JUDGMENT I.B. Singh, Member - This is a defendant's second appeal against order and decree of learned Additional Commissioner Jhansi Division dated 10-4-1974 decreeing the plaintiffs-respondents No. 1 suit for division of her 1/3rd share in the land in suit by setting aside the judgment and decree dated 16-8-1968 passed by Assistant Collector 1st Class Hamirpur dismissing the plaintiff-respondent No. 1 suit for division under Section 176 of Act I of 1951. 2. Plaintiff respondent Bari Bahu had filed suit for division claiming 1/3rd share in the land in suit in Schedules A and B comprising of 52 plots, area 67.84 acres. She alleged to be co-tenure holder and co-bhumidhar in possession with defendant-appellant Janki and defendants-respondents Matadin and Sunder Lal setting up the following pedigree which is not disputed : Plaintiff alleged that the land in suit was acquired by common ancestor Guthiya and was inherited by the 3 branches and some was acquired by joint family by the three sons of Guthiya who lived together, that Pancha died 46 years ago and was inherited by Sumera who also died about 22 to 23 years ago and was inherited by the plaintiff; that Barelal died 18 to 19 years ago and was inherited by defendants 2 and 3 ; that Prabhu Dayal died 21 years ago and was inherited by Gauri Bai in whose place Janki who ultimately inherited Jala's share has been mutated in 1966. She further alleged that 1/3rd share pertains to defendant No. 1 and 1/3rd share to defendants 2 and 3 in equal shares. 3. Defendants 2 and 3 filed written statement admitting the claim of the plaintiff. 4. Defendant No. 1 Janki contested the suit on the ground that the land in suit was never acquired by Guthiya with joint family then by 3 sons of Guthiya and that Pancha or Sumera have no concern with the land in suit; that plaintiff did not inherit Sumera ; that her name was got recorded fictitiously by the defendants 2 and 3 by revenue officials which was not known to him, that in any case after the death of Sumera plaintiff re-married with Sunder Lal defendant and lives with him and have got children from him. Therefore, even if Sumera had any interest by re marriage she was divested. 5. Therefore, even if Sumera had any interest by re marriage she was divested. 5. The trial court dismissed the plaintiffs' suit holding that Pancha or Sumera had no share in the land in suit and the plaintiff did not inherit any share in the land in suit. It also held that the alleged re-marriage of plaintiff with defendant Sunder Lal had not been proved. 6. The lower appellate court confirmed the finding of the trial court regarding alleged re-marriage of the plaintiff with defendant Sunder Lal, but it held that on the basis of admission by defendant Janki Bare Lal, father of defendants 2 and 3 in correction case on 2-12-1949 on the application of plaintiffs by their statements admitted the plaintiff to be co-tenant with them of the land in suit and to be in possession, therefore, by principle of estoppel and acquiescence, as she had been recorded as a co-tenant after that admission since 1358 fasli she became co-tenant to the extent of 1/3rd share in the land in suit and on this basis allowed the appeal of the plaintiff-respondent and decreed her sun. 7. I have perused the record and have heard the learned counsel for the parties at length. 8. The concurrent findings of both the courts below that plaintiff-respondent No. 1 has not re-married with Sunderlal has rightly not been challenged by the learned counsel for the appellant which is hereby confirmed. 9. The ground taken in appeal that State Government was necessary party as the suit was in fact also for declaration has not been pressed at all, hence this ground has got no force. The suit being for division of share by a recorded co-tenant it is, therefore, rejected. 10. The main argument by the learned counsel for the appellant is that the lower appellate court had cooked up entirely a new case for the plaintiff that she acquired co-tenancy right by estoppel and acquiescence although it was never so pleaded, therefore, its finding cannot be upheld. Reliance has been placed on 1957 R.D. Page 35 and 66, 1930 (P.C.) Page 57, 1963 (S.C.) Page 302, 1981 (S.C.) page 1067. Reliance has been placed on 1957 R.D. Page 35 and 66, 1930 (P.C.) Page 57, 1963 (S.C.) Page 302, 1981 (S.C.) page 1067. It was also argued that a person who is a co-tenant is only authorised to make application under Section 2-B of Act X of 1949, therefore, granting of Sanad to the plaintiff was not a co-tenant is of no consequence and a reliance was placed on Raghunath v. Ram Swarup, 1968 A.L.J. 167. 11. In reply it has been argued that the plaintiff had claimed to be co-bhumidhar in possession and as she was recorded co-bhumidhar in 1949 on the admission of the contesting defendants and father of defendants 2 and 3. She could not expect contesting defendant to deny her rights and that Order VI rule 1 to 6 did not require plead in of evidence and that as acquisition of co-tenancy rights was possible by estoppel and acquiescence. The lower appellate court rightly held the plaintiff to have become co-tenants by estoppel and acquiescence and by being so recorded since more than 18 years and to have been paying rent and as no objection was raised by the Zamindars for her being so recorded she was rightly held by the lower appellate court to be entitled to 1/3rd share in the land in suit and it was also argued that the admission of a party is best piece of evidence and as contesting defendant admitted her to be co-tenant in possession he cannot be allowed to resile from it. It was further argued that 1968 A.L.J. page 167 is distinguishable as in that case a stranger had applied for acquisition of bhumidhari Sanad whereas in the present case the plaintiff admittedly belongs to the family of all the defendants as the pedigree is not denied and is admitted. Reliance has been placed on 1960 (S.C.) page 100, 1978 (S.C.) page 484, 1972, R.D. page 96, 1967 R.D page 396, 1968 R.D. page 45, 1970 R.D. page 2 and 1977 (S.C.) page 410. 12. I have heard the learned counsel for the paries at length and have perused the rulings carefully cited by them. 13. The ruling of 1978 S. C. page 484 is of the joint as no question of amendment is involved in the present case. 14. 12. I have heard the learned counsel for the paries at length and have perused the rulings carefully cited by them. 13. The ruling of 1978 S. C. page 484 is of the joint as no question of amendment is involved in the present case. 14. It is now well settled law that the provisions of the proviso 1, of Section 23 of Act III of 1926 and the provisions of Section 33 of U.P. Tenancy Act of 1939 are not against the acquisition of co-tenancy rights by estoppel, acquiescence or adverse possession as has been held in 1954 A.W.R. High Court page 458, 1968 R.D. page 45 High Court, 1972 R.D. page 96. 15. It is also well settled law that a person can acquire right of co-tenancy by acquiescence and estoppel. In addition to one of the modes specified under Section 33 of the U.P. Tenancy Act but it must be pleaded at the earliest opportunity where allegations in the plaint do not clearly amount to raise the plea of estoppel and acquiescence and if the plaintiff is allowed afterwards to raise the plea it will amount to springing surprise upon opposite Party which will put him to unfair position and cause prejudice as has been held in 1957 R.D. page 35, 1957 R.D. page 66, A.I R. Allahabad 1939 page 194 A.I.R. Patna 1942 page 71, A.I.R. Nagpur 1934 page 51. 16. It is well settled law that admission of a party is a best piece of evidence as has been held in 1960 S.C. page 100, 977 S.C. page 410 but it is also well settled law that it a plea has not been taken no amount of evidence can be considered as has been held in 1930 P. C. page 57. 17. It is also well settled law that new case or plea cannot be allowed to be taken for the first time in appeal as has been held in 1963 S.C. page 302, 1961 S.C. page 1097. 18. It has been concurrently held by both the courts below that plaintiff did not inherit any share in the land in suit from her husband sumera who had not inherited any share from his father Pancha. This finding has not been challenged and is hereby confirmed. 19. 18. It has been concurrently held by both the courts below that plaintiff did not inherit any share in the land in suit from her husband sumera who had not inherited any share from his father Pancha. This finding has not been challenged and is hereby confirmed. 19. The plaintiff did not take the plea of acquiring co-tenancy right by estoppel and acquiescence in her plaint and its reading does not lead to any inference of having taken such plea. It was for the first time in the memorandum of first appeal this plea was taken per para 2 and 5. Thus it is clear that the plea which ought to have been taken at the first instance in the plaint was not taken, therefore, in view of the settled view mentioned above that such plea should be taken specifically and clearly in unambiguous terms at the earliest opportunity which was not done, therefore, in my considered opinion the learned Additional Commissioner in considering this plea taken for the first time in appeal allowed new plea to be raised and a new case to be made out for the plaintiff and which amounted to a defect or error in procedure and its finding, therefore, cannot be allowed to stand which are liable to be set aside. 20. It was argued on behalf of the plaintiff that both the courts below have found the plaintiff to be in possession and to be paying rent that the entry from 1358 fash is a long standing entry, therefore, the plaintiff became co-tenant due to it as held in 1970 R.D. page 2. It is true that both the courts below held the plaintiff to be in possession. That finding cannot be challenged. In 1970 R.D. page 2. The long standing entries were of about 40 years in favour of the mother and the daughter had claimed inheritence on us basis which was allowed. It is not the case here and that ruling is not helpful in view of the fact that no such plea was taken. 21. It was argued that what will be the status of the plaintiff who is in possession. It is not the case here and that ruling is not helpful in view of the fact that no such plea was taken. 21. It was argued that what will be the status of the plaintiff who is in possession. Answer to this quarry is not essential she cannot be held to be co-tenant merely on the basis of possession and granting of bhumidhari Sanad; validity of which is not free from doubt in view of 1968 A.L.J. page 167, I do not propose to discuss this ruling as to whether it applies with full force to the present case or not and whether it is distinguishable or not, as it is not necessary in view of the aforesaid conclusion. 22. In view of the above, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are confirmed, and the plaintiff's suit for division stands dismissed. Parties shall bear their own costs of this appeal.