JUDGMENT M.M. Gopal, Member - This is a second appeal against the judgment dated 12.4.1985 of the learned Additional Commissioner by which he dismissed the appeal and upheld the judgment of the trial court dated 24.11.82. The trial court has dismissed the suit. 2. Heard the learned counsels for the parties and perused the file. 3. The facts of the case are that on 22.1.1981 a suit under section 229-B/176 of the U.P. Act 1 of 1951 was filed by Parag and Ram Adhar against Bhaiya Lal and other claiming that the plaintiffs are the member of the same family and the land in suit was ancestral hence they are the cobhumidar and owner of the land in suit. Their name have wrongly been not recorded and they represent one branch of Mahadeo the common ancestor and the plaintiffs have ?th share each. They have further alleged that Pragia, wife of Gaya Prasad representing one branch had remarried, hence she had no right over the land in suit. 4. Except defendant No. 2 Pragia and others defendants Sada Shiv, Maheshwair, Bhaiya Lal have admitted the claim of the plaintiffs in their written statements filed on 26.3.1981 and 16.4.1981 respectively. 5. Pragia filed her written statement on 5.6.81. She had denied the rights of the plaintiffs and claimed that the land was acquired by the branch of her family and she never remarried. Hence she is the absolute owner of one set of plot over which she is only recorded as tenant. It is also alleged that she is recorded content in other plots alongwith others defendant's but the plaintiffs have not right over the same. 6. The following pedigree is admitted by the parties. 7. The documents filed by the plaintiffs show in 1313 Khewat Mahadeo the common ancestor was recorded. In 1359 F in some plots Pragia is recorded and in other plots Pragia is recorded alongwith, defendants as cotenant. Now the main question in this case in whether the Pragia is remarried or not and what will be effect of remarriage, if proved. It is also to be seen whether the remarriage has been proved by the parties in accordance with law and it is also important point to decide whether on the admission of other defendants plaintiffs can acquire any cotenancy right over the land or a part of land or not. 8. It is also to be seen whether the remarriage has been proved by the parties in accordance with law and it is also important point to decide whether on the admission of other defendants plaintiffs can acquire any cotenancy right over the land or a part of land or not. 8. The trial court has decided the issues against the plaintiffs. It has held that Pragia did not remarry because the plaintiffs have plaintiff have no right. 9. In the same way the lower appellate court has accepted the finding of the trial court and held that it was not plaintiffs property and Pragia and did not remarry, hence the plaintiffs did not acquire any right. 10. The learned counsel for the appellant has contended that D.W.2 Jaguwa admitted that Pragia after the death of her husband Gaya Prasar lived with Jhaluva and she was living with him for the last 30 years. There are kutumb register and voter list to show that Pragia is recorded as a member of the family of Jhalua, Secondly, he contended that Pragia did not appear as a witness, hence an adverse interference should be drawn against him. Thirdly, it is contended that the courts below have committed an illegality in arriving to the findings of fact hence the same may be quashed. 11. The learned counsel for the opposite-party has contended that in 1319 fasli Pragia is solely recorded over 8 pots measuring about 17 bighas 4 biswas and she is recorded alongwith other defendants over 7 plots measuring about 33 bighas and 16 biswas and the plaintiff were rightly held to be not cotenant's of the land in suit. The remarriage of Pragia is a finding of fact and it should not be disturbed of this court. 12. In the present case the main question is whether Pragia remarried or not and what will be the effect of remarriage. Both the courts below have held that she did not remarry. The Courts below have given reasons for any believing the evidence produced by the plaintiffs in this respect. The learned counsel's contention that the marriage should be presumed, also does not bear any importance because he has failed to show that in cases of presumption the requirement as laid down by law were in existence according to the evidence produced by the parties. The learned counsel's contention that the marriage should be presumed, also does not bear any importance because he has failed to show that in cases of presumption the requirement as laid down by law were in existence according to the evidence produced by the parties. Hence this question has become a dead finding of fact and there is no ground for interfering with the same. 13. It is also to be noted that in this case over some plots Pragia is solely recorded as bhumidhar and in plots Nos. 89, 90, 334, 599/1 kha, 563/1, 607 and 609 she is recorded a cotenant alongwith others defendants. The other defendants have admitted the cotenancy right of the plaintiffs but this fact has not been considered and decided by the lower appellant court. 14. Hence so far as the question of remarriage of Pragia is concerned, this finding given by the courts below is upheld and the plaintiffs cannot acquire right of cotenancy in respect of the plots over which Pragia is only recorded as bhumidhar. Hence so far as these points are concerned second appeal is partly dismissed. 15. But the question of cotenancy right on the basis of admission of other recorded cotenants is concerned it is yet to be decided and the partition as claimed may be done, if necessary, in respect of the same. This finding cannot be given at this stage by this court. The lower appellate court in deciding the fact has committed an illegally apparent on the face of it. Hence the appeal is partly allowed and the order of the lower appellate court for dismissing the suit in respect of plots mentioned above is quashed and the case is remanded to the first appellate court to decide the point as mentioned above is accordance with law. 16. Thus the second appeal is partly dismissed and partly allowed and the case is remanded to the learned Additional Commissioner to decide it is accordance with law. Parties shall bear their own costs.