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. 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. There is also no ground to the effect that contents and execution of relinquishment deed at Exhibit 66 were not proved by the plaintiffs. The learned First Appellate Court on its own without there being any such challenge held that the contents of relinquishment deed were not proved. However, no opportunity of contesting the case on said ground was given to the plaintiffs by the learned First Appellate Court and reversed the findings of the learned Trial Court. Thus it causes prejudice to them. 8. However, no opportunity of contesting the case on said ground was given to the plaintiffs by the learned First Appellate Court and reversed the findings of the learned Trial Court. Thus it causes prejudice to them. 8. The learned Counsel for appellants also drawn my attention to Order 41, Rule 2 of the Civil Procedure Code and proviso thereon which reads as under: < WXY>"2. Grounds which may be taken in appeal.- The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule. Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground."</ WXY> Thus, if at all the First Appellate Court rest its decision on any other ground which is not raised in the memo of appeal ought to have given sufficient opportunity of contesting the same. 9. This Court vide order dtd. 22/01/2007 framed substantial Questions of Law: < WXY>"1. Whether the relinquishment deed dtd. 31/03/1977 could be discarded on the ground that the contents of the same were not proved? 2. Whether learned Sub-ordinate Appellate Court erred in holding that the contents of relinquishment deed were not proved, particularly when said document is registered and executant i.e. defendant No.2 and beneficiaries i.e. plaintiffs are not disputing the contents and signatures on said documents and defendant No.1 referred it in cross examination of plaintiff no.1 and thus the contents are proved?"</ WXY> So far as substantial questions of Law Nos.1 and 2, it is contended by the appellants that the contents of relinquishment deed were duly proved by direct as well as circumstantial evidence. 10. In paragraph No.5 of the plaint, the plaintiffs have specifically pleaded that the defendant No.2 executed and registered relinquishment deed dtd. 31/03/1977 in favour of plaintiffs and relinquished his right, title, share and interest in suit property. This fact is admitted by defendant No.2 who is executant on relinquishment deed. He has also admitted that he had no title and right over the suit property. 31/03/1977 in favour of plaintiffs and relinquished his right, title, share and interest in suit property. This fact is admitted by defendant No.2 who is executant on relinquishment deed. He has also admitted that he had no title and right over the suit property. Defendant No.3 is sister of defendant No.2 also admitted relinquishment deed. 11. In view thereof, there is no necessity to examine defendant No.2. The execution of relinquishment deed is duly proved by PW-1. It is contended that plaintiff No.1 stated that "in the year 1977, my husband Shrawan has given field to me and executed relinquishment deed." It is claimed that thus defendant No.1 has also admitted the execution of said deed. The First Appellate Court on vague statement by PW-1 held that contents of relinquishment deed are not properly proved as PW-1 deposed that 'she cannot tell certainly as to whether relinquishment letter bears signature of her husband or not?" 12. It is argued by learned Counsel for appellants that there is distinction between the "proof of contents" and "proof of signature". The proof of contents relates with the matter inside the document, whereas the proof of signature relates with execution of document. The learned First Appellate Court have not held that the plaintiffs failed to prove execution of deed, rather it was erroneously held that the contents are not proved, though the same were proved. The learned Trial Court erroneously held that "during evidence of respondent No.1, there is note by the court that though the contents were not proved, the document was given exhibit." In fact it was objection of Counsel for defendant No.1 that contents were not proved which was noted by learned Trial Court and not the findings or observations of the learned Trial Court as observed by learned Lower Appellate court. 13. The learned Counsel for the appellants relied on following citations: 1) Raghavendra Rao and ors. V/s. M. Veeravenkatrao and ors. [2002 AIHC 2333 (Karnataka High Court] 2) Kishan Arjuna Khansole V/s. Ababuwa Baba Khansole [ 2000(4) Mh.L.J. 854 ] 3) Murthy and ors. V/s. C. Saradambal and ors. [(2002) 3 SCC 209] 14. As against this learned Senior Counsel Shri S.V. Manohar for the respondent vehemently submitted that Shrawan has not deliberately been examined. The best witness was thus held back. V/s. C. Saradambal and ors. [(2002) 3 SCC 209] 14. As against this learned Senior Counsel Shri S.V. Manohar for the respondent vehemently submitted that Shrawan has not deliberately been examined. The best witness was thus held back. Further, the plaintiff No.1-Vimal (wife of Shrawan), in her evidence has given a clear admission to the effect that 'she cannot identify or tell whether the signature on relinquishment deed is that of her husband i.e. defendant No.2. The signature of defendant No.2 on relinquishment deed was not proved by anybody. 15. The learned Counsel for respondent vehemently argued that evidence of PW-3 -Sheikh Usman does not support the case of the plaintiffs at all. He has drafted a deed for Shrawan. He does not identified the signature of Shrawan on relinquishment deed (however, the reason for not identifying signature is his bad vision due to old age). As such, his evidence is not sufficient to prove the relinquishment deed. The attesting witnesses have categorically stated that the plaintiff No.1- Vimal was present and had accompanied her husband (defendant No.2) Shrawan to the Registrar at the time of execution of the sale deed. It is vehemently argued that when the plaintiff No.1 herself was present before the Registrar at the time of registration of sale deed by defendant No.2, in favour of defendant No.1, it is obvious that the entire suit is false and fraudulent. It is the contention of the respondent that defendant No.2, even after being party to the suit has not identified his own signature on the relinquishment deed by entering into witness box. The deed needs to be proved in the manner provided under the Indian Evidence Act. Contents to relinquishment deed have also not been proved at all as per Indian Evidence Act. The learned Appellate Court rightly held that the wife of defendant No.2, unable to tell whether the said relinquishment deed bears signature of her husband. The defendant No.2, himself has not stepped into the witness box. The scribe has also not identified the documents. Merely marking a document as an exhibit does not amount to proof. The execution of the document has to be proved. The defendant No.2, himself has not stepped into the witness box. The scribe has also not identified the documents. Merely marking a document as an exhibit does not amount to proof. The execution of the document has to be proved. The ordinary method of proving the document is by calling the person who has executed document or a person who has seen the document being executed as a witness and by identifying the signature of the person who has executed it. 16. Sec. 67 of the Indian Evidence Act, requires that if a document is alleged to be signed by a person, the signature of that person has to be proved by examining either that person or by someone who knows the handwriting and signature of that person. 17. It is contended that the plaintiff Nos.2 to 5, if at all wanted to established any right in the estate during the life time of the defendant No.2, they had to plead and prove at least the fact that the property of Chindhuji was ancestral and was not self acquired. Chindhuji died intestate in the year 1963, without making any Will or that he had no authority to make a Will. The property inherited by the defendant No.2, by one of intestate succession and not by way of a Will. It is vehemently argued that it was not placed nor proved that the property was ancestral. 18. The learned Senior Counsel for the respondent No. 1 relied on following citations: 1) Balwant Kaur and anr. V/s. Chanan Singh and ors. [ (2000) 6 SCC 310 ] 2) S. Kaladevi V/s. V.R. Somasundaram and ors. [ (2010) 5 SCC 401 ] 3) Govindbhai Chhotabhai Patel and ors. V/s. Patel Ramanbhai Mathurbhai [ (2020) 16 SCC 255 ] 4) Shri Mahalaxmi Shikshan Samiti, Goa and ors. V/s. Manikrao Krishnarao Dssai and ors.[ 2022(1) Mh.L.J. 262 ] 5) H. Siddiqui (dead) by Lrs. V/s. A. Ramalingam [ 2011(3) SCALE 290 ] 6) Pulavarthi Venkata Subba Rao V/s. Valluri Jagannadha Rao [ (1964) 2 SCR 310 ] 7) Hari Kapoor V/s. South Delhi Municipal Corporation [2019 SCC OnLine Del 11153] 8) T.T. Meenakshi Achi and ors. V/s. The District Registrar, Coimbatore and anr. [AIR 1994 Madras 317] 9) Ashwinkumar K. Patel V/s. Upendra J. Patel and ors. [ (1999) 3 SCC 161 ] 10) Sub-Inspector Rooplal and anr. V/s. LT. Governor thr. V/s. The District Registrar, Coimbatore and anr. [AIR 1994 Madras 317] 9) Ashwinkumar K. Patel V/s. Upendra J. Patel and ors. [ (1999) 3 SCC 161 ] 10) Sub-Inspector Rooplal and anr. V/s. LT. Governor thr. Chief Secretary, Delhi and ors. [ (2000) 1 SCC 644 ] 11) Yadvendra Arya and anr. V/s. Mukesh Kumar Gupta [ (2008) 2 SCC 144 ] 19. The learned Counsel for respondent relied on Govindbhai Patel (supra), wherein, it is held that property gifted by a father to his son or willed by the father to his son cannot be treated as his ancestral property. It has to be treated as his self acquired property. Thus, property acquired by a person which is treated as self acquired property, the children or wife cannot claim any right by birth or by marriage in the said property. It is vehemently submitted that plaintiffs have failed to prove and plead that the property of Chindhuji was ancestral and property of Chindhuji was acquired by defendant No.2 by intestate succession and not by way of Will. Unless it is pleaded and proved that the property of defendant No.2 was ancestral and not self acquired, the plaintiffs do not get any right in the property of defendant No.2. So far as plaintiff No.1 (wife) is concerned, she will not get a share in the share in the property during the life time of her husband, irrespective of, whether it is ancestral or self acquired. Thus, plaintiffs failed to prove that they are co-sharers or co-owners of the property during the lifetime of the defendant No.2 so as to claim valid relinquishment in their favour. 20. Otherwise also, the defendant No.2 has relinquished only 1/6th share in the property. Unless it is proved by the plaintiffs that they were the owners of remaining 5/6th share in the property, the said 5/6th share is remained with defendant No.2, himself. The relinquishment deed speaks only about the 1/6th share of the defendant No.2. The relinquishment deed had no probative value as it is not proved as per Indian Evidence Act. 21. Unless it is proved by the plaintiffs that they were the owners of remaining 5/6th share in the property, the said 5/6th share is remained with defendant No.2, himself. The relinquishment deed speaks only about the 1/6th share of the defendant No.2. The relinquishment deed had no probative value as it is not proved as per Indian Evidence Act. 21. In reply to the contention of appellant that no attesting witness to sale deed was examined, learned Counsel for the appellants relied on Raghavendra Rao (supra), wherein, Karnataka High Court held that the applicability to the proviso to Sec. 68 is concerned, it must be noted that there is no occasion for the respondent to examine any attesting witness to the document in question as it was a sale deed, which never required any attestation and even if, some marginal witnesses attested the document, the document did not attract Sec. 68 of the Indian Evidence Act, which in terms applies to the proof of execution of document required by law to be attested. 22. The learned Counsel for appellant placed reliance on this judgment as it was argued by learned Counsel for respondent that defendant No.2 has not entered into witness box. The Karnataka High Court in paragraph No.14 of the judgment observed as under : < WXY>"14. In the written statement filed by the 7th defendant he has admitted execution of the sale deed Ex. P. 3 in favour of the father of plaintiffs. He being the executant of the document, having admitted the execution, question of further proof is not necessary. It is no doubt true that after filing written statement he has not adduced evidence. The Court must take judicial note of the fact that a person who has parted with the property by executing sale deed, will not be interested any more in respect of the said property unless he possesses dishonest intention of either creating problem to the purchaser or keep an eye to grab the sold property by hook or crook. The absence of 7th defendant after filing written statement in the Trial Court has to be viewed from this angle. Both the Courts below failed to view the aspect in that manner. Hence, the second substantial question of law is answered in the negative."</ WXY> 23. The absence of 7th defendant after filing written statement in the Trial Court has to be viewed from this angle. Both the Courts below failed to view the aspect in that manner. Hence, the second substantial question of law is answered in the negative."</ WXY> 23. Learned Counsel for appellants placed reliance on Kishan Arjuna Khansole (supra), wherein, this Court held that Sec. 67 of the Indian Evidence Act, which deals with the proof of signature and handwriting of document does not lay down in particular kind of proof for proving that a particular writing or signature is in the hands of particular person. The execution of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence. In addition to usual modes, hand writing may also be proved by circumstantial evidence. 24. The learned Counsel for appellants also placed reliance on Murthy and others (supra), in support of his contention that it is the duty of the Appellate Court to give reasoning while reversing, modifying the judgment of the Trial Court, wherein, Hon'ble Apex Court held that < WXY>"60. ..... the High Court has dealt with the judgment of the learned Trial Judge in a short cut method, bereft of all reasoning while reversing the judgment of the Trial Court both on facts as well as law. It is trite that the Appellate Court has jurisdiction to reverse, affirm or modify the findings and the judgment of the Trial Court. However, while reversing or modifying the judgment of a Trial Court, it is the duty of the Appellate Court to reflect in its judgment, conscious application of mind on the findings recorded supported by reasons, on all issues dealt with, as well as the contentions put forth, and pressed by the parties for decision of the Appellate Court. No doubt, when the Appellate Court affirms the judgment of a Trial Court, the reasoning need not to be elaborate although reappreciation of the evidence and reconsideration of the judgment of the Trial Court are necessary concomitants. But while reversing a judgment of a Trial Court, the Appellate Court must be more conscious of its duty in assigning the reasons for doing so."</ WXY> 25. But while reversing a judgment of a Trial Court, the Appellate Court must be more conscious of its duty in assigning the reasons for doing so."</ WXY> 25. Learned Counsel for respondent also relied on Milind Chandurkar (supra), wherein Hon'ble Apex Court held that it is mandatory for the Appellate Court to independently assess the evidence of the parties and considered the relevant points which arise for adjudication and bearing of the evidence on that points. Admissibility of documents or contents thereof may not necessarily need to drawing any inference unless the contents thereof have same probative values. It is the duty of the Court to examine whether documents produced in the Court or contents thereof have any probative value. 26. The learned Counsel for respondent relied on Shri Mahalaxmi Shikshan Samiti, Goa (supra), in support of his contention, mere admission of document in evidence/mere marking of exhibit of document does not amount to its proof. The document will have to be proved qua its contents either by primary or secondary evidence. It was held that reliance placed by the First Appellate Court on document marked on exhibit is erroneous. 27. It is the submission of the learned counsel for the Respondent that the Trial Court has also made a cryptic reference to an earlier compromise decree between plaintiffs and Vithoba. The Trial Court has further passingly observed that, "it appears that after executing relinquishment-deed the court passed compromise petition in favour of plaintiffs and Vithoba Warghane". It is submitted by learned Counsel for respondent that in the first place, the said observation is incorrect and is of no avail. The earlier compromise decree has no binding effect on the present defendant. In support of his contention, he relied on Pulavarthi Venkata Subba Rao and others (supra), wherein the Hon'ble Apex Court held that a compromise decree is never a decision of the Court, it is only an acceptance by the Court of something to which the parties are agreed. The Court does not decide anything. The High Court in the said matter held that property is taken by two sons of Narasimha Rao under the will, were their separate properties and not ancestral property, as there were no words to show a contrary intention. The Court does not decide anything. The High Court in the said matter held that property is taken by two sons of Narasimha Rao under the will, were their separate properties and not ancestral property, as there were no words to show a contrary intention. The High Court also referred to the conduct of the respondents in partitioning the villages and held that property was held not jointly but in definite shares. 28. Learned Counsel for respondent vehemently submitted that, even if, relinquishment deed is proved, it is not legal one as relinquishment can only be done in favour of person who is having pre-existing rights in property. Here, wife of Shrawan is not entitled for any share in the property being a wife. 29. The learned Counsel for respondent also relied on Hari Kapoor (supra), in support of his contention that the essential ingredient of relinquishment deed is that the person in whose favour the property is relinquished must have pre-existing right in property. The Delhi High Court in Hari Kapoor (supra) held that: < WXY>"13. It would follow that a deed of release is an instrument by which one co-owner releases his interest in a specified property as a result of which there would be enlargement of the share of the other co-owners. The releasee should also have a legal right in the property and the release deed would operate to enlarge that right. The share cannot be released in favour of one who has no rights in the property as co-owner." Similar is the view taken in T.T. Minakshi Achi and others (supra). In my considered opinion, these citations may not assist respondent as wife was not the only person in whose favour the share was relinquished. However, the relinquishment deed is also executed in favour of children. So it is necessary to see what is the effect of relinquishment deed, in case the other persons are entitled to receive share by way of relinquishment from co-sharer.</ WXY> 30. It appears that the learned Trial Court held in the affirmative that the plaintiffs proved that on 31. /03/1977, the defendant No. 2 had executed the registered relinquishment deed in favour of the plaintiffs. In appeal, this finding reversed by the learned Appellate Court. It is specific contention of the appellants that there was no ground raised in the Reg. It appears that the learned Trial Court held in the affirmative that the plaintiffs proved that on 31. /03/1977, the defendant No. 2 had executed the registered relinquishment deed in favour of the plaintiffs. In appeal, this finding reversed by the learned Appellate Court. It is specific contention of the appellants that there was no ground raised in the Reg. Civil Appeal No. 147/2003 challenging the finding against Issue No. 6 which was answered in favour of the plaintiffs i.e. execution of registered relinquishment deed in favour of the plaintiffs. There is no challenge to this finding against Issue No. 6 in the appeal. As such, there was no reason for the appellants herein to defend/argue the ground which was taken by the learned lower Appellate Court on its own in respect of execution and the contents in relinquishment deed. Points are framed at the time of passing of judgment by appellate Court. 31. The learned Counsel drawn my attention to the written notes of argument filed by the appellants in RCA No. 147/2003. It is pointed out from the judgment of learned lower Appellate Court in para 5 wherein it is observed that, the learned Counsel for the appellants, as well as respondents filed their written notes of argument Exhs. 20 and 19 respectively. Except the written notes of argument, no other submissions made by the learned Counsel for the parties. As such, without there being any opportunity or ground raised, the learned lower Appellate Court erroneously recorded the finding against the plaintiff and erroneously held that the contents of the relinquishment deed are not properly proved by respondent No. 1. It is further wrongly observed that during the evidence of respondent No. 1 (i.e. plaintiff No. 1) though the contents were not proved, the document was exhibited. Therefore, it was certainly incumbent upon respondent No. 1 (plaintiff No. 1) to prove the contents of this material document. The learned Counsel for the appellants drawn my attention to the evidence of the plaintiff No. 1 wherein the objection was taken to give exhibit number by the learned Counsel for defendant No. 1 as the contents of the relinquishment deed were not proved, however, the learned lower Court marked the said document as Exh. 66. So what is observed by the learned lower Appellate Court is not correct. 66. So what is observed by the learned lower Appellate Court is not correct. There was no ground raised in the appeal, nor there is any ground raised in the written notes of argument. Admittedly, there was no oral arguments. As such, there was no opportunity to the appellants to file any submission with regard to proving of contents in the relinquishment deed. As such, the request is made for remanding of the matter in view of Order 41, Rule 2 of Civil Procedure Code is justified. 32. The learned Counsel for the respondents vehemently opposed the remanding of matter. The learned Counsel for respondent No. 1 relied on Yadvendra Arya and anr. (supra), Sub-Inspector Rooplal and anr. (supra) and Ashwinkumar K. Patel (supra) wherein it is held that the High Court should not ordinarily remand a case merely because it considers the reasoning of the lower Court to be wrong. The remand of a case causes delay, prejudice and inconvenience to parties. Thus, when material is available before it, the High Court should exercise its own discretion and decide the appeal. 33. The learned Counsel also relied on these judgments in support of proposition that taking into consideration, the time already consumed by this case and costs and consequences already suffered by the parties concerned, it was in the interest of justice to put to rest the controversies involved in the appeal and the Hon'ble Apex Court refused to remand the matter back. 34. However, if Order 41, Rule 2 of Civil Procedure Code is perused, the learned Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule. However, it is mandatory on the part of the learned Appellate Court that it shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground. In my considered opinion, after going through the memorandum of appeal before learned First Appellate Court and the written notes of argument, it clearly reveals that there was no ground challenging the finding recorded in favour of the plaintiffs in respect of execution of registered relinquishment deed. In my considered opinion, after going through the memorandum of appeal before learned First Appellate Court and the written notes of argument, it clearly reveals that there was no ground challenging the finding recorded in favour of the plaintiffs in respect of execution of registered relinquishment deed. I have also gone through the written notes of arguments, there is also not a single ground or point raised in respect of not proving contents or execution of relinquishment deed, specifically when learned Trial Court answered issue in favour of plaintiff. Thus it was not open for learned Appellate Court to hold that the contents of relinquishment deed was not proved in absence of any challenge for ground in that regard in the appeal memo or in the written notes of argument filed by defendant No.1 and that too without granting opportunity of contesting the case on that ground to the plaintiff by the learned Lower Appellate Court. As such, it would be in the interest of justice to remand the matter back for granting fair opportunity to the present appellants as discussed above. In view of remand, other substantial question of law does not survive. Accordingly, I proceed to pass the following order:- < WXY>ORDER 1) The present Second Appeal is partly allowed. 2) The judgment and decree dtd. 30/07/2005 passed by learned First Appellate Court (i.e. 3rd Ad-hoc Addl. District Judge, Wardha) in Reg.C.A. No. 147/2003 is hereby quashed and set aside. 3) The matter is remanded back to the learned First Appellate Court for fresh hearing and for grant of fair opportunity to both the parties. 4) The parties to appear before learned First Appellate Court (i.e. 3rd Ad-hoc Addl. District Judge, Wardha) on 30/11/2023.</ WXY>