Shri. Shivabasu S/O Appayya ... vs Yamanawwa W/O Gavanna Ganiger
2022 Latest Caselaw 3275 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                         BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.100397/2017 (PAR)
                         C/W
              R.S.A.NO.100396/2017 (PAR)

IN R.S.A.NO.100397/2017 (PAR)

BETWEEN

1.    SHRI SHIVABASU
      S/O APPAYYA NEMAGOUDAR,
      AGE: 43 YEARS, OCC. AGRICULTURE,
      R/O GURLAPUR, TAL. GOKAK,
      DIST. BELAGAVI,
      PIN CODE - 591 307.

2.    SHRI MAHALINGAPPA
      APPAYYA NEMAGOUDAR,
      AGE: 40 YEARS, OCC. AGRICULTURE,
      R/O GURLAPUR, TAL. GOKAK,
      DIST. BELAGAVI, PIN CODE - 591 307.
                                            ... APPELLANTS
(BY SRI SHRIHARSH A NEELOPANT, ADV.)

AND

1.    YAMANAWWA,
      W/O GAVANNA GANIGER,
      AGE: 45 YEARS,
      OCC. HOUSEHOLD WORK,
      R/O SUNADHOLI, TAL. GOKAK,
      DIST. BELAGAVI, PIN CODE- 591307.

2.    BORAWWA W/O KALLAPPA,
      ATTEPPAGOL, AGE: 42 YEARS,
      OCC. HOUSEHOLD WORK,
      R/O KANKANAWANI,
                            2




     TAL. JAMKHANDI,
     DSIT. BAGALKOT, PIN CODE - 587101.

3.   NEELAWWA
     W/O MAHADEV BELLAGI,
     AGE: 40 YEARS,
     OCC. HOUSEHOLD WORK
     R/O PALBHARI, TAL RAIBAG,
     DIST. BELAGAVI - 591317.

4.   SANVAKKA
     W/O SHARANAPPA KURAHATTI,
     AGE: 37 YEARS,
     OCC. HOUSEHOLD WORK,
     R/O HEBBAL, TAL: NAVALGUND,
     DIST. DHARWAD,
     PIN CODE: 560024.

5.   SAVITA
     W/O BANGREPPA NEMAGOUDAR,
     AGE: 38 YEARS,
     OCC. HOUSEHOLD WORK,
     R/O GURLAPUR, TAL GOKAK,
     DIST. BELAGAVI,
     PIN CODE- 591307.

6.   BASAPPA
     S/O BANGAREPPA NEMAGOUDAR,
     AGE: 15 YEARS, OCC. STUDENT,
     R/O GURLAPUR, TAL; GOKAK,
     DIST. BELAGAVIM,
     PIN CODE 591307

7.   KALLAWWA
     D/O BANGAREPPA NEMAGOUDAR,
     AGE:14 YEARS, OCC. STUDENT,
     R/O GURLAPUR, TAL. GOKAK,
     DIST. BELAGAVI,
     PIN CODE- 591307.

8.   SURESH,
     S/O BANGAREPPA NEMAGOUDAR,
     AGE: 12 YEARS, OCC. STUDENT,
     R/O GURLAPUR, TAL. GOKAK,
     DIST. BELAGAVI,
     PIN CODE-591307.
                             3




9.    NEELAVVA
      W/O DHAREPPA GANIGER,
      AGE: 42 YEARS,
      OCC. AGRICULTURE,
      R/O GURLAPUR, TAL. GOKAK,
      DIST. BELAGAVI,
      PIN CODE - 591307.

10.   BASAVVA
      W/O MALLAPPA MIRJI,
      AGE: 40 YEARS,
      OCC. AGRICULTURE,
      R/O KESARGOPPA,
      NOW RESIDIGN AT GURLAPUR,
      TAL. GOKAK, DIST.BELAGAVI,
      PIN CODE- 591307.

11.   GURAPPA
      S/O KARIGULAPPA TELI,
      AGE: 43 YEARS,
      OCC: AGRICULTURE,
      R/O GURLAPUR, TAL. GOKAK
      DIST. BELAGAVI,
      PIN CODE - 591 307.

12.   SHARANAPPA BASAPPA KURAHATTI,
      AGE: 37 YEARS, OCC. AGRICULTURE,
      R/O HEBBAL, TAL. GOKAK
      DIST. BELAGAVI, PIN CODE - 591307.
                                           ...APPELLANTS
(BY   SRI P.G.NAIK, ADV. FOR C/R.1
      SRI M.H.PATIL, ADV.
      SRI HARSHAVARDHAN M.PATIL, FOR R.1 TO R.10 & R.12)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 06.04.2017 PASSED
IN R.A.NO.87/2012 BY THE XII ADDITIONAL DISTRICT AND
SESSIONS   JUDGE,   BELAGAVI    SITTING   AT   GOKAK      AND
JUDGMENT   AND   DECREE   DATED    22.02.2012    PASSED    IN
O.S.NO.42/2009 BY THE II ADDITIONAL SENIOR CIVIL JUDGE,
GOKAK BY ALLOWING THE APPEAL AND THE SUIT OF THE
PLAINTIFFS/APPELLANTS I.E., O.S.NO.42/2009 BE DECREED BY
                            4




DISMISSING   THE   CLAIM   OF   THE   DEFENDANT   NO.5/
RESPONDENT NO.11, IN THE INTEREST OF JUSTICE.

R.S.A.NO.100396/2017 (PAR)

BETWEEN

1.    SHRI SHIVABASU
      S/O. APPAYYA NEMAGOUDAR,
      AGE: 43 YEARS, OCC: AGRICULTURE,
      R/O: GURLAPUR, TAL: GOKAK,
      DIST: BELAGAVI.

2.    SHRI MAHALINGAPPA ,
      APPAYYA NEMAGOUDAR,
      AGE: 37 YEARS, OCC: AGRICULTURE,
      R/O: GURLAPUR, TAL:GOKAK
      DIST: BELAGAVI.
                                           ...APPELLANT
(BY SRI S.A.NEELOPANTH, ADV.)

AND

1.    GURAPPA
      S/O KARIGULAPPA TELI
      AGE: 47 YEARS,
      OCC: AGRICULTURE,
      R/O: GURLAPUR, TAL: GOKAK,
      DIST: BELAGAVI.

2.    SAVITA
      W/O BANGAREPPA NEMAGOUDAR,
      AGE: 46 YEARS, OCC: AGRICULTURE,
      R/O: GURLAPUR, TAL: GOKAK,
      DIST: BELAGAVI.

3.    BASAPPA
      S/O BANGAREPPA NEMAGOUDAR
      AGE: 19 YEARS,
      OCC: STUDENT
      R/O: GURLAPUR, TAL: GOKAK,
      DIST: BELAGAVI.

4.    KALLAWWA
      D/O. BANGAREPPA NEMAGOUDAR
      AGE: 17 YEARS, OCC: STUDENT,
                              5




      R/O: GURLAPUR, TAL: GOKAK,
      DIST: BELAGAVI.

5.    SURESH
      S/O. BANGAREPPA NEMAGOUDAR,
      AGE: 14 YEARS,
      OCC: STUDENT,
      R/O: GURLAPUR, TAL: GOKAK,
      DIST: BELAGAVI.

6.    NEELAWWA
      W/O. DHAREPPA GANIGER,
      AGE: 46 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: GURLAPUR, TAL: GOKAK.
      DIST: BELAGAVI.

7.    BASAVVA
      W/O. MALLAPPA, MIRJI
      AGE: 43 YEARS,
      OCC: AGRICULTURE,
      R/O: KESARGOPPA,
      NOW RESIDING AT GURLAPUR
      TAL: GOKAK, DIST: BELAGAVI.
                                           ...RESPONDENTS

(BY   SRI P.G.NAIK, ADV. FOR C/R/1
      SRI M.H.PATIL, ADV. FOR R.2 TO R7)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 06.04.2017 PASSED
IN R.A.NO.78/2012 BY THE XII ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELAGAVI SITTING AT GOKAK AND
JUDGMENT AND DECREE DATED 22.02.2012 PASSED IN
O.S.NO.116/2006 BY THE II ADDITIONAL SENIOR CIVIL JUDGE,
GOKAK BY ALLOWING THE APPEAL AND THE SUIT OF THE
PLAINTIFFS/APPELLANTS I.E., O.S.NO.116/2006 BE DISMISSED,
IN THE INTEREST OF JUSTICE.

      THESE APPEALS COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                  6




                            JUDGMENT

These two captioned regular second appeals are

filed by the plaintiffs in O.S.No.42/2009.

2. Appeal in RSA.No.100396/2017 is arising

out of O.S.No.116/2006 which is filed by the 1st

respondent purchaser seeking general partition in suit

schedule property. Whereas the appeal in

RSA.No.100397/2017 is filed by the plaintiffs in

O.S.No.42/2009.

3. The relevant family tree is as follows :

APPAYYAPPA (PROPOSITUS)

Mahalingappa Bamgarappa Ramappa (Dead) (Dead) (Dead)

= Yamanavva(wife) Gangavva(wife) (Dead) (Dead) (D.1) Bagavva Yallawwa (1st wife) (2st wife) Dead Appayya (D.3) Basappa (Dead)

= Kallavva (wife) (Dead)

Bangareppa(D4) Shivabassu Moningappa (D.1) (D2)

4. Facts leading to the above said cases are as

follows :

5. The 1st respondent-purchaser filed a suit for

general partition in O.S.No.116/2006 by claiming that

he has purchased share of Smt.Yallawwa-defendant

No.6. The present appellants also filed a suit in

O.S.No.312/2004 seeking partition and separate

possession in the suit schedule properties, which is

renumbered as O.S.No.42/2009.

6. Both the suits are clubbed and common

evidence is recorded in O.S.No.116/2006.

7. The present appellants contended that the

suit schedule properties are the joint family ancestral

property of defendant Nos.1 to 6 and have inherited

the suit schedule properties from original propositus

Sri Appayyappa. The present appellants have stated in

their plaint in O.S.No.42/2009 that the First wife of

Ramappa is no more and defendant No.2-Yallawwa is

the second wife of Ramappa. It was specifically

contended that the plaintiffs and defendant Nos.1 to 4

constitute an undivided Hindu joint family and the suit

schedule properties are the joint family ancestral

properties. The plaintiffs in O.S.No.42/2009 further

specifically pleaded that the revenue record in respect

of the suit land is standing in the name of defendant

Nos.1 to 4. It is specifically pleaded that defendant

Nos.1 to 4, without there being any legal necessity,

with an oblique motive depriving the legitimate share

of plaintiffs are intending to sell the suit schedule

properties and therefore the plaintiffs requested

defendants to effect partition thereby allotting their

legitimate share in the suit schedule properties. On

these set of reasonings, the plaintiffs filed the present

suit.

8. O.S.No.116/2006 is filed by the purchaser.

In O.S.No.116/2006, the purchaser has specifically

pleaded that defendant Nos.1 to 6 inherited the suit

schedule properties from propositus Appayyappa. The

purchaser contended that defendant Nos.6-

Smt.Yallawwa has sold her 1/3rd share in the suit

schedule property in favour of plaintiffs Gurappa Teli

for sale consideration of Rs.1,70,000/-. The purchaser

also claim that the said Yallawwa delivered possession

of the suit lands. The purchaser also specifically

contended that O.S.No.312/2004 filed by other joint

family members is a frivolous suit and same is filed to

defeat the claim of the purchaser.

9. The purchaser and the plaintiffs in

O.S.No.42/2009 in support of their contention have

led in ocular evidence and have also produced

documentary evidence. The purchaser examined

himself as PW.1 and also examined one independent

witness as PW.2. The plaintiffs in O.S.No.42/2009

have also led in evidence and relied on documentary

evidence vide Exs.P.1 to P.11.

10. The Trial Court having clubbed both the

suits has assessed the common evidence recorded in

both the suits. On appreciation of ocular and

documentary evidence, has answered Issue Nos.1 and

2 in O.S.No.116/2006 in the affirmative. The Trial

Court having examined the evidence on record and

also having meticulously assessed the pleadings of the

rival parties has come to conclusion that the

purchaser-plaintiff in O.S.No.116/2006 has succeeded

in proving that his vendor defendant No.6(Yallawwa)

has legitimate 1/3rd share in the suit schedule

property. The Trial Court has also recorded a

categorical finding that the purchaser/plaintiff in

O.S.No.116/2006 has succeeded in proving that

defendant No.6-Yallawwa has sold her 1/3rd share

under a registered sale dated 22.09.2004 for valuable

sale consideration of Rs.1,70,000/-.

11. While examining Issue No.3, the Trial court

has come to the conclusion that since the suit

schedule properties are joint family ancestral

properties, plaintiff in O.S.No.116/2006 cannot assert

joint possession and accordingly said issue came to be

answered in the negative.

12. While considering the claim of plaintiffs in

O.S.No.42/2009, the Trial Court has answered Issue

No.2 in the affirmative by holding that the plaintiffs

and defendant Nos.1, 3, to 4A to 4F, 5 & 6 are in joint

possession and cultivation of suit schedule properties.

13. While answering Issue No.4, which relates

to the right of the purchaser who is plaintiff in

O.S.No.116/2006, the Trial Court has answered Issue

No.4 in favour of the purchaser by holding that the

purchaser would succeeded to the share of his vendor

who is arrayed as defendant No.2-vendor in

O.S.No.42/2009. While dealing with Issue No.4 in

O.S.No.42/2009, The Trial Court has also come to

conclusion that the purchaser/plaintiff in

O.S.No.116/2006 is entitled to work out his equity

rights in final decree proceedings. On these set of

reasonings, the Trial Court has decreed both the suits

in part.

14. While decreeing the suit in

O.S.No.116/2006, the Trial Court has protected the

equitable rights of purchaser by holding that the

plaintiff in O.S.No.116/2006 has to work out his

equitable rights and can seek allotment of his vendor's

share by way of equity. The plaintiffs in

O.S.No.42/2009 were granted their legitimate share.

15. Feeling aggrieved by the judgment and

decree passed in both the suits, the plaintiffs in

O.S.No.42/2009 questioned the judgment and decree

in both the suit in R.A.No.78/2012 and

R.A.No.87/2012.

16. The First Appellate Court has clubbed both

the appeals and on reappreciation of the oral and

documentary evidence has concurred with the findings

and conclusion arrived at by the Trial Court. The First

Appellate Court was also of the view that the plaintiff

(purchaser) in O.S.No.116/2006 is entitled to succeed

to the share allotted to the 2nd defendant-Yallawwa.

17. In the appeals, the plaintiffs in

O.S.No.42/2009 who are arrayed as defendant Nos.1

and 2 in O.S.No.116/2006 have attempted to question

that status of Yallawwa who is defendant No.6 in

O.S.No.116/2006 and defendant No.2 in

O.S.No.42/2009. The present appellants specifically

contended that Ramappa married Yallawwa during

subsistence of his first marriage with Bagawwa.

Therefore, it was contended that Yallawwa is not the

legally wedded wife and therefore she would not

inherit the share of her husband Ramappa in the joint

family ancestral properties. This contention was out

rightly rejected by the Appellate Court. The Appellate

Court was of the view that during lifetime of Ramappa

and Bagawwa, marital status of Yallawwa was not

under challenge. The Appellate Court has come to

conclusion that the marital status of Yallawwa with

Ramappa cannot be the subject matter of the present

suit in O.S.No.42/2009 for want of pleadings. The

Appellate Court was of the view that the plaintiffs in

O.S.No.42/2009 are estopped from disputing the

status of Yallawwa. On these set of reasonings, the

Appellate Court has proceeded to dismiss both the

appeals. It is against these concurrent judgments and

decrees of the Courts below plaintiffs in

O.S.No.42/2009 are before this Court.

18. Learned counsel appearing for the

appellants would strenuously argue and contend

before this Court that even if plaintiffs have not

specifically disputed marital status of Yallawwa with

Ramappa, both the Courts erred in not examining the

pleadings raised by the defendants in the written

statement. To buttress his argument, he would place

reliance on the judgment rendered by the Apex Court

in the case of M/S Gian Chand & Brothers Vs.

Rattan Lal @ Rattan Singh1. Reiterating the

principles laid down in the judgment cited supra, he

would submit to this Court that mere deficiency or in

absence of pleadings cannot be ignored by the Court.

He would submit to this Court that the defendants in

the written statement have specifically disputed

marital status of Yallawwa and therefore issue was

squarely covered by implication and the parties were

quite aware of the challenge to the legal status of

Yallawwa. Therefore, he would submit to this Court

that mere absence of pleading in the plaint would not

exclude the enquiry in regard to legal status and

therefore he would submit that it was incumbent on

the part of the Trial court in framing appropriate issue

and consequently the Trial Court ought to have

decided the legal marital status of defendant No.6 in

O.S.No.116/2006.

19. To further strengthen his argument and

contention, he has placed reliance on the judgment of

ILR 2013 2 SCC 606

Hon'ble Apex Court rendered in the case of Ram

Sarup Gupta (Dead) By LRs. Vs Bishun Narain

Inter College & Ors2. Placing reliance on the

judgment cited supra, he would submit to this Court

that Court has to be conscious while dealing with the

rival contention and has to conduct a fair trial. It is

imperative that the parties should settle their essential

material facts by way of pleadings so that the other

party may not be taken by surprise. Relying on the

very same judgment he would also bring to the notice

of this Court that the pleadings should receive a liberal

construction and pedantic approach has to be

discouraged.

20. He would also take this Court through

examination-in-chief of plaintiff No.1 in

O.S.No.42/2009 who is examined as DW.3 in

O.S.No.116/2006. He would vehemently argue and

contend before this Court that the marital status of

Yallawwa is seriously disputed by plaintiffs and the

AIR 1987 SC 1242

same is forthcoming in the ocular evidence of plaintiff

No.1 in O.S.No.42/2009. He would submit that this

relevant part of ocular evidence would amount to

denial of status of Yallawwa with Ramappa.

21. By way of alternate argument he would

also vehemently argue and contend that the second

wife is not entitled to any share as the marriage being

nullity as per the Bombay Prevention of Hindu

Bigamous Marriage Act, 1946. He would submit that

the marriage of Yellavva has taken place in 1950 and

therefore he would submit to this Court that the

alleged marriage of Yallawwa with Ramappa is not

valid and therefore the legitimate share of Ramappa

would not devolve upon Yallawwa but would revert

back to appellants who are the coparceners. On these

set of grounds, he would submit to this Court that

substantial question of law would arise in the present

case on hand and therefore would submit to this Court

that the matter requires reconsideration.

22. Per contra, learned counsel appearing for

purchaser-plaintiff in O.S.No.116/2006 would straight

away take this Court to the pleadings in

O.S.No.42/2009. She would refer to paragraph No.4 of

the plaint. By placing reliance on paragraph No.4 in

O.S.No.42/2009. She would submit to this Court that

there is no dispute in regard to legal status of

Yallawwa with Ramappa. She would contend that the

admissions in plaint are conclusive admissions and

they are to be placed at higher pedestal. These

admissions at paragraph No.4 would clinch the issue

and therefore she would contend that there is no

dispute in regard to marital status of Yallawwa. At this

juncture she would counter the argument addressed

by learned counsel appearing for the appellants and

contend that this is not a case where appellants are

trying to make out a case in absence of pleadings.

This is a case wherein there is admission in

unequivocal terms admitting the marital status of

Yallawwa with Ramappa. Therefore, the concurrent

findings recorded by the Courts below cannot be

reassessed and reexamined by this Court under

Section 100 of CPC.

23. To counter she has placed reliance on

judgments rendered by the Apex Court in the case of

V.Prabhakara Vs. Basavaraj K.(dead) by legal

representatives and another3 and in the case of

Bondar Singh and others Vs. Nihal Singh and

others4. She would also refute the contentions

canvassed by the learned counsel appearing for the

appellants in regard to cause of action. The learned

counsel appearing for the appellants submitted that it

is on account of alienation by Yallawwa in favour of

plaintiff in O.S.No.116/2006, the second suit for

partition in O.S.No.42/2009 was filed. This is seriously

disputed by learned counsel appearing for the

respondent-purchaser. She would submit that the date

of institution of O.S.No.42/2009 and sale deed

(2022) 1 SCC (Civ) 317

(2003) 4 SCC 161

executed by Yallawwa in favour of plaintiff in

O.S.No.116/2006 are on the same day. Therefore, the

plaintiffs in O.S.No.42/2009 have not at all whispered

about the alienation made by Yallawwa in favour of

plaintiff in O.S.No.116/2006. Questioning the conduct

of the appellants herein, she would submit to this

Court that, there was absolutely no challenge to the

marital status of Yallawwa till the Trial Court decided

the lis. It was only before Appellate Court a feeble

attempt is made by the appellants. This shifts in line of

defence is on account of death of Yallawwa. It is only

after death of Yallawwa, appellants have started

disputing the marital status of Yallawwa. Therefore

she would submit to this Court that the concurrent

finding recorded by both the Courts below is based on

legal evidence and therefore the conclusions and

findings recorded by both the Courts cannot be

revalued and reassessed by this Court under Section

100 of CPC and request this Court to dismiss both the

appeals.

24. She would also bring to the notice of this

Court that based on preliminary decree, the purchaser

filed final decree proceedings in FDP.No.8/2012 and

the Final Decree Court has drawn final decree on

30.03.2019. She would submit that the final decree

drawn by the FDP Court has attained finality and there

is no challenge. She would also submit to this Court

that the execution petition is filed and now based on

demarcation, the purchaser is entitled to seek

possession in terms of final decree drawn in

FDP.No.8/2012.

25. Heard learned counsel appearing for the

appellants, learned counsel appearing for the

respondents and perused the judgments under

challenge. I have also gone through the pleadings of

the rival parties.

26. The short question that needs to be

examined by this Court is as to whether the plaintiff-

purchaser in O.S.No.116/2006 would get valid right

and title pursuant to sale deed executed by defendant

No.6 (Yallawwa). The appellants herein are seriously

questioning the marital status of Yallawwa with

Ramappa. Before the First Appellate Court they

specifically contended that Yallawwa being the second

wife during subsistence of first marriage of Ramappa

with Bagawwa is not at all entitled for any share and

therefore the relief granted to the purchaser in

O.S.No.116/2006, suffers from serious perversity and

therefore warrants interference at the hands of this

Court.

27. To examine this relevant controversy, I am

of the view that the averments made by present

appellants at paragraph No.4 of the Plaint in

O.S.No.42/2009 would be relevant, which is culled out

as under:

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28. If the pleadings in paragraph No.4 are

perused, I am of the view that there is no dispute in

regard to the marital status of Yallawwa. On bare

perusal of the same, this Court would also find that

the present appellants have admitted in unequivocal

terms that Yallawwa is the legally wedded wife of

Ramappa. The question has to whether that Ramappa

married Yallawwa during subsistence of first marriage

with Bagawwa or whether the marriage was prior to

1956 are all disputed question of facts. In absence of

pleadings and specific denial in regard to her legal

status, the said controversy cannot be gone into and

same is impermissible. It is more than trite that in

absence of pleadings any amount of ocular evidence is

of no consequence. Even otherwise, the contention of

appellants that Yallawwa is not legally wedded wife

and that her marriage is in violation of provisions of

the Bombay Prevention of Hindu Bigamous Marriage

Act, 1946, cannot be gone into. The plaintiffs

themselves have admitted that Yallawwa is legally

wedded wife and same can be gathered from the

family tree. They have further pleaded that, they

along with Yallawwa constitute an undivided joint

Hindu family and that they are in joint possession and

enjoyment over the suit schedule properties. It is in

this background, the Appellate Court was justified in

declining the contentions, which were raised for the

first time before the First Appellate Court.

Para 4 of the plaint which is culled out at Para 27

admitting the marital status of Yallawwa is clear and

specific and therefore, appellants are bound by

admissions in the pleadings. The said admissions are

conclusive between the parties to the suit. Therefore,

the question of marital status of Yallawwa was never

in dispute during trial. On examination of material on

record, this Court would find that the onus which was

on the appellants admitting the marital status of

Yallawwa, have not at all made any attempt to get rid

of the pleadings at Paragraph 4 of the plaint and also

in the family tree furnished by the appellants

themselves. Proviso to Section 58 of Indian Evidence

Act gives ample power to the Court to exercise its

discretion, requiring the parties to prove the facts

though they are admitted in the proceedings, where a

party admitting certain set of facts are able to offer an

explanation to get away from the said admissions.

But, in the present case on hand, the admissions at

Para 4 of the plaint will act as an estoppel to

admission of any evidence contradicting the

averments made at Para 4 of the plaint. Therefore,

this Court is of the view that appellants cannot be

permitted to retract from the averments made in

para 4 of the plaint, not at least at the stage of second

appeal under Section 100 of CPC. If status of Yallawwa

is admitted, then the consequences would follow and

the settled principle of law governing Section 58 of the

Indian Evidence Act would come to the aid of the

purchaser. Admissions in pleadings or judicial

admissions, admissible under Section 58 of Evidence

Act made by appellants stand on a higher footing then

evidentiary admissions. Therefore, the averments

made at Para 4 are fully binding on the appellant and

constitutes a waiver of proof and consequently would

lay a foundation in favour of purchaser and therefore,

the sale deed by Yallawwa in favour of respondent

No.1/purchaser would bind the appellants and the

legitimate 1/3rd share would legally pass on to the first

respondent-purchaser.

If the present lis is examined in the light of the

above said principles, then the contentions raised at a

belated stage that Yallawwa's marriage with Ramappa

is a nullity as per Bombay Prevention of Hindu

Bigamus Marriage Act, 1946 in absence of pleadings,

issues cannot be looked into and the said issue would

not arise for consideration. As rightly pointed out by

the learned counsel appearing for respondent No.1,

this Court would find that the marital status of

Yallawwa was not an issue during her life time and it is

only on account of death of Yellawwa, the present

appellants have made a feeble attempt to deny the

marital status of Yallawwa under the fond hope that

the properties would revert back to them. All these

contentions raised before this Court cannot be

entertained.

29. Therefore, though this Court has absolutely

no cavil to the propositions laid down by the Apex

Court in the judgments cited by learned counsel

appearing for the appellants, however, with due

respect, I am of the view that the said propositions

are not applicable to the present case on hand.

30. It is in this background, the judgment and

decree passed by both the Courts below cannot be

interfered with under Section 100 of CPC. No

substantial question law arises. Consequently both the

appeals are dismissed.

Sd/-

JUDGE EM