JUDGMENT J.B. Singh, Member - This is a defendants second appeal against judgment and decree dated 6-1-1976 passed by Additional Commissioner, Agra Division, Agra, allowing appeal no. 181 of 1974-75, Aligarh judgment and decree dated 21-11-1974 in appeal no. 200 of 1973-74, Aligarh decreeing plaintiff's suit by reversing judgment and decree dated 28-3-1973 passed by Assistant Collector 1st Class Aligarh dismissing suit of the plaintiff under Section 229-B of Act I of 1951. 2. The plaintiff had filed the suit for declaration to be consider in possession with defendant no. 1 who was recorded in representative capacity; that their father Behari had also been co-tenant. 3. The defendant had not contested the suit. It is alleged that they were not served. 4. It is also in evidence that the file of the learned Additional Commissioner's court of appeal no. 200 of 1973-74 alleged to have been decided on 24-11-1974 was lost. The plaintiff had filed for copy of judgment and on 31-5-1975 order for reconstructing the file was passed and was reconstructed then the judgment and decree dated 6-1-1976 was passed. 5. I have heard the learned counsel for the parties and have perused the record. 6. It has been argued that the method of reconstruction is highly illegal. It has not been reconstructed by any certified copy of the judgment and decree; that only steno's copy of judgment was made the basis of reconstruction which was highly illegal; that the statement of Anokhey Lal, Advocate was also not got verified by him which was the basis of the judgment of the lower appellate court ; that the affidavit filed with memo of second appeal and rejoinder filed on 8-4-1982 and counter-affidavit of 5-5-1976 prove no service on the defendant either for appeal or for the suit and specific denial of having engaged Anokhey Lal prove illegal reconstruction of the file of the court of learned Additional Commissioner. Reliance has been placed on 1982 R.R. page 31. 7. It has been argued in reply that the judgment and decree passed by the lower appellate court after elaborate enquiry and after reconstructing the file being basis of admission on behalf of the defendant no appeal lies ; that Anokhey Lal Advocate would not have appeared unless engaged by the defendant for admitting the plaintiff's case ; that the reconstruction was according to rules and no illegality is committed. 8. 8. The application under Section 5 of the Limitation Act moved by the appellant's counsel is allowed in the special circumstances of the case as this appeal is within time from judgment dated 6-1-1976 for reconstituting the file of appeal no. 200 of 1973-74 as it was missing and it is disputed that Sri Anokhey Lal was engaged a counsel for appellant the then respondent after substitution as their of Behari. As sufficient and reasonable cause has been shown as they exist. The appeal without application under Section 5 of the Limitation Act from order dated 6-1-1976 is within time. 9. The argument that this appeal is not maintainable as the first appeal was decided on the basis of admission on behalf of the appellant is disputed because the reconstructed file does not show reconstruction about the admission of the counsel of the appellant by enquiry from him or getting admission by him written on the order sheet of 21-11-1974 or getting the file reconstructed also regarding order sheets about date fixed and about filing of the appeal and the endorsement made in the office on the memo etc. therefore, by mere reconstruction of the judgment by the lower appellate court is not enough. The defendant's father of the present appellant was not served in the trial court and had no knowledge of the first appeal and there is no material on the file of lower appellate court so reconstructed ; that appellant was served and had appeared in the first appeal and had engaged counsel who had written so. They are all denied in the affidavit and rejoinder. The counter affidavit is not very much helpful which is not based on personal knowledge about the alleged engagement of Sri Anokhey Lal by the appellant and the alleged admission made by Sri Anokhey Lal. Therefore, the judgment so reconstructed cannot be safely deemed to have been based on the alleged highly disputed admission by Sri Anokhey Lal the alleged counsel for the appellant. Therefore, this appeal is liable to be allowed and the judgment and decree passed by the lower appellate court are liable to be set aside and the first appeal is liable to be remanded for fresh decision according to law after hearing the parties ignoring the alleged admission said to have been made by Sri Anokhey Lal Advocate alleged to have been engaged by the appellant. 10. 10. I cannot beg leave of this appeal unless I mention that Khatauni extract of 1380 to 1382 Fasli and 1383 to 1387 Fasli appears to have been issued on 5-5-1976 and 26-2-1976 respectively are to be found in the trial court's file, how they came on trial court's file is mysterious as the suit was dismissed on 28-3-1973 then the extract issued in 1976 could not have existed on the trial court's file. These extracts should not be taken into consideration while deciding the first appeal. If in any case they are thought to be considered while deciding the appeal the present appellant who will be respondent in first appeal will be allowed to rebut them. 11. In view of the above, this appeal is allowed. The judgement and decree passed by the lower appellate court are hereby set aside and the first appeal is remanded to the court of Additional Commissioner, Agra Division, Agra, for deciding the first appeal on merits after hearing the parties after making required amendment in the memo of first appeal regarding substitution of the present appellant in place of his father respondent in first appeal.