JUDGMENT M.H. Beg, J. - This is a defendant's appeal arising out of a suit for the recovery of possession over four plots of land in respect of which the plaintiff's father executed a usufructuary mortgage deed on 1-6-1920 in favour of the defendant's predecessor-in-chief-interest. It was alleged that the plots in suit were the sir of the mortgagor at the time of the purported mortgage. In 1359F. the defendants were, according to the plaintiff, in possession of these plots as mortgagees. It was alleged that, by virtue of Section 14 of the U.P. Zamindari Abolition and Land Reforms Act I of 1951 (hereinafter referred to as the Act) the mortgage had come to an end, and that the plaintiff was entitled to obtain possession of the plots in dispute. Hence, the suit under Section 209 of the Act. The trial court held that plots Nos. 61 and 81 and 86 were the "sir" of the plaintiff validly mortgaged on 1st of June 1920. The mortgage having come to an end under the provisions of Section 14(2) (a), the plaintiff became the Bhumidhar of these plots. Consequently, the suit for possession was decreed in respect of these three plots. The trial court, however, held that plot No. 115 was "Mandadari" of the plaintiff's father, which results in an "occupancy tenancy" under the U.P. Tenancy Act. The mortgage of occupancy tenancy rights is prohibited by law. The defendant-appellant could not acquire the rights of a mortgagee over this plot under Section 14(2) (b) of the U.P. Zamindari Abolition and Land Reforms Act. Nevertheless, the trial court held that the defendant-appellant acquired sirdari rights as he had deposited five times the rent in respect of plot No. 115. The trial court, therefore, dismissed the plaintiff's claim in respect of plot No. 115. 2. The lower appellate court maintained the decree of the trial court with respect to plot Nos. 61, 81 and 86, but it allowed the plaintiff's appeal as regards plot No. 115 and decreed the plaintiff's suit in to to. The lower appellate court followed the view taken in Kidar Nath Kasaundhan v. Naipal Singh, ALJ 8 1308 in holding that a "mandadari" tenure was really an occupancy tenancy. 61, 81 and 86, but it allowed the plaintiff's appeal as regards plot No. 115 and decreed the plaintiff's suit in to to. The lower appellate court followed the view taken in Kidar Nath Kasaundhan v. Naipal Singh, ALJ 8 1308 in holding that a "mandadari" tenure was really an occupancy tenancy. It also followed the view taken by a Full Bench of this Court in Mahabal Singh v. Ram Raj Singh, 1950 ALJ 713 and held that, since the purported mortgage of occupancy tenancy rights was void, the possession of the defendant-appellant was no better than that of a licensee. This licence having been revoked by the filing of a suit, the plaintiff was, according to the view taken by the lower appellate court, entitled to get his decree in respect of plot No. 115 also. 3. On behalf of the defendant-appellant, it has been argued before me by Mr. Vindeshwari Prasad that the lower appellate court has overlooked the provisions of Section 14(2) (b) of the Act which conferred upon the mortgagee the right of paying five times the rent calculated at the hereditary rights applicable and being treated as a hereditary tenant under the provisions of U.P. Tenancy Act, for the purposes of acquiring sirdari rights under Section 19 of the Act. It was also argued for the appellant that he had acquired rights under Section 3 of the U.P. Land Reforms (Supplementary) Act XXXI, 1950, the relevant part of which runs as follows: - "(1) Every person who was in cultivatory possession of any land during the year 1359 Fasli but is not a person who as a consequence of vesting under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the said Act) has become a bhumidhar, sirdar, adhivasi or asami, under Sections 18 to 21 of the said Act, shall be and is hereby declared to be, with effect from the appointed date - (a) if the bhumidhar or sirdar of the land was, or where the land belongs jointly to two or more bhumidhars or sirdars, all of them were, on the appointed date person or persons referred to in items (i) to (vi) of sub-Section (2) of Section 10 of the said act, as asami from year to year, or (b) if the bhumidhar or sirdar was not such a person, an adhivasi and shall be entitled to all the rights and be subject to all the liabilities conferred or imposed upon an asami or an adhivasi, as the case may be, by or under the said Act. Explanation - A person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidhar, sirdar, adhivasi or asami concerned in the actual performance of agricultural operations. 4. The view of the lower appellate court that the defendant appellant could not be held to be a mortgagee of plot No. 115 as the usufructuary mortgage of an occupancy tenancy was void, could not be seriously challenged by Mr. Vindeshwari Prasad in view of Mahabal Singh's case, 1950 ALJ 713. It was, however, argued that, for the purposes of Section 14(2) (b), the term "mortgagee" would cover the case of a person who held the land by virtue of a legally void "mortgage". I am afraid I cannot accept this argument as the term "mortgagee" must be given its ordinary meaning in law. It was, however, argued that, for the purposes of Section 14(2) (b), the term "mortgagee" would cover the case of a person who held the land by virtue of a legally void "mortgage". I am afraid I cannot accept this argument as the term "mortgagee" must be given its ordinary meaning in law. A "mortgagee" could only mean a person who has legally the rights and possession of a mortgagee and who could be called a mortgagee under the law. The defendant appellant could only be held to be licensee in the eyes of law. Therefore, he could not, in my opinion, get the benefit of Section 14(2) (b) of the Act. 5. The argument which was more seriously advanced on behalf of the defendant-appellant was that, in any case, the defendant-appellant had acquired sirdari under the provisions of Section 3 of the above mentioned U.P. Act XXXI, 1952, which has been quoted above. This involves an interpretation of the above-mentioned provision which has given rise to some difficulty. It was held by a Division Bench of this Court, in the case of Ram Krishna v. Bhagwan Bux Singh, 1961 ALJ 301 that mere occupation by force is not "cultivatory possession" as contemplated by Section 3 of the U.P. Act XXXI, 1952. That view has been recently overruled by a Full Bench of this Court in Manhoo Mai v. Muloo, 1963 ALJ 731 where it was pointed that a trespasser has the required "animus" as well as the physical control (termed "corpus") to constitute possession in fact and also in the eye of law. He certainly has the intention to exclude others from the enjoyment of rights over what he has within his control or occupation. In the present case, however, we are not dealing with the case of a trespasser, and the concept of "animus" may have to be considered in relation to an occupant who is in the position of a licensee as the defendant-appellant was. In the present case, however, we are not dealing with the case of a trespasser, and the concept of "animus" may have to be considered in relation to an occupant who is in the position of a licensee as the defendant-appellant was. With great respect, I may observe that what was laid down in Manhoo Mal's case, 1963 ALJ 731 (supra) with regard to the presence of necessary animus on the part of a trespasser, is very plainly correct, and the view taken by a Division Bench of this Court in Ram Krishna's case, 1961 ALJ 301 (supra) that the necessary animus is lacking so far as the trespasser is concerned appears to me to be clearly erroneous. But, where a person holds on behalf of another, the question may well arise whether his is such a "possession" as is contemplated by Section 3 of the U.P. Act XXXI, 1952 and it is here that the doctrine of animus together with corpus, as necessary ingredients of "possession", assumes importance. 6. The question primarily involves finding out the meaning of the term "cultivatory possession" as used in Section 3 of the U.P. Act XXXI, 1952. If all actual possession, whether intended to be on behalf of another or in assertion of a separate and independent right or title, were included within the term "cultivatory possession", a mortgagee as well as a licensee will be entitled to the benefit of Section 3 of the aforesaid Act. A clear intimation which we get from the words of this provision is that persons who become bhumidhars, sirdars, adhivasis, or assamis under the provisions of Sections 18 to 21 of the Act, are outside the purview of this provision, and there could be no question of giving the benefit of this provision to anybody who can claim a right under Sections 18 to 21 of the Act. The next information we get from the provision is that there might be an acquisition of rights of a bhumidhar or a sirdar at the appointed date and yet the person proved to be in "cultivatory possession" in 1359F will get the benefit of the provision. So far, it may appear that a bare licensee is not outside the purview of the provision. At the same time, a trespasser is also apparently not excluded from its benefits. So far, it may appear that a bare licensee is not outside the purview of the provision. At the same time, a trespasser is also apparently not excluded from its benefits. The term "cultivatory possession" could be interpreted to mean the actual possession of all persons other than those covered by Sections 18 to 21 of the Act. It is here that the aid of the explanation to the provision has to be taken in order to find out the correct meaning of "cultivatory possession" as it is used here. 7. The explanation to sub-Section (1) of the aforesaid Section 3 of the U.P. Act XXXI, 1952 makes it clear that a person shall not be deemed to be in "cultivatory possession" of the land if he was cultivating it "either as a mortgagee" with possession or a Thekedar or he was merely assisting or participating with a bhumidhar, sirdar, adhivasi or assami in the performance of agricultural operations. Persons who come clearly within the scope of this explanation could not get the benefit of the provision. The question before me is "Is a licensee within the purview of the explanation?" 8. The argument put forward on behalf of the defendant-appellant is that if a licensee were intended to be excluded from the benefits of the provision, his case would have been included and mentioned in the explanation. This is only an attempt to utilise the maxim of interpretation which has been rather well characterised as "a valuable servant, but a dangerous master to follow in the construction of statutes or documents": expressio unius est exclusio alterius. On the other hand it is argued, on behalf of the plaintiff-respondent, that the explanation merely brings out the meaning of the enacting part of the provision and illustrates the type of possession which is outside the scope of the provision. It is argued that, by implication, a bare licensee must also be deemed to be excluded from the benefit of Section 3 as a result of the explanation. 9. It is argued that, by implication, a bare licensee must also be deemed to be excluded from the benefit of Section 3 as a result of the explanation. 9. Another argument is that, in the present case, the plaintiffs occupancy tenancy rights made him a sirdar by virtue of the provisions of Section 19 (iii) of the Act inasmuch as plot No. 115 will be "deemed" to be held by the plaintiff on the date immediately preceding the date of vesting as the defendant-appellant was a bare licensee who would be deemed to be holding on behalf of the occupancy tenant. In other words, Section 3 of the U.P. Act XXXI, 1952 must be so read as to harmonise with the provisions of Section 19 of the Act. In my opinion, there is considerable force in this argument advanced on behalf of the plaintiff-respondent. 10. It is true that the term "cultivatory possession" has not been defined anywhere in the Acts i.e. either in the U.P. Zamindari Abolition and Land Reforms Act or in the U.P. Act XXXI, 1952. On the face of it, it may mean any one who is actually cultivating the land, and who is, by virtue of his cultivation, in actual possession of the land inasmuch as he is in actual control of it and excludes others from possessing it. This, however, is not the end of the matter. The remaining part of the provision, taken together with explanation does appear to exclude all those who may have merely a derivative right, apart from persons who get rights under Sections 18 to 21 of the Act. It is true that the term `licence' is not used in the explanation itself, but then, in my opinion, the explanation in this case has the same effect as a proviso often has. 11. This explanation apparently serves the purpose of a proviso. A proviso is often inserted in order to prevent a possible construction which was not intended see Bretherton v. U.K. Totalisator Co., (1945) K.B. 555. An explanation could also be viewed as merely illustrative so that it does not exhaust the cases covered by the really enacting part of the provision but only affords a clue as to what is meant by the enacting part. An explanation could also be viewed as merely illustrative so that it does not exhaust the cases covered by the really enacting part of the provision but only affords a clue as to what is meant by the enacting part. If I am correct in taking this view of the explanation, which appears to be reasonable and in accord with the intention of the provision, the case of a licensee could very well be deemed to be excluded from the purview of Section 3 of the LJ. P. Act XXXI, 1952. This may amount to introducing a "bare licensee" in the explanation, but I think that such a course is not prohibited where the explanation is only illustrative. 12. There is also another reason why, in the present case, the defendant-appellant is excluded from the benefit of Section 3 of the U.P. Act XXXI, 1952. Even if the explanation were an enacting part of the statute and did not perform the function which a proviso often performs, the words "as a mortgagee" could be interpreted literally to mean not merely persons who are actually mortgagees in the eyes of law but also those who hold positions analogous to or which may be capable of assimilation in equity with the position of a mortgagee in law. In other words, the expression "as a mortgagee" would include a person who holds by virtue of a purported mortgage even though the purported mortgage may be legally void. Such a person would not be a mortgagee in the eye of law and he will not be deemed to be in "cultivatory possession" because he was only cultivating "as a mortgagee" with possession. The word "deemed" itself imports an element of fiction as indicated by their Lordships of the Supreme Court in Azimunnissa v. Deputy Custodian, AIR 1961 SC 365 at 371. Such a person, not being a mortgagee, could not claim the benefit of section 14(2)(b) of the Act, but, at the same time, being a cultivator only "as a mortgagee" he would be excluded from the benefits of Section 3 of the U.P. Act XXXI, 1952. 13. The argument that the above mentioned Section 3 of the U.P. Act XXXI, 1952 must be so interpreted as not to nullify the provisions of Section 19 of the Act also appears to me to be sound. 13. The argument that the above mentioned Section 3 of the U.P. Act XXXI, 1952 must be so interpreted as not to nullify the provisions of Section 19 of the Act also appears to me to be sound. This provision lays down that all land either held or "deemed to have been held" by an occupancy tenant on the date immediately preceding the date of vesting will be entitled to the rights of a sirdar. If the defendant-appellant was a mere licensee he would merely be "deemed" to be in occupation on behalf of the plaintiff-respondent who would become the sirdar of plot No. 115 as he would be "deemed" to be holding it. It could not in my opinion, be the intention of Section 3 of the U.P. Act XXXI, 1952, to take away such sirdari rights conferred by Section 19 of the Act without using express words to that effect. For all these reasons, I am unable to accept the argument put forward on behalf of the defendant-appellant. I hold that the plaintiff-respondent had acquired sirdari rights under Section 19 of the Act and was entitled to regain possession of plot No. 115 as well by a suit under Section 209 of the Act. 14. The next question which arises is whether the plaintiff-respondent should not be made to pay the amount which was taken by his predecessor-in-interest at the time of the usufructuary mortgage as a condition precedent to getting back possession. This is the form which the decree took in Mahabal Singh's case, 1950 ALJ 713, relied upon on behalf of the defendant-appellant for putting forward the submission that the decree of the lower appellate court ought to be modified in order to confirm the principle laid down by the Full Bench decision which the lower appellate court has purported to follow. A recent decision of Mithan Lal, J. in Mansu Koeri v. Jang Bahadur Rai, 1963 ALJ 456 has also been relied upon by the defendant-appellant in order to substantiate the claim that the amount borrowed at the time of the usufructuary mortgage should be ordered to be returned to the defendant-appellant as a condition precedent to getting back the possession of the plot in dispute. I think that this argument is unanswerable. The defendant-appellant has an equitable right to get a proportionate payment in respect of plot No. 115 only. I think that this argument is unanswerable. The defendant-appellant has an equitable right to get a proportionate payment in respect of plot No. 115 only. But, so far as the other three plots are concerned, I am afraid that all equitable considerations have to give way before the clear letter of the law. In other words, the law, as laid down in the U.P. Zamindari Abolition and Land Reforms Act 1951 has not only given certain rights to the plaintiff-respondent, but Section 6(g) (1) has converted the usufructuary mortgage of the plots Nos. 61, 81 and 86 which was valid in the eye of law, into a simple mortgage. The rights of the defendant-appellant as a usufructuary mortgagee have been transmuted by the law into rights of a different kind. Hence, there is no equity left for the defendant appellant to claim or enforce in respect of the plots which were validly mortgaged as the intermediary's sir. The law has given the defendant-appellant certain other rights which he can enforce according to law. There is, however still, an equity to be satisfied in respect of plot No. 115. This requires an apportionment of the amount which might be due in respect of plot No. 115 only. For this purpose, I direct that the question of the amount payable to the plaintiff-respondent in respect of plot No. 115 will be determined in the execution department when the decree for possession is put into execution. 15. I, therefore, allow this appeal in part, and I modify the decree for possession under Section 209 of the Act in respect of the four plots in dispute to this extent that the plaintiff-respondent will get possession of plot No. 115 also on condition that he repays its consideration. He will have to pay back such amount as may be calculated by the execution court as that part of the consideration which could be deemed to have been paid for the usufructuary mortgage of this plot alone. Subject to this modification, this appeal is dismissed. But, in the circumstances of the case, the parties will bear their own costs.