JUDGMENT Kaushal Kishore, Member - These are four connected second appeals against the judgment and decree dated 17-2-1977 by the learned Additional Commissioner, Bareilly Division, Bareilly, dismissing the appeals and maintaining the judgment and decree dated 15-7-1975 by the learned trial court in four connected suits under Section 229-B of the U.P.Z.A. & L.R. Act. The four suits were dismissed by the learned trial court. 2. I have heard the learned counsels for both the parties and have also perused the record. 3. The facts of the cases are briefly that the plaintiff' had claimed his rights as sirdar or co-sirdar in respect of different lands on the basis of his being real nephew of Dipi after the death of Smt. Kaushalya, widow of Dipi. The defendant. Ram Swaroop claimed his rights as the daughter's son of Dipi and Kaushalya and having prior claim than the plaintiff. The defendant. Ram Swaroop claimed himself to be the son of Mathuria who in turn was claimed to be the daughter of Dipi and Kaushalya. The plaintiff claimed that Smt. Mathira was the daughter of Smt. Kaushalya but not of Dipi since Kaushalya had brought Mathuria as a child of about one year to the house of Mathuria as a child of about one year to the house of Dipi at the time of KAR 30 with him. It was further claimed by the plaintiff that Smt. Mathirlya died issue less and Ram Swaroop was the son of Narain with his second wife, Smt. Triveni. Thus the whole case hinges on whether Smt. Kaushalya was married to Dipi for the second time of only one, whether daughter Mathuria was born to her of her first husband or of Dipi, and whether Smt. Mathuria had given birth to Ram Swaroop or Triveni was his mother. 4. The appellant's counsel has taken mainly three grounds in appeal, that the burden of proof was wrongly placed on the plaintiff, that the documents proved that Smt. Mathuria was not the daughter of Dipi and Ram Swaroop is the son of Triveni and Narian and that the first appellate court had to appraise the evidence on facts which was not done and thus Rules 37 and 38 of the Revenue Court Manual were not followed. I would prefer to discuss the last ground first. I would prefer to discuss the last ground first. Attention has been drawn by the learned counsels to the provisions contained in Rule 38 of the Revenue Court Manual which required that a court of first appeal must subject the evidence on record regarding the points raised before it in appeal, to a fresh examination independently on the appraisement of the evidence by the learned trial court and its judgment must show that it has done so. The respondent's counsel has argued that these are only guidelines and not the statutory provisions of law. In support rulings reported in AIR 1967 S.C. 1124 , A.I.R. 1967 Alld. 1376 R.D. 261 and 1978 R.D. 48 have been cited. In these pronouncements, it has been held that it is not the duty of the appellate court, when it agrees "with the view of the learned trial court on the evidence either to restate the effect of evidence or to reiterate the reasons given by the trial court. Expression of a general agreement would suffice. Further, if only some salient features of the case are referred to and not the contrary ones, the order would not be bad for such commission. However, when the appellate court reverses the findings of the trial court, the omission on its part to consider the material evidence and the finding of fact is fatal and vitiates the appellate judgment. 5. The above position is applicable in respect of civil suits. In revenue oases, the requirements of Rule 38 of the Revenue Court Manual cannot be overlooked, particularly when even the trial court had not appraised the evidence of the defendant in support of that party 's claim. 6. Coming to the first ground relating to burden of proof, it would be useful to note that the plaintiff-appellant claimed his rights through succession being brother's son while the defendant claimed his rights again through succession being the daughter's son and having prior claim. 6. Coming to the first ground relating to burden of proof, it would be useful to note that the plaintiff-appellant claimed his rights through succession being brother's son while the defendant claimed his rights again through succession being the daughter's son and having prior claim. The learned trial court has framed issue numbers 2-Ka an 2-Kha as below : - " 2- d& D;k oknh Jherh dkS'kY;k ds ifr nhih dk lxk Hkrhtk gS\ [k& D;k jke Lo:i dkS'kY;k dk lxk usoklk gS\" It is obvious that even if the issue number 2-Ka was decided in favour of the plaintiff, as it was actually decided by the teamed trial court, he would not succeed to Dipi unless the defendant's claim was disproved. The defendant's claim included two suppositions ; that Smt. Mathuria was the daughter of Dipi and Kaushalya, and that Ram Swaroop was the son of Smt. Mathuria. In the trial court, oral and documentary evidence was led by both the parties to substantiate their respective claims and although the learned trial court did not indicate against the issues on whom the burden of proof lay, it follows from the nature of the case that the issue number 2-Ka was to be proved by the plaintiff while the burden of proof in respect of the issue number 2-Kha lay on the defendant and plaintiff, both. After the plaintiff had specifically stated the circumstances that Kaushalya was the second wife of Dipi having brought Mathuria, a daughter of within one year with her at the time of KARAO, that Mathuria was married to Narain and later died issue-less, that Smt. Triveni was later married to Narian and Ram Swrroop is the son of Narian and Smt. Triveni and also produced evidence to substantiate this claim, it lay on the defendant to prove his own case. The appellant's counsel has cited rulings reported in A.I.R. 1958 Patna 600 and A.I.R. 1954 Orissa 40 to clarify the position as to wrongly placing the burden of proof. In the former case it was held that the plaintiff who based her claim on the fact that she was the daughter of the last male holder, she had to prove that fact by cogent evidence and in doing so, she cannot take the advantage of the failure of the defendant to prove his case. In the former case it was held that the plaintiff who based her claim on the fact that she was the daughter of the last male holder, she had to prove that fact by cogent evidence and in doing so, she cannot take the advantage of the failure of the defendant to prove his case. In the latter case also the same principle has been enunciated, which is that when rival claims of parentage exist, one party cannot take advantage of the other's failure to prove his case. The respondent's counsel has shown a subsequent ruling reported in A.I.R. 1959 S.C. 1204 where in it was held that the onus of proof loses much of its importance where both the parties have adduced their evidence. The correct position in respect of issue number 2-Kha is that the burden lay on both the parties and it was necessary for the learned trial court to appraise the evidence produced by the defendant's well and in its absence, the first appellate court should have performed this duty. A wrong approach with regard to onus of proof vitiates a finding of fact. This is obvious from the fact that the finding on issue number 2-Kha in favour of the defendant is not based on any appraisal of evidence adduced by the defendant positively proving his case. The bias created by a wrong approach with regard to onus of proof also effects the reasoning and conclusions derived from the evidence. If the burden was correctly placed, it is quite possible that the appraisal of both the parties' evidence would have been different and the findings could also be other than reached by the learned trial court and later by the first appellate court. 7. The learned Additional Commissioner has rightly observed that the appellant would have no right if Ram Swaroop was proved to be the daughter's son of Dipi and Kaushalya. However, the issue as framed does not require Ram Swaroop to be the daughter's son of Dipi as well, perhaps on account of the plea of the defendant that Kaushalya was entered in papers in her own right. But no such issue of Kaushalya's own right was framed, though the evidence was produced by the defendant on this point. However, the issue as framed does not require Ram Swaroop to be the daughter's son of Dipi as well, perhaps on account of the plea of the defendant that Kaushalya was entered in papers in her own right. But no such issue of Kaushalya's own right was framed, though the evidence was produced by the defendant on this point. Then the observation of the learned Additional Commissioner that it was the duty of the plaintiff to prove that Ram Swaroop was not born to Smt. Mathuria and that Smt. Mathuria was not born of Dipi and Kaushalya, is not correct as negative aspects cannot be conclusively proved in such cases the alternative parentage must be proved by the respective claimants and the court has to derive its conclusion after weighing both sides' evidence and its reliability. The learned trial court after discussing the oral evidence of the plaintiff's witnesses has jumped to the conclusion that Smt. Mathuria was the daughter of Dipi and Kaushalya. The evidence oF the defendant's witnesses have not been discussed at all and it has been considered sufficient to say that from the evidence of D.W.S. Ganga Ram, Sita Ram and Narain, it is proved that Ram Swarup is the son of Smt. Mathuria. Of the five P.W.S. none has been considered worthy of reliance, just because some minor discrepancies occur, particularly in respect of a witness of 80 years of age, it was too much to expect him to correctly remember events taken place 65 years ago and with such passage of time a certain amount of approximation and weakness of memory as to the dates should be deemed likely. There is no doubt that misplaced burden of proof has biased the findings of the courts below, which must, therefore, be deemed to be perverse and so, vitiated. 8. There is not much to say about the non-appraisal of certain documents as argued by the appellant's counsel. This is the duty of the learned trial court and the first appellate court who both have, no doubt, considered the whole evidence and would have reached a proper finding but for the wrong approach discussed above ; the judgment and decree of the courts below cannot be upheld in view of the discussion above. This is the duty of the learned trial court and the first appellate court who both have, no doubt, considered the whole evidence and would have reached a proper finding but for the wrong approach discussed above ; the judgment and decree of the courts below cannot be upheld in view of the discussion above. Instead of taking up appraisal of the evidence for the finding of fact in these appeals, it would be more appropriate if the cases are remanded to the learned trial court with a direction to appraise the whole evidence, considering the onus of proof in respect of issue number 2-Kha on both the parties. 9. The appeals are, therefore, allowed and the judgments and decrees of both the courts below are hereby set aside. The cases are remanded to the learned trial court with the direction that the finding be given on the issues after a re-appraisal of the whole evidence, placing the onus of proof of the alternative parentage of Smt. Mathuria and Ram Swaroop on the respective parties claiming that parentage and the cases be decided accordingly. 10. This order will govern second appeal nos. 113 to 116 of 1976-77 Budaun.