JUDGMENT M.M. Gopal, Member - This second appeal has been filed against the Judgement and decree dated 15-1-1972 of the learned Additional Commissioner by which he dismissed the appeal and upheld the Judgement dated 26-11-1969 of the trial court. The trial court has dismissed the 4 suits by its common Judgement. 2. Heard the learned counsels for the parties and have also gone through the relevant papers on file. 3. The facts of the case are that 4 suits were filed under Sections 59, 61, 180 of Act No. 17, 1939 (U.P. Tenancy Act) by Parma and others for sole tenancy of Raghunaths land who died. The relevant pedigree for considering the case is as follows: - It is alleged that after the death of Raghunath, the plaintiffs acquired right being his fathers brothers sons. On 25-1-1961 joint written statement was filed by Madan, Babban and Dinanath and Bhola Nath. They denied the right and title of the plaintiff and inter alia alleged that a gift deed was executed on 26-10-1957 by Raghunath in favour of defendants (Raghunath died on 27-10-1957). Hence the defendants are exclusively owners of the land of Raghunath and the plaintiffs have no right over the same. The trial court dismissed all the four suits of different khatas by a common Judgement; in the same way the lower appellate court has dismissed four appeals by a common Judgement. Here four second appeals have been filed and they are being decided by one common Judgement. 4. There is no question in respect of plaintiffs being preferential heirs of deceased Raghunath; if the gift deed alleged to be executed by Raghunath, just one day before his death, is proved, the plaintiffs have no right. 5. The counsel for the opposite parties vehemently argued that there are concurrent findings of facts and it should not be set aside by the second appellate court. There is no doubt about this proposition of law; but if facts have been illegally described or the findings are based on no evidence or on legally irrelevant considerations, in the second appeal also, the same finding of facts can be set aside. Hence the main question is to be decided in the second appeal is whether the gift deed executed by Raghunath has been proved or not. Hence the main question is to be decided in the second appeal is whether the gift deed executed by Raghunath has been proved or not. Both the courts below have held that the gift deed was duly proved because scribe of the deed was examined and it was registered gift deed. The gift is transfer (without consideration) of movable or immovable property, the registration of such deed has got some value; but when such gift is the very basis for a decision of an issue, its execution must be proved in accordance with law and it is the requirement of the law that the gift deed must be attested by two witnesses ; the execution can only be proved by producing the attesting witnesses. It is no where alleged that attesting witnesses were not available or dead. Under such circumstances both the courts below illegally adopted the gift deed as the basis of finding of right of the party. Under such circumstances this very point goes to very root of the merit of the case and I do not think to discuss any other point in the second appeal. 6. On the reasons given above I, therefore, hold that gift deed executed is not proved in accordance with law; hence the defendants cannot be declared exclusive owners on the basis of such gift deed; on the other hand, when the gift deed is not proved, the plaintiffs being Raghunaths fathers brothers son are entitled to inherit the property. 7. I, therefore, allow the second appeal, set aside the Judgements dated 26-11-69 of the trial court and 15-1-1972 of the lower appellate court and decree the suits of the plaintiffs who are declared the sole tenants of the land in suits. Under the circumstances of the case the parties shall bear their own costs. This order will govern in the second appeals No. 21, 22 and 23 of 1971-72 Ballia also.