JUDGMENT : ( 1. ) CERTAIN questions which are enumerated hereinafter, have been referred to the Full Bench for its opinion. It is mainly concerning interpretation of the word actual possession in Explanation (1) to section 38 of the Madhya Bharat Zamindari Abolition Act, 1951 (hereinafter referred to as the Act) under which Pucca tenancy rights are conferred on tenants, sub-tenants and tenants of sub-tenants and the explanation clarifies that the pucca tenancy right shall accrue or be acquired in respect of such land only as may be in the actual possession of the tenants or sub-tenants or tenant of a sub-tenant. The learned single Judge also noted that the Single Bench decisions in Kanal Singh v. Anandlal (1967 RN 20) of Niwaskar J. and in Dhapu Bai v. Samandar (Second Appeal No. 488 of 1966 decided on 2-3-1977 at Indore) of Sohani J. to be in conflict with the earlier decision of this court in Dimansingh v. Rameshwar (1964jlj 279) of Shivdayal J. (as he then was) and also the Division Bench decision in Pancham Singh v. Dhani Ram (1977 MPLJ 787) affirming the decision in Dimansinghs case (supra ). ( 2. ) THE facts of the case are to be stated in order to properly appreciate the questions, which have been referred to the Full Bench. The facts not in dispute are that Khasra Nos. 1577, 1578, 1605, 1610, 1611, 1612, 1702 and 1703 measuring 18 Bighas and four Biswas, in Mouza Gospura, Tahsil and district Gwalior, originally belonged to one Narayandas who was a Pukhta mouroosi tenant and by a registered sale-deed dated 21-10-1944 he sold the same to defendant No. 1 Ramchandrarao for a consideration of Rs. 2500. It was then a Zamindari village and after abolition of the Zamindari, it became a Ryotwari village. After the Zamindari Abolition Act came into force, the original defendant No. 2 Devlal was shown as a Pucca tenant. Defendant no. 1 Ramchandrarao filed an application under section 91 of the Act before the Additional Tahsildar for restoration of possession against the defendant no. 2 Devlal, which was registered as Revenue Case;no. 53 of 1954 and it was dismissed on 7-8-1956 and the appeal before the Collector also failed. It was held in those cases that since Devlal was recorded as sub-tenant, he cannot be evicted after the Act came into force. 2 Devlal, which was registered as Revenue Case;no. 53 of 1954 and it was dismissed on 7-8-1956 and the appeal before the Collector also failed. It was held in those cases that since Devlal was recorded as sub-tenant, he cannot be evicted after the Act came into force. Thereafrer defendant No. 2 devlal filed an application under section 38 of the Act for conferral of Pucca tenancy rights and the same is pending. During the pendency of this suit devlal died and his three sons have been brought on record. Defendant No. 3 balkisan is alleged to have purchased the suit Khata during the pendency of the suit from the heirs of deceased Devlal and so he was joined as a party to the suit as per direction of this Court. It appears that the aforesaid lands of khasra Nos. 1610, 1611, 1612, 1702 and 1703 were acquired by the State government under the Land Acquisition Act. So in fact the dispute now remains of Khasra Nos. 1577, 1578, 1604 and 1605. ( 3. ) PLAINTIFF Sardar Deorao Jadhavs case is that by a registered sale deed dated 21-10-1944, in fact, he had purchased the suit Khasra numbers from Narayandas and defendant No. 1 Ramchandrarao was his Benamidar. Taking advantage of the fact that the plaintiff was residing at Gwalior and defendant No. 1 Ramchandrarao was also serving at Gwalior, original defendant No. 2 Devlal unauthorisedly trespassed into the suit lands and fraudulently got his name entered in the revenue papers as a sub-tenant in the year 1952 or so. Since defendant No. 1 Ramchandrarao was recorded as a pucca tenant, the plaintiff is entitled to a declaration that he is in fact the pucca tenant of the suit lands and defendant No. 2 Devlal has no right whatsoever in the suit lands and also claimed mesne profits at the rate of Rs. 100 per annum for two years and future mesne profits at the rate of Rs. 300 per annum till delivery of possession. The plaintiff reserves his right of legal action against the State of Madhya Pradesh in respect of those Khasra numbers which have been acquired. Defendant No. 1 Ramchandrarao, in fact, supported the case of the plaintiff and submitted that defendant No. 2 Devlal is in unauthorised possession, he was not a sub-tenant and the revenue entries have been unauthorisedly made in collusion with the Patwari. Defendant No. 1 Ramchandrarao, in fact, supported the case of the plaintiff and submitted that defendant No. 2 Devlal is in unauthorised possession, he was not a sub-tenant and the revenue entries have been unauthorisedly made in collusion with the Patwari. According to defendant No. 2 Devlal, he is in occupation of the suit lands as the sub-tenant and has been paying land revenue to defendant No. 1 Ramchandrarao. The plaintiff has no title over the suit lands and defendant No. 1 Ramchandrarao is not his Benamidar. It is denied that defendant No. 2 Devlal trespassed into the suit lands in the year 1952 and got his name fraudulently recorded in the revenue papers as a sub-tenant. In fact he is in occupation of the suit lands prior to 1950 as a sub-tenant of defendant No. 1 Ramchandrarao and these facts have been established in the Revenue Case No. 53 of 1954 by the additional Tahsildar which has been affirmed by the Collector. He has also applied under section 38 of the Act for conferral of Pucca tenancy rights on him. The suit is, therefore, liable to be dismissed. ( 4. ) THE facts found by the Courts below are that the plaintiff had purchased the suit lands from Narayandas by registered sale deed dated 21-10-1944 and defendant No. 1 Ramchandrarao in his Benamidar. Defendant No. 2 devlal is in occupation of the suit lands, except Khasra No. 1604, prior to 2-10-1951 when the Abolition Act came into force and he being in actual possession the plaintiffs right does not survive in future under section 38 of the Act. In the revenue papers defendant No. 2 Devlal has been shown as a sub-tenant and the entries cannot be said, to be incorrectly made. There is a presumption about the correctness of the entries. Although there is no evidence to prove the contract of sub-tenancy between defendant No. 2 Devlal and defendant No. I Ramchandrarao, but the continuous occupation of the suit lands for the last so many years, raises a presumption that his occupation was permissive and he was under the contract of sub-tenancy. The witnesses of the defendants have also deposed that defendant No. 2 Devlal used to pay the land revenue to defendant No. 1 Ramchandrarao. The witnesses of the defendants have also deposed that defendant No. 2 Devlal used to pay the land revenue to defendant No. 1 Ramchandrarao. The learned Single judge, after stating the case of the plaintiff and the defendants, has not gone into the findings recorded by the Courts below before referring the matter to a large Bench. It would have been better if the findings were recorded first by the learned Single Judge before referring the questions to a larger Bench. But it seems that the matter has been kept open to be decided later on after getting the opinion of the larger Bench. In the concluding para of the order of reference, it is mentioned that for the present it is not necessary to deal with other points, which have been raised in the appeal. ( 5. ) THE following questions have been referred:- (i) Whether Pucca tenancy rights would not accrue to a tenant by virtue of section 38 (1) of the M. B. Zamindari Abolition Act merely for the reason that his holding had been encroached by a trespasser sometime before or on 2-10-1951 despite the fact that the encroacher had not perfected his title by adverse possession? (ii) Whether the explanation appended to section 38 simply provides for conferral of Pucca tenancy rights amongst the tenant, sub-tenant or the tenant of a sub-tenant, in respect of such area of the holding which may be in their possession and does not apply to a case where a rank trespasser had encroached on the holding of the tenant? (iii) Whether the scheme under the provisions of the Abolition Act contemplated only a change of master in the case of tenants and was not aimed to divest the tenants of their tenancy rights? (iv) Whether the rights and interest of a tenant, whose holding happens to be in occupation by a trespasser on or before 2-10-1951, would vest in the State by virtue of the provisions of section 3 or any other provision of the Madhya Bharat Zamindari Abolition Act? (iv) Whether the rights and interest of a tenant, whose holding happens to be in occupation by a trespasser on or before 2-10-1951, would vest in the State by virtue of the provisions of section 3 or any other provision of the Madhya Bharat Zamindari Abolition Act? or (v) Whether the tenant will remain entitled even after 2-10-1951 to evict the trespasser by bringing suitable action according to law within the period of limitation on the analogy of the provisions contained in subsection (5) of section 38 conferring such rights to evict a sub-tenant who is deemed to be trespasser on his failure to comply with the requirements of sub-section (4) because the subsequent Legislation of the M. B. Rayot-wari Sub-lease Protection Act did not provide any protection to trespassers being available only to sub-tenant or a tenant of a sub-tenant? ( 6. ) SOME relevant provisions of the Act are reproduced hereunder for ready reference. The following provisions are concerning proprietors and tenants:-S. 3. Vesting of proprietary rights in the State.- (1) Save as otherwise provided in this Act and subject to the provisions of section 8, on and from a date to be specified by a notification by the Government in this behalf (hereinafter referred to as the date of vesting) all proprietary rights in a village Mahal, land, Chak or block in (Madhya Bharat) vesting in a proprietor of such village, Mahal, land, Chak or block as the case may be, or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor or such person, to and vest in the State free of all encumbrances. xxx xxx xxx S. 4. Consequences of the resting of an estate in the State.- (1) Save as otherwise provided in this Act when the notification under section 3 in respect of any area has been published in the (Gazette) then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, the consequences as hereinafter set forth shall from the beginning of the date specified in such notification (hereinafter referred to as the date of vesting) ensure. xxx xxx xxx (2) Notwithstanding anything contained in sub-section (1), the proprietor shall continue to remain in possession of his Khud Kasht land, so recorded in the annual village papers before the date of vesting. xxx xxx xxx (2) Notwithstanding anything contained in sub-section (1), the proprietor shall continue to remain in possession of his Khud Kasht land, so recorded in the annual village papers before the date of vesting. xxx xxx xxx S. 6. Collector to take possession of property vesting in the State-On date of vesting, the (Collector) shall take charge of all lands other than occupied lands and home-steads and of all interests vesting in the State under section 3. xxx xxx xxx S. 38. Conferral of Pucca tenancy right on tenants and sub-tenants.- (I) Subject to the provisions of this section every tenant of a proprietor shall be deemed to be a Pucca tenant of the land comprised in his holding from the date of vesting. . (2) Every sub-tenant or tenant or tenant of a sub-tenant who deposits with the Tahsildar within the period specified in sub-sections (3) and (4)the following amount to be paid to the proprietor or tenant or sub-tenant as the case may be, shall be deemed to be a Pucca tenant of the land comprised in his holding. Till amount is deposited, his former status shall continue. The right of becoming a Pucca tenant by depositing money shall firstly be that of the tenant of the sub-tenant, if any, and if he fails to deposit money shall be that of the sub-tenant. xxx xxx xxx (3) If the holding be in the possession of a tenant of a sub-tenant, he may deposit the money within (eight) years of the date of vesting, otherwise his right of becoming a Pucca tenant shall lapse and the sub tenant may within six months of the expiry of the said (eight) years deposit in the Tahsil, the amount mentioned in clauses (a), (b), (c) and (d), as the case may be, of the preceding sub-section. If he fails to deposit such amount within the such period, the proprietor or the original tenant, as the case may be, shall be deemed to be the Pucca tenant of that holding. (4) If the holding be in the possession of a sub-tenant he may deposit the money within (eight) years of the date of vesting. On the expiry of (eight) years, the original tenant or the proprietor, as the case may be, shall be deemed to be the Pucca tenant of that holding. (4) If the holding be in the possession of a sub-tenant he may deposit the money within (eight) years of the date of vesting. On the expiry of (eight) years, the original tenant or the proprietor, as the case may be, shall be deemed to be the Pucca tenant of that holding. (5) If a sub-tenant or a tenant of a sub-tenant fails to deposit the amount within the period specified in sub-sections (3) and (4) then, notwithstanding anything contained in his lease or contract, it shall be deem-ed that all his rights have ceased to exit and that he is a trespasser on that land, and the proprietor, tenant or sub-tenant, as the case may be, get him ejected under section 90 of the Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007. xxx xxx xxx explanation:-The Pucca tenancy rights under this section shall accrue or be acquired in respect of such land only as may be in the actual possession of the tenant, sub-tenant or tenant of a sub-tenant. xxx xxx xxx S. 41. Tenant to be deemed to be a Governments tenant from the date of vesting and the Land Revenue Administration and Ryotwari Act to apply to the vested land - When the proprietary rights in any village, Mahal, land, Chak or block are vested in the State under section 3 of this Act, every Sakitulmilkiyat, Pucca Maurusi, Mamuli Maurusi, Gair Maurusi tenant of such village, Mahal, land, Chak or block who was in possession of any holding shall, from the date of vesting, be deemed to be a tenant of the Government and the proprietor shall also likewise, in respect of the holding of his Khud Kasht or Sir, be deemed to be the tenant of the government from the date of vesting and all provisions of Part II of madhya Bharat Revenue Administration and Ryotwari Land Revenue and tenancy Act, Samvat 2007, shall, subject to other provisions of this Act, apply to such village, Mahal, land, Chak or block are similar provisions of quanoon Mai, Gwalior State, Samvat 1983, and other laws shall cease to apply. xxx xxx xxx ( 7. ) BEFORE answering the questions referred, it is necessary to consider the relevant provisions of the Madhya Bharat Zamindari Abolition Act, 1951. xxx xxx xxx ( 7. ) BEFORE answering the questions referred, it is necessary to consider the relevant provisions of the Madhya Bharat Zamindari Abolition Act, 1951. The preamble says that this is an Act to provide for the public purpose of the improvement of agriculture and financial condition of Agriculturists by abolition and acquisition of the rights of the proprietor in village mahals, chaks, or blocks settled on Zamindari system which is only a system of keeping an intermediary between the State and the tenants injurious to the betterment of the agriculture as well as the agriculturists in Madhya Bharat and other matters connected therewith. In short, the Act abolishes intermediaries and vests all their rights in the State except those saved under the Act and for the betterment of the status and conditions of the actual tillers of the soil, i. e. tenants, sub-tenants and tenants of sub-tenants. Under section 3 all proprietary rights vest in the State. Consequences of vesting are provided under section 4, under sub-section (2) whereof the proprietor shall continue to remain in possession of his Khudkasht land so recorded in the annual village papers before the date of vesting i. e. 2-10-1951. Section 2 (c) defines Khudkasht land as land cultivated by the Zamindar himself or through employees or hired labourers and includes Sir land. Section 6 empowers the Collector to take possession of all lands other than occupied lands, which have been defined under section 2 (f) as lands held by tenants, sub-tenants or tenants of subtenants or lands held as Khudkasht by proprietors. Section 37 confers pucca tenancy rights to proprietors in respect of Khudkasht lands in their possession. Section 38 confers pucca tenancy rights to tenants, sub-tenants and tenants of sub-tenants in respect of their holding, the right of becoming pucca tenant by depositing money firstly of tenants of sub-tenants and then of subtenants to get such rights within a period of 8 years, otherwise their rights would lapse and in that case proprietors or tenants shall be deemed to be pucca tenants, if they fail to do so all their rights would lapse and they would be deemed to be trespassers and can be ejected. The explanation (i) of this section clarifies that the pucca tenancy rights shall accrue in respect of such land only as may be in actual possession of the tenant, sub-tenant or tenant of sub-tenant. The explanation (i) of this section clarifies that the pucca tenancy rights shall accrue in respect of such land only as may be in actual possession of the tenant, sub-tenant or tenant of sub-tenant. Section 41 makes all tenants to be tenants of the State. So the Act abolishes all intermediaries and makes all tenants including ex-pfo-prietors in respect of their Khudkasht as direct tenants of the State. ( 8. ) THUS, if defendant No. 2 Devlal was sub-tenant of the plaintiff, he would get pucca tenancy rights provided he made necessary deposit within 8 years but his failure to do so would make the proprietor or the plaintiff pucca tenant under section 38. No such rights are conferred under the Act on a trespasser although he may be in actual possession. If the defendant No. 2 was merely a trespasser, he got no benefit under the Act because there is no place for a trespasser in the Act, which confers pucca tenancy rights only to the propritors in respect of Khudkasht lands in their possession or to tenants, sub-tenants or tenants of sub-tenants in respect of their holdings. But all of them cannot simultaneously get pucca tenancy rights. So order of preference has been given, firstly to the tenants of sub-tenants, then to sub-tenants, provided they have made the requisite deposits within the time prescribed and thereafter to the tenant and lastly to the proprietor. Since possession of the tenant is constructive possession of the proprietor and similarly the possession of the sub-tenant is possession of the. tenant and the possession of the tenant of sub-tenants that of the sub-tenants, the tenant, sub-tenant or tenant of a sub-tenant would never get pucca tenancy rights. That is why in explanation (1) to section 38 it is provided that pucca tenancy rights would be conferred provided the tenant, sub-tenant or tenant of a sub-tenant is in actual possession. So if the holding is in possession of a tenant of a sub-tenant he will get pucca tenancy right and not sub-tenant or tenant or the proprietor, similarly with sub-tenant and tenant. Even if a tenant, sub-tenant or tenant of a sub-tenant is dispossessed by a trespasser before the Act came into force, their tenancy rights are not lost. But their existing rights as tenants, subtenants or tenants of sub-tenants to continue as there is no vesting of tenancy rights under the Act. Even if a tenant, sub-tenant or tenant of a sub-tenant is dispossessed by a trespasser before the Act came into force, their tenancy rights are not lost. But their existing rights as tenants, subtenants or tenants of sub-tenants to continue as there is no vesting of tenancy rights under the Act. Tenants become tenants of the State under section 41. Such status is not given to trespassers. ( 9. ) SO in such a case the tenants can certainly file a suit for ejecting a trespasser on the basis of their existing title or prior possession within the period of limitation. So if defendant No. 2 Devlal was merely a trespasser, the plaintiff can file a suit for his ejectment on strength of his own title or prior possession even if he did not get pucca tenancy right under the Act. However, if this was not so, then a peculiar situation will arise, while under the Act he got no pucca tenancy right he will be so under another enactment. The plaintiff being a Pukhta mourasi he is deemed to be a pucca tenant under section 54 (vii) of the Madhya Bharat Land Revenue and Tenancy Act, 1950 (previously termed as Revenue Administration and Rayatwari Land Revenue and Tenancy Act) in view of the fact that Mouza Gospura became a Rayatwari village after the Abolition Act and all the provisions of the Tenancy Act extended to the Rayatwari village. Under section 158 (b) of the Madhya pradesh Land Revenue Code, 1959, all pucca tenants under the Madhya Bharat tenancy Act automatically become Bhumiswamis and under section 185 (i) (ii)of the Madhya Pradesh Land Revenue Code, sub-tenants, tenants of subtenants in Madhya Bharat Region become occupancy tenant. Here again trespasser gets no right under the M. P. Code, although he may be in actual possession because he must hold the land i. e. initially under some lawful title to enable him to become Bhumiswami or occupancy tenant. Section 38 confers higher status to actual tiller of the land either as tenant, sub-tenant or tenant of a sub-tenant, but not to a trespasser. ( 10. ) BUT so far as section 38 is concerned the words used are actual possession the aim being to give higher status to actual tillers of the soil under lawful title and do away with absentee landlord. ( 10. ) BUT so far as section 38 is concerned the words used are actual possession the aim being to give higher status to actual tillers of the soil under lawful title and do away with absentee landlord. However, in section 41 the word used is possession and not actual possession and a tenant in possession of any holding will be deemed to be a tenant of the State. Even if the tenant is ousted by a trespasser, his possession continues. We are supported by two decisions of this Court in this regard. Shivdayal J. (as he then was) in Dimansingh v. Rameshwar has held- "to me it is quite clear from the provisions of the Madhya Bharat zamindari Abolition Act that there was expropriation of the Zamindari, his rights, title and interests vested in the State. It will be appropriate to say that this was a case of change of masters so far as tenants were concerned. It was for the Legislature either to determine by statute all rights of the pre-existing tenants as well, or to recognise them. The Act does not expressly provide for abolition of tenancy rights. There are no provisions for the tenant like those contained in section 4 of the Act regarding the Zamindar. On the contrary section 41 in terms extends recognition to the pre-existing tenants and confers on them tenancy rights vis-avis the new landlord (State ). " "section 41 of the Zamindari Abolition Act cannot be interpreted to mean that the recognition was given to every person whoever was in actual occupation of the land on 1-10-1951. If actual occupation were the crux, it would lead to absurdity in a case where the tenant was forcibly thrown out of the holding on 1-10-1951, at a time when he could not go to the Court on that very day for reinstatement and invoke the benefit of section 47 of the Abolition Act (which applies to pending cases ). And on 2-10-1951 he would be refused the relief just because he was not in occupation on 1-10-1951. It then comes to this that where a tenant had a subsisting right on 1-10-1951 to be reinstated that relief cannot be denied to him merely because of the change of law. And on 2-10-1951 he would be refused the relief just because he was not in occupation on 1-10-1951. It then comes to this that where a tenant had a subsisting right on 1-10-1951 to be reinstated that relief cannot be denied to him merely because of the change of law. " Shivdayal C. J. sitting with Sharma J. in Panchamsingh v. Dhaniram (supra) has further held that the combined effect of sections 3, 4 (2) and 2 (c) of the M. B. Zamindari Abolition Act, is that a proprietor shall continue in possession if the land is his Khudkasht and was recorded as such before the date of vesting trespasser having unlawfully dispossessed a proprietor in Samvat 2007 cannot be heard to say that since the proprietor was not in possession, he lost his right to possession. As possession of a trespasser is no possession in law, the person dispossessed must be deemed to be in possession. The Supreme court in Himmatrao v. Jaikisandas (AIR 1966 S C 1974) has held that the Abolition Act provides for the acquisition of the rights of proprietors and it was not intended to take away each and every kind of right possessed by a person in immovable property situate in such villages. ( 11. ) IN the case of Karnail Singh v. Anandilal Newaskar J. held that the words actual possession are so clear that there is no room for argument that it means not only actual physical possession but also constructive possession or even right to possess. Constructive possession through sub-tenants or tenants of sub-tenants is necessarily excluded from the term actual possession. There is no reference to a trespasser. Relying on this decision sohani J. in Dhapubai v. Samandar gave the same interpretation to the words actual possession. But with due respect we are unable to agree with the conclusions arrived at by the learned Judge in those cases. In both the cases it was found that the plaintiff was a Pattedar tenant (Pucca tenant) and he was illegally dispossessed by the defendants before the M. B. Zamindari abolition Act came into force so it was held that the plaintiff not being in actual possession, he did not get pucca tenancy right under section 38 of the act. In both the cases it was found that the plaintiff was a Pattedar tenant (Pucca tenant) and he was illegally dispossessed by the defendants before the M. B. Zamindari abolition Act came into force so it was held that the plaintiff not being in actual possession, he did not get pucca tenancy right under section 38 of the act. But further held that the plaintiff has no right to bring the suit and the suits were, therefore, dismissed on the assumption that tenancy rights also vested under the Act and that under section 41 also tenant becomes a tenant of the State only if he is in actual possession when in fact in contradiction to section 38, in section 41, the words actual possession have not been used. The tenant in possession of a holding will be deemed to be a tenant of the state. Here the word possession cannot be equated with the words actual possession. The possession of a trespasser being not recognised under the the law, it would be deemed to be that of the tenant. In fact, under section 38 (5) if a sub-tenant or tenant of a sub-tenant fails to deposit the amount within the period specified, it shall be deemed that all his rights have ceased to exist and that he is a trespasser on that land and the proprietor, tenant or sub-tenant can get him ejected. As such the position of rank trespasser can be no better than such sub-tenants or tenants of sub-tenants. It is, therefore, not correct to say that tenant has no right to eject a trespasser, he can certainly eject him on the basis of his title or earlier possession. Besides the tenant becomes a pucca tenant under the M. B. Land Revenue and Tenancy Act, 1950, which is made applicable under section 41 of the act as the village has become Ryotwari village. The pucca tenant becomes bhumiswami under section 158 (b) of the M. P. Land Revenue Code, 1959 and so has a lawful title to eject a trespasser. Naokar J. did not notice the decision in Dimansinghs case while Sohani J. did not rely on that decision in view of Supreme Court decision under the Bihar Land Reforms Act. ( 12. The pucca tenant becomes bhumiswami under section 158 (b) of the M. P. Land Revenue Code, 1959 and so has a lawful title to eject a trespasser. Naokar J. did not notice the decision in Dimansinghs case while Sohani J. did not rely on that decision in view of Supreme Court decision under the Bihar Land Reforms Act. ( 12. ) THE Bihar Land Reforms Act, 1950 is an Act to provide for the transference to the State of the interests of the proprietors and tenure holders in land and the mortgagees and lessees of such interests. This is also an enactment to do away with intermediaries but is not intended to apply to raiyoti interests. By issuing notifications under section 3 from time to time, the State can declare that the estates or tenures of a proprietor or tenure holder have passed to and vested in the State. Under section 3, by a general notification the State can declare that intermediary interests of intermediaries in the State have passed and vested in the State. Consequences of vesting are provided in section 4, all intermediary interests other than interests of Raiyats or under Raiyats vest in the State. Under section 6, on and from the date of vesting all lands used for agricultural purposes, which were in khas possession of an intermediary on the date of vesting including such other lands enumerated thereunder shall be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession and hold them as Raiyats. Khas possession is defined in section 2 (k) as possession of such proprietor or tenure holder by cultivating such land himself with his own stock or by his own servants or by hired labour or hired stock. The Supreme Court in Suraj Dhir v. Prithnath Singh (AIR 1963 S C 452) and Ram Ran Bijay Singh v. Bihari Singh (AIR 1965 S C 524) has held that the expression khas possession means the actual possession of a proprietor or tenure-holder of any land used for agriculture or horticulture purposes who himself cultivates the land with his own stock or servants. The Full Bench decision of the Patna High Court in mahanath Sukhdeo v. Kashi Prasad ( AIR 1958 Pat. 630 ), holding that the expression is wide enough to include constructive possession has been overruled. The Full Bench decision of the Patna High Court in mahanath Sukhdeo v. Kashi Prasad ( AIR 1958 Pat. 630 ), holding that the expression is wide enough to include constructive possession has been overruled. Relying on these decisions, the Supreme Court in Gurucharan Singh v. Kamla Singh ( AIR 1977 SC 5 ) has further held that the possession of a trespasser, by no stretch of imagination can be deemed to be a khas possession of the owner. Again in Ramesh Bajoy v. Pashupati Rai ( AIR 1979 SC 1969 ), the Supreme Court has held that intermediary must be in khas possession. . . . . . . . . lands in possession of tenant at. . . . . . . will under intermediary benefit not available. So relying on these decisions we hold that the expression actual possession cannot include the possession through a trespasser for the purposes of section 38 of the M. B. Zamindari Abolition Act. ( 13. ) HOWEVER, there are distinctions between Bihar Land Reforms Act and the M. B. and M. P. Abolition Acts, which are dissimilar. Under the bihar Act the Supreme Court in Shivshankar v. Baikunth (AIR 1969 SC 71) has held as under: "all estates notified under section 3 vests in the State free of all encumbrances. The quondam proprietors and tenure holders of those estates lose all interests in those Estates. As proprietors they retain no interest in respect of them whatsoever. But in respect of the lands enumerated in section 6 the State settled on them the rights of Raiyats. Though in fact the vesting of the Estates and deemed settlement of Raiyats rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions, first there was a vesting of the Estates in the State absolutely, and free from all encumbrances. Then followed the deemed settlement by the State of Raiyats rights on the quondam proprietors. Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within section 6. " So there can be no deemed settlement under section 6 if the proprietor is not in khas possession of his lands. Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within section 6. " So there can be no deemed settlement under section 6 if the proprietor is not in khas possession of his lands. But in our Acts the rights of the proprietor to continue to remain in possession of Khudkasht lands are saved from vesting. The word used is possession and not actual or khas possession. ( 14. ) THEREFORE, under our Acts, it has been repeatedly held by Division benches of this Court that under sections 4 (2), 41 and 54 of the M. P. Act and section 4 (2) of the M. B. Act, the expression possession includes constructive possession and cultivation by trespasser is deemed to be personal cultivation of the proprietor or tenant. [see Pt. Bihanlal v. State of M. P. ( 1961 MPLJ 493 ), Harish-chandra v Garbhoo ( 1961 MPLJ 501 ), Dayaram v. Maheswar and Panchamsingh v. Dhaniram]. There is further distinction between section 6 of the Bihar Act and section 4 (2)of the M. B. and M. P. Acts. There the determining factor is khas possession under section 6, whereas under section 4 (2) the determining factor is record, i. e. Khudkasht land so recorded in the annual village papers before the date of vesting although the definition of Khudkasht in section 2 (c) of the M. B. Act is similar to the definition of khas possession in section 2 (k) of the Bihar act. The Supreme Court in Haji Sk. Subhan v. Madhorao has held that the only condition requisite for the proprietor having certain land treated as home farm in section 2 (a) (i) of the M. P. Act is the fact that the annual papers of 1948-49 recorded that land as his Sir or Khudkasht, the basis is the record and not the fact of actual cultivation or his title to that land. It was also held that occupation by a trespasser is no occupation under the Act. Newaskar, J. in Karnail Singh v. Anandilal (supra) relying on this decision of supreme Court doubted the decisions of this Court with this decision of the supreme Court. It was also held that occupation by a trespasser is no occupation under the Act. Newaskar, J. in Karnail Singh v. Anandilal (supra) relying on this decision of supreme Court doubted the decisions of this Court with this decision of the supreme Court. The Supreme Court was not dealing with a home-farm land in that case and clearly laid down that home-farm is to be on the basis of record and not actual possession, also made a passing remark that the plaintiff not being in possession, his continuing in possession under section 4 (2) does not arise, but clarified that in fact the fields in suit could not be his home-farm. The Supreme Court in Meharaban Singh v. Bhagwat Singh (AIR 1980 S C 696), has recently held as under:- "if, in a given case, it was shown that a proprietor had Khudkasht land which was so recorded in the annual village papers before the date of vesting of the lands in the State, he was entitled to continue to remain in possession of those lands. This concession to the proprietor was by way of a rider to the rigorous provisions of section 3 of the Act regarding the vesting of his estate in the State, and if a proprietor was able to establish that he was entitled to its benefit, there could be no reason why it should not be allowed to him. " Similarly, Sohani, J. in Dhapubai v. Samandar (supra) relied on Gurucharan-singh v. Kamlasingh (supra) but did not consider that it was a case of proprietor and not of a tenant and the provision in the Bihar Act was dissimilar. Besides in section 38 the words actual possession have not been defined under the Act whereas khas possession has been defined in the Bihar Act, which excludes possession through trespasser. Moreover, in our Act the words actual possession have been used with reference to tenants, sub-tenants and tenants of sub-tenants and not with reference to trespassers. ( 15. ) SO the questions referred are answered as under : -Questions Nos. (i), (ii), (iii) and (v) are answered in the affirmative, while question No. (iv) is answered in the negative. Reference answered accordingly.