TMI Blog1987 (1) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... or by filing an appeal before the Maharashtra Revenue Tribunal (For short , the M.R.T. ). The learned M.R.T. found that the findings rendered by the learned Assistant Collector in regard to the partition the potkharab land and other findings referred to by him were not in accordance with law and were not proper on the basis of the material on record . The learned M.R.T., therefore, set aside the impugned order of the Assistant Collector and remanded the proceedings to him for a fresh decision on merits according to law in the light of its judgment. It may be stated here that the State did not prefer any appeal or cross objection against the aforesaid order of the Assistant Collector. 3. After remand, the learned Sub-Divisional Officer (for short the S.D.O. ) determined the total holding of the petitioner No. 1 as 221.25 acres. He allowed the family members of the petitioner No. 1 to retain 126 acres of land and declared 95.25 acres as surplus land belonging to the petitioner No. 1. The petitioner No. 1 and the other members of his family, i.e. the other petitioners in this petition, preferred an appeal against the aforesaid order of the learned S.D.O.. The learned M.R.T., howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e powers as well as procedure to be followed by the M.R.T. in deciding an appeal Section 34 provides that the M.R.T. in deciding an appeal under section 33 may confirm, modify or rescind the decision or award or can amend the declaration or award, as the case may be. 7. It is clear from section 34 that it provides for the substantive powers to be exercise in appeal by the learned M.R.T.. In my view, section 34 is merely declaratory and even in its absence, the Appellate Court can and has to exercise the powers given to it in the said section as such powers are inherent in the appellate jurisdiction itself. A power of remand is also, in my view, an inherent power in every appellate Court and Tribunal which is necessary to do justice to the lis before the Appellate Court and to deal with all the questions raised before it effectively. In particular it may be seen that when the order of the trial Court is liable to be set aside and re-trial is necessary in the interest of justice upon certain issues which the learned appellate Court thinks fit and proper for fair disposal of the case a power of remand to the trial Court must be available to it is pertinent to see that prior to inse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Old Ceiling Act this Court held that since it is open to the State also to file an appeal under section 33 of the Old Ceiling Act, it cannot be held that such a power can be spelt out from sub section (3) of section 33 of the Old Ceiling Act. In taking the above view this Court in the aforesaid case relied upon its previous decisions in which it was held that in the absence of a cross objection it was not open to the tribunal to pass an order which is adverse to the appellant before it. In my view, the question which was decide in the aforesaid case was entirely different. The question was whether in an appeal preferred by the surplus holder, relief can be given to the State which has not preferred any appeal. Here in the instant case the power is to be exercised in the appeal preferred by the surplus holder itself. In my view the provisions of sub-section (3) of section 33 can be invoked for the purpose of exercise of the power of remand by the M.R.T. It may be seen that not only the procedure but the power of the Court under the CPC are also conferred upon the M.R.T. under section 33(3) which must in my view, be given full effect so that the appellate power can be exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the partition the case of the petitioners is that the partition was effected orally on 15-12-1957 by preparing a list of shares of each of the parties to the partition and by giving possession of the share of such as per the same. In support of the above case of partition, the petitioner No. 1 inter alia examined Dr. Gholap, an Assistant Medical Officer at General Hospital, Wardha and also one Patwari by name Wadgu it is however not in dispute that the alleged partition was recorded in the revenue records on 07-01-1962. The learned Courts below held that no such partition was effected on 15-12-1957 as alleged on behalf of the petitioners and if at all the said partition was effected on 07-01-1962 as per the shares shown in the revenue records. The learned Courts below merely held that if the partition was effected on 07-01-1962 it was hit by section 10 (1) of the Old Ceiling Act being within the prohibited period thereunder. 13. The learned Courts below have considered the evidence of Dr. Gholap who was examined on behalf of the petitioners to show that the petitioner No. 1 was suffering from T.B. and that the said partition was, therefore, effected as per the advise of the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on the question of partition raised in the instant case. 15. The next question which is raised on behalf of the petitioners is about the pot-kharab land. As regards the question of pot-kharab land the learned M.R.T. while originally reminding the case held that the report of the Naib Tahsildar allowing 6.51 acres of land was not in itself an evidence. The said report, therefore, could not have been relied upon by the learned S.D.O. after the proceedings were remanded to him. It was thus necessary for the petitioners to lead independent evidence in regard to the pot-kharab land which they failed to do. The learned S.D.O., therefore, after remand determined the pot-kharab land after perusing the khasra entries in respect of the field survey numbers in question in the instant ceiling case. The said finding rendered by him which is affirmed in appeal thus cannot be said to be illegal or perverse. If the petitioners claimed any pot kharab land it was necessary for them to lead appropriate evidence to prove the same particularly when the report of the Naib Tahsildar was excluded from consideration by the learned M.R.T. in its remand order. The finding in regard to pot-kharab land, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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