IMPORTANT POINT
[The court established that the validity of a relinquishment deed requires proper proof of its contents and execution, and that appellate courts must adhere to procedural fairness by allowing parties to contest any new grounds raised in appeals.]

JUDGMENT/ORDER

1. Heard learned Counsel for both the parties.

2. The present appeal is filed by original plaintiffs being aggrieved by the judgment and decree passed in Regular Civil Appeal No.147/2003 by learned 3rd Ad-hoc Additional District Judge, Wardha thereby the decree passed in Regular Civil Suit No.162/1984 passed by learned Civil Judge, Junior Division, Hinganghat on 26/09/2003 are set aside.

3. The facts can be summarized for filing suit as under: The plaintiff No.1 is the wife of defendant No.2 Shrawan and plaintiff Nos.2, 3, 4 and 5 are the sons of Shrawan. Chindhuji was the father of Shrawan. Chindhuji died in the year 1963. He left about 48 acres of agricultural land including gold, silver and cash. In the year 1966, there was a partition took place in between defendant No.2 i.e. Shrawan and the brother of Chindhuji namely Laxman. As per this partition, Shrawan got 23.50 acres of agricultural land and other movable articles. During the year 1975, defendant No.2 raised money by executing Isarpatra of following field i.e. Khasra No.21/2K, area 5 acres, at mouza Shahalangadi. Plaintiff No.1 however by paying money, saved the suit field by paying off the said Ganpat. On 02/06/1976, the defendant No.2 executed bogus sale-deed in favour of Vithoba Govinda Warghane and took loan from him. Therefore, plaintiff filed Civil Suit No.220/1976 wherein by way of compromise, matter was settled. On 23/04/1973 another bogus sale-deed in respect of Khasra No.12/1 was executed by the defendant No.2 Shrawan in favour of his friend Rajeram who forcibly took possession of the said field and Civil Suit No.33/1978 is filed for possession. In view of all these instances, to prevent the habit of defendant No.2, relatives and friends of defendant No.2 and plaintiffs came together and on 31/03/1977, release deed was executed and registered by the defendant No.2. As per that deed, defendant No.2 Shrawan relinquished his right, title, share and interest in the entire joint family property in favour of plaintiffs. Accordingly, plaintiffs applied for mutation.

4. On 24/03/1983, defendant No.2 Shrawan has executed bogus sale-deed to the suit field in favour of defendant No.1 i.e. Shankar Pusaram Tarale. The only intention, first to raise money for satisfying his vices by defendant No.2. It was not a sale transaction but it was a money lending transaction in between defendant Nos.1 and 2.

5. The learned Counsel for appellants submitted that during the pendency of appeal filed by defendant No.1 before the First Appellate Court, the plaintiffs have executed the decree of possession on 20/07/2004 in Regular Darkhst No.91/2003 and now the plaintiffs are in physical possession of suit property and their names are recorded in record of rights.

6. The learned Counsel for appellants also drawn my attention to the Civil Application (CAS) No.1139/2023 wherein permission to frame additional substantial question of law was sought for. The learned Counsel for appellants formulated following substantial questions of law for consideration of this Court.

<WXY>"Whether it was open to learned Subordinate Appellate Court to hold that the contents of relinquishment deed was not proved in absence of any challenge or ground in that regard in the appeal memo or in the written notes of argument filed by the defendant No.1 and that to without granting opportunity of contesting the case on that ground to the plaintiffs by the learned Subordinate Appellate Court?"</WXY>

7. It is vehemently submitted that once the learned Trial Court decreed the suit and declared that sale-deed dtd. 24/03/1983 is void and illegal. The learned Trial Court specifically held that defendant No.2 executed relinquishment deed in favour of plaintiffs which has been proved and hence he had no right to execute the sale-deed. Defendant No.1 has not challenge aforesaid findings of accepting the relinquishment deed by the learned Trial Court and no ground was raised in that regard in his appeal memo. Th