JUDGMENT M.C. Sharma, J.M. - This Full Bench has been constituted to give answer to the questions posed in two separate Revisions. 2. (i) In Dassiyan v. Smt. Sukhan, Rev. No. 45 of 1975-76 the following question has been posed: "Whether the words 'possession based on succession' used in Section 40 of the Land Revenue Act mean succession in accordance with law, or, whether their import is that a remoter heir to possession would oust a preferential heir?" (ii) In Ram Autar v. Annapurna Devi, Ref. No. 308 L.R. 1972-73, the question has been posed: "Whether in mutation proceedings based on transfer, only physical possession irrespective of title should be looked into." 3. The point raised in the above two Revisions is more or less common and may be stated as below: "Whether the disputes regarding entry in the annual registers should be decided on the basis of actual possession or on the basis of possession based on succession or transfer." 4. The relevant provisions of the U.P. Land Revenue Act as amended up to date are reproduced below:- "Section 35 Procedure on report - On receiving a report of succession or transfer under Section 34, or upon facts otherwise coming to his knowledge the Tahsildar shall make such inquiry as appears necessary and if the succession or transfer appears to have taken place, he shall direct the annual registers to be amended accordingly." "Section 40. Settlement of disputes as to entries in annual register- (1) All disputes regarding entries in the annual registers shall be decided on the basis of possession. (2) If in the course of inquiry into a dispute under this section the (Collector or the 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 and shall put such person in possession. (3) No order as to possession passed under this section shall debar any person from establishing his right to the property in any Civil or Revenue Court having jurisdiction. Explanation - The term 'possession' in this section means possession based on succession or transfer." 5. It may be noted that the U.P. Land Laws (Amendment) Act, 1975, makes amendment in certain sections of the U.P. Land Revenue Act but no change has been made in Section 40 of the U.P. Land Revenue act. 6. Explanation - The term 'possession' in this section means possession based on succession or transfer." 5. It may be noted that the U.P. Land Laws (Amendment) Act, 1975, makes amendment in certain sections of the U.P. Land Revenue Act but no change has been made in Section 40 of the U.P. Land Revenue act. 6. Section 35 as it stood prior to its amendment is reproduced below: "Section 35. Procedure on Report - (1) On receiving a report of succession under Section 34, or on facts otherwise coming to his knowledge, the Tahsildar shall make such inquiry as appears necessary and if, in an undisputed case succession appears to have taken place, direct the annual registers to be amended accordingly. If the succession is disputed he shall dispose it of after deciding the dispute in accordance with the provisions of Section 40. (2) On receiving a report of transfer under Section 34, or on facts otherwise coming to his knowledge, the Tahsildar shall make such inquiry as appears necessary and then refer the case to the Collector who shall, after making such further inquiry as may be necessary, dispose it of." 7. The retention of Section 40 in its old form without any amendment while Section 35 has been changed and made self-contained, has created some controversy whether in the case of succession or transfer the factum of actual possession should be taken into account by the Tahsildar while conducting the inquiry in respect of such mutations, or not. A number of lawyers both for and against have appeared before us to support the two points of views and their views are briefly stated below: S/Sri R.A. Upadhyaya, B.K. Gupta, and N.R. Saxena, Advocates, supported the view that mutation proceedings under Section 40 U.P. Land Revenue Act should be decided on the basis of actual physical possession. Their arguments may be summarised as follows: (1) The main objective of the U.P. Revenue Act, 1901 is to facilitate collection of land revenue. Therefore, the Collector should look into de facto possession for collecting land revenue from the persons in physical possession or occupation of the land. (2) The words 'possession' used in Section 40 should be interpreted to mean 'actual physical possession' and not 'constructive possession' and title need not be looked into. Therefore, the Collector should look into de facto possession for collecting land revenue from the persons in physical possession or occupation of the land. (2) The words 'possession' used in Section 40 should be interpreted to mean 'actual physical possession' and not 'constructive possession' and title need not be looked into. The question with regard to determining the title will arise only when the Collector is unable to determine which party is in actual possession as stipulated in sub-section (2) of Section 40. (3) Mutation proceedings should be decided in accordance with Mr. Tomson's directions to the Collectors which have a quasi-judicial force. Thus while a rank trespasser's possession may be ignored, the possession of a person with some semblance of title has to be recognized under Section 40. Therefore, a remoter heir in possession will oust a preferential heir. They supported their views by a number of rulings which shall be discussed later. 8. S/Sri P.L. Misra, Advocate, and K.N. Misra and L.P. Dixit, Advocates appearing as amicus curiae on the other hand supported the view that mutation proceedings should be decided not on the basis of actual physical possession but on the basis of possession based on lawful succession or transfer. Their arguments may be summarised as below: (1) The word 'possession' used in Sections 39 and 40 is not the same as used in Section 41 of the U.P. Land Revenue Act, where physical possession has to be taken into account and is described as 'actual possession'. If the Legislature meant that in cases falling under Section 40 of the U.P. Land Revenue Act means the actual possession should be taken into account, they would have used the word 'actual possession' therein also. (2) Section 34 of the U.P. Land Revenue Act requires every person obtaining possession by succession or transfer to report such succession or transfer to the Tahsildar. The phrase 'obtaining possession' is highly significant, and it refers to possession based on title. (3) The term 'succession' has been clearly defined in U.P. Zamindari Abolition and Land Reforms Act and it lays down the order of succession in Section 171 of the Act. There is no concept of a 'remoter heir' and devolution has to be determined strictly in accordance with the prescribed order of succession contained in Section 171 of the U.P.Z.A. and L.R. Act. (4) Mr. There is no concept of a 'remoter heir' and devolution has to be determined strictly in accordance with the prescribed order of succession contained in Section 171 of the U.P.Z.A. and L.R. Act. (4) Mr. Tomson's letter to the Collectors is not codified law. The Legislature has made numerous changes in the U.P. Land Revenue Act and the trend contained therein discloses the intention of the Legislature that possession based on title alone should be the basis for mutation. (5) It may also submitted that a comparison of Section 35, as it stands after its amendment by Act XXX of 1975, with the old section shows that in the amended section 35, reference to Section 40 has been omitted altogether. Section 35 refers to mutation on the basis of succession or transfer and makes no reference to possession at all. Thus the disputed mutation proceedings are to be regulated by Section 39 or 40 of the U.P. Land Revenue Act whereas succession or transfer proceedings are to be governed by Section 35 alone. In order words the question of actual possession or occupation is not relevant in determining mutation based on succession or transfer. 9. Sri S.K. Singh District Government Counsel (Board of Revenue) Lucknow also submitted that possession should not be given the meaning of occupation and that forcible possession is no possession in the eyes of law. 10. We may now take a look at some of the important judicial pronouncements brought to our notice. The first case is Ramji Chaube v. Hazari Chaube, 1934 R.D. 126 wherein Drake Brockman, S.M., and Hoimes, J.M., observed as follows: "Possession under the recent amendment to Section 40 of the Land Revenue Act means 'possession based on succession or transfer'. The Revenue Courts are not concerned with the question whether the succession on which the possession is based is strictly valid according to personal or not. Provided the person having the possession obtained it on the basis of succession and that such succession is prima facie legally capable of justification, he can claim to have his name recorded in the papers and the party who challenges his right to succeed be directed or left to get the matter settled in the Civil Court." 11. Provided the person having the possession obtained it on the basis of succession and that such succession is prima facie legally capable of justification, he can claim to have his name recorded in the papers and the party who challenges his right to succeed be directed or left to get the matter settled in the Civil Court." 11. The next case referred to is Bhanpartab Singh v. Biran Kaur, 1935 R.D. 438, in which it has been observed that before a person, claiming title by succession, can file an application for mutation under Section 34, Land Revenue Act, he must obtain possession arising out of or based on such possession. His possession may be formal or constructive, or actual. Mere possession not arising out of or based on succession, is not sufficient to justify mutation. An identical view has been expressed in Kamal Misra v. Prabhawati, 1935 R.D. 58, wherein it was observed that 'where a claimant in possession is not a trespasser but a close relation of the deceased owner and claim title by succession, mutation should be ordered in his favour in preference to a claimant who is not in possession'. 12. The next important judgment brought to our notice is Jaipal v. Board of Revenue, 1956 ALJ 807, wherein it was observed that the record of rights is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question and his right to establish his title thereto is expressly reserved by Section 40(3) of the Act. The only exception to this general rule is in those cases in which the entry itself confers a title on the petitioner by virtue of the provisions of the U.P. Zamindari Abolition and Land Reforms Act. 13. The next judgment referred to is Ausaf Ali v. Khalil Ahmad, 1958 R.D. 100. In this judgment it was held. 'Where the parties were definitely not trespassers and had prima facie title as in this case, the mutation should have been decided only on the basis of possession'. 14. The next judgment referred to is Chandra Shekhar v. Ram Gir, 1970 R.D. 166 wherein the only point discussed is whether the recital in the sale deed about transfer of possession was conclusive, final and binding. 14. The next judgment referred to is Chandra Shekhar v. Ram Gir, 1970 R.D. 166 wherein the only point discussed is whether the recital in the sale deed about transfer of possession was conclusive, final and binding. The relevant extract may be reproduced below: "The only point for consideration is whether the recital in the sale deed about transfer of possession is such a conclusive, final and binding piece of evidence that it overrides all other questions of fact. I am unable to lay may hands on any ruling which goes so far as this proposition. In the present instance, on local inquiry it is conclusively proved that possession on these plots is not with the vendee at all but it is whit certain public institution of the nature of school, temple and Gandhi Chabutra. Accordingly, while normally the rule quoted by the learned lawyer for the revisionist would be applicable in mutation proceedings, where, however on local inquiry and on proved facts, the possession has not been obtained by the vendee, the aforesaid rule cannot act as conclusive by itself." 15. The next decision referred to is Ranchhor Singh v. Balram Singh, 1971 R.D. 509 wherein Sri R.D. Sanwal has observed as follows: "Before leaving this case, I would like to examine the question of determination of the rank of trespasser in greater detail...... The law clearly lays down pre-eminently that all disputes regarding entries in the annual registers shall be decided on the basis of possession and further that 'It is not necessary for mutation courts to go into the details or title'. Where there is a prima facie claim of bona fide possession, it should generally be accepted and as a general rule also where a person's possession is confirmed by entries in our annual registers for any two consecutive years or more. He has further gone on to observe that the court should generally give the benefit of the fact of possession to the Qabiz tenure-holder and mere recital in the sale deed of delivery of possession in such cases should be held to be Farzi and of no consequence, so far as finding of transfer of possession in mutation cases is concerned." 16. The next decision referred to is Smt. Simiri v. Ramwati, 1974 R.D. 307 in which Sri S.K. Sarkar has observed as follows: "The law is well settled that for purposes of mutation even a remoter heir, if he is found in possession, will have a better claim to mutation than a preferential heir, who is out of possession." 17. The next case referred to is Budhu v. Suresh Chandra, 1976 R.D. 49 wherein Sri Ashwini Kumar, Member, in respect of a transfer based on gift deed observed as follows: "In the present case, the very gift deed on the basis of which Suresh Chandra and others claimed mutation over the suit land, is under challenge by the donor himself. In the circumstances, recital in the gift deed regarding delivery of possession will not be sufficient proof of possession and a clear finding regarding possession as based on the evidence on record is necessary for decision of the mutation application of Suresh Chandra and others." 18. The above summary of the various cases cited before us shows that some confusion genuinely exists whether actually possession should be given preference over constructive possession or possession based on title. The guidelines that should determine the 'possession' have been precisely laid down by the Supreme Court in Kotturuswami v. Veeravva, AIR 1959 Pat. 577 the extracts of which are cited below: "The learned Judges of the Hon'ble Supreme Court have observed that possession referred to in Section 14 of the Hindu Succession Act, 1956 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purposes of Section 14. The learned Judges further expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected hi title. The learned Judges further expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected hi title. The learned Judges accordingly concluded that 'in the present case if the adoption was invalid, the full owner of Veerappa's estate was his widow Veerappa and even if it be assumed that the second defendant was in actual possession of the estate, his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant." Thus according to the view of the Hon'ble Supreme Court the word 'possession' includes not only 'actual possession' but also 'constructive possession'. It cannot be read merely as 'occupation' and will certainly include constructive possession. 19. Reverting back to the provisions contained in the U.P. Land Revenue Act, a comparison of Section 40 and 41 of the U.P. Land Revenue Act supports the view that the words 'possession' used in Section 40 does not mean 'actual possession'. Section 41, which refers to the settlement of the boundary disputes says that if the disputes regarding boundaries cannot be decided on the basis of existing survey map, the boundaries shall be fixed on the basis of 'actual possession'. Thus, it appears that U.P. Land Revenue Act has itself made distinction between the possession, which includes constructive possession, and 'actual possession'. A reference to other sections of the U.P. Land Revenue Act also supports the above view. Thus the logical 'conclusion' is that the word 'possession' used in Section 40 of the U.P. Land Revenue Act means constructive possession as well. 20. Section 33 makes it mandatory for the Collector to maintain the record of rights or the annual registers and to record in his register all changes that may take place and any transaction that may affect any of the rights or interest recorded. The record of rights is commonly known as the Khatauni. Detailed rules regarding maintenance of Khatauni are provided in the Land Records Manual. Column 4 of this register records the name of the tenant-in-chief, Column 5 of the sub-tenant if any. The names of the person occupying the land, if other than one recorded in columns 4 and 5, is to be recorded in the remarks column. Detailed rules regarding maintenance of Khatauni are provided in the Land Records Manual. Column 4 of this register records the name of the tenant-in-chief, Column 5 of the sub-tenant if any. The names of the person occupying the land, if other than one recorded in columns 4 and 5, is to be recorded in the remarks column. If a tenure-holder recorded in column 4 dies or any transfer takes place, the only change or transaction that he taken place, is in the name of the tenant-in-chief to be recorded in column 4. Even if some person, other than the legal heir strictly in order of succession or the transferee is in actual possession of the land such person can only be entered in the remarks column. Section 33 gives no authority to the Collector to record the name of such a person in place of the original tenure-holder. 21. A comparison of the old and new Section 35 of the U.P. Land Revenue Act clearly shows that under the old Act, undisputed succession or transfers were to be decided by the Tahsildar under Section 35 and the disputed cases of successions or transfers by the Collector or Tahsildar by observing the procedure land down in Section 40 of the U.P. Land Revenue Act. Under the new Section 35 of the Act this distinction has been given up. Now all successions or transfers, whether disputed or undisputed, will be decided by the Tahsildar himself under Section 35. Thus Sec. 40 will not apply to mutation proceedings but only to disputed correction of papers proceedings. 22. Mr. Tomson's directions to the Collector have been referred to by both the sides. Besides the fact that Mr. Tomson's directions are not codified law, it is to be observed that U.P. Land Revenue Act has itself undergone changes since the time of Mr. Tomson. The entire tenancy laws have been overhauled. The Zamindari has been abolished and new tenure rights have been created under the U.P.Z.A. and L.R. Act. If the mutation proceedings were to be decided by the Revenue Courts in favour of the so-called 'remoter heir' on the basis of actual possession it would imply that the rule of law would be given a go-by and rule of force would prevail. This is not the intention of the Legislature. If the mutation proceedings were to be decided by the Revenue Courts in favour of the so-called 'remoter heir' on the basis of actual possession it would imply that the rule of law would be given a go-by and rule of force would prevail. This is not the intention of the Legislature. A distant relative taking forcible possession of the land in the garb of remoter heir cannot oust the rightful heir according to the order of succession laid down in Section 171 of the U.P.Z.A. and L.R. Act. Likewise, where a valid transfer takes place, the doors would be left open for any person with the force of 'Lathi' behind him to take forcible possession of the land and then seek mutation. Such forcible possession cannot be given any recognition in a Civilized Democratic Society where the rule of law must prevail. 23. In the light of the above discussion, the reference made to this Bench is answered as follows: The disputes regarding entries in the annual registers shall be decided on the basis of actual or constructive possession based on lawful succession or transfer. The concept of the so-called remoter heir in possession ousting or transfer. The concept of the so-called remoter heir in possession ousting a preferential heir is not warranted by the law. 24. A copy of this file may be placed on the file of Reference No. 368 L.R. 1972-73, District Allahabad.