JUDGMENT :- This is plaintiff's second appeal against the judgment and decree of the Joint Judge, Aurangabad, who, in turn, reversed the judgment and decree passed by the learned Civil Judge, Senior Division, Aurangabad, and it arises out of the following facts.

2. The dispute relates to Survey No.79 admeasuring 27 acres 39 gunthas situated at Pandharpur in Gangapur Taluqa of Aurangabad district. Admittedly, it is the ancestral property of the plaintiff. The plaintiff alleged that there was a partition in his family including his father, and that the suit land fell to his share in this partition. At Ex.35 there is a decree dated 15-4-1956, supporting plaintiff's case about such partition and about falling of this land to the share of the plaintiff. It is true that it is a consent decree and it was usual in this part of this State to have such a consent decree.

3. While considering the ceiling case of plaintiff's father the learned Deputy Collector (Ceiling) Gangapur included the suit land in the holding of plaintiff's father and declared plaintiff's father to be the surplus holder. This case about partition in 1956 was put forth before the learned Deputy Collector, but the learned Deputy Collector rejected that theory and proceeded to pass the order that plaintiff's father was a surplus holder.

4. The plaintiff felt aggrieved by this order and he, therefore, filed this suit contending that no opportunity was given to him by the Ceiling Authority to put forth his case and he contended further that he was not a party to the ceiling proceedings and that notice of the ceiling proceedings was never given to him at any point of time. He, therefore, filed the suit for a declaration of his title in respect of the suit land and for a declaration that the suit land should be exempted from declaration of the surplus land of his father.

5. The State Government is the defendant in this case and the state Government resisted the plaintiff's claim. It denied the partition in the year 1956 as alleged by the plaintiff. It contended that the land was rightly declared as surplus land of plaintiff's father. It contended that the Civil Suit was not maintainable and the jurisdiction of the Civil Court to try the suit was barred under S.41 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as "Ceiling Act").

6. Issues were framed and after considering the evidence on record the learned trial Judge held that the plaintiff proved that he was the owner of the suit land on the date of the declaration about surplus holding and he was in possession of the same. He held further that the Civil Court had jurisdiction to try the suit. He held that the partition was a genuine partition and was acted upon and that it was not a bogus partition. He held that the suit was maintainable and consequently he passed the decree for declaration in favour of the plaintiff along with costs of the suit.

7. Feeling aggrieved, the State Government preferred an appeal in the District Court, Aurangabad, and the appeal was heard by the learned Joint Judge, Aurangabad. The learned Joint Judge held that the suit was not maintainable and for this purpose he relied upon Section 41 of the Ceiling Act. In respect of the exclusive ownership of the plaintiff, he held that in view of his earlier finding, this issue does not survive, but in order to render finality to the present suit, in the alternative, he gave a finding that the plaintiff had proved the fact of partition and had also proved that he was the owner of the suit land by virtue of that partition and was in possession of the same. Consistent with his view on maintainability of the suit he allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit. He directed the plaintiff to pay the costs of the State Government in both the Courts. Feeling aggrieved by this decision, the plaintiff has preferred this second appeal.

8. Now, in the second appeal before me

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