JUDGMENT S.S. Ahmed, Member. - This is a reference made by commissioner, Allahabad Division by his order dated July 12, 1974, recommending that the revision filed by Smt. Kumari Devi, against the order dated 26-12-73 of S.D.O. Kanpur, be set aside and the mutation be ordered in favour of Smt. Kumari Devi on the basis of the registered sale deed executed by Ram chandra on 25-5-71 and that mutation application of Raja Ram be rejected. 2. Briefly stated the facts of the case are that plot no. 115 compromised in Khata No. 474 of villages Baikunthpur, Tehsil Kanpur was sold through a registered sale deed by ram Chandra to Smt. Kumari Devi on 25-5-71. It is alleged that the same plot no was sold by him again to one Raja Ram on 24-5-72. Therefore an application for mutation was made by Smt. Kumari Devi on 15-9-72. The second vendee, namely, Raja Ram had applied for mutation of his name on 11-7-72. The two applications being in respect of the same plot, both the applications were consolidated. The Naib Tahsildar after examining the witnesses reported to the S.D.O. that mutation be ordered in the name of Smt. Kumari Devi who had purchased the land first. In his report, he also mentioned that Ram Chandra, the original bhumidhar of the plot had stated before him that the registered sale deed in favour of Raja Ram was not signed by him. The report of the Naib Tahsildar was not accepted by the S.D.O. who found that Raja Ram was in possession of the land in suit hence ordered mutation in his name. It is against this order of the S.D.O. that revision was filed before the Commissioner, Allahabad Division, who has made the instant reference. 3. I have carefully perused the orders of the trial court and the referring order of the Commissioner. I have also heard the learned counsels for both the sides. 4. The learned counsel for the revisionist pointed out that all rights of the original bhumidhar Ram Chandra were lost after he executed the first sale deed in favour of Smt. Kumari Devi on 25-5-71. I have also heard the learned counsels for both the sides. 4. The learned counsel for the revisionist pointed out that all rights of the original bhumidhar Ram Chandra were lost after he executed the first sale deed in favour of Smt. Kumari Devi on 25-5-71. In accordance with Section 189 of the U.P.Z.A. and L.R. Act, he pointed out that even if it be regarded that the interests of Ram Chandra had extinguished as a result of the first sale deed, whose validity is being challenged, the property vested in the Gaon Samaj and Ram Chandra was thereafter not competent to execute a second sale deed in favour of Raja Ram. According to him, the second sale deed was in utter violation of the provisions of Section 189 of the U.P.Z.A. and L.R. Act and was, therefore, a void document. He further maintained that at the time of his examination by the Naib Tahsildar, the vendor had supported the first sale deed and denied that he had signed the sale deed in favour of Raja Ram. He, thereafter, proceeded to distinguish the three cases mentioned by the S.D.O. in his impugned order, namely, R.D. 1969 page 67, R.D. 1971 page 261 and R.D. 1971 page 510. He also referred to Appendix, X para 10(ii) and (iii) of the Revenue Court Manual. These two sub-paras deserve to be reproduced Verbatim: "(ii) if a transfer is made with all due formality including as assertion that possession has been given, and a prompt application for mutation is challenged by the transferor on the ground that the consideration has not been paid, it should be for the transferor to go to the Civil Courts. (iii) If the transferor, a recorded proprietor, admits the transfer and delivery of possession inter viovs no third party should be allowed to challenge the possession of the transferee." Finally, he submitted that the latest view on the subject was contained in the cases of Ramjeet Chaubey v. Jahangir Khan R.D. 1966 page 423 and of Beni Ram v. Gaon Sabha R.D. 1974 page 302 and Jankar Singh v. Gaon Sabha R.D. 1974 page 204. All these three cases are of single members of the Board of Revenue, in which the provision of para 10 (iii) of Appendix X of the Revenue Court Manual as also the entertain-ability of an objection by a third person have been fully discussed. All these three cases are of single members of the Board of Revenue, in which the provision of para 10 (iii) of Appendix X of the Revenue Court Manual as also the entertain-ability of an objection by a third person have been fully discussed. 5. The learned counsel for the O.P. did not have to say much because his view point was fully discussed in detail in the referring order. He only pleaded that Ram Chandra's denial that he had bot executed the sale deed, could not be believed because there were other witnesses, who had supported the sale deed because they had signed it at the time of registration. 6. The reference poses two short and neat question of law. The first is whether a person in possession of the land can claim mutation in his favour even though he may be in possession on the basis of a sale deed whose validity it being challenge, and secondly, if it is held that the document through which the person claims possession is of doubtful validity can he be regarded as rank trespasser entitled to mutation in his favour. The learned S.D.O., who passed an order of mutation in favour of Raja Ram, relied on three cases, namely, Mohammad Ahmad Khan v. Mohammad Faroog R.D. 1968 page 67 and Jhallar v. Darbari Lal R.D. 1971 page 261 and of Ram Charan v. Balram Singh R.D. 1971 page 510. Before proceeding further, it would be worthwhile to examine whether these cases apply to the instant reference. The first case of 1967 is not Mahammad Khan v. Mohammad Farooq but Barjor v. Deputy Director Consolation and others and deals with transfer in contravention of Section 164 of the Z.A. and L.R. Act which does not seem to have much relevance for the purpose of the instant revision. In this case, a single judge of the Allahabad High Court held that the transfer in contravention of section 164 of Z.A. and L.R. Act was not void and the transferee was only liable to penalty laid down in Section 163 of the same Act and subject to that liability, became a bhumidhar by virtue to the transfer in his favour. The next case of Jhallar v. Darbari Lal is more relevant because an erstwhile Chairman of the Board of Revenue has held that mutation cases should be decided by the Revenue Courts on the basis of possession and if need be on title in summary proceeding quickly. The basis proposition laid down in this case is thoroughly sound but it is not fully analogous to the facts of the present case because here it has to be decided if the possession of Raja Ram was in pursuance of a valid deed or if Raja Ram's possession was that of a rank trespasser. The citation of the third case given by the S.D.O. in the impugned order, is not quite correct. It is the case of the Ranchhor Singh (and not of Ram Charan Singh as mentioned by the trial court v. Balram Singh reported on page 509 (and not 510 , as mentioned by the S.D.O.). This is a case decided by the bench consisting of two members and the Chairman of the Board. The point referred to the bench was " Whether in mutation proceedings de jure possession is enough to entitle a person for mutation to be recorded in his name or it is necessary to prove actual possession on the spot" The Chairman answered the reference as follows: "(1) Mere recital by a vendor in a sale deed that possession has been transferred in not conclusion evidence of actual transfer of possession. This is a finding of fact and the enquiring officer has to give a definite finding about the fact of possession except in cases under Section 40(2) of the Land Revenue Act. (2) De jure delivery of possession will amount to obtained possession only in cases illustrated in para 9 and such transfer of possession has to be respected by Revenue Court." 7. The other two Members of the Board, constituting the Bench, were, broadly, speaking, in general agreement with the conclusion arrived at above, but for different reason. After elaborating these reasons, they have answered the questions referred to the Bench as under:- "De jure (constructive) possession will be enough to entitle a person to mutation of his name in the cases illustrated in para 9 of Sri Sanwal's order. After elaborating these reasons, they have answered the questions referred to the Bench as under:- "De jure (constructive) possession will be enough to entitle a person to mutation of his name in the cases illustrated in para 9 of Sri Sanwal's order. Besides these cases, de jure (constructive) possession of the transferee will be sufficient in those cases in which the actual possession is with a rank trespasser, whose possession is not based on the prima facie claim of succession or transfer. (2) In other cases, it will be necessary to prove actual possession on the spot, except in cases under Section 40(2) of the U.P. Land Revenue Act" 8. Thus, there was a consensus or opinion on the point that De jure (constructive) possession will be sufficient in those cases in which the actual possession is with a rank trespassed whose possession is not based on a prima facie claim of succession of trespassed and that in other cases it will be necessary to prove actual possession on the spot except in cases under Section 40(2) of the U.P. Land Revenue Act. This ruling has certainly a very important bearing of the present reference and will be dealt with in greater detail in the succeeding paragraphs. According to Section 40 of the U.P. Land Revenue Act all disputes regarding entry in the annual register, shall be decided on the basis of possession. Sub-section(2) of this Section. However, provides that if in course of an enquiry into dispute under this section, the Collector or tahsildar is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry, who is the person best entitled to the property. In this connection, the instructions issued by the Board of Revenue b circular letter no. 56-A-Judi. Ex. -668 -B, dated 10th January, 1938, deserve to be reproduced: "Section 40 which prescribes the manner of inquiry, deals with mutation cases and with cases of correction both the Khewat and the Khatauni but as question arise in mutation cases which do not arise in correction cases it will be convenient to deal with mutation cases separately. Each clauses of Section 40 lays down one very simple point:- (i) Disputes shall, if possible, be decided on basis of possession. (ii) If this is not possible, than there shall be a summary enquiry into title. Each clauses of Section 40 lays down one very simple point:- (i) Disputes shall, if possible, be decided on basis of possession. (ii) If this is not possible, than there shall be a summary enquiry into title. (iii) That no order passed under the Section operates as res-judicata in any Civil or Revenue Court having jurisdiction to establish title. As to (i) it would seem that all Courts now realize that the possession to be proved must be possession before the dispute is joined. It is also generally realized that possession without any color of right, such as possession of trespasser is of no value. But complaint has been made of the mass of the futile evidence which is let in some districts at any rate to prove possession; for this reason it is urged that the Courts should be instructed to decide regarding the question of possession, and to decide mutation cases on the basis of title." Three instructions as also the subsequent case law on the subject clearly point to the fact that constructive possession will be the basis of mutation but this possession should neither be of a rank trespasser nor should it be fiduciary possession. In the instant case it will have to be examined whether the possession of Ram Chandra falls in one of these categories or not ? 9. In others words the whole question will revolve round the finding if the sale deed in favour of Raja Ram is valid or not. 10. The learned Commissioner has held that the second sale deed cannot be regarded as a valid document. He has based his finding chiefly on the fact that the vendor himself denied the execution of the second sale deed. To this, the learned counsel for the revisionist has added that it could not be a valid sale deed since a legal sale deed has already been executed by the vendor in favour of Smt. Kumari Devi. Both these points are quite weighty and it would fully justifiable to assume that authenticity of the second sale deed is open to grave doubts. In view of this position of the sale deed the possession of Ram Chandra, if at ball will be deemed to be the possession of a rank trespasser, which is totally inadequate to warrant mutation in his name. In view of this position of the sale deed the possession of Ram Chandra, if at ball will be deemed to be the possession of a rank trespasser, which is totally inadequate to warrant mutation in his name. This view appears to be in full conformity with the decision of the Bench case of 1971 and subsequent pronouncement of a single Member of the Board, as contained in the cases of Jankar Singh v. Gaon Sabha 1974 R.D. page 204, and in the case of Beni Ram v. Gaon Sabha 1974 R.D. Page 302. The single Member has rightly observed in the last mentioned case that trespasser's possession, it is settled law, is to be ignored for the purposes of deciding possession in mutation proceedings. 11. In view of the above finding the second point, referred to above can be easily decided. Being a rank trespasser, his possession cannot be considered, his possession cannot be considered for purposes of mutation in the present case. 12. This view finds further support from Appendix X, Para 10 (sub-paras (ii) and (iii) of the Revenue Court Manual. In view of the fact that the transfer, who is the recorded bhumidhar of the land in suit and admits the transfer and delivery of possession to Smt. Kumari Devi inter viovs, no third party (as Raja Ram, in this case) should be allowed to challenge the possession of the transferee namely, Smt. Kumari Devi. 13. In the result, I accept this reference, allow the revision, set aside the order of S.D.O. dated 26-12-73 and direct that mutation will be effected in favour of Smt. Kumari Devi and that the mutation application of Raja Ram will be rejected.