Judgment

RAY, J. :- Special leave granted, Delay in filing the application for special leave under Art. 136 of the Constitution is condoned. Heard learned counsel for both the parties. The only question that poses itself for decision in this appeal is whether the High Court under Art. 227 of the Constitution of India can set aside the findings of facts arrived at by the Surplus Land Determination Tribunal, Jalna pursuant to an order of remand made by the Maharashtra Revenue Tribunal, even though the Respondent No. 1 submitted to the order of remand without questioning its propriety and validity.

2. The Respondent No. 1 Harishchandra was the owner of survey Nos. 143, 144 and half portion of 161 situated at village Reogaon Taluka, District Jalna, Maharashtra. He was in statutory possession of the same under the provisions of S. 38-E of the Hyderabad Tenants and Agricultural Lands Act, 1950. The total land in his possession on the appointed day i.e. on 26th January 1962 when the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 came into force was 64 acres and 23 gunthas. In accordance with the provisions of S. 12 of the said Act, the Respondent No. 1 having in his possession lands more than the ceiling prescribed under the said Act, submitted a return declaring therein that 4 acres of land out of the said lands was pot-kharab and uncuytivable and 3 acres of land was occupied by public road passing through his land bearing survey No. 143. The Surplus Land Determination Tribunal, Jalna after enquiry held that the area of survey No. 143 be excluded and the area of survey No. 144 be taken into account. It was also held that 2 acres of land from survey No. 144 is pot-kharab area. On these findings, the Respondent No. 1 was held to be holding surplus land to the extent of 9 acres and 24 gunthas.

3. The Respondent No. 1 preferred an appeal against the said order of the Surplus Land Determination Tribunal before, the Maharashtra Revenue Tribunal. The State did not file any cross objection against any of the findings arrived at in the said judgment. It was, however, contended on behalf of the State that certain other land held by the Respondent No. 1 was not taken into consideration while determining the ceiling limit of the lands, the Respondent No. 1 was entitled to hold and retain in his possession in accordance with the provisions of the said Act and as such it was contended that the findings arrived at by the Surplus Land Determination Tribunal by its order dated March. 26, 1976 were erroneous. The Revenue Tribunal after hearing both the parties accepted the contention of the State and remitted the case back on remand to the Surplus Land Determination Tribunal, Jalna for fresh enquiry and decision after setting aside the judgment and order of the Surplus Land Determination Tribunal. The Respondent No. 1, however, did not take any objection against the order of remand made by the Tribunal and on the other hand submitted to it.

4. The Surplus Land Determination Tribunal pursuant to the order of remand heard both the parties and revised its earlier findings by including survey No. 143 in the holding of Respondent No. 1. The Tribunal also held that the Respondent No. 1 has in his possession surplus land to the extent of 30 acres and 31 gunthas.

5. Feeling aggrieved by the said judgment and order dated 25th December, 1976, the Respondent No. 1 preferred an appeal before the Maharashtra Revenue Tribunal. The Tribunal dismissed the appeal and confirmed the findings of the Surplus Land Determination Tribunal by its order dated April 5, 1977. No objection, however, was raised on behalf of the Respondent No. 1 as to the validity of the order of the remand of the case either before the Surplus Land Determination Tribunal when the Tribunal heard the matter on remand, or before the Maharashtra Revenue Tribunal at the time of hearing of the appeal against the said order.

6. The Respondent No. 1 thereafter, filed an application under Art. 2