M. N. Chandurkar, J. - (1.)THE petitioner holds a lease from the State Government in respect of field khasra number 93, admeasuring 5.47 acres of Bhishi, for a period of five years commencing from 1st April 1966 by virtue of a lease -deed dated 11 -7 -1966. This field belongs to respondent No. 2 Sitaram and was declared as surplus land under section 21 (2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereafter referred to as the Tenancy Act, in a proceeding for verification of the surrender -deed executed by the tenant, who cultivated this land. The surrender -deed was executed in respect of this khasra number 93 which had an area of 13,73 acres, but only 6,47 acres of land was declared as surplus land, because the total land held by the respondent No. 2 along with the land surrendered exceeded three -family holdings by this area. The order in the surrender proceedings was passed by the Tahsildar on 30 -11 -1962 in Revenue Case No. 136 /59 (4 -A) /1961 -62. On the date on which the surrender -deed was verified the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, hereafter referred to as the Ceiling Act, had already come into force on 26 -1 -1962. Under the provisions of the Ceiling Act, the maximum land which the respondent No. 2 was held entitled to be in possession was determined, and in these proceedings the respondent No. 2 had shown this area of 5.47 acres as a part of his holding. This was Revenue Case No. 5/60 (A -5)/64 -65 decided on 7 -6 -1965. In terms of the order passed in that case the respondent No. 2 was held entitled to 216 acres of land while he actually held 110 -97 acres. In these 110.97 acres the disputed land was included by the respondent No. 2.
(2.)ACCORDING to the petitioner, after he had been placed in possession by the Patwari on 24 -7 -1966 in pursuance of the lease granted to him by the State Government, the respondent No. 2 dispossessed him on 25 -7 -1966 forcibly and he, therefore, filed an application under section 120 of the Tenancy Act for ejectment of the respondent No. 2. In these proceedings under section 120 of the Tenancy Act, the case of the respondent No. 2 was that he was held entitled to be in possession of the disputed field in spite of the order under section 21 (2) of the Tenancy Act. The sheet anchor of the case of the respondent No. 2 was the order passed in the proceeding under the Ceiling Act by which according to him he was held entitled to remain in possession of the land in dispute. The Sub -Divisional Officer found that the Government have assumed management of the land which was declared surplus land under section 21 (2) of the Tenancy Act and that the Naib -Tahsildar who was appointed as the Manager had leased out the land to the petitioner for a period of five years on 11 -7 -1966 and he was, therefore, in lawful possession and cultivation of the field. The Sub -Divisional Officer, therefore, held that provisions of section 120 of the Tenancy Act were attracted and that the respondent No. 2 should have taken recourse to such remedies as were available to him instead of forcibly dispossessing the petitioner. He, therefore, passed an order summarily evicting the respondent No. 2 from 547 acres of land out of khasra No. 93.
The respondent No. 2 then filed a revision application before the Maharashtra Revenue Tribunal, The Tribunal took the view that the order passed in the Ceiling Case had the legal effect of effacing the order of the Naib -Tahsildar by which the disputed land was declared as surplus land under section 21 (2) of the Tenancy Act and the management of which was assumed under Chapter VII of that Act. The Tribunal also took the view that the disputed land could not be declared as surplus land and its management could not be assumed in view of the Ceiling Act which came into force on 26th January 1962 and that the matter was to be finally settled and decided under the provisions of sections 6, 18 and 21 of the Ceiling Act, and therefore, the order passed by the Sub -Divisional Officer was contrary to law. The Tribunal further held that the respondent No. 2 was deemed to be in lawful ownership and possession of the disputed land. This conclusion was reached on the basis of certain observations which were made in the order in the Ceiling Case. A copy of the order dated 7 -6 -1965 in Ceiling Case No. 5 /60 (A -5) /64 -65 has been made available to me by the learned counsel appearing on behalf of the respondent No. 2. The only operative part of this order is:

"So, ceiling area of the family of the remaining members comes to 216 acres, 108 acres being the local ceiling area and the actual land held by him is only 110.97. Thus he does not hold surplus land."

In paragraph 2 of the order among the fields which are shows to have been held by the respondent No. 2 on 4 -8 -1959 is shown khasra number 93, area 13 -73 acres. The observations made by the Tribunal that "the applicant was deemed to be in lawful ownership and possession of the disputed land i. e. 5,47 acres of land of khasra No. 93 as it has been held so by Shri Khadse, Sub -Divisional Officer, Warora, in Ceiling (Revenue) Case No. 5/60 (A -o)/64 -65 of Bhishi, vide order dated 7 -6 -1965" are not borne out by the order which is before me. The Tribunal allowed the revision application and held that the respondent No. 2 was not liable to be evicted from the land in suit. This order is now challenged by the petitioner in this petition.

(3.)THE contention of the learned counsel for the petitioner is that the Tribunal was not justified in taking the view that the order passed by the Naib -Tahsildar under section 21 (2) of the Tenancy Act automatically stood effaced by the order passed in the Ceiling Case on 7 -6 -1965. This contention must be accepted.