HARI NATH TILHARI, J. ( 1 ) -THESE two second appeals arise from the common judgment and decree dated 26. 7 1990, delivered by Sn a. R. Siddiqi, Principal Civil Judge and CJM, dharwad, in Regular Appeal Nos 44/79 and 46/79, whereby the learned lower Appellate court allowed both the appeals and set aside the judgment and decree dated 13. 3. 1979, passed in Original Suit No. 237/76 and O S no. 115/77, whereby the trial court had dismissed the suit of the present plaintiff- respondent. Thus the lower appellate court has decreed the plaintiff's claim in both the suits and ordered that the plaintiff shall get half share in the suit property by way of separate partition and possession and directed the Commissioner to be appointed for affecting partition These appeals are disposed off by one common judgment ( 2 ) THE present plaintiff-respondent claim herself to be the wife of one Mallappa Madar suit No. 237/76 was tiled against Fakeerawwa in respect of house property situate in Huliketti village and plaintiff claimed separate possession of her half share therein which the allegation to the effect that she was the legally wedded wife of said Mallappa who had died in the year 1962 and that defendant No. 1 had been the adoptive mother of plaintiff's husband Mallappa. Plaintiff's further case is that her husband was taken in adoption by defendant No 1 on May 25, 1956 and a registered sale deed was also executed. Plaintiff's further case is that her husband was taken in adoption by defendant No 1 on May 25, 1956 and a registered sale deed was also executed. Plaintiff-respondent claimed suit house to be ancestral property of the husband of defendant No 1 and after the death of husband of defendant No 1, defendant No 2 took Mallappa in adoption and Mallappa became the owner of the said property and after the death of Mallappa, the plaintiff-respondent succeeded to him as the legal heir to Mallappa and became owner of the said property original Suit No 115/77 was also filed by the present plaintiff-respondent, with reference to Sy No. 146 and area of 9 acres and 9 guntas, against defendant Fakirawa, that is the present appellant and one Channabasappa, seeking declaration to the effect that upon the death of Fakirawa, husband of defendant No 1 took the plaintiff-respondent in adoption and Mallappa became the absolute owner in possession of the suit land and upon the death of said Mallappa, plaintiff-respondent started cultivating the suit land as absolute owner in possession and that defendant No 1 had no right or interest in the suit land and the land was validly mutated in her favour. Plaintiff contended that defendant No 1 was once upon a time cultivating the suit land as a tenant and he had given up cultivation more than 20 years back and the name of defendant No 2 continued to appear in Revenue record as cultivator so he has impleaded defendant No 2. Plaintiff further alleged that defendant without the knowledge of the plaintiff got the suit land regranted in her name. On the order of regrant declaring her as absolute owner coming to plaintiffs notice the plaintiff-respondent sought declaration that the order of the Tribunal dated 19. 8 1976 was not binding upon her. Plaintiff further alleged that defendant without the knowledge of the plaintiff got the suit land regranted in her name. On the order of regrant declaring her as absolute owner coming to plaintiffs notice the plaintiff-respondent sought declaration that the order of the Tribunal dated 19. 8 1976 was not binding upon her. Plaintiff also claimed decree for permanent injunction and lateron by amendment sought relief for partition of the suit land to the extent of half share on the ground that she is entitled to half share therein alongwith defendant No. l (that is the present appellant) being the legal heir of deceased Mallappa, in case the court does not hold the plaintiff- respondent to be the exclusive owner ( 3 ) THE suit was contested by the present appellant that is defendant No. 1 The defendant denied that the plaintiff is the legally wedded wife of deceased Mallappa. It was also denied that Mallappa was the adopted son of defendant No 1 or that plaintiff has been enjoying possession of the suit property that is the suit home and the land Defendant denied plaintiff's right to the property in dispute and further stated vested right cannot be divested. It was asserted that the suit was misconceived and not maintainable and defendant asserted that it be dismissed ( 4 ) THE trial court on the basis of the pleadings of the parties in Suit No. 237/76 and Suit No. 115/77 framed the following issues: issues of Original Suit No. 237/76: (1) Whether the plaintiff proves that the suit property belongs to maliappa Basappa Maitry? (2) Whether the plaintiff proves that she is entitled to succeed to the said property as an heir? (3) Whether he proves that she is entitled to half share in the suit property? (4) What order or decree? (5) Whether the defendant proves that some other properties are left out? (6) If yes, whether the suit is maintainable? (7) Whether the plaintiff proves that she is legally wedded wife of mallappa? (8) Whether the plaintiff proves that deceased Maliappa was adoptive son of the defendant? issues in Original Suit No. 115/1977: (1) Whether the plaintiff proves her title to the suit property? (2) Whether she proves her possession on the date of suit? (3) Whether she proves obstruction? (4) Whether the proves that decision given by the land Tribunal is not binding upon her? issues in Original Suit No. 115/1977: (1) Whether the plaintiff proves her title to the suit property? (2) Whether she proves her possession on the date of suit? (3) Whether she proves obstruction? (4) Whether the proves that decision given by the land Tribunal is not binding upon her? (5) Is plaintiff entitled to declaration? (6} Is plaintiff entitled to injunction? (7) What order or decree? (8) Whether the plaintiff proves that she has got half share in the suit property? (9) If yes, whether she is entitled to separate possession? ( 5 ) THE trial court dismissed both the suits filed by the plaintiff-respondent and held that the plaintiff was the legally wedded wife of maiiappa. It further held that the plaintiff- respondent failed to prove that Maiiappa was the adopted son of defendant that is the present appellant. The trial court held that the plaintiff has failed to prove that the suit property belong to Matlappa. it helh that Issue nos- 2, 3 and 6 do not arise. The trial court further held that the defendant failed to prove that some other properties were let out. The trial court dismissed the suit No. 115/77 and after recording finding in negative with respect to Issues Nos. 1 to 5 and 6 held that the plaintiff was not entitled tc any decree. ( 6 ) IT may be mentioned that both the suits were clubbed and decided by one common judgment and decree. ( 7 ) FEELING aggrieved from the judgment and decree of the trial court, the defendant appellant filed the two regular appeals referred to above and botht the appeals were clubbed together and decided by one common judgment and decree dated 26. 7. 1990. The lower appellate court held that the plaintiff has failed to prove that Maiiappa had been adopted by defendant No. 1 present appellant validly and as there is ample evidence to prove the factum of the rights of adoption and as maiiappa had been adopted, he became entitled to the property or interest therein and after the death of Maiiappa, the plaintiff- respondent being the widow of Maiiappa, had been entitled to succeed to the half share. The lower appellate court further opined that as both the suits were clubbed and decided together, so there remains no property for consideration and partition and for the purpose of granting the relief. The lower appellate court further opined that as both the suits were clubbed and decided together, so there remains no property for consideration and partition and for the purpose of granting the relief. Having found that the plaintiff-respondent was the married wife of Maiiappa and Maiiappa was the adopted son of the defendant-appellant, the lower appellate court held that the plaintiff has established the adoption of deceased Maiiappa by defendant No. 1. The lower appellate court held that the plaintiff being the wife of Maiiappa had been entitled to half share and passed the decree for partition of half share of the plaintiff-respondent in the suit land and suit house and for delivery of separate possession thereof by way of partition. ( 8 ) FEELING aggrieved from the judgment and decree of the lower appellate court whereby the lower appellate court has set aside the trial court's decree and decreed the plaintiff's claim in toto, defendant No. 1 has come up before this court by filing two second appeals. In respect of second appeal common question of law has been urged and as the two suits were decided by common judgment, I think these two appeals can be disposed off by one common judgment and so are being decided and disposed off. ( 9 ) I have heard Mr. Jayakumar S. Patil, learned counsel for the appellant assisted by mr. Jayaprakash Reddy for the appellant and mrs. Sonvakund appearing for the plaintiff- respondent. Effort has been made to advance a new case. It was contended on behalf of the appellant that though plaintiff-respondent is the wife of Maiiappa, but Mallappa's adoption has not been validly established. Learned counsel for the appellant contended even if it be taken that there is evidence of giving and taking, the lower appellate court has held that giving and taking of the child that is husband of the plaintiff by husband's adoptive mother is established, but even then no legal and valid adoption has been established, in view of the fact that it has come in the evidence of P. W. 1 that adoption had taken place at the time when the marriage of mallappa had already been performed and Mallappa was major and adoption of the major son or a boy who is married is not recognised and maintained in law as valid. On this basis the learned counsel contended that the judgment and decree passed by the court below to the effect that Mallappa was adopted son of defendant No. 1 that is the appellant as such on his death, plaintiff- respondent, the wife of Mallappa became entitled to half share, is bad in law and suffer from substantial error of law. ( 10 ) MEETING out these contentions of the learned counsel for the appellant, Mrs. Sonavakund, learned counsel for the respondent contended that this is of taking a new place which has never been raised. It has nowhere been the case pleaded by defendant- respondent No. 1 that adoption had taken place at a time when Mallappa was a major and married. She submitted that firstly it is a write principle of law that a plea that has not been raised in the trial court particularly which is mixed of law and fact should not be allowed to be urged or raised, at the stage of second appeal, even if there is any evidence the same should not be considered and looked in respect of a plea which has never been raised in the pleadings nor pressed in issue at the trial court. Learned counsel for the respondent further submitted that the parties belong to the Scheduled Caste community and there is no question of any Upanayana in the family of Scheduled Caste. She further submitted that this question of law which is tried to be raised at the appellant stage, has not been raised in the memo of appeal formulating any substantial question. Learned counsel for the respondent urged that if we look to the evidence of the witnesses present at the time of adoption, Mallappa was unmarried, he might be aged about 17 or 18 years, as the evidence discloses. Learned counsel contended that it is after coming into force of Hindu Maintenance and Adoption Act, 1956, which came into operation in December. 1956, the specific provision regarding age has been introduced that children to be adopted should not be more than 15 years and there should be a difference of age between the adoptive father or adoptive mother on one hand and the adoptive child and earlier there was no such bar. Learned counsel also referred to the evidence of P. Ws. 2, 3 and 4. Learned counsel also referred to the evidence of P. Ws. 2, 3 and 4. which shows that at the time of adoption husband of plaintiff Mallappa was aged about 18 years. Learned counsel submitted that there being no bar about the age of the child to be adopted, adoption even after 15 years under old law was not bad and illegal Mrs Vakund therefore, contended that P. W. 1 whose statement has been referred may be mistaken, because at the time of the deposition as she is aged only 33 years and adoption is alleged to have taken place at about 30 years back. So she might be only 3 years baby and she could not even have been a married woman. ( 11 ) I have applied my mind to the contentions raised by the learned counsel for the parties. ( 12 ) AS per Section 100 Clause (5), it is provided that substantial questions of law has to be formulated. The appellate order does not indicate on what substantial question of law, the appeal was admitted, nor memo of appeal indicate, what was substantial questions of law arising in the appeal. At this stage, this argument that has been advanced as mentioned above. The pleading of the defendant or parties do not indicate that the present defendant-appellant had raised any such plea that Mallappa, husband of the plaintiff-respondent at the time of adop on was more than 15 years of age or that he was a married person, who had been adopted and on account of that he was incompetent to be adopted. Neither the plea has been raised by the appellant in the trial court nor any issue was pressed, no such pleading in regard to the said plea which is sought to be raised at this stage has been shown to have been taken. In the trial court this question was never agitated as the judgment of the trial court per se indicates. No doubt effort has been made to raise this plea in the first appellate court. In the trial court this question was never agitated as the judgment of the trial court per se indicates. No doubt effort has been made to raise this plea in the first appellate court. When a plea is mixed question of law and fact, it cannot be allowed appeal to be raised for the first time in the second appeal; because that may also involve the question of custom, if there is a custom in the family to give and take in adoption a child or boy who has crossed the age of 15 years or who has even been married. Many communities have different customs The fact whether he has been adopted after his marriage or not is also a question of fact or that whether marriage has taken place earlier than adoption, if such plea would have been taken the issue would have been framed and the plaintiff would have an opportunity to file and lead evidence and place his case. Even otherwise, P. Ws , evidence shows that marriage had taken place after adoption and at the time of adoption the boy was not married. ( 13 ) UNDER old Hindu Law, there has been a different opinion as to the age at which a boy may be adopted. Mulla in his Hindu law, 16th Edition, at page 512 observes in bombay State a person may be adopted at any stage, though he may be older, than the adopter and that he may be married'and have children and reference is made to the case of balabai v. Mahadu. For the present I am not deciding this question one way or the other but it is well-settled principle of law that a case has to be decided primarily on the basis of pleadings and issues therein. As no case was pleaded at the original stage and no averments has been made in the written statement taking such a plea which involves question of law and fact, it would not be proper to allow the appellant to raise this plea at this stage. It is also well-settled that if a plea has been taken, no issue was pressed and no discussion on the point in the trial court, the plea should be deemed to have been made. It is also well-settled that if a plea has been taken, no issue was pressed and no discussion on the point in the trial court, the plea should be deemed to have been made. It is also well- settled that no amount of evidence led one way or the other on the point which has not been subject matter of pleading and has not been pleaded at all at any stage should be considered as it would be to allow a party to make of a new case (See Saddik Mahomed shah v. Smt. Saranad and Ors ). ( 14 ) THUS considered in my opinion, the question which has sought to be raised at the stage of appeal, as it has never been raised in the trial court as no issue has been pressed thereon, and no question has been formulated or got formulated at the stage of admission of the appeal, before this court, this plea raised by the appellant cannot be considered. No other point has been pressed nor it has been shown as to how this finding recorded by the first appellate court is wrong or suffers from substantial error of law and finding regarding adoption being a finding of fact to the effect that giving and taking has taken place and thereafter deed was recorded, the finding can be said to be pure and simple finding of fact and does not call for interference in this view of the matter both the Second Appeals have got no merits and deserve to be dismissed and are hereby dismissed as being without substance. Respective cost of the appeal shall be borne by the parties respectively. Appeal dismissed. --- *** --- .