JUDGMENT - M.N. CHANDURKAR, J.:---In an enquiry made under section 18 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as the "Ceiling Act"), the total holding of the petitioner was found to be 188 acres 39 gunthas out of which an area of 137 acres 7 gunthas was found to be with the tenant and consequently land in actual possession of the landholder petitioner was found to be 51 acres 32 gunthas. The ceiling area under the Act for Kagal Taluka being 66 acres, it was found that no land was liable to be declared surplus under the provisions of the Ceiling Act. After this enquiry was made by the Sub-Divisional Officer, Karvir Division, Kolhapur, the Commissioner in the exercise of his revisional jurisdiction under section 45 of the Ceiling Act reopened the enquiry with regard to 7 fields out of which the Commissioner came to the conclusion that field Survey No. 94/1 area 16 acres 13 gunthas of Kagal and field Survey No. 230 area 2 acres 33 gunthas of Mangaon were erroneously left out of consideration by the Sub-Divisional Officer. With regard to Survey No. 94/1 the Commissioner found that this field which was originally in the possession of the tenant was cultivated by the petitioner landlord personally in the years 1957 to 1959-60 after the tenant had surrendered his tenancy and a competent authority had passed an order with regard to the surrender. It was also found that during the three years when the field was cultivated by the landlord, the tenant worked as a servant of the landlord. The field was again leased out to the tenant in the year 1960 and the Commissioner found that there was no evidence to show that this transfer in the nature of a lease was not made with a view to defeat the provisions of the Ceiling Act. With regard to the other field Survey No. 230 of Mangaon it was found that the petitioner had forcibly dispossessed the tenant and cultivated it in the year 1959-60 though it was also found that on 30th December, 1959, the field was transferred back to the tenant but by way of a sale deed. With regard to the other field Survey No. 230 of Mangaon it was found that the petitioner had forcibly dispossessed the tenant and cultivated it in the year 1959-60 though it was also found that on 30th December, 1959, the field was transferred back to the tenant but by way of a sale deed. The area of these two fields was, therefore, held liable to the taken into account for determining the surplus land of the petitioner and taking into account the area of these two fields, the holding of the petitioner was computed at 70 acres 38 gunthas of dry crop land and he being found entitled to retain 66 acres, 4 acres 38 gunthas were declared surplus. The matter was sent back to the Sub-Divisional Officer to delimit the surplus area in accordance with the provisions of section 15 and 16 of the Ceiling Act. The petitioner has now field this petition challenging the order of the Commissioner. Mr. Rege appearing on behalf of the petitioner has contended that surrender in pursuance of which it has been held that he came in possession of Survey No. 94/1 could not be a legal surrender because the tenant must be deemed to have become owner of the land with effect from 1st April, 1957 and, therefore, the possession of the petitioner cannot be said to be legal possession as owner and that possession could not be taken into account for the purposes of determining the total holding of the petitioner. There is clearly no substance in this contention. The petitioner has not disputed the finding given by the Commissioner that the landlord came in possession of the land in pursuance of the orders of the competent authority after the tenant had surrendered his tenancy. The fact that the petitioners name found place in the Record of Rights as having cultivated the field personally in the years 1957 to 1959-60 and that the tenant was working as a servant of the petitioner for a period of three years clearly showed that he must have got into possession as a result of the surrender executed prior to 1957. In any case, if on the basis of the surrender duly verified by the competent authority, he came in possession during the year 1957 and was in possession till 1960, his possession was that of an owner, and the mere fact that he had transferred that field to the same tenant in 1960 did not mean that he was not in possession as an owner thereof. The burden was on the petitioner to show that the lease which he gave in 1960 was not intended to defeat the provisions of the Ceiling Act and the Commissioner is right when he observes that there is no material to show that he had succeeded in rebutting the presumption raised under section 10 of the Ceiling Act. So far as the other field is concerned, however, it appears to us that the area 2 acres 33 gunthas of Survey No. 30 of the Mangaon could not be taken into consideration. There is no finding that this field was taken possession of in pursuance of any order of any competent authority. If possession was taken some time in the year 1959, that would be illegal possession. There is no evidence to show that the tenant was entitled to become owner of this field and consequently the tenant had a right to be restored back to possession. The petitioner therefore, cannot be said to be in possession of this field as owner on 4th August, 1959 even though it is stated that he had obtained possession on 18th March, 1959. It is also important that the field was transferred to the tenant by a sale dated 30th December, 1959. This would further show that the tenant was entitled to restoration of possession and during the period when such a right existed, the possession of the landlord cannot be said to be the possession as an owner. Consequently the order of the Commissioner in so far as it includes the area of Survey No. 230 for the purpose of computing the total holding of the petitioner is liable to be quashed. The result is that the petition is partly allowed. The total holding of the petitioner as computed by the Commissioner as 70 acres 38 gunthas is liable to be reduced by 2 acres 33 gunthas. The total holding of the petitioner will thus be determined at 68 acres 5 gunthas. The result is that the petition is partly allowed. The total holding of the petitioner as computed by the Commissioner as 70 acres 38 gunthas is liable to be reduced by 2 acres 33 gunthas. The total holding of the petitioner will thus be determined at 68 acres 5 gunthas. Consequently the total surplus land will also be reduced to 2 acres 5 gunthas. Subject to this modification the petition is rejected. There will be no order as to costs. -----