1 S.A. 669/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 669/2010 WITH CIVIL APPLICATION NO. 13921/2010 1 Savitribai w/o Nivrutti Hawldar and others Appellants (Ori. Defendants) Versus Subhadrabai w/o Babruwan Hawaldar Respondent (Ori. Plaintiff) ..... Shri M.B. Kolpe, Advocate for appellants. Shri J.R. Patil, Advocate for respondent. ..... CORAM : S.S. SHINDE, J. DATED : 14 th December, 2011. ORAL ORDER : 1. Heard ld. counsel appearing for the parties. This second appeal is filed challenging judgment and order passed by District Judge – 2, Osmanabad in R.C.A. No. 1/2005. The ld. counsel appearing for the appellants invited my attention to the grounds taken in second appeal and in particular grounds No.1 to 4 which reads thus : I) That the impugned judgment and decree passed by the District Judge-2, Osmanabad is against facts contrary to law and oppose to the principles of justice, equity and good conscience. 2 S.A. 669/2010 II) That, both the court below erred in law in deciding issue No.1 and 2 regarding marriage of appellant No.2 as void, but has ignored that respondent had no issue from marriage due to this the second marriage was solemnized. Thus second marriage solemnized is legal and valid marriage as per customary Hindu Law. III) That, findings recorded by both the courts below regarding status of appellant No.3 to 8 as legitimate children is wrong. The appellants No. 3 to 8 are legitimate children as marriage of appellant No.2 is valid as customary law as respondent had no issues from the marriage. IV) That, land bearing Sy. No. 297/1 admeasuring 7 acre 6 Guntha situated at Osmanabad is purchased by the deceased Babruwan father of appellant No.3. This property is self acquired property and same is purchased in the name of appellant. So, respondent has no any rights or claim in the said property. 2. According to the ld. counsel appearing for the appellants, since the property from survey No. 297/1 admeasuring 7 acres 6 Gunthas situated at Osmanabad is possessed by Babruwan father of appellant No.3 i.e. his self acquired property and since it is purchased in the name of appellants, there is no question of giving any share in the said property to the respondents herein. The ld. counsel appearing for the appellants submits that though this specific ground is not taken before the lower appellate Court, still the appellants are entitled to agitate this ground since it is admitted by the respondent that the said land is self acquired property of 3 S.A. 669/2010 deceased Babruwan. The ld. counsel further submits that since the first wife i.e. respondent had no issue, the second marriage was performed by Babruwan with Sakharibai appellant No.2 according to him as per provisions of section 5(i)(ii) (b) of the Hindu Marriage Act, 1955. Second marriage is permissible and is valid. Ld. counsel also invited my attention to the other grounds taken in the second appeal and submitted that the second appeal deserves consideration. 3. Ld. counsel appearing for respondent submits that ground No.4 which is raised in second appeal, was not raised before lower appellate court nor any evidence has been led in that respect. No specific issue or point was framed about the said contention of the appellants. He further submits that the ground that first wife had no issue, therefore second marriage is valid, was also not taken before the lower appellate Court. Ld. counsel invited my attention to the cross objection filed by appellant No. 2 Sakharibai and submitted that second appeal is devoid of any merits and deserves to be dismissed. 4. I have given due consideration to the rival submissions. The important two grounds which are agitated by the appellants are as follows. II) That, both the court below erred in law in deciding issue No.1 and 2 regarding marriage of appellant No.2 as 4 S.A. 669/2010 void, but has ignored that respondent had no issue from marriage due to this the second marriage was solemnized. Thus second marriage solemnized is legal and valid marriage as per customary Hindu Law. V) That, appellant No.2 has right to claim partition in land Sy. No. 279/1 admeasuring 7 acre 6 Gunthas as same is purchased in the name of her son and same is also self acquired property by the husband. 5. From careful perusal of cross objections on record before lower appellate Court, it is abundantly clear that these two grounds were not raised by the appellants herein. That apart, entire controversy was revolved around shares of the respective legal representatives. Even from perusal of the issues framed by the trial Court, the issues in respect of self acquired property by Babruwan father of the appellant was not specifically framed by the trial Court. The ld. counsel fairly concedes that so far ground No.2 is concerned, no such pleadings were there before the trial Court. Ld. counsel also fairly concedes that, both the grounds were not specifically taken before Court below. However, he submits that it was specifically pleaded in cross objection that, “the judgment and decree of the lower Court to the extent of calculation of share of the party is against law and facts of the case and hence it is worthy to modify by this Hon’ble Court”. 5 S.A. 669/2010 5. Relying on these pleadings in the cross objection, the counsel appearing for appellants would submit that necessary foundation was there in cross objection for ground No.4 and also ground No.2. 6. On considering the material placed on record and in absence of specific pleadings and evidence before the Courts below about grounds No. 2 and 4 reproduced herein above, it is not possible for this Court to adjudicate such issue and answer said points. Both the grounds i.e. grounds No.2 and 4 necessarily needs basic foundation in the pleadings and also to some extent, evidence was required to be led by the appellants before the trial Court. In that view of matter, in my considered opinion, none of the grounds taken in second appeal, deserves consideration by this Court. Second appeal is devoid of any merits. Hence, the appeal is dismissed. Consequently civil application is rejected. ( S.S. SHINDE, J. ) ts k/2011/Dec14/sa669.10