JUDGMENT Bhairo Prasad, M. - This Second appeal has been filed under Section 331 (4) of U.P. Act No. 1 of 1951 by the appellants against the decree and judgment of the Addl. Commissioner, Varanasi Division Varanasi dated 11.8.1983 passed against the decree and judgment of Sri J.B. Sinha, S.D.O. Machhlishahr, Jaunpur dated 23.7.79 passed in a suit under Section 229-B of U.P. Act No. 1 of 1951. 2. The appellants filed the suit under Section 229-B of U.P. Act No. 1 of 1951 with the pleadings that they are co-bhumidhars of the suit plots along with the defendants 1st set. Defendants first set denied the claim of the plaintiffs and pleaded that the plaintiffs are not the heirs and son of Yakub who was defendants' father's brother. Remaining defendants asserted the claim of the plaintiff but they asserted that are purchaser of the some part of the land of the defendants first set. After taking the evidence of the parties the trial court decreed the suit of the plaintiffs and declared that they, are co-tenants of the suit plot along with the defendants first set. Appeal was filed against that decree and judgment by the defendant Haidar Ali. The; learned Addl. Commissioner allowed the appeal and set aside the judgment and decree of the trial court and dismissed the suit, hence this second appeal has been filed. 3. Heard the learned counsel for both the parties. Perused the record. 4. The learned Addl. Commissioner dismissed the suit on this ground that consolidation authorities have not accepted a compromise dated 6.4.1978, when there was a litigation between the parties regarding the properties of some other village Saraiyya, therefore, it cannot be said that the plaintiffs are the sons of Yakub but he has not considered that during the consolidation proceeding the plaintiffs-appellants were held to be son of Yakub and were allowed to succeed him. That proceeding have become final now. In that proceedings the parties have also compromised that plaintiffs are the sons of Yakub who is real brother of respondent Haider Ali's father Ishahaq. Therefore, the findings recorded in the consolidation courts will operate in this suit also. The learned Addl. Commissioner also dismissed the suit on the ground that the suit was filed by Mukhtare-am of the plaintiffs. In that proceedings the parties have also compromised that plaintiffs are the sons of Yakub who is real brother of respondent Haider Ali's father Ishahaq. Therefore, the findings recorded in the consolidation courts will operate in this suit also. The learned Addl. Commissioner also dismissed the suit on the ground that the suit was filed by Mukhtare-am of the plaintiffs. It has not been proved that he was really a Mukhtare-am only a copy attested by a counsel regarding the instrument of Mukhtare-am was filed. The original have been filed in this Court. As there was no dispute regarding this fact, hence there was no issue framed in the trial court, hence there was no finding on this issue. The appellants should have called upon to prove that fact before recording a finding against the appellants-plaintiffs. However the original has been filed in this court. Therefore, the finding recorded by the first appellate court on this account is not correct. If a fact is not denied it will be deemed that it was admitted. Therefore, the appellate court cannot go beyond that unless the pleadings are amended. Therefore, I fully agree with the contention of the learned counsel for the appellant that the finding recorded by the trial court is contrary to the law. 5. The learned Addl. Commissioner also dismissed the suit on the ground that one of the plaintiff Sami Ullah was dead when the suit was filed, therefore, the suit was filed by the dead person. This plea was also not taken in the trial court by the defendants-respondents. It was also not taken into the appellate stage, It will not effect the merit of the case in any way because two sons of Yakut are still alive and they are heris of the deceased. It was only superfluous name that Sami Ullah was impleaded as party. Even the respondents in first appeal have arrayed him as a party. If the contention of the learned counsel for the respondent is taken to be true that the appeal and the suit is not maintainable then the first appeal was also not maintainable. There is force in the contention of the learned counsel for the appellant in this argument. The name of Samiullah should have been struck off. 6. If the contention of the learned counsel for the respondent is taken to be true that the appeal and the suit is not maintainable then the first appeal was also not maintainable. There is force in the contention of the learned counsel for the appellant in this argument. The name of Samiullah should have been struck off. 6. The learned counsel for the respondent argued that the suit was filed by a dead person, hence it is not maintainable. He also argued that consolidation proceeding has not concluded hence the finding recorded by the consolidation officer is also not binding. On this ground he requested that the appeal should be dismissed. There was no one plaintiff on behalf of which the suit was filed. There are three plaintiffs on whose behalf the suit was filed. Death of one of the plaintiff will not take away right of other two plaintiffs. Therefore, I am of the opinion that the suit is maintainable. On behalf of the remaining plaintiff and the second appeal is also maintainable. 7. In view of the above discussion this second appeal is allowed. The judgment and decree of the first appellate court is set aside and that of the trial court is restored. In the circumstances of the case the patties shall bear their own costs.