JUDGMENT

Brijesh Kumar, Member - This is a second appeal arising out of the judgment and decree passed by the Additional commissioner Varanasi Division, Varanasi on March 21, 1985 in appeal No. 133 of 1982, Varanasi - Gauri v. Indrawati.

2. Briefly stated, the facts of the case are that Smt. Indrawati filed a suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act in the court of the Assistant Collector 1st Class Chandauli(west) Varanasi, claiming share in the land in dispute with the prayer to partition her share. The defendant-appellant Gauri filed objection claiming to be the sole tenure-holder of the land in dispute and denying the claim of the plaintiff-respondent. The trial court decreed the suit on April 22, 1982. Aggrieved by this order, the defendant-appellant Gauri preferred an appeal before the Commissioner. The learned Additional Commissioner dismissed the appeal on March 21, 1985. Against this order, second appeal has been filed before this court on the ground that the decree passed under Section 229-B of the Act on December 4 1978 was not finally set aside by the court, that the order of the S.D.O. dated July 5, 1979 setting aside the aforesaid judgment and decree dated December 4, 1978 is still subjudice before the Board of Revenue in reference made by the Additional Commissioner, Varanasi Division, Varanasi vide his order dated November 12, 1979 to set aside the subsequent order of the S.D.O. dated July 6, 1979 and the courts below have wrongly and illegally ignored the decree dated December 4, 1978 declaring the defendant as sole tenure-holder of the land in dispute and expunging the name of Smt. Indrawati, the suit filed under Section 176 of the Act was not maintainable because the decree dated December 4, 1978 made in favour of the defendant against the plaintiff has been set aside, that the trial court has failed to decide the issued number 3 regarding remarriage of Smt. Indrawati on erroneous assumption that in the partition suit the said issue touching the title of the parties could not be decided, that the trial court has wrongly observed that the title of Smt. Indrawati plaintiff was admitted to the defendants, that the remarriage of Smt. Indrawati was proved by oral evidence adduced by the defendant, that the oral evidence adduced by the defendant on the point of remarriage could not be discarded for want of documentary evidence, that the defendant appellant have proved that he was the sold Bhumidar in possession of the land in dispute and that the plaintiff respondent's point was barred under Section 34 of the Specific Relief Act.

3. I have heard the learned counsel for the parties and have also perused the record. Sri Sankatha Rai, counsel for the appellant has pleaded that the earlier decree finally settled would act as res-judicate. His second submission is that the oral evidence on record was not properly appreciated and examined by the courts below. The learned counsel has drawn my attention towards the statement of PW-2 Shiv Nath who has said that Smt. Indrawati and Sahadur were living together as husband and wife. He has further argued that in view of the rulings given by the Hon'ble supreme Court, it is not necessary to prove the ceremonies of marriage. His third submission is that the area of the land being only 2.73 acres cannot be partitioned. He has also argued that no finding on actual possession has been given.

4. Sri I.B. Singh, counsel for the respondent has argued that an ex-parte decree passed earlier does not operate as res-judicate. He has placed reliance on 1984 R.D. 35. On the point of remarriage, he has argued that the statement of PW-1 Gauri is based on hear-say and PW-2 Shiv Nath was not in the village when the alleged remarriage took place. PW-3 never seen Sahadur. He has further submitted that the finding given by the first appellate court on the point of remarriage is binding in second appeal. In support, he has placed reliance on Nasrul Haq v. Jitendra