JUDGMENT S.S. Ahmad, Member. - This is a reference made by Collector Fatehpur by his order dated 2-5-74, in which he expressed the view that in that absence of a finding of possession by the Naib Tahsildar, the lower court's order of mutation dated 30-1-73 in favour of Smr. Sheo Kumari could not be sustained and, therefore, submitted the file to the Board for suitable orders. 2. The facts of the case may be concisely set forth. The disputed holding consisted of three plots - No. 193-A (area 3 bigha, 6 biswas) and plot no. 195 (area 3 bigha, 16 biswas) which were the bhumidhari of the recorded tenure-holder Smt. Shivani and of plot no. 193-B (area 12 biswas and 10 Biswansis) which was recorded as the sirdari of the said Smt. Shivani. The exact date of Smt. Shivani's death cannot be ascertained from the papers on record but it seems that shortly after her death, one Smt. Dhirajiya applied for mutation in her name of 15-7-72. shortly afterward one Kullu Singh applied for mutation as trustee of Shivji virajman Mandir, in whose favour Smt. Shivani is said to have made an endowment of her entire holding. Smt. Dhirajiya's case was based on her claim as the sister of pitam. In both cases for mutation, (no. 157 stated on the application of Smt. Dhirajiya and 158 initiate on the application of Kallu Singh ), Smt. Sheo Kumari filed an objection before the Naib Tahsildar. The claim of Smt. Sheo Kumari was based on relationship with the deceased tenure-holder, as would be evident form the following pedigree case up by her. The correctness of this pedigree has not been challenged. The Naib Tahsildar after examining the witnesses, produced by the parties rejected the case of Smt. Dhirajiya as also of Shivji Birajman Mandir and ordered the mutation in favour of Smt. Sheo Kumar. Both Kallu Singh Sarbarakar of Shivji Birajman Mandir and Smt. Dhirajiya who claimed to be the sister of pitam, went up in revision before the Collector who has made the instant reference. 3. I have heard the learned counsel for the parties and have also perused the record of this case. 4. The learned counsel for Shivji Birajman Mandi pointed out that Smt. Shivaini had a daughter who died in her life time. 3. I have heard the learned counsel for the parties and have also perused the record of this case. 4. The learned counsel for Shivji Birajman Mandi pointed out that Smt. Shivaini had a daughter who died in her life time. Thereupon, Smt. Shivani had endowed her entire holding in favour of Shivji Birajman Mandir and that Kallu singh was in possession of the entire land in his capacity at the trustee of Shivji Birajman Mandir. He argued tat there were three important documents supporting the case of Shivji Birajman Mandir and the possession of Kallu Singh on behalf of the deity, in whose favour the endowment had been made but unfortunately none of these documents had been considered by the learned Collector. The first was the order of Deputy Director of Consolidation dated 7-11-64, which was filed before the Collector and not before the Naib Tahsildar, in which the claim of Smt. Shivani was upheld, and the revision filed by Smt. Sheo Kumari was dismissed. 5. The second document relied upon by him, was the order of the Sub-Divisional Officer dated 12-8-73, passed in proceedings under section 145 Cr.P.C., in which it was held that Kallu Singh was in possession of the disputed land in his capacity as Sarbarakar of the temple of Shivji Birajman Mandir. The S.D.M. did not record any finding about the validity of endowment but observed 'Shivani had dedicated his property to a temple of which he (i.e. Kallu Singh ) is Sarbarakar and he was been cultivating the land on behalf of the temple. 6. Finally, he referred to the judgement of Munsif dated 31-5-73 in which the Munsif had dismissed the suit filed by Smt. Sheo Kumari v. Smt. Shivani and Lallu Singh. This suit was for the cancellation of sale deed executed by Smt. Shivani in favour of defendant no.2, namely, Lallu Singh. This case has relevance only in as much as it goes to show that Smt. Shivani was the alone recorded tenure-holder of the land in suit and that the contention of Smt. Sheo kumari that he was the co-tenure holder with Smt. Shivani was not accepted by the Civil court. 7. The learned counsel for Smt. Sheo Kumari, cantering these arguments also relied on two orders of the D.D.C., both dated 7-11-64. 7. The learned counsel for Smt. Sheo Kumari, cantering these arguments also relied on two orders of the D.D.C., both dated 7-11-64. However, these orders do not indicate that they pertain either to the khata in dispute or to the plots contained in the holding. He has maintained that according to the D.D.C., Smt. Sheo Kumari was the co-tenure holder of Smt. Shivani but unfortunately the orders of D.D.C. could not be implemented with the result that Smt. Shivani continued to be recorded as the sole tenure-holder. He, therefore, maintained that in her capacity as co-tenure holder, Sheo Kumari came into possession of the land in suit immediately on the death of Smt. Shivani because the possession of one share-holder is deemed to be the possession of all. 8. The case of Smt. Dhirajiya has not been seriously contested and there is nothing on record to show that she was the sister of Pitam. 9. A perusal of the order of Naib Tahsildar clearly goes to show that he ordered mutation on the basis of title to succession and not on the basis of the possession. This is patently incorrect in Accordance with section 40 of the U.P. Land Revenue Act, all disputes regarding entry in the annual register are to be decided on the basis of possession and yet this is an important point which has been overlooked by the Naib Tahsildar. It is only under sub-section(11) of the section 40 that the Tahsildar should ascertain by summary inquiry, who is the person best entitle to the property provided he is unable to satisfied himself as to which party is in possession. In the instant revision the foregoing facts would clearly show that there is considerable evidence which can be available on the point of possession and hence the Naib Tahsildar should have proceeded to ascertain by a summary inquiry the person best entitle to he property in case he had not been able to satisfy himself as to who was the person really in possession of the land in suit. In these circumstances I would agree with the Collector that this is a fit case for remand in which the fact of possession should be ascertained first and the Tahsildar of Naib Tahsildar should examine the question of title only if he is unable to satisfy himself as to which party is in possession. 10. In these circumstances I would agree with the Collector that this is a fit case for remand in which the fact of possession should be ascertained first and the Tahsildar of Naib Tahsildar should examine the question of title only if he is unable to satisfy himself as to which party is in possession. 10. In the result, I accept this reference, set aside the order of Naib Tahsildar, dated 30-1-73 and remand the case to the trial court with the direction that mutation should be effected on the basis of possession and the question of title should be looked into only when the trail court is unable to satisfy itself as to which party is in possession of the disputed land. It has to be emphasized, however, that possession contemplated by section 40 is juridical possession and not that of a rank trespasser. Thus, if in the instant case the trail court came to the conclusion that Kallu Singh is in possession of the entire holdings, his possession over the Bhumidhari plots will be held to be juridical while it will be that of a rank trespasser in respect of sirdari plot no. 193-B. 11. Before concluding I would like to reproduce the following instructions for the guidance of subordinate revenue courts, issued by the Board vide their circular letter no. 13/Judl-384-B, dated June 2, 1930 :- "It has come to the notice of the Board that the law regarding the decision of mutation cases is being constantly disregarded. Section 40 requires(1) that all decisions should be on the basis of possession, (2) that if possession is doubtful, it should be ascertained by summary inquiry who is best entitled to the property. The words "by summary inquiry" are important. Yet it is not uncommon for Assistant Collectors to examine large number of witnesses, to discuss intricate points of civil law, and to spend months over such inquiries. Their work is largely futile because the order even of the highest revenue court has no finality in such cases, and the question of proprietary right can be raised against in a civil court". 12. It has been considered necessary to make reference to these instructions because in the instant case the Naib Tahsildar embarked on a full fledged inquiry regarding the question as to who as the person best entitle to the property. 12. It has been considered necessary to make reference to these instructions because in the instant case the Naib Tahsildar embarked on a full fledged inquiry regarding the question as to who as the person best entitle to the property. In case the Tahsildar or the Naib Tahsildar is unable to satisfy himself, as to which party is in possession, only a summary inquiry and not a full fledged investigation is envisaged by sub-section(11) of the Section 40 of the Land Revenue Act.