JUDGMENT I.B. Singh, Member - This is a defendant second appeal against judgment and decree dated October 7, 1974 passed by learned Additional Commissioner, Agra Division, Agra, dismissing appeal No. 126 of 1972-73 upholding the judgment and decree passed be Assistant Collector 1st Class, Aligarh dated December 26/27, 1972 decreeing the suit of the plaintiff-respondent Smt. Gayatri Devi under Sections 229-B, 209 of Act 1 of 1951. 2. The plaintiff filed the suit that Badri Prasad was Bhumidhar and Sirdar of the disputed land who died issue-less leaving; the plaintiff as his widow; that her application for mutation was rejected and defendants 2 and 3 alleged to be brother of Badri Prasad and defendant No. 1 alleged wrongly to be his daughter and mutation was wrongly ordered in her favour, that defendants 2 to 5 were found in possession in the proceeding under Section 145 of Criminal Procedure Code, hence the suit for declaration with relief for possession. 3. The suit was contested by defendant No. 1 who alleged that the plaintiff was not the widow of Badri Prasad and worked as a labourer in the village that she being daughter of Badri Prasad and his heir. 4. The suit was contested by defendant Bahori alleging that the plaintiff was not the widow of Badri Prasad that the defendant No. 1 was the daughter of Badri Prasad that Badri Prasad had given the land at the time of his death to him and his brother Dhani Ram since then they are in possession. 5. The suit proceeded ex parte against the remaining defendants. 6. By order dated July 23, 1982 on application dated November 12, 1974/November 25, 1974, certified copy of judgment in mutation case dated June 27, 1972 and copy of judgment under Section 145 of Criminal Procedure Code dated March 30, 1972 were admitted in evidence and in rebuttal copy of voter's list of 1980 has been admitted. 7. I have heard the learned counsel for the parties and have perused the record. 8. It has been argued that parties are Brahmins by caste and no custom of Karao in that caste can be presumed unless specifically pleaded. Reliance has been placed on 1978 A.W.R. page 315; that only P.W. 6 Satya Deo Sharma stated that Karao i.e. punarvivah prevails amongst the community no one else stated so; that remarriage lias to be proved like marriage. Reliance has been placed on 1978 A.W.R. page 315; that only P.W. 6 Satya Deo Sharma stated that Karao i.e. punarvivah prevails amongst the community no one else stated so; that remarriage lias to be proved like marriage. Reliance has been placed on 1972 S.C. page 1153 1966 (S.C.) page 614, 1965 (S.C.) page 1564 and 1970 Mysore page 201; that P.W. S. 4 and 5 Durga Singh and Ram Prakash to not fulfil the requirements of Section 6 of Hindu Widow Remarriage Act and it has been wrongly held by the courts below that the Act does not require performance of any ceremonies and that the lower appellate court based his finding on surmises, that if the plaintiff would not have been the widow of Badri Prasad there was no reason why she would have litigated; that it is proved that she has been set up by persons whom she had agreed to sell the disputed land; that the judgment of mutation case and of proceedings under Section 145 Cr.P.C. have been ignored wrongly and possession of the defendants is fatal to the case of the plaintiff; that required issues were not framed. 9. It has been argued in reply that it is admitted that one Gayatri Devi was the wife of Badri Prasad. No copy of death register of 1st wife has been filed; that the copies of voter lists and the statement of P.As clearly proved that the plaintiff is the wife and widow of Badri Prasad and she had remarried Badri Prasad; that the ruling relied upon about performance of ceremonies of remarriage and their proof are regarding criminal cases. Reliance has been placed on A.I.R. 1980 Allahabad page 109; that the doctrine of factum valet is applicable that concurrent findings of fact of both the courts below cannot be interfered with. Reliance has been placed on 1972 R.D. page 27, 1979 R.D. page 240, 1978 A.L.J. page 1010 (S.C.), 1969 R.D. page 295, A.I.R. 1976 (S.C.) page 164. 10. It is admitted case of the parties' that the disputed land was Bhumidhari and Sirdari of Badri Prasad. 11. Both the courts below did not give finding whether defendant No. 1 is the daughter of Badri Prasad or not and the court did not frame issue about it although the parties have led evidence. This is not a proper approach. It is admitted case of the parties' that the disputed land was Bhumidhari and Sirdari of Badri Prasad. 11. Both the courts below did not give finding whether defendant No. 1 is the daughter of Badri Prasad or not and the court did not frame issue about it although the parties have led evidence. This is not a proper approach. Daughtership is denied by the plaintiff and is claimed by the defendant the issue and finding are essential to finalise the litigation between the parties and also future litigation. 12. The perusal of the plaint reveals that the plaintiff did not claim remarriage with Badri Prasad as his second wife and rather claimed to be his only wife and widow, therefore, as there was no pleading of re-marriage the evidence about remarriage and its ceremonies should not have been considered by both the courts below because unless the matter is specifically pleaded no amount of evidence can be looked into as has been held in 1930 (P.C.) page 54. In view of this established view in the matter both the courts below erred in deciding remarriage of the plaintiff with deceased Badri Prasad. 13. Even if for argument's sake it is to be granted that the plaintiff claimed to be wife and widow of the deceased i.e. the would be his widow even if married, therefore, the evidence of remarriage was not barred by principle of not pleading re-marriage, therefore not looking into evidence led as held by the Privy Council mentioned even thereafter appraising the judgments of both the courts below. J strongly feel that both the courts below hare arrived to wrong conclusion by basing judgments on mere surmises and conjectures and not secrutinizing the evidence of P.Ws. and D.Ws. as it is required by law, therefore, the judgments of both the courts below being not based on appraisal of evidence on record cannot be allowed to stand. It would be proper to demonstrate the approach by both the courts below to above how they are based on mere surmises and conjectures and are not based on proper and legal appraisal of evidence on record. 14. It would be proper to demonstrate the approach by both the courts below to above how they are based on mere surmises and conjectures and are not based on proper and legal appraisal of evidence on record. 14. In paragraph 6 of the judgment of 1he lower appellate court legal notice of Karao and its ceremonies have been taken by the learned Additional Commissioner who has stated as to what Karao if and he has surmised that the defendants and D.Ws. have failed to tell why the plaintiff came from Delhi to make dung cakes there must have been some material reason for her coming to this village from Delhi and it appears to be that he got a second husband in the village. This is all based on surmises. The defendants have clearly pleaded and stated that Balbir Singh set up her and is financing the litigation and plaintiff admits in her statement that she has executed agreement to sell the disputed land to Balbir Singh as she had borrowed money from him for this litigation. 15. The observation of learned Additional Commissions that after Hindu widows Remarriage Act of 1856 there is nothing to prove remarriage by any custom and only factum of remarriage is enough. The Act only legalises remarriage of Hindu widows. Section 5 of the Hindu Widows Remarriage Act runs as follows : "6. Ceremonies constituting valid marriage to have same effect on widow's marriage whatever, words spoken, ceremonies performed or engagements made on the marriage of a Hindu female who has not been previously married, are sufficient to constitute a valid marriage, shall have the same effect if spoken, performed or made on the marriage of a Hindu widow, and no marriage shall be declared invalid on the ground that such words, ceremonies or engagements are inapplicable to the case of a widow." The above Section 6 clearly shows that ceremonies are to be performed for a valid remarriage by a widow which were essential for performance regarding marriage of a Hindu female. 15-A. Section 7 of the Hindu Marriage Act No. XXV of 1956 also requires a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. That section runs as follows: "7. 15-A. Section 7 of the Hindu Marriage Act No. XXV of 1956 also requires a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. That section runs as follows: "7. Ceremonies for a Hindu marriage: (i) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of cither party thereto. (ii) Where such rites and ceremonies include the Saptapadi (that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken." 16. In view of the above it is clear that the learned Additional Commissioner took highly illegal approach in the case and based his findings on conjectures and surmises therefore his findings are liable to be interfered with in the second appeal and cannot be allowed to stand. 17. It is true that in Bhaurao Shanker Lokhande and another v. State of Maharashtra and another, A.I.R. 1965 S.C. 1564 Kamval Ram and others v. The Himachal Pradesh Administration, A.I.R. 1966 (S.C) 614; Ram Singh v. Sushila Bai and another, A.I.R. 1970 Mys. 201 and Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, A.I.R. 1971 S.C. 1153. In bigamy casts proof of solemnization of second marriage in accordance with essential relevant rites applicable to parties is a must for conviction for bigamy. It does not mean that these rulings are applicable only in criminal cases. They are applicable also in civil and revenue cases for proving solemnization of second marriage in accordance with essential religious rites applicable to parties. The argument on behalf of the respondent that they arc not applicable to the revenue and civil cases has got no force and even in Smt. Rajdei v. Lautan and another, A.I.R. 1980 Alld. 109 it has not been Laid down otherwise. In if has been Laid down that if ceremonies for marriage performed according to custom of caste Biradari, Paupuja done Saptapadi not shown to be one of ceremonies necessary for valid marriage according to customs of caste, hence it was held valid marriage has taken place. 18. The plea of custom valid is not applicable to such remarriage. It was applicable under Hindu Law regarding marriage of minors. 19. In Badri Prasad v. Dy. Dir. of Consolidation and others, 1978 Alld. L.J. 1010. 18. The plea of custom valid is not applicable to such remarriage. It was applicable under Hindu Law regarding marriage of minors. 19. In Badri Prasad v. Dy. Dir. of Consolidation and others, 1978 Alld. L.J. 1010. Presumption under Section 114 of the Indian Evidence Act was raised regarding marriage of a man and woman who lived as husband and wife for about 50 years and proof as to factum of marriage by examining the priest and other witnesses was held to be not necessary. The present case is not of that type. In it only about 10 to 15 years are involved and the said presumption cannot be raised as will be shown below. 20. In Lurkhur v. Jhuri and others, 1972 A.W.R. 315 (H.C.) it has been held as follows by a Division Bench consisting of Hon'ble S.N. Singh and Hon'ble R.B. Misra. JJ. (now Hon'ble Judge of the Supreme Court); "Custom-Cannot be presumed in a particular community in a particular region. It has to be specifically pleaded and proved by cogent evidence." 21. The trial court did not mention as to what are the contradictions in the statement of D.Ws. and discarded the testimony of defendant No. 1 on flimsy grounds on minor contradictions. He based his findings only on National Register kept in Tahsil in which the name of the wife of Badri Prasad is written to be Bhagwati as stated by P.W. 3 Sri Jawala Prasad A.R.K. who admitted that the register was prepared by Bishan Swarup Lekhpal and not by him and Bishan Swarup is alive who has not been examined that the register is not like Kutumb register and its copy Ext. K-1 is not admissible in evidence; that register is not kept under any Act or any Rule and appears to be kept under some administrative order. Both the courts below lost sight of the fact that the fact of death of Gayatri Devi wife of Badri Prasad was never reported and her name was never deleted from Kutumb register or voter's list as has been admitted by Lekhpal P.W. 2 who was the Lekhpal when she died because it is admitted fact by the parties that first wife of Badri Prasad died one or two years prior to the death of Badri Prasad. It means in the voter's list copies of which have been filed the name of first wife of Badri Prasad continues although she died one or two year prior to the death of Badri Prasad and it thus appears that the plaintiff has taken advantage of this fact and appears to have imposed herself to be Gayatri Devi as widow of Badri Prasad. This fact is further fortified by the fact that the real name of the plaintiff is Ramshri as was put up to D.W. 1 defendant No. 1 by the learned counsel for the plaintiff in the end of her cross-examination. This fact has been very lightly brushed aside by the trial court that the learned counsel for the plaintiff has put up the question to the defendant; that there was no wife of Badri Prasad except this Ram shri mistake. 22. It will be seen that P.W. 1 the plaintiff admitted to be real resident of Pahari Dhiraj, Delhi and she had kept a husband in her father's house and stated that "he became widow after giving birth to a daughter. She stated that from Salarpur Uttar Dhewar and barber of Larhfarh and Ram Prakash of side Alampur had gone to Delhi with Badri Prasad for her remarriage with Badri Prasad and a Pandit was called by her father and the ceremony of remarriage was performed. Ram Prakash P.W. 5 stated that from his village Saidalpur three persons had gone in the Karao and Uram amongst them has died which is contradictory to the statement of plaintiff P.W. 1 and according to him no Purohit was called which is again contradictory of the statement of plaintiff P.W. 1. He admits that Badri Prasad had filed complaint against him therefore he had been inimecal to Badri prasad hence it is not natural that Badri Prasad would have taken his enemy in his remarriage with the plaintiff. He had appeared as a witness against defendant hence the testimony of P.W.1 and P.W. 5 regarding alleged Karao cannot be believed safely. Durga Singh P.W. 4 at first stated that ho had gone in the Karao which was performed in his presence then stated that he had not gone in the Karao. He and P.W. 5 pleaded ignorance of Balbir Singh coming to court while P.W. 1 admitted that Balbir Singh had come to the court. Durga Singh P.W. 4 at first stated that ho had gone in the Karao which was performed in his presence then stated that he had not gone in the Karao. He and P.W. 5 pleaded ignorance of Balbir Singh coming to court while P.W. 1 admitted that Balbir Singh had come to the court. P.W. 3 belongs to the village of Balbir Singh as so they arc not independent witnesses, therefore, cannot be safely believed. Satya Deo Sharma P.W. 6 admitted not to have gone to Karao and stated that Karao i.e. Punarvivah is prevalent at his place amongst Brahmins. His solitary statement cannot be believed that Karao is prevalent amongst Brahmins of the region. The statements of P.W.1, P.W. 4 to 6 that the first wife of Badri Prasad was Bhagwati cannot be safely believed. It has been so stated for the purposes of this case on the basis of the national register kept in tehsil mentioning Bhagwati to be wife of Badri Prasad, that register has been dealt with above. It is also very significant that in the plaint name of defendant No. 1 has been mentioned to be Bhawan Devi alias Bhagwati. She could not have been named alias Bhagwati if her mother's name would have been Bhagwati. It has been proved by D.Ws. that defendant No. 1 is the daughter of Badri Prasad deceased and there is no reason why she should not be held because P.Ws. failed to prove by any cogent evidence that she is daughter of Bal Kishan. It is, therefore, held that defendant No. 1 is daughter of Badri Prasad deceased. 23. In view of the above overwhelming evidence is that the plaintiff has failed to prove remarriage with Badri Prasad. It has been held that the plaintiff had neither remarried Badri Prasad nor is his widow and the findings of the courts below contrary to it based on surmises and conjectures and not on appraisal of evidence on record are hereby set aside. 24. In view of the above, this appeal is liable to be allowed and the plaintiff's suit is liable to be dismissed. 25. In view of the above, this appeal is hereby allowed with costs and the judgments and decrees passed by both the courts below arc set aside and the plaintiff's suit is dismissed with costs although.