JUDGMENT G.S. Sial, M. - This is a second appeal against the judgment and decree of the Additional Commissioner, Varanasi Division dismissing the first appeal arising out of a suit under section 176 of the U.P.Z.A. and L.R. Act. 2. Briefly the facts of the case are that the plaintiff respondents brought a suit for partition claiming 1.30 acres as their share out of total area of 4.28 acres. The claim was made on the basis of the pedigree mentioned in the judgment of the trial court. The plaintiff claimed that the holding belonged to the common ancestor Diha who had three sons, Bakhtawar, Matadin and Sheodin each having ?rd share. The plaintiff also claimed ?rd share of Raghubir who was the heir of Sheodin's branch through a sale deed in favour of Smt. Bachhi executed in 1936. They also claimed 1/9th share of Sheo Harakh and 1/9th share of Ram Baran whose widow Smt. Saroopa had transferred the property to Krishna Pratap from whom the plaintiff where purchasers in 1949. Thus the share of the plaintiffs and defendant No. 1 come to an area of 2.60 acres in the holding and of that share was claimed by the plaintiffs. Defendants 5 to 8 admitted the case of the plaintiff. Defendants 2 and 3 contested the suit on the ground that the pedigree was not correct, that there was person as Raghubir in the brach of Sheodin and Swaroopa and Lekhpatti did not execute any sale deed in favour of the plaintiffs processors. The trial court decided all the issued in favour of the plaintiff and held them to be entitled to the area they claimed and this judgment has been upheld by the lower appellate court. Hence the second appeal by the defendant, Banshidhar. 3. The learned counsel for the appellant stated that the documents listed in paper No. 19 are not on record and therefore, he is not in a position to argue the case. 4. The learned counsel for the respondent submitted that the documents on which the plaintiffs placed reliance were filed vide paper No. 21 and they are all on record and, therefore, The argument of the learned counsel for the appellant has no basis. He stated that no papers have been withdrawn by the plaintiffs and all the documents that were before the courts below are on record. He stated that no papers have been withdrawn by the plaintiffs and all the documents that were before the courts below are on record. This is factually correct and hence there is no force in this point of the counsel for the appellant. 5. The learned counsel or the appellant point out that the extract of 1271F referred to by the trial court is not on record. He further submitted that since the trial court has recorded a finding that Raghubir belonged to the family but without framing an issue on the point, the finding is vitiated. He further submitted that the defendant appellant Banshidhar has stated that he was the daughters son of Ram Baran belonging to the branch of Diha and he had also filed a suit under the U.P. Tenancy Act whereby he was recognised as a cotenant through a compromise, though the suit was withdraw. The counsel claimed that the admission made in the compromise should be binding between the parties and the courts below have wrongly discarded this evidence. He submitted that on the basis of acquiescence and long standing entries ?rd share should have been decreed. He referred to 1964 R.D. 324 which says that a co-tenancy can come to existence on the basis of estoppel. He also referred to 1958 R.D. 23 and 1977 A.W.C. 156 in this behalf, and submitted that the observation of the lower appellate court that the evidence is not conclusive is not sound and that the revenue entries coupled with the payment of rent are enough to establish that the co-tenancy existed. 6. The learned counsel for the respondent in reply submitted that in respect of Raghubir, a finding of fact has been recorded that he belonged to Diha's family and since the parties knew their respective claims and led evidence, then according to the rulings of the Hon'ble Supreme Court, the omission of framing of issue will not upset the finding of fact. Further this point has not even been taken in the grounds of appeal. As regard the second point he submitted that in none of the rulings cited by the appellant the effect of a prior sale by the predecessor of the parties has been considered. In fact their main case was that there was no transfer by their predecessor. Further this point has not even been taken in the grounds of appeal. As regard the second point he submitted that in none of the rulings cited by the appellant the effect of a prior sale by the predecessor of the parties has been considered. In fact their main case was that there was no transfer by their predecessor. In this case the courts below have recorded a finding that the transfer by their predecessor had already taken place. Therefore, the mere continuity of name in the revenue record and payment of rent thereof will not confer any rights. As regards the alleged compromise he submitted that the compromise had never been acted upon or verified. It is for this reason that the courts below rejected the contention of the appellant. 7. I have heard the learned counsel and have gone through the records of the case. I am afraid the case of the defendant appellants is protected on a very weak wicket. Their contention that since the finding had been given that Raghubir belonged to the family without framing an issue on the point the finding is vitiated, is not well taken. The Hon'ble Supreme Court have all along held that in a case where the parties understood their respective cases and led evidence to prove their point the non-framing of an issue will not vitiate a finding of fact. Thus, the finding that Raghubir belonged to the family is correctly established within the knowledge of the parties and no case has been made out for entertaining doubts on this point. As regards recognition as a co-tenant through a compromise, the stand taken is not correct. A compromise was filed in the Civil court, but was not verified and nor was it acted upon. Thus, the unverified compromise can have no binding effect. The appellants case all along was that no transfer had been made by their predecessor. The trail court has recorded a finding that the transfer had been made and, therefore, mere continuance of the name in the revenue records will not confer any rights of co-tenancy on the defendants. Accordingly, I find that the appeal has no real substance and must be rejected. The appeal is accordingly dismissed with costs and counsel's fee Rs. 30/-.