JUDGMENT A.U. Khan, J.M. - The facts are: On 6.5.1978 Smt. Gornti institutes a declaratory law suit under Section 229-B Z.A. and L.R. Act in the court of Sub-Divisional Officer, Amroha, Moradabad. The pleading has set forth the contention that her husband Ram Sahai was a bhumidhar tenant in possession on his death she succeeded to tenurial rights. That Ram Sahai died ten years ago leaving behind two daughters Sona aged 15 years and Munni 11 years old. Her name was mutated in revenue records. That Ram Chandra D/1 and Hari Singh D/2 moved a mutation application which has erroneously been allowed by Sub-Divisional Officer. This has cast a cloud on her rights. The relief to declare her bhumidhar tenant in possession has been prayed for. 2. The suit is resisted by Ram Charan D/1 and Hari Singh D/2 who filed their written statement on 28.7.1978. Their pleading is that on death of Ram Sahai, his widow Smt. Gomti, has re-married by 'Karao' with Chotey and then with Harpal. In consequence she is fully divested of her tenancy rights and is no more in possession. It is claimed that they inherit as their father Hardeo was real brother of Nathoo, father of last male tenant Ram Sahai. Further claim is that Ram Sahai has died issueless and two daughters Km. Sona and Km. Munni are daughters from second husband Chotey. Also a daughter over two years old is from third husband Harpal. The relief to dismiss the suit has been prayed for. 3. On the pleadings of the parties issues were formulated on 13.9.1978 and 24.1.1979. Parties are given chance to lead their evidence; documental and oral. They have made their representation. On 16.6.1990 Asstt. Collector, First Class enters an order decreeing the suit of Smt. Gomti. 4. An appeal is lodged by defendant Ram Charan. On 2.3.1984 Addl. Commissioner enters an order dismissing the appeal. So the second appeal is lodged by defendant Ram Charan's to secure reversal of two decrees. 5. Heard the counsel for the parties and perused the record. 6. The following pedigree explains relationship between the contestants. The geonological table is not in dispute. It is common case that last tenure-holder was Ram Sahai. He was Bhumidhar tenant in possession. On his death in 1970 or there abouts his widow Smt. Gomti succeeded; she was recorded too in revenue papers. 6. The following pedigree explains relationship between the contestants. The geonological table is not in dispute. It is common case that last tenure-holder was Ram Sahai. He was Bhumidhar tenant in possession. On his death in 1970 or there abouts his widow Smt. Gomti succeeded; she was recorded too in revenue papers. The point of intense controversy is whether she did re-marry by Karao with Chotey and then again with Harpal. The two courts below have held, upon evidence, that she did not. I hold that she did. 7. A sale-deed, copy on record, illustrate that Ram Sahai has executed it on 5.1.1970. He dies immediately thereafter. Smt. Gomti in her plaint on 6.5.1978 affirms that Ram Sahai had died about 10 years back. It means in 1968. In her statement on 24.1.1979 she testified that Ram Sahai died 9 years ago. It comes to 1970. From ail three sources finding is: Ram Sahai died in 1970 or thereabout. 8. What was the age of Smt. Gomti at the fateful time? In her sworn testimony, recorded on 24.1.1979, she states her age as 40 years. When Ram Sahai died 9 years ago, she was a young woman of 31 years. In her pleading she confessed that she has a daughter Sona 15 years and Munni 11 years old from her husband Ram Sahai. It shows that her marriage with Ram Sahai did take place when she was 25 years or thereabout. Her marital life lasted for 6 years. When Ram Sahai died the age of Sona was 6 years and Munni's 2 years. She was distraught with anxiety to properly bring them up. Whether she did re-marry by Karao with Chotey? The two courts below have argued against but it runs counter to common sense. The chief ground taken is absence of credible evidence of ceremony in Karao form of marriage. I am to state that parties belong to a caste of Mali amongst whom is a custom of re-marriage. 1970 R.D. 514 in the context of re-marriage in the Baithaki Form by virtue of custom amongst the Ahirs declares: no other legal re-marriage rites has to be proved. So also 1977 D. 36 and 1969 AWR 579 affirm: lack evidence of re-marriage rites is not consequential. Among poor even first marriage is lawkey affair. No pomp, no gaiety abounds; no presents are given, no invitations are thrown for dinners. So also 1977 D. 36 and 1969 AWR 579 affirm: lack evidence of re-marriage rites is not consequential. Among poor even first marriage is lawkey affair. No pomp, no gaiety abounds; no presents are given, no invitations are thrown for dinners. Amongst Mali's customary rites are short and simple: bangles in hands and Bichya in legs are worn at the time; something will do for distribution amongst those who are there. Few men, a brief meeting, some casual talk, the girl joins her husband's household. How Wang Lung has brought his second wife is described by Pearl. S. Buck in her beloved novel, 'Good Berth" p. 127: "Then Wang Lung took his girl into his arms and he sat with her in the hut and he looked at her and said softly, Little fool, would you like to go to a great, house where there is food and drink and where you have a whole coat to your body?" 9. Smt. Gomti admits living with Chotey and also that a daughter Premvati is born out of union with Harpal. She is loath to admit only re-marriage in Baithaki form. Her dblemma is terrible. In an explanation to get of the hook she is immodest enough to say: she had lovers in Chotey and Harpal and daughter Premwati is fruit of illicit relation. The explanation is dull beyond reasoning. A devoted wife with two daughters from Ram Sahai her holycon days of love's intense passion were behind her. Over 30 years, responsible, no longer magnifique, her trouble was not too much amour. She was distraught with anxiety to bring up her two daughter's. It is difficult to conceive. She became a whose or a trumpet whom any one can blow. No suggestion is that Smt. Gomti became the delight of villagers. The conclusion seems ineluctable that on death of Ram Sahai she became wife of Chotey in Baithaki form and on desertion of Harpal. He never suffered social obstacism. We know continued living as husband and wife raises presumption of legal marriage. This is strengthened when they are described, as here, in kutumb register. The presumption of legal marriage prevails over a suggestion of concubinage, where there is solid basis of ineluctable custom, wifely status is conferred by assent and acceptance of the local community. We know continued living as husband and wife raises presumption of legal marriage. This is strengthened when they are described, as here, in kutumb register. The presumption of legal marriage prevails over a suggestion of concubinage, where there is solid basis of ineluctable custom, wifely status is conferred by assent and acceptance of the local community. Section 6 of Hindu Re-marriage Act is not applicable to Karao form which occurs in accordance with custom or usage of a community. 10. "Although at no single point in the process can anyone draw a definite line and set up a boundary stone inscribed: Here living in sin ends and re-marriage beings, there is a stage where one can say thus: This woman is re-married and is not living in sin." (Trimingham J. Spencer, Islam in Ethiopia, London, 1952. p. 273 adopted to our purpose." 11. If we look to the life of Smt. Gomti as a whole, we shall find that it is re-marriage. The test is a payohic one. Ram Charan DW/1 on 23.2.1979 testified that Smt. Gomti had re-married with Chotey and had lived with him as a wife for six years. She deserted him and, then, re-married with Harpal at his house in presence of Badlo, Adbul and a few villagers. She did wear bangles in hands and Bachwa in legs; 'Batasha' was shared and served at the time. Out of this wedlock a daughter Premvati is born. An another witness, Durga DW/2, on 23.2.1979 has corroborated all points of re-marriage. In his deposition there is full exposition of rites as are characteristic among Mali's : bangles and Bachwa worn to signify her acceptance. 'Batasha' distributed to mark the occasion. This solemnization, described without all circumstance, is always subject to the authority and the decision of those in the local Mali community who are to "the manner born. The absence of an adverse reaction is proof sufficient of a valid union. Smt. Gomti is' recorded in kutumb register as wife of Chotey. Also,Km. Sona, and Km. Munni are noted as daughters of Chotey. This is because he is their step-father. This evidence is vivid recognition of her re-marriage with Chotey. The third daughter Smt. Premwati is evidence of second Karao with Harpal. The immotional stress a women encounters when a charge of sexual deviant character is made is easy to magine. Also,Km. Sona, and Km. Munni are noted as daughters of Chotey. This is because he is their step-father. This evidence is vivid recognition of her re-marriage with Chotey. The third daughter Smt. Premwati is evidence of second Karao with Harpal. The immotional stress a women encounters when a charge of sexual deviant character is made is easy to magine. Will Smt. Gomti proclaim 'Me Oulpa' and confess having sexual intercourse with two lovers; One after another or with both at the same time. She may live in sin but is apt to deny her exploits to avoid igonomy. Such conduct is probable. What is highly improbable is her admission in a court of law. Such conduct is possible only when there are unique particular considerations in support, upon evidence. I do not see any. Smt. Gomti cannot get off the hook by her easy cutting of the knot. 12. Counsel for respondent has argued with vehemence that concurrent findings of fact are not open to re-appraisal in view of dictum of law in AIR 1989 Alld. 75. I think the sense and imagination brought to bear in appreciation has been in discreptitude. The territory is to be re-trodden. 13. Things being so, defendant Ram Charan's second appeal succeeds. The appeal is allowed; Orders of Courts below are set aside. The law suit of Smt. Gomti is dismissed. Cost easy.