JUDGMENT N. N. Mithal, J. - Against the non-concurrent judgments of the two courts below, the defendants have come up in appeal. 2. The admitted case of the parties is that Gaon Sabha was the owner of plot No. 157 out of which some plots were carved out and over one of them the disputed house exists. According to the plaintiff, this plot was allotted to him alone and it was he who raised the construction over the same. The case of the defendant-appellant, however, was that the land was jointly allotted to the plaintiff and himself and after partition of the land the house was constructed by the defendant over the portion of the land came to his share. 3. The trial court accepted the defendant's theory and dismissed the suit. However, on appeal, the court found that the land had been allotted only in the name of the plaintiff and there was no partition of the land as alleged by the defendant. While discussing the evidence the lower appellate court excluded the oral evidence of the defendant under Section 92 of the Indian Evidence Act. It is this part of judgment which is seriously challenged by the appellant. 4. After hearing the learned counsel for the parties, I find that the contention of the appellant in this regard is correct. The court was in error in thinking that the evidence of the defendant who was not party to the original transaction would be barred under Section 92 of the Evidence Act. However, this will not affect the merit of the case at all. The court below has considered the entire evidence and concluded that the land was allotted only to the plaintiff and the name of the defendant occurring along with the plaintiff's name on the counterfoil was an interpolation. The resolution of the Gaon Sabha as well as the original receipt stand in the name of the plaintiff and it was only the counterfoil on which the name of the defendant occurred. For cogent reasons, the court below is rejected the defendant's case in coming to the conclusion that the land was allotted to the plaintiff alone. 5. After discussing the oral evidence of the defendant, the court below also found that there had been no partition of the land between the plaintiff and defendant no. 1. For cogent reasons, the court below is rejected the defendant's case in coming to the conclusion that the land was allotted to the plaintiff alone. 5. After discussing the oral evidence of the defendant, the court below also found that there had been no partition of the land between the plaintiff and defendant no. 1. I entirely agree with the findings recorded by the lower appellate court. 6. In view of the above, I find no merit in the appeal which is accordingly dismissed. There will be no order as to costs in the appeal.