1. These three revision petitions are by the three declarants one of whom is the father and the other two are his major sons. They are directed against the common order of the Land Reforms Appellate Tribunal in L.R.A Nos. 344, 346 and 347/77 on the file of the Land Reforms Appellate Tribunal, Waragnal.

2. In these revision petitions, the findings of the Appellate Tribunal only on points 4, 5 and 6 urged before it are challenged.

3. It is the case of the petitioners that Acs. 4.33 guntas of land covered by S. No. 1716 is not in possession of any of the declarants.

4. It was sold away in 1962 and the purchaser is in possession. The Appellate Tribunal held that “it cannot therefore be held that survey No. 1716 has been sold”. It is the contention of the petitioners that even if the sale is not proved the very fact that another person claiming to be the alienee has been in possession in his own right for more than twelve years, that is sufficient to exclude the said land in computing the holding of the petitioners. In support of this plea the petitioners have filed the pahani patrikas for the years 1962-1963 to 1973-1974 which cover a period of twelve years. The entries in these pahanies are not doubted. All these pahanies, except the pahani of 1971-1972 record the name of the alienee or his brother Narasimha Reddy. Only in column 16 of the pahani of 1971-1972 the name of the alienee is not entered and it is left blank. However, from this pahani it cannot be concluded that the person who was in possession in the previous years and also was in possession in the subsequent year had discontinued his possession in that year. In law the continuance of the possession of the person already in possession must be presumed unless it is proved to the contrary. It is nobody's case that after the said alienee, entered into possession somewhere in 1962, he was dispossessed in the year 1971-1972, and again put back in possession the following year. Even if it be so the possession of the said alienee would not be possession on behalf of the declarant or his., family members; it is in his own right. The factum of possession of a third party cannot thus be disputed. From the evidence it would appear that he was in possession even on the notified date. Even the original Tribunal did not hold that he was not in possession. All that it observed was that it is not proved that he was in “continuous possession from 1962 to 1974 and therefore it cannot be said that the purchaser gained title over these lands”. In view of the fact that a party other than the declarant is in possession of the lands on the notified date and from 1962 claiming to be the alienee though the alienation itself is not proved, the said person cannot be deemed to be holding the land for and on behalf of the declarant. That extent can be computed only in the holding of the person actually in possession. That extent shall therefore be excluded in computing the holding of the petitioners and their family members. The finding of both the Tribunals to the contrary is therefore set aside.

5. It was also contended that the finding on point No. 6 formulated by the lower Appellate Court viz., whether the lands covered by S. Nos. 1758 & 1270 were sold under agreements for sale dated 12-12-1969 and 1-12-1969 to Yaqub Ali and Durgaiah should be excluded from the holding of the petitioners, is not sustainable. The Appellate Tribunal held that in proof of the plea that an extent of Acs. 7.58 cents in S. No. 1758 was sold to Yaqub Ali and others the petitioners filed the affidavits of the purchaser, the attestors of the agreements for sale Ex. A-25 and the affidavit of the patwari. But neither any cist receipts nor any pahanies were filed. In the absence of any documentary evidence to support the evidence of the purchaser, the attestors and the patwari, I do not think that the finding of the lower Tribunals calls for interference.

6. However the position with regard to the alienation of Acs. 13.95 cents in S. No. 1270 stands on a different footing. That land is said to have been alienated under an agreement for sale Ex. B-12 dated 1-12-1969. The evidence of the patwari and that of the purchaser and the attestors of Ex. B-12 establishes the agreement for sale and delivery of possession to the purchaser. Their evidence remains unchallanged and uncontroverted by cross-examination or evidence in rebuttal. That is also supported by the cist receipts issued from time to time. The Tribunals have not given any valid reason for not accepting this evidence. Merely because the Gist receipts are loose sheets of paper their authenticity cannot be doubted, more so when the village officer who has issued the same has corroborated the fact. I do not see why these statements on oath supported by the receipts issued in the official course of business should not be accepted when there is not even an iota of evidence to the contrary. The said extent shall therefore be excluded in computing the holding of the petitioners.

7. The finding on point No. 5 formulated by the Appellate Tribunal viz., whether the land covered by S. Nos. 1050, 1568 and 1618 can be excluded as they are under the possession of protected tenants who have been issued 33-E certificates was challenged before this Court in so far as it relates to Acs. 6.00 of land in S. No. 1050 concerned. In respect of the remaining extents the Appellant Tribunal has upheld the petitioners contention that the same should be excluded on the ground that certificates under Sec. 33-E were issued in respect thereof. To this contention I would address myself after disposing of a new point urged in these revision petitions, i.e an extent of one acre of land in S. No. 1624 is covered by a cattle shed and a compound wall and as such is not land within the meaning of the Act. The extent of the cattle shed together with compound wall is not denied. The Gram Panchayat certificate issued by the Sarpanch fully substantiates this fact. Under the definition of ‘Land’ in Section 3(i) the land appurtenant to a building cannot be included. As per the definition land on which a cattle shed is constructed ceases to be ‘Land’ and becomes a building. When the land appurtenant to a building also is excluded the land on which such a cattle shed is constructed cannot continue to be land for the purpose of the Act. The Government itself had issued a Memorandum No. 4642.G/75-2 (Revenue Department) dated 9-10-1975 directing the deletion of such land in computation of the holding under the Act and in my opininon rightly so. The above extent of one acre shall therefore be excluded in computing the holding of the petitioners. I will now address myself to the question whether the land in possession of a person on the notified date and for ten years prior thereto should be excluded in computing the holding of the person who has been recorded as the pattadar of the said land. In the instant case it is established that one Gaddam Butchi Mallu was in possession of one acre out of Acs. 7.00 of land in survey No. 1050 as a protected tenant and he was also granted a certificate under Sec. 38-E of the Act. But he was also in possession of the remaining Acs. 6-00 of the land in S. No. 1050. He is not shown to be occupying the same as a tenant or protected tenant. There is also no evidence as to the nature of his possession, whether it is adverse or permissive. It is not clear from the oral and documentary evidence which, inter alia comprises of Exs. A-14 to A-24 that he is in possession of the land as an occupant cultivating the land. If he is in possession of the land for only ten years and even if the possession were to be adverse, he would not acquire title thereto, and the true owner would have a right to recover possession. The Appellate Tribunal has refused to exclude the said extent of Acs. 6.00 from the holding of the petitioners on the ground that no certificate under Section 38-E was issued in respect thereof. It is however contended by Mr. Upendralal Waghray, the learned counsel for petitioners that though ownership has not been transferred to the person in possession under Section 38-E still in as much as he is holding the land on the notified date and for ten years prior thereto it cannot be deemed to be land held by the petitioners who are merely pattadars. This court in Authorised Officer v. K.C.V Narasayya (1) 1978 (1) APLJ 98 in the context of the possession of a person in part performance of the agreement for sale has held that the land in possession of such person cannot be included in the holding of the alienor i.e the person in whom the title still vests. The person holding the land in part performance of the agreement for sale is a person who is described under Section 3(i)(v) of the Act as a person holding the land and in the very same clause a person who is in possession ‘otherwise’ also is said to be holding possession of the land. Hence irrespective of the nature of the possession of the person who is in actual possession of the land on the notified date and for ten years prior thereto the position must be the same as in the case of a person in possession under part performance of an agreement for sale. That apart if a land is computed in the holding of a person merely because he is the pattadar or the owner although he is not in possession, in view of the definition of Section 3(i)(v) the same land would have to be computed in the holding of the person who is in possession of the same ‘otherwise’ also. The learned Government. Pleader however contends that the person who is merely in possession of the land who has not acquired title by adverse possession and who could always be dispossessed by the true owner by taking recourse to law cannot be said to be holding the land and therefore such land must be computed only in the holding of the true owner. Such a contention however ignores that unless the land is actually in possession of the owner it cannot be computed in his holding as held by this court in Authorised Officer v. K.C.V Narasayya (1) Supra. If ‘possession’ is one of the necessary ingredients of the term ‘holding’ then an owner who is not in possession and who has not put the other person in permissive possession cannot be deemed to be holding the land so that it could be computed in his holding. Such land being in the actual possession of the other person on the notified date and for ten years prior thereto not on behalf of the true owner; but claiming to be a purchaser or denying the right of the true owner to be entitled to be in possession and not in collusion with him. The expression ‘person who is in possession otherwise’ does not have any reference to the right to hold land or possession by virtue of any title thereto. It merely refers to possession otherwise than in the manner referred to in clause (v) of Section 3(i) There is no occasion for importing that possession should have been possession which has otherwise fructified into title. If that were so then there was no necessity for providing for such a contingency, for, person who has acquired title by adverse possession would himself become the owner and would be holding the land as an owner as defined under Section 3(i)(v). Any such interpretation would render clause (v) of Section 3(i) in so far as it relates to a person who is in possession otherwise, wholly redundant. It must necessarily therefore refer to a person who is in actual possession but has not become the owner. So long as that possession is not referable to permissive possession, even if it has not yet fructified into ownership, it is nonetheless the possession of a third person other than the true owner. So long as such possession is not that of an agent or licensee of the owner, such possession of a third person would be in any event not on behalf of the true owner, and consequently the owner cannot be said to be in possession of the land and holding the same for the purpose of the Act. If any other interpretation were to be given then various complications would arise in giving effect to the other provisions of the Act, the main object of the Act being to take over actual possession of the land from a surplus holder and deliver actual possession of the same to others to whom it is allotted under Section 14. In this context if we refer to Section 11 which deals with the surrender of the land it would be evident that the land which is in possession of a person by virtue of a mortgage by conditional sale or through part performance of a contract or otherwise which are all contingencies referred to in Section 3(i)(v) on surrender would revert to the owner. Further such land notwithstanding anything contained in sub-section (1) of Section 11 vest in the Government only upon the Owner surrendering the same. Unless the land reverts to the owner it cannot form part of his holding. When the land reverts to him it certainly becomes part of his holding. But until than, it would be part of the holding of the ‘person in possession otherwise’. Only on reversion it shall have to be computed in the holding of the owner and if the owner also is a surplus holder he would have to surrender the same. There would be no impediment in accepting the surrender under sub-section (1) of Section 11 for in such an event, the possession having reverted to the true owner on surrender, the possession could be taken from him and given over to the person to whom it is allotted under section 14. The land in the possession of a person holding otherwise is certainly a land in the possession of that person and it has to be computed in the holding of that person. The Explanation to Section 3(i) undoubtedly contemplates the computation of land held by one person in one capacity and by another person in any other capacity, to be included in the holding of both. But it does not lay down that it shall be computed in the holding of both simultaneously. The only way of giving effect to that provision is to compute the holding of the land initially in the holding of a person who is in possession on the notified date and if he surrenders the Said land as it would revert under sub-section (4) of section 12 to the true owner to compute the same in the holding of the true owner as the true owner from then would begin to hold the land within the meaning of 3(i)(v) of the Act. If on such computation the true owner becomes a surplus holder he can surrender the land and as contemplated by sub-sec. (6) of section 12 read with sub-section (1) of Section 11 it would vest in the Government, if such land is computed in the holding of the true owner although he is not in actual possession even to the first instance and excluded from the holding of the person who is in actual possession thereof otherwise, the surrender of such land cannot be accepted under section 10(5)(a)(ii) for the defacto possession is with a person other then the declarant. There is no provision to dispossess a person other than the declarant in taking over possession of the land under the Act.

8. I, therefore hold that Ac. 6.00 of land in survey No. 1050 in the possession of Gaddam Butchi Mallu on the notified date and ten years; prior thereto which is not shown to be for and on behalf of the petitioners is not “held” by the petitioners herein but is held by the said Gaddam Butchi Mallu., The said extent shall therefore be excluded in computing the holding of the petitioners. The order of the Land Reforms Tribunal and that of the Appellate Tribunal to the contrary are therefore set aside. In other respects the order of the Land Reforms Appellate Tribunal is upheld. The Land Reforms Tribunal shall compute the holding of the petitioners in accordance with this judgment and determine the surplus if any lible to be surrendered by them.

9. These three revision petitions are accordingly allowed, but in the circumstances without costs. Advocate's fee Rs. 150/- in each.