JUDGMENT - S.M. HAJARNAVIS, J.:---This is a petition by the surplus holder under Article 227 of the Constitution against the appellate decision of the learned Member of the Maharashtra Revenue Tribunal, Aurangabad Bench, dismissing his appeal against the decision of the Surplus Land Determination Tribunal, Paithan, holding that he held surplus land to the extent of 27 acres and 21 gunthas. Enquiry into the holdings of the petitioner was started by the Surplus Land Determination Tribunal, Paithan. During the enquiry, the Surplus Land Determination Tribunal found that some lands were transferred by the petitioner after 26th September, 1970 in favour of his son and grand-daughter. The Surplus land Determination Tribunal came to the conclusion that he held 71 acres and 1 guntha as owner and tenant on the relevant date. It was observed by the Surplus Land Determination Tribunal that some of the lands were seasonally irrigated by flow-irrigation from source constructed and maintained by the State Government and that area fell in category (c) of sub-section (5) of section 2 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter called as the "Act"). Such area was found to be 8 Hectors and 19 Acres, i.e., about 21 acres. He converted that area into dry crop area and thus the Surplus Land Determination Tribunal came to the conclusion that he held 81 acres and 21 gunthas as dry crop land. The Surplus Land Determination Tribunal rejected the petitioners claim for excluding certain land on the basis that it was pot kharab land and also on the ground that he had surrendered his tenanted lands Survey Nos. 10/1 and 11/1 of village Pathewadi to the owner in 1975. It was his case that proceedings under section 44 read with section 32 of the Hyderabad Tenancy and Agricultural Lands Act for resumption of the land were initiated by the owner of the land on 30th March, 1959 after terminating his tenancy. Those proceedings were still going on. All pleas of the surplus holder were rejected by the Tribunal and that is how the Surplus Land Determination Tribunal found him surplus holder to the extent of 27 acres and 21 gunthas. An appeal filed by the petitioner was also dismissed by the learned Member of the Maharashtra Revenue Tribunal and it is against his order that the present petition has been filed. Mr. An appeal filed by the petitioner was also dismissed by the learned Member of the Maharashtra Revenue Tribunal and it is against his order that the present petition has been filed. Mr. Agarwal, the learned Counsel for the petitioner, urged that both the Tribunals have committed an error in not excluding the land to the extent of 1 acre and 17 gunthas from the holding of the petitioner as it was not land as understood under sub-section (16) of section 2 of the Act. It is true that both the Tribunals have not examined this point and the learned Assistant Government Pleader objected to this point being urged for the first time in these proceedings, but in view of the fact that I am sending back the case I think, the Surplus Land Determination Tribunal should examine this point, much more so because the petitioner has in his return under section 12 of the Act has shown land to the extent of 1 acre and 17 gunthas as pot kharab. Mr. Agarwal, the learned Counsel for the petitioner, stated that those figures have been given on the bases of the entries in the record of rights which could be verified. The Surplus Land Determination Tribunal will examine the contention of the petitioner in that respect and find out whether some of the land was really pot kharab land. Mr. Agarwal then submitted that the Surplus Land Determination Tribunal has committed an error in respect of the seasonally irrigated land. He submitted that the Surplus and Determination Tribunal has taken the area of (1) Survey No. 120/1 as 2 Hectors and 60 Ares, equivalent to 6 acres and 20 gunthas; (2) of Survey No. 121/1 as 2 Hectors and 57 Ares i.e., about 6 acres and 17 gunthas; and (3) of Survey No. 143 as 2 Hectors and 2 Ares, i.e. about 5 acres and 2 gunthas. While, in fact, he held only 2 acres and 23 gunthas from Survey No. 121/1 and 3 acres and 27 gunthas from Survey No. 143. That means, instead of taking 6 acres and 10 gunthas as land held by the petitioner in respect of Survey Nos. 121/1 and 143 as failing under category (c) of sub-section (5) of section 2 of the Act, he has taken 11 acres and 19 gunthas. That means, instead of taking 6 acres and 10 gunthas as land held by the petitioner in respect of Survey Nos. 121/1 and 143 as failing under category (c) of sub-section (5) of section 2 of the Act, he has taken 11 acres and 19 gunthas. Therefore, he has committed an error in working out the land falling under category (c) of sub-section (5) of section 2 of the Act. This mistake has not been rectified by the learned Member of the Maharashtra Revenue Tribunal. He has also included 1 Hector from Survey No. 10 under this category. It is the case of the petitioner that whole Survey No. 10 should not have been included in the holdings of the petitioner because there were proceedings going on between him and the landlord under section 44 of the Hyderabad Tenancy and Agricultural Lands Act at the relevant time. The petitioner also submitted that fields of Panthewadi, Survey Nos. 10 and 11/1, totally admeasuring 14 acres and 29 gunthas were surrendered by him to the owner in the early part of 1975. It is his case that he had surrendered this field in pursuance of the panchayat held in that respect. He stated that proceedings were initiated on 30th March, 1959 by the owner for resumption of this land under section 44 read with section 32 of the Hyderabad Tenancy and Agricultural Lands Act after terminating the tenancy on 31st December, 1958. He further stated that it was a hotly contested case and the matter came up to the High Court and was remanded to the Tahsildar before whom the proceedings were pending. While those proceedings were pending, the original owner died. Therefore, the villagers called a panchayat and purchased him to surrender this land to the widow and widowed daughter in-law of the original owner. He had, in fact, surrendered this field to the widow and the daughter-in-law of the original owner. He had annexed an affidavit filed by the widow of the original owner. As the transfer was effected after 26th September, 1970 the Surplus Land Determination Tribunal ignored the transfer and included this land in his holding. The learned Member of the Maharashtra Revenue Tribunal, however, doubted the transaction itself. He had annexed an affidavit filed by the widow of the original owner. As the transfer was effected after 26th September, 1970 the Surplus Land Determination Tribunal ignored the transfer and included this land in his holding. The learned Member of the Maharashtra Revenue Tribunal, however, doubted the transaction itself. In my opinion, the matter should have been examined further and in view of the fact that the proceedings were initiated by the original owner in accordance with law and much prior to the Ceiling Act had come into force, the transfer should not have been excluded so summarily. I think, ends of justice would be met by setting aside the orders passed by both the Tribunals and sending back the case to the Surplus Land Determination Tribunal for deciding it afresh after giving an opportunity to the petitioner and the widow of the original owner to obtain necessary order from the Tahsildar in respect of the proceedings initiated by the original owner. These are the only points urged by the petitioner. The order passed by the Surplus Land Determination Tribunal and affirmed by the learned Member of the Maharashtra Revenue Tribunal is set aside and the matter is sent back to the Surplus Land Determination Tribunal for fresh decision according to law in the light of the observations made above. The Surplus Land Determination Tribunal will take up the matter after the decision of the Tahsildar in proceedings initiated by the deceased owner of section Nos. 10 and 11/1 under section 44 read with section 32 of the Hyderabad Tenancy and Agricultural Lands Act. The Tahsildar will dispose of the case within one month from today. If the Tahsildar accepts the contention of the widow of the original owner for resumption of the land or if he accepts the surrender in respect of Survey Nos. 10 and 11/1, then the Surplus Land Determination will not take into consideration that land in the holding of the petitioner. In the result, the rule is made absolute. Under the circumstances of the case, there will be no order as to costs. -----