JUDGMENT - A.R. SHIMPI, J.:---The petitioner Babasaheb Raghunath Solathe, resident of Takli, Taluka Paithan, has filed this Special Civil Application challenging the order of the Maharashtra Revenue Tribunal, passed in Appeal No. 1830-A of 1976 dated 11th August, 1976 whereunder the learned Member set aside the order passed by the Surplus Land Determination Tribunal and remanded the matter for fresh inquiry directing that the petitioner has got 229 acres of land standing in his name in the record-of-rights. He further directed to ascertain the area of pot kharaba land out of it by giving opportunity to the petitioner to lead evidence on that point and after making the necessary inquiries, the Surplus Land Determination Tribunal should declare the surplus land and delimit the same as per the provisions of law. The facts, in brief, are as under. The petitioner is the son of one Raghunath who died on 18 July, 1960 leaving behind him considerable immovable property consisting of lands which totally admeasured 229 acres 11 gunthas. It appears that at the time of the death of the petitioners father, the petitioner was minor. Raghunath left behind him three widows and five daughters who were major at the time of the submission of the return by the petitioner under the provisions of the Amended Ceiling Act. During the minority of the petitioner, partition appears to have been effected by them of this family land and land ad-measuring 58 acres 07 gunthas was allotted to the share of the petitioner. It is seen from the record that the entry regarding the partition allotting different shares to the widows as well as the daughters and the petitioner was mutated by the village Talathi on 16th August, 1960. The entry was certified by Naib Tahsildar on 13th December, 1960. However, the Tahsildar made an endorsement that the entry will take effect if the petitioner after attaining majority, ratifies the partition. In the meanwhile under the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 the petitioner had filed a return. In that return he has pointed out how during his minority after the death of his father partition had taken place and how he was allotted 58 acres of land. In the meanwhile under the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 the petitioner had filed a return. In that return he has pointed out how during his minority after the death of his father partition had taken place and how he was allotted 58 acres of land. It appears that the Deputy Collector, Land Reforms, Aurangabad in Ceiling Case No. 98 of 1971 dropped those proceedings on 20th September, 1974 on the ground that even if the partition was re-opened, the petitioner would only entitled to 92 acres 12 gunthas of land, and as the ceiling prescribed for the Paithan Taluka is 108 acres, he was holding land below the ceiling prescribed In that view he dropped the proceedings and did not take the action. It appears that on 3rd of July, 1969, a scheme consolidation of holdings was accepted in respect of these lands situated in respective villages of that Taluka. The lands were given different Gat Numbers and for the purposes of making this Scheme, the partition that was effected during the minority of the petitioner was accepted by the Consolidation Officer on 2nd of September, 1970. After the provisions of the Amended Ceiling Act came into force, the petitioner submitted his return and pointed out that he was in possession of 58 acres 07 gunthas of land. The Surplus Land Determination Tribunal observed in its order that the village record showed that the petitioners father Raghunath was holding 229 acres 11 gunthas of land. But the Tribunal, accepting the Government instructions that partition though illegal but sanctioned by or under the Consolidation Act by the Consolidation Officer should not be re-opened, accepted the partition. The Surplus Land Determination Tribunal held that out of 58 acres 05 gunthas of land, 1-A-15 Hs. was pot kharaba. Deducting that area, the area of the land which remained with the petitioner was found out to be 56 acres 30 gunthas. The ceiling prescribed being 54 acres it declared 2 acres 30 gunthas as the surplus. Aggrieved by this order the petitioner filed an appeal challenging that there was more pot kharaba land and there could not have been a surplus of 2 acres 30 gunthas. The State did not file any appeal. The ceiling prescribed being 54 acres it declared 2 acres 30 gunthas as the surplus. Aggrieved by this order the petitioner filed an appeal challenging that there was more pot kharaba land and there could not have been a surplus of 2 acres 30 gunthas. The State did not file any appeal. It also appears from Exhibit "B" that the Commissioner, Aurangabad Division had called for the papers for review and order under the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (amended), and after scrutiny came to the conclusion that there were no grounds for taking any action. Hence he dropped the proceedings. The Tribunal after scrutinising the record came to the conclusion that the total holding of the petitioner was 229 acres 11 gunthas and not 58 acres as held by the Surplus Land Determination Tribunal. The learned Member of the Tribunal held that Assistant Consolidation Officer was not competent to sanction the mutation the entry and it appears from his reasoning that he came to the conclusion that the family held 229 acres 11 gunthas of land and as such, the petitioner who was the only surviving male member in the family was entitled to succeed to that holding. In that view of the matter, he set aside the order of the Surplus Land Determination Tribunal and passed the order of remand as already stated above. Aggrieved by that order the present Special Civil Application has been filed. Only two contentions were raised on behalf of the petitioner by his learned Advocate Shri R.M. Agarwal. It was contended that the State had not filed any cross-objections nor had filed any appeal challenging the order passed by the Surplus Land Determination Tribunal. Therefore, the Maharashtra Revenue Tribunal had no jurisdiction to set aside the order on the grounds stated in the order. However, Shri Agarwal, at the hearing, submitted that he would not press this point and would only contest his case on merits. Shri Agarwal then submitted that there is no dispute about the fact that the petitioners father held lands and his total holding was 229 acres 11 gunthas. However, Shri Agarwal, at the hearing, submitted that he would not press this point and would only contest his case on merits. Shri Agarwal then submitted that there is no dispute about the fact that the petitioners father held lands and his total holding was 229 acres 11 gunthas. Even if it is assumed for arguments sake that the partition which had taken place in the year 1960 was a nominal partition and was not in effect a real partition, still under the provisions of the Amended Ceiling Act, the petitioner would be only entitled to hold land less than that which has been allotted to his share. He submitted that Raghunath died leaving behind his son, the petitioner Babasaheb Solathe, three widows who would also succeed to the estate of Raghunath, would be entitled to one share collectively. He further submitted that Raghunath had five daughters who were major and three daughters were already married. At this stage Shri Agarwal drew my attention to fact that these daughters who were allotted lands as per the partition of 1960 were in possession of those lands and those lands were taken into consideration in ceiling proceedings in respect of two daughters against their husband and in respect of third daughters against her son. He has annexed the copies of these orders which are collectively exhibit as Exhibit "E". He submitted that there are seven shares in the holding of Raghunath and the petitioner would be only entitled to one-seventh share. The submission urged on behalf of the petitioner will have to be accepted in the instant case. The relevant provisions are in Chapter II relating to Lowering of Ceiling on Holdings. Section 3(1)(3) reads as under : "3(1) Subject to the provisions of this Chapter and Chapter III, no person or family unit shall, after the commencement date, hold land in excess of the ceiling area, as determined in the manner hereinafter provided Explanation ................ (2) .............................. Explanation ............... Section 3(1)(3) reads as under : "3(1) Subject to the provisions of this Chapter and Chapter III, no person or family unit shall, after the commencement date, hold land in excess of the ceiling area, as determined in the manner hereinafter provided Explanation ................ (2) .............................. Explanation ............... (3) where any land --- (a) is held by a family of which a person is a member, (b) is held in or operated by a co-operative society of which a person is a member, (c) is held by a person jointly with others, (d) is held by a person as a partner in a firm, and the holding of such person or of a family unit of which such person is a member, including the extent of share of such person, if any, in the land answering to any of the descriptions in Clause (a), (b), (c) or (d) above exceeds the ceiling area on or before the commencement date or on any date thereafter (hereinafter referred to as the relevant date), then for the purpose of determining the ceiling area lane the surplus land in respect of that holding, the share of such person in the land aforesaid shall be calculated in the following manner :--- (i) in the land held by a family of which the person is a member, the share of each member of the family shall be determined, so that each member who is entitled to a share on partition, shall be taken to be holding separately land to the extent of his share, as if the land had been so divided and separately held on the relevant date; (ii) ................. (4) * * * * *" The facts, which are not disputed, go to show that Raghunath died leaving behind the heirs as already stated above. They are all tenants in common and they were holding the property of Raghunath jointly along with the petitioner. They also come in the category of persons who are entitled to a share on partition as heir to the share of Raghunath. The petitioner would be entitled only to 1/7th share in the property of Raghunath. Calculating that share, it will be certainly less than what the petitioner has shown in his return. They also come in the category of persons who are entitled to a share on partition as heir to the share of Raghunath. The petitioner would be entitled only to 1/7th share in the property of Raghunath. Calculating that share, it will be certainly less than what the petitioner has shown in his return. Though that share which is derived by a notational partition is less, still we will have to accept the holding shown by the petitioner while submitting the return and the petitioner pointed out that it is 58 acres 07 gunthas. Under such circumstances, I am inclined to hold that the learned Tribunal committed an error apparent on the face of the record in not constructing the provisions of section 3 of the Amended Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. Shri Agarwal also submits that he would not raise the contention of pot kharaba lands any more. He would accept the finding of the Surplus Land Determination Tribunal. In that view of the matter, the order passed by the Maharashtra Revenue Tribunal will have to be quashed and that of the Surplus Land Determination Tribunal restored. Rule made absolute with no order as to costs. -----