 and that it was for Smt. Bahasi to prove that she had a better title than Smt. Lekhni. In order to protect her rights as against Smt. Bahasi Smt. Lekhni filed C.H. Forms 5, 23 and 41 and the post-consolidation Khatauni of 1371-1373F. He cited 1970 R.D. 413 to say that Section 49 of the C.H. Act barred the adjudication of rights of the tenure-holders through a suit, if the institution of the suit itself was barred. In order to protect her rights as against Smt. Bahasi Smt. Lekhni filed C.H. Forms 5, 23 and 41 and the post-consolidation Khatauni of 1371-1373F. He cited 1970 R.D. 413 to say that Section 49 of the C.H. Act barred the adjudication of rights of the tenure-holders through a suit, if the institution of the suit itself was barred. He, therefore, contended that it was for the appellant to show that section 49 did not bar the claim of the defendant, Smt. Bahasi. In support of this he referred to 1972 R.D. 250 and 1976 R.D. 384. He also cited 1969 A.L.J. (H.C.) 222 to say that the point of jurisdiction could be raised at any time. He also submitted that the case referred to by the learned counsel for the appellant reported in 1969 A.L.J. 222 did not apply to the circumstances of the present case, as no new case had been set up by the plaintiff in the present case. He also cited A.I.R. 1964 (H.C.) 164, head note (d) to say that if the parties had led evidence and were aware of the contentions being raised, then Non-framing of issues would not affect the decision of the case. He, therefore, contended that there was no mis-trial which could be considered sufficient to vitiate the decision of the lower appellate Court. 5. I have also gone through the record of the case. 6. It has to be seen whether the learned Addl. Commissioner traversed beyond the pleadings of the plaintiff and set up a new case for her by holding that Smt. Bahasi had remarried and the rights had devolved on Smt. Lekhni her mother-in-law. During the consolidation proceedings, Smt. Lekhni Was recorded as co-tenant with Primma, the Father of Ram Sewak, defendant No. 1. Learned counsel for the appellant has argued that, unless Smt. Lekhni had pleaded in the plaint that Smt. Bahasi had remarried and her own rights had been recognised during consolidation as co-tenant, the learned Addl. Commissioner could not have given the finding that Smt. Bahasi had remarried. His contention was that he had exceeded his jurisdiction by going beyond the pleadings of the parties. Commissioner could not have given the finding that Smt. Bahasi had remarried. His contention was that he had exceeded his jurisdiction by going beyond the pleadings of the parties. These arguments and contentions, however, are not borne out by the record and a proper perusal of the judgment of the learned Additional Commissioner would also show that he did not go beyond the pleadings of the parties and did not give any fresh finding on the point of remarriage of Smt. Bahasi. This suit was filed for partition and the recorded co-tenants were the plaintiff and defendant No. 1 only. It was therefore, not at all necessary for the plaintiff to bring in an outsider and make allegation against her in the plaint. As rightly pointed out by the learned counsel for the respondent, it was defendant No. 1 who succeeded in bringing in Smt. Bahasi as defendant No. 3 and that it was at that stage that the plaintiff was called upon to state her case as against Smt. Bahasi. What the learned Addl. Commissioner has stated in his judgment is that Smt. Bahasi, if she had any rights in the land in dispute, should have asserted them during consolidation and that what actually was recorded during consolidation was the names of Smt. Lekhni and Pimma as co-tenure holders and the name of Ram Sewak, his son, was later substituted when Pimma died. In the Khatauni of 1937-1373F she is recorded along with Pimma. The learned Additional Commissioner has, therefore, held correctly that Smt. Bahasi is not a co-tenure holder with Ram Sewak. In his judgment he has stated that the consolidation authorities did not record Smt. Bahasi's name, obviously because she had lost rights by remarriage and that Pimma also had accepted that position. Para 7 of his judgment puts the whole matter in the rights context. The point is, whether Smt. Bahasi remarried or not, her rights were not recorded by the consolidation authorities. Even if remarriage had not been proved, Smt. Bahasi would still have no rights, be cause if she had any, she could and ought to have agitated for them during consolidation. As held in 1972 R.D. 250, ".......the suit for partition, insofar as it includes determination of rights determined in consolidation proceedings, is barred by section 49 of the U.P. Consolidation of Holdings Act". As held in 1972 R.D. 250, ".......the suit for partition, insofar as it includes determination of rights determined in consolidation proceedings, is barred by section 49 of the U.P. Consolidation of Holdings Act". Smt. Bahasi has, therefore, no case whatsoever, because consolidation proceedings have not recorded her rights. This is all that the learned Addl. Commissioner's judgment states. It was because at a later stage Smt. Bahasi was impleaded that the facts about her remarriage etc. had to be disclosed. In a partition suit it was sufficient to have taken notice of the fact that Smt. Bahasi was not a recorded co-tenure holder and if she had any claim, she ought to have had it recorded at the appropriate time and in the appropriate forum. 7. There was also no denial of opportunity to Smt. Bahasi, defendant No. 3 to put forward her case, one she had been impleaded. She did not taken by surprise. She did not seek the permission of the court to lead evidence on any point, nor did she object that there was any procedural irregularity in the proceedings. It was not even urged on her behalf in the first appellate court that a new case was being made out for the plaintiff. Since the claim of the plaintiff was clear-cut and her rights as co-tenure holder stood fully recognized and established in the revenue records, there was no question before the learned Addl. Commissioner of determining whether Smt. Bahasi had remarried or not. He has mentioned the circumstances of remarriage because she did not have her rights recognized during consolidation and Pimma, her father-in-law's brother also did not raise any objection, as to why Smt. Lekhni and not Smt. Bahasi wa being recorded as the co-tenure-holder. It is in this context that credence has been given to the allegation of remarriage of Smt. Bahasi with Ram Sewak, defendant No. 1. Thus it is apparent that the issue of remarriage and its consequences for Smt. Bahasi had already been looked into during consolidation. Rights which have been determined during consolidation, cannot be opened up after consolidation even through a declaratory suit, least of all through interested impleadment in a partition suit. There was, therefore, no necessity for the learned Additional Commissioner to frame an issue and there was no mis-trial so as to prejudice any interest of Smt. Bahasi. 8. Rights which have been determined during consolidation, cannot be opened up after consolidation even through a declaratory suit, least of all through interested impleadment in a partition suit. There was, therefore, no necessity for the learned Additional Commissioner to frame an issue and there was no mis-trial so as to prejudice any interest of Smt. Bahasi. 8. The plaintiff's suit for partition remains consistently, so throughout and if she was compelled by defendant No. 1 and the order of the court impleading Smt. Bahasi, to demolish the claim of Smt. Bahasi, it was only to protect her right to partition. 9. I, therefore, hold that the appeal is totally misconceived and has no force whatsoever and the learned Additional Commissioner has rightly set aside the order of the trial court. The appeal is hereby dismissed. 10. There is no order as to costs.