JUDGMENT Kaushal Kishore, Member - This is a defendant's second appeal against the judgement and decree dated March 25, 1983 by the learned Additional Commissioner, Meerut, dismissing the appeal against the judgment and decree dated August 6, 1982 by the learned trial court declaring share of the plaintiff. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The land in suit belonged to Pirthi who died in 1962 during Chakbandi proceedings and his three sons Durga, Babu and Ziley were recorded in his place during Chakbandi. Barfi, the widow of Daroga a predeceased son of Pirthi since 1949 had some dispute with the three defendants some months back and filed a suit claiming share and partition of the holdings. The defendants claimed that Barfi had remarried Ziley in the customary manner and had lived as his wife from about 2-3 years after the death of Daroga and had no share due to remarriage, estoppel and acquiescence. The learned trial court held that there was no remarriage, no estoppel operated and even the bar under Section 49 of the U.P.C.H. Act was not there. The learned Additional Commissioner Considered in first appeal only the question of remarriage, inspite of ground No. 8 in the first appeal about the bar under Section 49 of the U.P.C.H. Act, and holding that there was no remarriage, dismissed the appeal. 4. In this case two questions are material, first the remarriage or Karao or 'Baithna' of Smt. Barfi with Ziley resulting in extinction of her title and share, and the other about the bar under Section 49 of the U.P.C.H. Act, besides estoppel and acquiescence. The first question is contained in issue number 2 which was considered by the courts below at length but in an unbalanced manner. The other question was considered by the learned trial court only in issue No. 1 and not by the learned Additional Commissioner at all inspite of specific ground number 8. 5. About the remarriage of Barfi, the defendants' case is that it took place about 1951. This is said to be the reason why she was not mutated in Chakbandi to the death of Pirthi along with her three brothers in law. The questions of estoppel and acquiescence have also been argued. 5. About the remarriage of Barfi, the defendants' case is that it took place about 1951. This is said to be the reason why she was not mutated in Chakbandi to the death of Pirthi along with her three brothers in law. The questions of estoppel and acquiescence have also been argued. The learned counsel argued that the finding of fact on remarriage by the courts below is perverse and relevant evidence was not considered. I agree that the learned first appellate court's conclusion that there could be no remarriage because first wife of Ziley Singh was alive, is not based on correct legal position. This hypothesis was obviously wrong because the bar to second marriage came in 1956. A conclusion based on illegal impression raised a question of law. It was held in Nizamuddin v. Mangalsen and others, A.I.R. 1949 Alld. 699 that- "The test of the finding being binding or not in the second appeal is whether it was legally arrived at, which is the same thing as to say whether the inference drawn from the facts found was legally correct." This ruling supports the above view fully. 6. It is seen that both the courts below have omitted consideration of important documentary evidence filed by the defendants the 4 extracts from the birth and death register, showing birth of a daughter of Daroga on May 28, 1946, death of the daughter of Daroga on June 10, 1949 death of Daroga on June 16, 1949 and birth of the daughter of Ziley on Oct. 1, 1954. They confirm the statement of Durga, D.W. 2 and provide material discrepancies in the plaintiff's case. Therefore, it becomes necessary to reconsider the finding of fact. In Ganga Singh v. Santosh Kumar, A.I.R. 1963 Alld. 194, it was held that a finding of fact is illegal if an arising at it the court completely ignores a relevant and vital piece of evidence. Again, in Sonawati v. Shriram, 1968 R.D. 151 (S.C.) it was held that lower appellate court in arising at its conclusion ignoring important piece of evidence on record, its conclusion is not binding in the second appeal. 7. Irrelevant or incorrect impressions and conclusion abound in the findings by the courts below. Again, in Sonawati v. Shriram, 1968 R.D. 151 (S.C.) it was held that lower appellate court in arising at its conclusion ignoring important piece of evidence on record, its conclusion is not binding in the second appeal. 7. Irrelevant or incorrect impressions and conclusion abound in the findings by the courts below. The defendants' pleading that Barfi After 2, 3 years of the death of Daroga started living as Ziley's wife was taken to be a denial or remarriage, which could not reasonably be done. The event relates back to 1950-51 and I agree with the learned counsel for the appellant in his contention that when the two persons have lived as husband and wife for decades no strict proof of marriage is necessary. This is supported by the ruling reported in 1979 R.D. 89. 8. The learned trial court wrongly found that Pirthi died on June 16, 1949 and inspite of discrepancies pointed out in the sequence of birth of daughters, did not draw any conclusion from it and wrongly stated that there was no documentary evidence to show that Barfi was living as wife of Ziley. Another incorrect inference was that since the first wife of Ziley was living therefore it was likely that no daughters would be born of Barfi. The learned Additional Commissioner merely on the statement of Barfi that she held Ziley Singh as her son, ignored the customer that after a person's death his widow often settles as the younger brothers' wife in this rural region and lives as his wife. In view of this customary position any other pious relations can be called only exceptions in singular cases. The learned Additional Commissioner also misread the evidence by taking the statement of Durga that Daroga ki Ghar Wali Barfi Daroga ke marne ke bad Ziley ko baith gayee thi, to mean denial of remarriage of Barfi as there was no customer of 'Karao' in Tyagis according to the plaintiff. 9. In view of the above. I find it necessary to reconsider the finding of fact as to remarriage of Barfi again by considering also the evidence left out. I do not agree with the respondent's argument that in the second appeal finding of fact cannot be interfered with. 9. In view of the above. I find it necessary to reconsider the finding of fact as to remarriage of Barfi again by considering also the evidence left out. I do not agree with the respondent's argument that in the second appeal finding of fact cannot be interfered with. The rulings cited by him 1977 R.D. 362 and 1972 R.D. 27, relate to the general principle and not the exceptional cases or which rulings have been considered above. 10. The learned Commissioner without considering the 4 extracts from the birth and death register relied on the oral version of Barti that Daroga died 27 year back i.e. in 1951, that her daughter Salandri was of age 2 years then, that a daughter was born later and died some days after the death of Daroga. The learned Additional Commissioner also presumed that all the daughters of Ziley were born of his first wife Santo. This conclusion was chosen against the version of the defendants, because mother is not mentioned in any record, totally disregarding oral evidence on the point. These conclusions were not warranted by evidence. Merely on the basis of Kutumb register the statement of Durga could not be held incorrect. The learned Additional Commissioner without any basis made the observation that from Kutumb register younger to Salandri had died some days after the death of Durga as stated by her. In fact, there is no such entry of the death of any daughter of Daroga in the Kutumb register. 11. The Kutumb register and the extract from birth and death register point out to a different sequence. A daughter was born to Daroga on May 28, 1946 and died on June 10, 1949 at the age of 3, this checks correctly with the statement of D.W. 2 and also the defendant's case that Salandri was born to Barfii from Ziley. The birth of daughter of Ziley on October 1, 1954 has not been explained by the plaintiffs and it must be taken to mean that Salandri was born on October 1, 1954 and not on January 7, 1949. Daroga died on June 16, 1949 and Salandri Could not be 2 or 3 years old as stated by Barfi, when Daroga died. Daroga died on June 16, 1949 and Salandri Could not be 2 or 3 years old as stated by Barfi, when Daroga died. Also, the defendant's case that one daughter of Barfi died a few days before Daroga died, is confirmed by the extracts from the birth and death register which must be held more reliable than the Kutumb register. 12. The learned Additional Commissioner has overlooked the fact that Mangat Singh husband of Salandri was prosecuting the case on behalf of Barfi throughout and so it was in their interest that Barfii won the litigation. The learned Additional Commissioner in disregard to this fact, expected Slandri to be produced by the defendants to prove their case and in its absence drew conclusion that Salandri was the daughter of Daroga which is without reason and unwarranted by the circumstances. Material gain is always a strong motive and it often overrides consideration of relationship. I, therefore, cannot uphold the learned Additional Commissioner's finding and hold that Salandri born in 1954 to Barfi was the daughter of Ziley. 13. There are four more daughters of Ziley viz. Pavitra born in July 1957, Sarla born in April, 1962, Rekha Born in May, 1966 and Poonam born in January, 1970. Of these Sarla and Rekha are claimed by the defendants to be born from Barfi. The two courts below have not considered oral evidence on the question and have depended on surmises. No doubt, the oral evidence is divided but it must be considered that the defendant's version including that of father Ziley must be no less true that Barfi's version. Further Salandri is found to be born long after the death of Daroga and is admittedly daughter of Barfi. There is evidence that the three sons after the death of Pirthi lived separately but Barfi started cooking her meals separately only a few months before this litigation. There is nothing from her side with which brother she lived all these 27 or 28 years. No doubt she was living with Ziley. I fee inclined to believe the defendant's version that Barfi lived with Ziley as his wife and Salandri and Sarla and Rekha are her daughters from Ziley. 14. Coming to the question of bar under Section 49 of the U.P.C.H. Act the question of estoppel and acquiescence can not be overlooked. No doubt she was living with Ziley. I fee inclined to believe the defendant's version that Barfi lived with Ziley as his wife and Salandri and Sarla and Rekha are her daughters from Ziley. 14. Coming to the question of bar under Section 49 of the U.P.C.H. Act the question of estoppel and acquiescence can not be overlooked. In fact, the question of estoppel and acquiescence are closely related to above finding that Barfi had been living with Ziley as his wife upto 1975 at least. 15. I do not agree with the learned counsel for the respondent that the plea of bar under Section 49 of the U.P.C.H. Act not being taken in the written statement, it cannot be considered. In fact, issue No. 7 was general but at the trial court stage the questions of bar under Section 49 of the U.P.C.H. Act, estoppel and acquiescence were all considered under this issue. In the first appeal and second appeal both these questions have been raised. A question of law can be raised at any stage and the ruling reported in 1982 Revenue Reporter 82 will not, therefore, apply to this case. 16. The learned counsel for the respondents further cited rulings reported in 1980 R.D. Summary of Cases page 63, Karbalai Begum v. Mohd. Sayeed, 1980 R.D. 300, and Bhola Nath v. Mangaroo, 1981 R.D. 103 and further Ram Lakhan v. Deputy Director, 1983 R.D. 218 in support of his contention that when some co-sharers are recorded in representative capacity before, during and after Chakbandi, the claim of the remaining co-sharer is not barred under Section 49 of the U.P.C.H. Act and that possession of one co-sharer is possession of all. This principle is well settled but does not apply to the instant case. 17. There is no finding by the two courts below that it was a joint cultivation even after Chakbandi and the death of Pirthi. The pleadings number 24 and 25 of the written statement by the defendant 1 to 3 are specific on the point. The evidence is there that the three brothers had their ? separate share each in their respective separate cultivation. There is no finding by any court below that Barfi was also having her separate cultivation on share and the entry of three brothers was in representative capacity. The evidence is there that the three brothers had their ? separate share each in their respective separate cultivation. There is no finding by any court below that Barfi was also having her separate cultivation on share and the entry of three brothers was in representative capacity. Merely because Barfi claimed to be a co-sharer, the entry of the three brothers would not automatically become representative. Therefore, the principle laid down in the above ruling is not applicable. 18. Indeed, there was mutation under Section 12 of the U.P.C.H. Act during Chakbandi itself and it is settled law that it includes decision of title also. In Rishal Singh v. Board of Revenue, U.P. Alld., 1970 R.D. 413, it was held that even if mutation is uncontested, the bar under Section 49 of the U.P.C.H. Act applies. The learned counsel for the appellants cited further rulings Zafar Khan v. Board Of Revenue, U.P., 1984 A.W.C. 834, U.P. Unreported Revenue Cases 1982 and 1984, Rakesh Kumar Minor Ulg Smt. Shanti Devi v. Board of Revenue U.P., 1972 R.D. 326 and 1974 A.W.C. 209 in support of his contention that Section 12 of the U.P.C.H. Act is not summary in nature but binding as to title also and I quite agree with this settled law. In the instant case, a question of succession and title was raised during Chakbandi and for this reason, too, the rulings which relate to such question not raised during Chakbandi, will not be applicable, I therefore, hold that the bar under Section 49 of the U.P.C.H. Act was applicable to the plaintiff's claim in this suit which was liable to be dismissed on this ground alone. 19. I now take up an important aspect which effects the questions of estoppel and acquiescence. Under issue No. 2 it was to be found if Barfi had remarried Ziley. Even if her living with Ziley as his wife is not deemed sufficient to terminate her title as co-sharer, the effect of the manner of her living from the year of death of Daroga i.e. 1949 to 1976 has to be considered. In case of no evidence of Karao or remarriage ceremony, the remarriage is deemed not proved, the effect and consequence on subsequent even remain the same and do not differ. These were that she lived with Ziley as his wife, had daughters born and was reconciled to this status. In case of no evidence of Karao or remarriage ceremony, the remarriage is deemed not proved, the effect and consequence on subsequent even remain the same and do not differ. These were that she lived with Ziley as his wife, had daughters born and was reconciled to this status. She was not living separately. She did not maintain any share in the cultivation. The entries of the three brothers Durga, Babu and Ziley after the death of their father were not proved to be in representative capacity or to represent the interest of Barfi at any time during 1962 to 1976. There was total acquiescence from the side of Barfi. The learned trial court did not consider the effect of this acquiescence and merely said that estoppel under Section 115 of Evidence Act did not operate. The learned Additional Commissioner failed to consider these three questions considered by the learned trial court in issue No. 7. Even state had contested the claim of the plaintiff on the ground of estoppel. The above circumstance clearly indicate that the finding by the learned trial court was against reason and the learned Additional Commissioner omitted this finding and it must be held that the plaintiff's suit was also barred by estoppel under Section 115 of the evidence Act. 20. In consequence, I allow this appeal with costs, set aside the judgment and decrees by the courts below dated August 6, 1982 and March 25, 1983, hold the suit barred under Section 49 of the U.P.C.H. Act and the plaintiff's claim barred under Section 115 of the evidence Act and hereby dismiss the suit.