JUDGMENT Bhairo Prasad, Member. - This second appeal has been filed under Sec. 331 (4) of U.P. Act No. 1951 against the decree and judgment of Commissioner, Kumaun Division, Nainital dated 31.3.1990 passed in first appeal No. 168 of 1988-89 passed against the decree and judgment of Asstt. Collector, Ist Class/Sub-Divisional Officer, Kashipur, Nainital dated 27.7.1989 passed in a suit No. 22/75 of 1986-87 under Sec. 176 of U.P. Act No. 1 of 1951. 2. In brief the facts of the case are that recorded tenure-holder Yad Ram son of Hira filed the suit under Sec. 176 of U.P. Act No. 1 of 1951 for the partition of the holdings given at the foot of the plaintiff. Defendant Hari Dutta and Bhukhan filed written statement that the name of Yad Ram is wrongly recorded in the revenue records. He has no claim over the disputed plot. They also pleaded that Yad Ram is not son of Hira Singh. Hira Singh also was not son of Ram Lal. Ram Lal has only two sons and they are sons of Ram Lal. The trial court dismissed the suit for partition on the ground that Yad Ram has failed to prove that Hira Singh was son of Ram Lal and he is son of Ram Lal. Then Yadram filed first appeal before the Commissioner. The learned Commissioner after hearing the parties allowed the appeal and decreed the suit for partition that Yadram, has ?rd share and defendants-respondents each has ?rd share. This second appeal has been filed against the preliminary decree. 3. I have heard the learned counsel for both the parties. Perused the record. 4.The learned counsel for the appellant argued that the first appellate court has not appreciated the evidence in all prospective. The first appellate court has not examined the oral evidence of the parties on the point of main dispute whether Yadram is son of Hira Singh and Hira Singh was son of Ram Lal? He also contended that Kutumb Register filed by his client has not been valued properly by the first appellate court. The kutumb register was corrected during the pendency of the suit, therefore, the entry of kutumb register prior to the suit was material. 5. He also contended that Kutumb Register filed by his client has not been valued properly by the first appellate court. The kutumb register was corrected during the pendency of the suit, therefore, the entry of kutumb register prior to the suit was material. 5. The learned counsel for the appellant also argued if the learned Commissioner has not properly valued the evidence then it can be examined and looked into by this Court and such incorrect finding involved a question of law as laid down in 1955 (S.C.) page 271. Therefore, he argued that the appeal should be allowed and the judgment and decree of the first appellate court should be set aside and that of the trial court should be restored or in any case the appeal should be remanded to the first appellate court. 6. The learned counsel for the respondent argued that in mutation proceeding it has been decided that Hira Singh was son of Ram Lal and Yadram is son of Hira Singh. This was also admitted in the evidence in the mutation proceeding. He also argued that a suit was filed as a suit No. 22/24 of 1986/87 by the respondents in which it has been admitted in the plaint that Ram Lal has three sons Hari Dutta, Bhukhan and Hira Singh. Yadram is son of Hira Singh. Their share is ?rd. He also argued that Hari Dutta was examined in that case and he admitted the above facts. The learned counsel for the respondent also argued that the name of Yadram is recorded over the disputed plot and the burden was on the appellant to rebut that entry. The trial court has wrongly shifted the burden on the plaintiffs-respondents. He also argued that the first appellate court has scrutinized the oral evidence and have discussed the documentary evidence carefully. In these circumstances of the case there is no force in this appeal and it should be dismissed. 7. In para 1 of the written statement of Hari Dutta and Bhukhan it is stated that the para one of the plaint is denied. Hira Singh is not son of Ram Lal. Though they have admitted this fact in the previous litigation but it was so admitted that they had no knowledge of it. 7. In para 1 of the written statement of Hari Dutta and Bhukhan it is stated that the para one of the plaint is denied. Hira Singh is not son of Ram Lal. Though they have admitted this fact in the previous litigation but it was so admitted that they had no knowledge of it. They came to know subsequently after examining the documentary papers which they found the Hira Singh was not the son of Ram Lal and Yadram is also not son of Hira Singh. Yad Ram is recorded over the disputed plots in mutation proceedings on the basis of succession in 1971. Correction proceeding of the record is pending in the courts. 8. The learned counsel for the appellant argued that statement of Hari Dutt that of the copy of the plaint of suit No. 22/24 on 1986-87 which was filed in the copy of Commissioner is not binding on his client as they were not given opportunity to deny it when they were examined. Since this fact is admitted in the written statement, therefore, there was no question that it ought to have been put to them for confrontation. Those documentary evidence has come from judicial custody and it has not been rebutted before the Commissioner that they were incorrect and wrong. It has also not been proved by the appellant that when the name of Yadram came in 1971 they filed the suit No. 22/24 of 1986-87 which was withdrawn then they have again filed any suit to rebut the entry of mutation case which has come down in the revenue records from 1971. 9. I have carefully gone through the judgment of the learned Commissioner. He has examined oral evidence as well as documentary evidence. The appellant has not been able to rebut the admission made by them in previous proceeding. Only pleading cannot rebut the admission. They ought to have filed the documentary evidence on the basis of which they came to the conclusion that Hirasingh is not son of Ram Lal. 10. After the death of Ram Lal the question of succession was considered by Peshkar (equal to Tahsildar) in his judgment dated 1.4.1971, in which it is described that Ram Lal has four sons, Hira Singh, Persadi, Bhukhan and Hari Dutt. Hira Singh and Persadi were already dead. Persadi has no issue, only the remaining brothers were his heirs. 10. After the death of Ram Lal the question of succession was considered by Peshkar (equal to Tahsildar) in his judgment dated 1.4.1971, in which it is described that Ram Lal has four sons, Hira Singh, Persadi, Bhukhan and Hari Dutt. Hira Singh and Persadi were already dead. Persadi has no issue, only the remaining brothers were his heirs. His mother Prano had already remarried. Hira Singh a pre-deceased son of Ram Lal had a son Yadram, therefore, all the three i.e., Yadram, Haridutt and Bhokhan were recorded as an heir of deceased Ram Lal. The entry still continue in the revenue records. The suit was filed by defendant for partition of holding in which it was admitted that Ram Lal had three sons as above and Yad Ram is son of Hira Singh. But in the family settlement Yadram was given 4-12-0 area only in the disputed plot. This fact has been again admitted by Bhukhan in his statement that Ram Lal gave 4-12-0 area to Yadram during his life time and that land is still in possession of Yadram. Hukum Singh D.W. 2 has also admitted that Yadram is in possession of 4-12-0 area from the disputed plot. This fully established the claim of the respondents, therefore, the finding recorded by the first appellate court is perfectly correct. The mutation order of the Peshkar also shows that the wife of Hira Singh had remarried. Then it is natural that Yadram must have gone to live with his mother, i.e., why he has been shown in the Kutumb Register of Dal Chand. It is admitted fact of the appellant that Yadram was given land by his father. If Yadram was not from the family of Ram Lal then why the land was given. What was the consideration for giving the land. These circumstances fully proved that Yadram is a son of predeceased son of Ram Lal. There is no any doubt left now in the claim of respondent, therefore, the finding recorded by the first appellate court is perfectly according to records and evidence. I, therefore, uphold it and dismiss the appeal with costs.