Maroti Sonba Phusande vs State of Maharashtra

M.N. Chandurkar, J.—The petitioner had filed a return u/s 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, hereinafter referred to as the Ceiling Act, in respect of his total holding. In a proceeding which commenced on the basis of this return the Sub-Divisional Officer held that the total holding of the petitioner was 173 acres, 31 gunthas out of which he was entitled to retain 136 acres, After taking into account the sales of survey numbers 197 and 226 made in the years 1961 and 1963 respectively as being hit u/s 10 of the Ceiling Act, 40 acres 31 gunthas were declared as surplus land. It appears that before the Sub-Divisional Officer the petitioner alleged that a partition of joint family property had taken place on 19-10-1959-and that if that partition was taken into consideration there could be no surplus land at all. This contention was, however, rejected. The Sub-Divisional Officer had taken the number of members of the family for the purpose of calculating the ceiling land as six.

The petitioner then filed an appeal before the Maharashtra Revenue Tribunal and the Tribunal took the view that the total surplus land would be 65 acres 31 gunthas and though the Tribunal dismissed the appeal on the assumption that it could interfere with the order because the entire matter was open before it, the Tribunal held that the number of members in the family should be calculated as only three and not six as held by the Sub-Divisional Officer. The surplus land, therefore, was calculated at 65 acres 31 gunthas and the Sub-Divisional Officer was directed to issue a fresh notification. This petition is now filed by the petitioner challenging this order.

I have already held in Saberullakhan v. Fakrullakhanx Sp. Tc. A. No. 508 of 1969, decided on 28th January 1971that in an appeal filed by the surplus holder the Tribunal cannot pass an order adverse to him while dismissing his appeal in the absence of any appeal filed by the State, as the Tribunal does not have any revisional jurisdiction under the provisions of the Ceiling Act. It must also be remembered that the general rule is that on an appeal by an aggrieved party the appellate Court can reverse or vary the decree or order appealed against only in favour of the party appealing. The provisions of rule 4 and rule 33 of Order 41 of the CPC provide emphasis to the general rule. There are no provisions in the Ceiling Act analogous to the provisions of Order 41, rule 4 or 33 of the Code of Civil Procedure. There is no reason why the State should be treated differently than an ordinary litigant when it is arrayed as a respondent in an appeal u/s 33 of the Ceiling Act. Thus in the absence of any appeal on behalf of the State it was not competent for the Tribunal to exercise its appellate jurisdiction to pass an order in favour of the State and adverse to the appellant where the State did not feel itself aggrieved by the order of the Sub-Divisional Officer.

It was then contended that the Tribunal was right in holding that Mandakini was a member of the family of the petitioner and to that extent the order of the Tribunal should not be disturbed. Now the number of members of the family has to be determined with reference to 26th January 1962. It is conceded that on that date Mandakini was married. If that is so, it is difficult to hold that Mandakini should be taken as a member of the family of the surplus holder.

In the view which I have taken the petition must be allowed. The order of the Maharashtra Revenue Tribunal is quashed and the order of the Sub-Divisional Officer restored. The petitioner will be entitled to his costs.