JUDGMENT-The petitioner wanted resumption of 8 acres and 18 gunthas of land out of survey No.8 in village Raipur, taluq Mehkar, district Buldana, for his personal cultivation. The respondent No.1 was a lessee of the said field. The petitioner being minor, an application for possession was filed on his behalf by his guardian before the Tenancy Naib-Tahsildar. The Tenancy Naib.Tahsildar enquired into the application and found that the total holding of the petitioner was more than one-third of a family holding, but less than a family holding, and he is principally dependent on agriculture and he bona fide required the suit land for personal cultivation. On these findings, he granted the application of the petitioner and ordered that he shall be put in possession of the whole of the land claimed by him, viz. 8 acres and 18 gunthas out of survey No. •8. The Tenancy Naib-Tahsildar also held that the total holding of the plaintiff was 31 acres and 19 gunthas and the family holding in this area being 32 acres it did not exceed a family holding. 2. The respondent No.1 preferred an appeal before the Special Deputy Collector. It appears that the finding regarding the total holding of the petitioner given by the Tenancy Naib-Tahsildar was based on the statement made by the petitioners father wherein he had shown fields at villages Raiprir and Bramhapuri, the total area of which was 31 acres and 19 gunthas. It appears that this statement was not fully correct as one survey number was not mentioned, while two survey numbers were wrongly described. In appeal, parties had filed some documents, which consisted of the Jamabandi abstracts of villages Raipur and Bramhapuri and the crop-statements of the years 1962-63 and 1963-64 regarding the survey numbers of village Bramhapuri. It appears that none of the parties objected to the filing of these documents by the other party, nor was the correctness of those documents challenged by any of the parties. On the basis of these documents, the appellate• Court found that the petitioner owned two survey numbers at Raipur and three survey numbers at village Bramhapuri; the total area of all these five survey numbers was 33 acres and 18 gunthas. On the basis of these documents, the appellate• Court found that the petitioner owned two survey numbers at Raipur and three survey numbers at village Bramhapuri; the total area of all these five survey numbers was 33 acres and 18 gunthas. From the documents produced before it, it was also found by the appellate Court that out of survey numbers 2/ 1 and 12/1 of village Bramhapuri, 2 acres, 11 gunthas of land• was rocky and could not be brought under cultivation This area of 2 acres and 11 gunthas was shown in column No. 11 of the crop statements. The heading of column No. 11 of the crop-statement is”(Rocky, not capable of being cultivated"). If therefore, held that in finding out as to whether the petitioner holds a family holding or more than a family holding, this rocky land mentioned in column No. 11 of the crop-statement should be excluded. It accordingly excluded, and did not 1fu.ke into consideration the area of 2, acres and 11 gunthas for finding out the total holding and came to the conclusion that the land for the purposes of a family holding with the" Petitioner was 3.1 acres and 7 gunthas.The appellate Court also found that the petitioner was solely dependent upon agriculture and that he , needed the" suit land for his maintenance. It may be noted that a landholder claiming possession on the ground of personal cultivation has to establish that he bona fide needs the land and that he principally earns his livelihood by agriculture or agricultural labour in a case where his total holding is less than a family holding. If his total holding is more than a family holding, he has further to prove that the income by the cultivation of the land of which be is entitled to take possession is ,the principal source of income for the maintenance of the ,landlord. ,On the basis that the petitioners total holding is less than a ,family holding, the two requirements required under section 38 of the Bombay Tenancy Act have been held to be proved. It was, however, the contention of the respondent No. 1 that the petitioner had also to prove the, third condition viz. of the comparative teat, since, the petitioners total holding Was more than a family holding. It was, however, the contention of the respondent No. 1 that the petitioner had also to prove the, third condition viz. of the comparative teat, since, the petitioners total holding Was more than a family holding. The dispute, therefore, centres round the only question as to whether the total holding of the petitioner was more than a family holding or less than ,a family holding. The appellate Court also has held that the petitioner has established the two conditions which are required to be established by a landholder having less than a, family holding. The appellate Court, therefore, dismissed the appeal. 3. The respondent No.1 thereupon filed a revision application before the. Maharashra Revenue Tribunal at, Nagpur, and the same contention was raised before it. It was urged by the respondent No.1 before the Revenue Tribunal that, in addition to 33 acres and 18 gunthas of land which the appellate Court found to be belonging to the petitioner, the petitioner had still another field measuring 5 acres and 11 gunthas bearing survey No, 2/11 For this purpose the statement made by the father of the petitioner was relied upon, Before the Revenue Tribunal, it was stated at the Bar, that the statement made by the "petitioners father regarding survey No. 2/11, measuring 5 acres and It gunthas, was a mistaken statement and, besides the lands which have been stated by the appellate Court, the petitioner had no other land. The Revenue Tribunal has accepted this statement of the learned counsel and held that the petitioner, had no land as survey No. 2/11 and found that he held only 33 acres and 18 gunthas of hind, as held by the appellate Court. The same argument was reiterated before me by the learned counsel for the respondent No, 1, and he contended that besides the 33 acres and 18 gunthas of land found by the Deputy Collector, The petitioner had ,also 5 acres and 11 gunthas more land and, as such, even excluding 2 acres and 11 gunthas of rocky land, the total holding of the Petitioner was more than a family holding. I have looked into the statement of the petitioners father from the original record, though no copy was filed by the respondent No. 1 in the petition, and it appears to me that the contention raised by the learned counsel for the petitioner before the Revenue Tribunal was correct. I have looked into the statement of the petitioners father from the original record, though no copy was filed by the respondent No. 1 in the petition, and it appears to me that the contention raised by the learned counsel for the petitioner before the Revenue Tribunal was correct. In the statement the petitioners father mentioned survey Nd."2/1l but did not mention survey"; No. 2/10. It appears that he, had no papers before him and was making the statement from his memory, and there was a mistake in mentioning the survey number of the field. This will be apparent from the fact that in the area of the fields also, the petitioners father has made same mistakes. Bath sides were permitted to file documents in the appellate Court, and it does at appear that opportunity was refused to the respondent No. l or to either party to file any more documents if they wanted to. The documents which have been filed do show that survey No. 2/11 was not shown to belong to the petitioner and no document has been filed by the respondent No.1 to show that survey No.2/11was of the ownership of the petitioner. After the documents were filed in the lower appellate Court, the case was pending in that Court far about 10 days and, If survey No.2/11 really belonged to the petitioner it was open to the respondent No.1 to file mare documents to show that the petitioner owned this survey number also. Even before the Revenue Tribunal no such attempt was made by the respondent No.1 to show that survey No.2/11 belonged to the petitioner. It is therefore, not possible to accept the contention of Mr. Deshpande that besides 33 acres and 18 gunthas af land, the petitioners also owned 5 acres and 11 gunthas mare, as contended by him. There is no reason to take a different view from the finding reached by the lower appellate Court as well as the revisional Court in this respect. It must therefore, be taken that the tota1 area with the petitioner was 33 acres and 18 gunthas. 4. The Revenue Tribunal has also found that he has satisfied the conditions as required by section 38 (3) (c) of the Barn hay Tenancy Act an the basis that the total holding of the petitioner was less than a family holding. It must therefore, be taken that the tota1 area with the petitioner was 33 acres and 18 gunthas. 4. The Revenue Tribunal has also found that he has satisfied the conditions as required by section 38 (3) (c) of the Barn hay Tenancy Act an the basis that the total holding of the petitioner was less than a family holding. This finding also is a concurrent finding of fact of all the revenue Courts and is not liable to be challenged. 5. The Revenue Tribunal further held that, though the area held by the petitioner was 33 acres and 18 gunthas, 2 acres and 11 gunthas out of the same was a rocky area and has always been lying fallow. This has also been menttioned in the crop-statements which have been filed by the petitioner before the lower appellate Court. It was contended before him an behalf of the respondent No. 1 that though the rooky area may be unproductive, it could not be excluded from the area which is declared to be a family holding for a particular locality. The Revenue Tribunal took the view that in determining the family holding far a particular area all these factors are taken into account and it will not be permissible to make any kind of deduction from a holding of the landlord in determining the extent of the family holding with the landlord. He took the view that it was not permissible to deduct the rocky area or the fallow land from a landlords holding in computing the family holding in his possession. On this view the Tribunal held that the petitioner held 33 acres and 18 gunthas of land which was mare than a family holding and there fare, it was of the view that the petitioner was also required to satisfy the first condition laid dawn in section 38 (3) (c) of the Bombay Tenancy. Act regarding the comparative test. The Tribunal, the before, held that the condition not having been satisfied, the petitioner was not entitled to resume the land. On this view, it set aside the orders of the two Court below and dismissed the application far resumption. This order of the Revenue Tribunal is challenged by this writ petition. 6. Mr. Kberdekar, the learned counsel for the petitioner, challenged this view of. On this view, it set aside the orders of the two Court below and dismissed the application far resumption. This order of the Revenue Tribunal is challenged by this writ petition. 6. Mr. Kberdekar, the learned counsel for the petitioner, challenged this view of. the Revenue Tribunal and contended that the area of 2 acres and 11 gunthas, which was a rocky land and totally unfit for cultivation and bas been lying fallow for a number of years, could not be taken into consideration for determining the extent of a family holding He has relied on "decision of this Court in Special Civil Application No. 768 ofl964 decided on 25-1-1966 by Abhyankar J .• He has also relied on the definition of the words "family holding" and "land" given in section 2 of the Bombay Tenancy Act and it is his contention that a land which is not capable of being cultivated cannot be taken into consideration in order to find out the land of a landholder for the purposes of determining the extent of family holding with him. 7. Mr. Deshpande has urged the same grounds which he had urged before the Revenue Tribunal and I have already dealt with one ground urged by Mr-. Deshpande regarding the survey No. 2/11 said to be belonging to the petitioner. The other ground urged by Mr. Deshpande was that this piece of land of 2 acres and 11 guntbas which is said to be rocky cannot be excluded from consideration and it will have to be held that the total holding of the petitioner is 33 acres and 18 gunthas even apart from the 5 acres and 11 gunthus shown by survey No. 2/11. The crop-statements for the years 1962-63 and 1963•64 filed by the petitioner before the appellate Court show that the 2 acres and 11 gunthas is a KHADKAL land, i.e. rocky land, and is not fit for cultivation. This remark is given in column No. 11 of the crop-statements. It is contended by Mr. Deshpande that in determining a family holding, section 4 requires certain things to be taken into consideration. This remark is given in column No. 11 of the crop-statements. It is contended by Mr. Deshpande that in determining a family holding, section 4 requires certain things to be taken into consideration. A family holding is determined with respect to a local area and once the area, for the purposes of a family holding has been determined with respect to that area, then that has got to be applied with respect to each and every piece of land in that area,• irrespective of the fact that a portion of that land is uncultivable or unproductive. It is urged by him that while deciding the area of a family holding for a local area the factors given in clause (b) of sub-section (1) of section 4 of the Bombay Tenancy Act have got to be taken into consideration. These factors are (i) the situation of land; (ii) the productive capacity; (iii) the soil and climate characteristics; (iv) the fact that the land is located in the scheduled area; (v) such minimum limit of net annual income from the land as may be prescribed; (vi) any other factors which may be prescribed. And on taking into consideration all these factors, area which shall be comprised in a family holding has got to be determined. In these villages the area of family holding has been determined by taking these factors into consideration and that family holding has got to be applied to every landholder in that local area. It is hence urged by Mr. Deshpande that the family holding for this area being 32 acres irrespective of the quality of land held by a particular landholder, the only thing to do is to find out as to how much land is owned by a particular landholder and if it exceeds, on summing up those lands of a landholder, the family holding, i.e. 32 acres, then it must be heldthat thetotal holding of a landholder is in excess of a family holding. I find it difficult to accept this contention of Mr. Deshpande. The "family holding" has been defined in section 2 (13) of the. Bombay Tenancy Act thus:- “family holding" in. I find it difficult to accept this contention of Mr. Deshpande. The "family holding" has been defined in section 2 (13) of the. Bombay Tenancy Act thus:- “family holding" in. relation to any local area constituted under section 3 means a family holding determined under section 4 in respect of lands situate in that local area; In sub-section (17) of section 2, "land" has been defined thus Land" means- (a) land which is used or capable of being used for agricultural purposes and includes the sites of farm buildings appurtenant to such land etc. The land, therefore, means not only a piece of earth, but a piece which is actually used as an agricultural land or is capable of being used for agricultural purposes. If a piece of land is not fit for agricultural purposes and is not capable of being so used, then it cannot come within the definition of "land" given in section 2 (17) of the Act. Section 4 provides for the determination of a family holding. It says that the State Government shall determine for all or any class of land in each local area etc. When it says that it shall determine for all land or any class of land, it would necessarily mean land as defined by section 2 (17) and, therefore, the determination of the family holding has got to be with respect to lands which are actually used for agricultural purposes or which are capable of being used for agricultural purposes, in other words which are cultivable lands and a family holding cannot be determined with respect to uncultivable land, i.e. land unfit for cultivation. The clause (a) of sub-section (1) of section 4 also refers to the extent of land which a family of five persons including the agriculturist himself would normally cultivate. Such extent of land also refers to cultivable land, and then, under clause (b) of sub-section (1) of section (4), the extent of such land, that means, land which will go to make a family holding, has got to be determined, regard being had to the factors in cause (b). Such extent of land also refers to cultivable land, and then, under clause (b) of sub-section (1) of section (4), the extent of such land, that means, land which will go to make a family holding, has got to be determined, regard being had to the factors in cause (b). Therefore, in determining the family holding, first thing that has to be done is to find out as to which is the cultivable land and then the situation of that cultivable land has got to be found out; the productive capacity of such cultivable land has also to be found; then the soil and climate characteristics with respect to such cultivable land has also got to be taken into consideration and the fact that such land is located in the scheduled area and the minimum limit of net annual income from the land which would mean cultivable land, has ,got to be found out. Therefore, all these factors have got to be applied in relation to a land which necessarily means, under the definition, a land which is used or capable of being used for agricultural purposes, and not to a piece of land which is unfit for cultivation. That is how the family holding is determined. Now, after determination of the family holding, it has got to be found out as to whether a particular landholder owns more than a family holding or less than a family holding, or how much family holding he holds, and for determining this area for the purposes of finding out a family holding with a particular landholder, necessarily the land which is fit for cultivation has alone to he taken into consideration and an unfit land has got to be excluded. The contention therefore, of Mr. Deshpande that even lands which are unfit for cultivation have also to be included for determining the total holding cannot be accepted. In this case, it has been found that this area of 2 acres and 11 gunthas was a fallow land, because that area was a rocky area and not fit for cultivation. In fact, the appellate Court has found this as a fact relying on the crop-statements filed by the petitioner and not objected to, by the respondent No.1 and, before the Revenue Tribunal, the case seems to. In fact, the appellate Court has found this as a fact relying on the crop-statements filed by the petitioner and not objected to, by the respondent No.1 and, before the Revenue Tribunal, the case seems to. have been argued on the assumption that this 2 acres and 11 gunthas of land was a rocky land, and the only contention was that, even- though it ,was a rocky land and unfit for cultivation, it has to be included in finding out the extent of the family holding with the landholder. 8. The Revenue Tribunal, therefore, was not right in holding that the 2 acres and 11 gunthas of rocky land has also to be taken into consideration. If this area is excluded then the total area for the purposes of a family holding with the petitioner would be 31 acres and 7 gunthas which is admittedly less than a family holding. On this finding, the petitioner was required to satisfy only the 1wo conditions, viz. regarding the bona fide need and his principal source of livelihood being agriculture, which, as has been found by the Courts of fact have been satisfied by the petitioner. The Revenue Tribunal, therefore, was wrong in interfering with the orders of the Special Deputy Collector and in rejecting the application of the petitioner for resumption. ; The order of the Revenue Tribunal dated 20-1-1965 in Revision ApplicatioI1No. 1958/Ten 11964 is; therefore quashed and set aside and the orders of the Tenancy Naib-Tahsildar, Mehkar and the Special Deputy Collector, Buldana are maintained. 9. In the result, the petition is allowed with costs. Petition allowed.