JUDGMENT Bhairo Prasad, Member. - Nirbhai Singh filed these second appeals under Section 331-A of U.P. Act No. 1 of 1951 against the judgment and decree of Sri D.S. Varma, Addl. Commissioner, Moradabad in appeal No. 220 of 1983-84. The learned Additional Commissioner, passed that decree and judgment against the decree and judgment of Sub-Divisional Officer, Moradabad in suit No. 174 of 1983 under Section 229-B of U.P. Act No. 1 of 1951. 2. Brief facts of the case are that Nirbhai Singh filed suits under Section 29-B of U.P. Act No. 1 of 1951 that the plaintiff and defendant are real brothers hence they are co-tenants of the suits plot given in the foot of the plaint but the name of the defendant alone is recorded on the basis of fraudulent Will deed alleged to have been executed in favour of defendant by his father. Therefore, he claimed that he should be declared bhumidhar of the suits plot. 3. The defendants contested the suits that they are also bhumidhars of the suits plots of the two villages on the basis of Will deed executed by his father in their favour. 4. After framing the issues and taking evidence the trial court dismissed the suits. Appeals were filed against that order and decree that too was dismissed, hence these two second appeals. 5. Heard the learned counsel for both the parties. Perused the record. 6. The learned counsel for the appellant argued that neither of the court has considered this point whether the Will is proved or not as the law required. The trail Court and as well as the appellate court has accepted the Will on its own for the proof of the Will as laid down under Section 3 of Transfer of Property Act. He also argued that when mutation has been done the suit cannot be barred by Section 34(5) of U.P. Land Revenue Act. 7. I fully agree with the contention of the learned counsel that when mutation has already effected the suit will not be barred by Section 34(5) of U.P. Land Revenue Act, hence the finding recorded on this point by both the courts are erroneous and liable to be set aside. 8. For proving the Will one witness and the scribe was examined. 8. For proving the Will one witness and the scribe was examined. These two witnesses do not recognise as to who was the second witness the scribe and one marginal witness Chhedi Lal Sharma, they are Moharir and typist of the Collectorate. They are not the resident of the village of the executor of the Will. In this way the Will is not validly proved, therefore, these appeals are allowed and the trial court's decree and judgment are set aside and the case is remanded to the trial court that other marginal witnesses should also be examined to prove the Will. The trial court will also decide afresh as to when Karan Singh died. This order shall govern S.A. Nos. 17 and 18 of 1986-87/Moradabad.