JUDGMENT D.S. Mishra, Member. - This is a second appeal filed by Ahmad Jan and others against the judgment and decree dated 5-8-1976 passed by the Additional Commissioner, Rohilkhand Division. 2. The facts giving rise to this appeal are that respondent no. 1 filed a suit for division of holding against the appellants and respondent no. 2 claiming her ?rd share in the land in suit. The suit was contested on behalf of the appellants that she was not co-tenant and had lost her rights by remarriage. 3. After considering the evidence on record and hearing the parties the trial court decreed the plaintiffs suit. The defendants went in appeal but the appeal was dismissed by the Additional Commissioner upholding the judgment of the trial court. Feeling aggrieved the defendants have filed this second appeal before the Board. 4. I have heard the learned counsels for the parties and have perused the record. It is admitted to the parties that respondent no. 1 was the widow of Ali Jan, the deceased brother of appellants. They all claimed their rights through Smt. Sakina who was the mother of the appellants and also the mother of the husband of respondent no. 1 Holding respondent no. 1 the widow of the pre-deceased son, the trial court awarded ?rd share to her in the land in suit which belonged to decease Smt. Sakina, In the present appeal the learned counsel for the appellant has taken a plea that the land in suit was situated in Sirsi Town which was a Town Area Committee and the proforma-party was therefore the local party i.e. Town Area Committee and not the Gaon Sabha. In this way proper party was not made a party to the suit. The learned counsel for the respondent in reply to this question said that this plea was never raised by the defendant-appellants in their written statement. They have also not raised it before the First Appellate Court and therefore they cannot raise this question at the stage of the second appeal. Rule 13 of the Order 1 of the Civil Procedure Code is clear in this respect that a plea for misjoinder or misjoinder must be taken at the earliest possible opportunity or at least before the issues are settled and such an objection cannot subsequently be taken and shall be deemed to have been waived. Rule 13 of the Order 1 of the Civil Procedure Code is clear in this respect that a plea for misjoinder or misjoinder must be taken at the earliest possible opportunity or at least before the issues are settled and such an objection cannot subsequently be taken and shall be deemed to have been waived. The appellant therefore cannot take this objection at the stage of second appeal. The learned counsel for the appellant also argued that no proper issues were framed by the trial court for example no question of co-tenancy right of the plaintiff respondent no. 1 was framed by the trial court. This is also a technical plea which does not affect the appeal on merits and is liable to be ignored within the meaning of Section 99 of the Civil Procedure Code. This was a suit under Section 176 in which it was not dispute that the respondent no. 1 was the widow of one of the brothers of the defendants and therefore the question of co-tenancy was not mandatory. In this particular suit the dispute of share was involved and accordingly issue no. 1, regarding the share of the parties was framed by the trial court. A plea was also taken that she had taken to remarriage and therefore issue no. 3 was framed accordingly. The trail court elaborately has answered issues no. 1 and 3 appraising the evidence before him and I do not find any illegality if no other issue was framed. The trial court elaborately discussing the evidence of the parties came to the conclusion that the plaintiff-respondent no. 1 has ?rd share in the land in suit and decreed the suit and lower appellate court upheld the judgment of the trial court in first appeal I am therefore, not inclined to interfere with the concurrent findings of fact. 5. I accordingly find no force in the second appeal and it is hereby dismissed with costs throughout.