JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Lokendra Kumar, learned Standing Counsel for appellant and Sri B.P. Singh, learned Senior Advocate, appearing for respondent. 2. This is defendant’s appeal under Section 96 of Code of Civil Procedure arising from the judgment and decree dated 8.11.1976 passed by Sri J.B. Singh, Civil Judge, Mirzapur in Original Suit No. 36 of 1973. 3. The plaintiff-respondent, Daiya Charitable Society (hereinafter referred to as the “Society”) through its Secretary, Rani Brij Raj Kunwar instituted the aforesaid suit vide plaint dated 21.5.1973 in the Court of Civil Judge, Mirzapur alleging that the Society is a tenure-holder Bhumidhar of the land, detailed at the foot of the plaint, and, there are a number of trees standing thereon, owned and possessed by the Society. On 1.6.1972 after inspection of record, plaintiff came to know that Lekhpal concerned has not made entries of trees in Column 21 of Khasras, hence a notice dated 29.12.1972 under Section 80 C.P.C. was served upon defendant-State of U.P. through Collector, Mirzapur to undo the wrong failing which a suit for declaration will be filed. 4. It is said that the cause of action for filing suit arose on 1.6.1972 when plaintiff acquired knowledge of wrong entry in Khasra and suit was valued at Rs. 30,68,600/- being the value of trees for the purpose of jurisdiction. The details of land constituting part of Villages Katra and Babura Raghunath Singh, Pergana Kantit, District Mirzapur, covering a large number of area, has been given at the bottom of the plaint. 5. Defendant contested the suit by filing written statement dated 31.1.1974. Besides a general denial of various paragraphs of the plaint, which are total in five, defendant in additional pleas asserted that Society is not a cultivator Bhumidhar of the land in question. It is neither owner nor in possession of any tree on the land in dispute. The land vested in defendant under U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) (hereinafter referred to as “Act, 1950”) and the State Government is owner thereof. In Village Babura Raghunath Singh 3826 acres forest land and in Village Katra 2817 acres forest land situate, which included suit land vested in State Government vide Notification No. 617/14 dated 11.10.1952. In Village Babura Raghunath Singh 3826 acres forest land and in Village Katra 2817 acres forest land situate, which included suit land vested in State Government vide Notification No. 617/14 dated 11.10.1952. In respect of the aforesaid land a further Notification under Section 4 of Indian Forest Act, 1927 (hereinafter referred to as “Act, 1927”) was issued on 21.10.1955 proposing to declare the said land as “Reserve Forest Land”. The plaintiff filed objection under Section 6 of Act, 1927 before Prescribed Authority and the matter is being contested by defendant. The Forest Settlement Officer, with respect to land in Village Babura Raghunath Singh, subject-matter of Case No. 1242 and in respect of Village Katra, subject-matter of Case No. 01243, accepted plaintiff’s case vide order dated 22.3.1961 and directed to exclude disputed land from the proposed Reserve Forest Land. Thereagainst Forest Department filed Appeals No. 121 and 122 under Section 17 of Act, 1927 before Commissioner, Varanasi but the appellate authority dismissed both the appeals vide order dated 28.10.1961. Thereafter Forest Department preferred Revisions before State Government under Section 18 of Act, 1927 which were pending when the written statement was filed. Plaintiff is neither owner of trees standing on disputed land nor in possession thereof. Khasras of 1359, 1365 and 1373 Fasali relating to Village Babura Rathunath Singh and Village Katra show that most part of disputed land is shown to have bushes and some part of land was under cultivation. On some Gatas, Bunjar, Nala, Beehar, Kadeem were entered and in respect of only a few Gatas, entry of trees has been mentioned. In 1372 and 1373 Fasali, there is no reference of any tree. Earlier Lekhpal Sri Jwala Prasad of Village Babura Raghunath Singh had died and Shyam Sunder Lal, Lekhpal of Village Katra has retired. Since in earlier years, entry of trees was not found in revenue record, it may be for the reason that Lekhpal did not find existence of trees on disputed land and, consequently, entry was not made in revenue records. A Notification under Section 48 of Land Revenue Act, 1901 (hereinafter referred to as “Act, 1901”) with respect to disputed land was published on 5.12.1967 and Record Operation commenced on 8.1.1968. During Record Operation, in Khasra-’’A’, there was no entry of trees. A Notification under Section 48 of Land Revenue Act, 1901 (hereinafter referred to as “Act, 1901”) with respect to disputed land was published on 5.12.1967 and Record Operation commenced on 8.1.1968. During Record Operation, in Khasra-’’A’, there was no entry of trees. From 1375 Fasali during Record Operation, the enquiry by Lekhpal and Patwari was stopped Therefore, there was no question of making any entry as complained in para 2 of the plaint. Plaintiff has not disclosed possession for claiming ownership in respect of disputed land and trees and plaint is completely silent in this regard. 6. In para 16 (A) (B) (C) (D) and (E) of written statement, details of entries of various Gatas in village Babura Raghunath Singh showing the existing position as on that date have been given. Plaintiff has not disclosed possession for claiming ownership in respect of disputed land and trees and plaint is completely silent in this regard. 6. In para 16 (A) (B) (C) (D) and (E) of written statement, details of entries of various Gatas in village Babura Raghunath Singh showing the existing position as on that date have been given. It reads as under: (A) Following is the land which is forest and hilly track wherein there is no tree and only bushes are there: 11, 14, 15, 16, 18, 20, 22, 23, 25, 26, 27, 35, 45, 52, 56, 60, 62, 64, 66, 67, 68, 76, 78, 80, 83, 84, 86, 93, 94, 96, 97, 100, 101, 103, 105, 114, 117, 122, 126, 128, 133, 135, 136, 137, 142, 145, 147, 154, 157, 158, 163, 164, 173, 417, 419, 421, 424, 425, 426, 427, 428, 430, 431, 762, 764, 765, 770, 772, 774, 776, 778, 782, 791, 793, 795, 796, 798, 803, 806, 808, 809, 826, 827, Total 82 Gatas (B) The plots which are agricultural, having no trees therein and therefore there is no question of entries of trees: 153, 177, 180, 185, 186, 187, 189, 193, 194, 195, 199, 205, 209, 212, 219, 223, 224, 225, 235, 242, 245, 247, 249, 251, 255, 256, 259, 268, 270, 272, 275, 278, 280, 282, 291, 293, 296, 305, 310, 311, 323, 327, 329, 331, 334, 340, 346, 348, 350, 353, 355, 359, 463, 468, 471, 472, 477, 481, 482, 483, 485, 487, 488, 489, 494, 495, 496, 497, 498, 499, 500, 501, 506, 508, 510, 516, 527, 529, 532, 536, 538, 539, 540, 543, 547, 548, 549, 554, 557, 560, 562, 563, 565, 567, 568, 569, 570, 571, 573, 574, 575, 576, 577, 578, 579, 580, 581, 584, 586, 588, 589, 593, 594, 607, 608, 609, 610, 637, 640, 642, 644, 645, 647, 652, 653, 654, 655, 656, 658, 660, 661, 662, 663, 664, 665, 666, 667, 668, 669, 671, 672, 673/1, 673/2, 677, 678, 679, 680, 681, 683, 684, 685, 686, 687, 688, 690, 691, 692, 693, 694, 697, 703, 704, 709, 713, 715, 716, 717, 720, 722, 726, 728, 729, 730, 734, 736, 738, 740, 746, 759, 836, 880, 891, 918, 926, 943, 946, 968, 969, 970, 1008, 1061, 1066, 1074, 1075, 1077, 1082, 1083, 1084, 1092, 1092, 1093, 1100, 1130/2, 1170, 1185, 1186, 1187, 1188, 1189, 1191, 1198, 1202, 1205, 1214, 1225, 1217, 1218, 1222, 1223, 1227, 1235, 1236, 1237, 1246, 1249, 1283, 1311, 1319, 1391, 1392, 1402, 1409, 1429, 1430, 1436, 1438, 1440, 1446, 1463 Total 250 Gatas (C) The plots, which are barren on the site, having shrubs: 203, 315, 316, 318, 378, 390, 394, 398, 400, 401, 402, 403, 591, 619, 622, 633, 634, 635, 706, 707, 708, 920, 921, 1020, 1079, 1132, 1133, 1134, 1135, 1253, 1257, 1278, 1279, 1280, 1281 Total 36 Gatas (D) The plots, as they stand on the site and are in the shape of a Nala: 338, 597, 598, 602, 625, 628, 700, 1140, 1148, 1150, 1240, 1376, 1432 Total 13 Gatas (E) There are following trees in Plot No. 1141: Mahua- 94, Tendu- 200, Kahwa- 100, Semar- 130 7. Similarly, in para 18, details of various Gatas in Village Katra have been given, which is as under: (A) The land which is barren (Parti), forest, shrubs with no tree in any plot thereof: 27, 39, 35, 86, 91, 104, 115, 162, 185, 188/1, 188/2, 190/1, 192, 195, 196, 201, 208, 209, 213, 215, 218, 223, 231, 232, 233, 234, 235, 236, 237, 245, 247, 248, 249, 253, 254, 258, 255, 256, 257, 268, 272, 273, 274, 276, 277, 278, 281, 294, 295, 296, 297, 298, 300, 305, 306, 307, 311, 314, 315, 316, 318, 319, 320, 322, 323, 324, 325, 330, 331, 336, 337, 338, 341, 342, 343, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 415, 416, 417, 418, 419, 420, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 334, 335 (B) Plot No. 149 is agricultural land. (C) The land which is drain- 421, 448 (D) Number of the plot with the existing trees: Plot No. Number of trees 421 10 Mahuwa trees and 10 Khair trees 448 15 Mahuwa trees and 19 Khair trees 133/2 1 Neem tree and 1 Small Mango tree 266 1 Shisham tree 267 1 Banyan (Bargad) tree 270 2 Khair trees 271 1 Sidha tree, 1 small Khair tree 274 2 small Khair trees 279 1 Banyan tree, 2 Khair trees 280 3 Khair trees 327 1 Banyan tree 328 1 Banyan tree 898 Pond on the high bank of which there are 40 Neem trees, 4 Babool trees, 2 Tamarind trees, and one Bale tree 702 7 Mahuwa tree, 1 Jamun and 2 Neem trees 8. The defendant also disputed valuation of trees as claimed by plaintiff and pleaded that there had not arisen any cause of action for filing the suit. The defendant also disputed valuation of trees as claimed by plaintiff and pleaded that there had not arisen any cause of action for filing the suit. It is not maintainable and is liable to be dismissed with cost. 9. Trial Court formulated nine issues as under: “(1) Whether the plaintiff is Bhumidhar of the land detailed at the foot of the plaint? (2) Whether the plaintiff is the owner of the trees standing over the land in suit? (3) Whether the plaintiff is in possession of the trees in suit? (4) Whether the suit is over-valued? If so, what is the correct value of the property involved? (5) Whether the notice under Section 80 C.P.C. has been served upon the defendant? (6) To what relief, if any, is the plaintiff entitled? (7) Whether there was a cause of action for the suit? (8) Whether the suit as framed was maintainable? (9) Whether the relief as claimed could be granted by this Court?” 10. It answered issues No. 1, 2, 3, 5, 7 and 8 in affirmative and against the defendant. Considering issues No. 4, it held that suit is overvalued and the valuation of trees in both the Villages comes to Rs. 15,34,300/-. Thereafter issues No. 6 and 9 were taken together and holding that plaintiff is entitled for relief, it decreed the suit vide judgment and decree dated 8.11.1976 to the effect that the trees worth Rs. 15,34,300/- are lying over 217 plots measuring 991 bigha 9 biswa of Village Katra and 391 plots measuring 2068 bighas 15 biswas of Village Babura Raghunath Singh, Tappa Upraudh, Pergana Kantit, District Mirzapur and the same belong to plaintiff. Aggrieved thereagainst, defendant-State of U.P. has come up in this appeal. 11. For deciding this appeal, the points for determination are as under: (1) Whether the plaintiff-Society has rightly been held owner/Bhumidhar of land in question and consequent owner of trees standing thereon, as held by Court below? (2) Whether plaintiff-Society has rightly been held to be in possession of trees in question? (3) Whether Notification under Section 4 of Act, 1927 has any legal consequence in favour or against the plaintiff in any manner? (4) Whether there was a cause of action at the time when the suit was filed so as to maintain the suit as it was filed before the Court below? (3) Whether Notification under Section 4 of Act, 1927 has any legal consequence in favour or against the plaintiff in any manner? (4) Whether there was a cause of action at the time when the suit was filed so as to maintain the suit as it was filed before the Court below? (5) Whether the Court below has rightly decreed the suit by granting relief partly as prayed for by plaintiff-respondent? (6) Whether the valuation of trees in dispute as Rs. 15,34,300/- is a finding based on no evidence, perverse and liable to be set aside? 12. In order to claim ownership of trees, plaintiff-respondent has not stated any basis whereupon it claimed its ownership. The only pleading in plaint is that Society is a tenure-holder Bhumidhar of the land detailed at the foot of plaint and there are number of trees standing thereon owned and possessed by Society. How and in what manner Society came to own and possess the same has not been stated anywhere. From the documents on record, the only fact disclosed by plaintiff, as also noticed by Trial Court in the impugned judgment is, that Sri Vishwanath Pratap Singh was adopted son of Raja Bahadur Raja Ram Gopal Singh of Manda. He was Bhumidhar in possession of plots in both the villages. A Notification under Section 4 of Act, 1927 was issued by State Government on 11.10.1952 in respect of 2264 acres of Babura Raghunath Singh and 2045 acres of Village Katra vesting the land in State of U.P. which included plots in dispute. The third evidence which has come by way of registered gift-deed, Exhibit-5, dated 21.6.1959, is that Sri Vishwanath Pratap Singh created a Trust and transferred plots in suit to plaintiff-Society. 13. It is, thus, evident from record that only on the factum that plaintiff claimed itself to be Bhumidhar of plots, it has sought the status of ownership of all the trees on the aforesaid plots. It is not the case of plaintiff that trees were planted by it or otherwise owned by it or that it is the owner of the land. 14. It is not the case of plaintiff that trees were planted by it or otherwise owned by it or that it is the owner of the land. 14. Counsel for plaintiff-respondent has relied on a decision of learned Single judge of this Court in Lalta Singh and others v. Patiraj Singh and others, 1983 All LJ 473, in support of submission that the suit for declaration in respect of trees alone would not lie in Revenue Court and it is the jurisdiction of Civil Court. Without entering into this question, what we find from a perusal of aforesaid judgment is that it goes against the plaintiff on various aspects. The Court has considered the question whether a Bhumidhar, merely on account of his status as Bhumidhar, can claim ownership of trees standing on the holding or not. The Court held that ownership in trees and ownership in land on which they are standing, are two distinct and separate matters. There is nothing in the provisions of U.P. Tenancy Act or in Act, 1950 providing that tenure-holder would be the owner of trees situated/standing thereon although the same were not planted or held by him as owner thereof. 15. We are conscious of Rule 26-A of Act, 1950 which provided that trees situated on holding of a tenant would be deemed to have vested in such tenant, meaning thereby, that the person, other than such tenant who was the owner of such trees situated on the land in the tenancy of others, will cease to be owner of such trees. However, we may notice hereat that the aforesaid Rule 26-A was struck down and declared ultra vires in Aman Singh v. Shivadhari, 1967 All LJ 21 and was also deleted from the Statute book on 25.3.1963. This Court in Lalta Singh v. Patiraj Singh (supra) has, thus, said that owner of trees situated on the land of another tenant would continue to remain owner thereof and mere fact that one is tenure-holder of the land on which trees are situated, it cannot be said that such tenure-holder would be deemed to be owner of trees. The Court further said: “If the trees have not been planted by the tenant himself on the land of his holding, he would not be deemed to be owner of trees situated on such land. The Court further said: “If the trees have not been planted by the tenant himself on the land of his holding, he would not be deemed to be owner of trees situated on such land. The trees will continue to belong to a person who had, in fact, planted those trees or had held them as such.” 16. Now the question is, who is owner of land in question. We find that this issue has been considered by this Court vide its judgment dated 13.4.2012 in Writ Petitions No. 3825 of 1976 and 3826 of 1976 (State of U.P. v. 6th Additional District Judge and others) which were between the same parties, i.e., State of U.P. and Society in question as well as Sri Vishwanath Pratap Singh. From the aforesaid judgment, it is evident that it was the admitted case of Sri Vishwanath Pratap Singh that his name was recorded under ziman as a hereditary tenant of the plots in question in 1359 fasali Khasra entry. On the enforcement of Act, 1950, the land settled with the Government who became owner thereof. Sri Vishwanath Pratap Singh only continued in possession as Sirdar under Section 19 of Act, 1950. On deposit of ten times rent, he acquired Bhumidhari rights. Noticing Apex Court’s decision in Mahendra Lal Jaini v. State of Uttar Pradesh and others, AIR 1963 SC 1019 , and in particular, observations made in para 26, 27 and 29 of the judgment, the Court found that under Section 6 of Act, 1950 property of intermediaries vested in State of U.P. and became its (Government’s) property. Despite the fact that under Section 18 certain land were deemed to be settled as Bhumidhari land but once the land vested in State Government under Section 6, there is no provision therein for divesting of what has vested in State Government. The Apex Court’s further observations are as under: “There was no such proprietary right as Bhumidhari right before Abolition Act. The Abolition Act did away with all proprietary rights in the area to which it applied and created three classes of tenure by Section 129, Bhumidhar, sirdar and asami which were unknown before. Thus Bhumidhar, sirdar and asami are all tenure- holders under the Abolition Act and they hold their tenure under the State in which the proprietary right vested under Section 6.” 17. Thus Bhumidhar, sirdar and asami are all tenure- holders under the Abolition Act and they hold their tenure under the State in which the proprietary right vested under Section 6.” 17. Having said so, the Court said that it is true that Bhumidhar has certain wider rights than sirdar and similarly sirdar has wider rights than asami but nonetheless all the three are mere tenure holders - with varying rights - under the State which is the proprietor of entire land in State to which the Act, 1950 apply. 18. Having said so, this Court further said that Sri Vishwanath Pratap Singh was merely a sirdar and subsequently with the grant of Sanad, a Bhumidhar, in respect of land, but State Government was proprietor in view of application of Act, 1950 to the area. That being so, neither Sri Vishwanath Pratap Singh nor the subsequent transferee, i.e, Society, can contend that Bhumidhari rights enjoyed by them should be construed as their title over land and are not subordinate to proprietary rights of State Government. On the contrary, the Court held otherwise and said: “Bhumidhari rights are subordinate to the proprietary rights of the State Government.” 19. The aforesaid judgment has made a clear declaration that so far as land which vested in State under Act, 1950 became the proprietorship of State and, in view thereof, Sri Vishwanath Pratap Singh had only a tenant’s right which is subordinate to proprietary rights as a result whereof the transferee, i.e., the Society cannot claim better rights than what the transferor himself possessed in 1959. 20. In the entire plaint, there is no averment, whatsoever, as to how plaintiff claims itself to be owner of trees in question except saying that since it has bhumidhari rights over the suit land, therefore, own the trees standing thereon. Trial Court has completely failed to consider that the mere fact that plaintiff enjoyed status of a Bhumidhar will not be sufficient to hold that said Bhumidhar enjoyed status of owner of trees standing on such land when there was no pleading that the trees were planted by plaintiff or that it otherwise owns the same and evidence in support thereof is led. 21. 21. The finding of Court below only on the basis that Sri Vishwanath Pratap Singh or the Society since possesses bhumidhari rights, and, therefore, are owner of trees, in our view, is clearly erroneous, illegal and contrary to what has been laid down in the judgment of this Court in Lalta Singh v. Patiraj Singh (supra) and cannot be sustained. 22. Moreover, while deciding issue No. 1, Trial Court has largely relied on the proceedings before Forest Officer, rejection of appeal by Commissioner and entry in the register of proprietorship (Exhibit-1) in the year 1376 fasali and the record of rights (Exhibit-3) for the year 1375 fasali, 1376 fasali. 23. So far as the orders passed by Forest Officer and Commissioner are concerned, as already pointed out, they have been set aside by this Court in its judgment dated 13.4.2012, passed in Writ Petitions No. 3825 of 1976 and 3826 of 1976 (supra) therefore, the substantial foundation, over which decision of Trial Court on issue No. 1 is based, has already fallen down. The remaining revenue record only recognises the bhumidhari rights and not the ownership of either the land or trees standing thereon. We, therefore, find no hesitation in reversing the finding of Court below with respect to issue No. 1 being perverse, patently illegal and contrary to law. 24. Issue No. 2 has been decided following the finding recorded in respect of issue No. 1 and since this Court has reversed the findings in respect of issue No. 1, finding on issue No. 2 also falls on this ground and has to be reversed accordingly. 25. In view of reversing the findings of Trial Court in respect to issues No. 1 and 2 formulated above, we answer the point No. 1 against plaintiff-Society. 26. Now comes the question of possession of plaintiff over trees in question. While considering issue No. 3, Trial Court has observed that there is overwhelming evidence led by plaintiff in this regard. First one, it considered, is the presumption that owner is presumed to be in possession unless proved otherwise. This ground falls flat in view of earlier finding recorded by this Court that owner of land in question is not plaintiff but the State Government and, therefore, this presumption is not attracted at all. 27. First one, it considered, is the presumption that owner is presumed to be in possession unless proved otherwise. This ground falls flat in view of earlier finding recorded by this Court that owner of land in question is not plaintiff but the State Government and, therefore, this presumption is not attracted at all. 27. Secondly, the Trial Court has referred to khasra 1366 fasali (Exhibit-18), Khasra 1368 fasali (Exhibit-17), Khasra 1369 fasali (Exhibit 15), Khasra 1370 fasali (Exhibit-14), Khasra 1371 fasali (Exhibit-19) to show that Sri Vishwanath Pratap Singh is shown Bhumidhar of land therein, hence he must be presumed to be in possession of trees lying over the plots of Village Katra. We find this reasoning strange and unsustainable. Merely on the basis of fact that Sri Vishwanath Pratap Singh has tenancy rights as Sirdar or Bhumidhar over the land, proprietorship rights whereof vested in State Government, it cannot be said that trees should be deemed to be in possession of such tenant so as to confer upon him ownership rights of trees. An owner, even if is not in actual possession of something lying over his own property or land, does not cease to be in deeming possession thereof. Many a times, the mere possession of something does not always mean that the person having actual possession thereof is owner. It would be necessary to examine the concept of ‘possession’ in the light of jurisprudential study as also in the light of precedents. 28. “Ihering” defines possession, “whenever a person looks like an onwer in relation to a thing he has possession, unless possession is denied to him by rules of law based on convenience”. Apparently this definition does not give any explicit idea on the subject. It only states that the concept of possession is an ever changing concept having different meaning for different purposes and different frames of law. 29. “Pollock” says, “In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others”. The stress laid by Pollock on possession is not on animus but on de facto control. 30. “Savigny” defines possession, “intention coupled with physical power to exclude others from the use of material object.” Apparently this definition involves both the elements namely, corpus possesssion is and animus domini. 31. The stress laid by Pollock on possession is not on animus but on de facto control. 30. “Savigny” defines possession, “intention coupled with physical power to exclude others from the use of material object.” Apparently this definition involves both the elements namely, corpus possesssion is and animus domini. 31. The German Jurist "Savigny" laid down that all property is founded on adverse possession ripened by prescription. The concept of ownership accordingly, observed by him, involve three elements-Possession, Adverseness of Possession, (that is a holding not permissive or subordinate, but exclusive against the world), and Prescription, or a period of time during which the Adverse Possession has uninterruptedly continued. 32. “Holmes” opined that possession is a conception which is only less important than contract. 33. According to Salmond on “Jurisprudence”, 12th Edition (1966) (First Edition published in 1902) by P.J. Fitzgerald, Indian Economy Reprint 2006 published by Universal Law Publishing Co. Pvt. Ltd. Delhi (hereinafter referred to as “Salmond’s Jurisprudence”). On page 51, it say that the concept of “possession” is as difficult to define as it is essential to protect. It is an abstract notion and is not purely a legal concept. It is both a legal and a non-legal or a pre-legal concept. He tried to explain the concept of possession with reference to different factual and legal concepts. 34. The first one is “possession in fact”. It is a relationship between a person and a thing. The things one possesses in his hand or which one has in his control like clothes he is wearing, objects he is keeping in his pocket etc. For such things it can be said that he is in possession of the things in fact. To possess one would have to have a thing under his physical control. If one captures a wild animal, he get possession of it but if the animal escapes from his control, he looses possession. It implies that things not amenable in any manner to human control cannot form the subject-matter of possession like one cannot possess sun, moon or the stars etc. Extending the above concept, “Salmond” says that one can have a thing in his control without actually holding or using it at every given moment of time like possession of a coat even if one has taken it off and put down or kept in the cupboard. Extending the above concept, “Salmond” says that one can have a thing in his control without actually holding or using it at every given moment of time like possession of a coat even if one has taken it off and put down or kept in the cupboard. Even if one fall asleep, the possession of the coat would remain with him. If one is in such a position, has to be able in the normal course of events to resume actual control when one desires, the possession in fact of the thing is there. Another factor relevant to the assessment of control is the power of excluding other people. The amount of power that is necessary varies according to the nature of the object. 35. The possession consisted of a “corpus possessionis” and “animus possidendi”. The former comprised both, the power to use the thing possessed and the existence of grounds for the expectation that the possessor’s use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed. 36. Then comes “possession in law”. A man, in law, would possess only those things which in ordinary language he would be said to possess. But then the possessor can be given certain legal rights such as a right to continue in possession free from interference by others. This primary right in rem can be supported by various sanctioning rights in personam against those who violates the possessor’s primary right; can be given a right for compensation for interference and a dispossession and the right to have his possession restored from the encroacher. 37. Another facet of possession is “immediate” or “mediate possession”. The possession held by one through another is termed “mediate” while that acquired or retained directly or personally can be said to be “immediate or direct”. There is a maxim of civil law that two persons could not be in possession of the same thing at the same time. (Plures eandem rem in solidum possidere non possunt). As a general proposition exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot both be effectually realised at the same time. There are, however, certain exceptions, namely, in the case of mediate possession two persons are in possession of the same thing at the same time. (Plures eandem rem in solidum possidere non possunt). As a general proposition exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot both be effectually realised at the same time. There are, however, certain exceptions, namely, in the case of mediate possession two persons are in possession of the same thing at the same time. Every mediate possessor stands in relation to a direct possessor through whom he holds. Two or more persons may possess the same thing in common just as they may own it in common. 38. Then comes “incorporeal possession”. It is commonly called the possession of a right and is distinct from the “corporeal possession” which is a possession of the thing. 39. In “The Elementary Principles of Jurisprudence” by G.W. Keeton, II Edition (1949) published by Sir Isaac Pitman and Sons Ltd. London (First published in 1930), “possession” has been dealt in Chapter XV. It says: “‘Possession,’ says an old proverb, “is nine points of law.” Put in another way, this implies that he who has conscious control of an object need only surrender his control to one who can establish a superior claim in law.” 40. The essentials of possession in the first instance includes a fact to be established like any other fact. Whether it exists in a particular case or not will depend on the degree of control exercised by the person designated as possessor. If his control is such that he effectively excludes interference by others then he has possession. Thus the possession in order to show its existences must show “corpus possessionis” and an “animus possidendi”. 41. Corpus possessionis means that there exists such physical contact of the thing by the possessor as to give rise to the reasonable assumption that other persons will not interfere with it. Existence of corpus broadly depend on (1) upon the nature of the thing itself, and the probability that others will refrain from interfering with the enjoyment of it; (2) possession of real property, i.e., when a man sets foot over the threshold of a house, or crosses the boundary line of his estate, provided that there exist no factors negativing his control, for example the continuance in occupation of one who denies his right; and (3) acquisition of physical control over the objects it encloses. Corpus, therefore, depends more upon the general expectations that others will not interfere with an individual control over a thing, then upon the physical capacity of an individual to exclude others. 42. The animus possidendi is the conscious intention of an individual to exclude others from the control of an object. 43. Possession confers on the possessor all the rights of owner except as against the owner and prior possessors. “Possession in law” has the advantage of being a root of title. 44. There is also a concept of “constructive possession” which is depicted by a symbolic act. It has been narrated with an illustration that delivery of keys of a building may give right to constructive possession all the contents to the transferee of the key. 45. It would also be useful to have meaning of “possession” in the context of different dictionaries. 46. In “Oxford English-English-Hindi Dictionary” published by Oxford University Press, first published in 2008, 11th Impression January 2010, at page 920: “possession-1. the state of having or owning something. 2. Something that you have or own” 47. In “The New Lexicon Webster’s Dictionary of the English Language” (1987), published by Lexicon Publications, Inc. at page 784: “pos-ses-sion-a possessing or being possessed II that which is possessed II (pl.) property II a territory under the political and economic control of another country II (law) actual enjoyment of property not founded on any title of ownership to take possession of to begin to occupy as owner II to affect so as to dominate.” 48. In “Chambers Dictionary” (Deluxe Edition), first published in India in 1993, reprint 1996 by Allied Publishers Limited, New Delhi at page 1333 defines ‘possess’ and ‘possession’ as under : “possess poz-es’, vt to inhabit, occupy (obs.); to have or hold as owner, or as if owner; to have as a quality; to seize; to obtain; to attain (Spenser); to maintain; to control; to be master of; to occupy and dominate the mind of; to put in possession (with of, formerly with in); to inform, acquaint; to imbue; to impress with the notion of feeling; to prepossess (obs).” “possession the act, state or fact of possession or being possessed, a thing possessed; a subject foreign territory” 49. In “Corpus Juris Secundum”, A Complete Restatement of the Entire American Law as developed by All Reported Cases (1951), Vol. In “Corpus Juris Secundum”, A Complete Restatement of the Entire American Law as developed by All Reported Cases (1951), Vol. LXXII, published by Brooklyn, N.Y., The American Law Book Co., at pages 233-235: “Possession expresses the closest relation of fact which can exist between a corporeal thing and the person who possesses it, implying an actual physical contact, as by sitting or standing upon a thing; denoting custody coupled with a right or interest of proprietorship; and “possession” is inclusive of “custody.” although “custody” is not tantamount to “possession.” In its full significance, “possession” connotes domination or supremacy of authority. It implies a right and a fact; the right to enjoy annexed to the right of property, and the fact of the real detention of thing which would be in the hands of a master or of another for him. It also implies a right to deal with property at pleasure and to exclude other persons from meddling with it. Possession involves power of control and intent to control, and all the definitions contained in recognized law dictionaries indicate that the element of custody and control is involved in the term “possession.” The word “possession” is also defined as meaning the thing possessed; that which anyone occupies, owns, or controls; and in this sense, as applied to the thing possessed, the word is frequently employed in the plural, denoting property in the aggregate; wealth; and it may include real estate where such is the intention, although this is not the technical signification. It is also defined as meaning dominion; as, foreign possessions; and, while in this sense the term is not a word of art descriptive of a recognised geographical or Governmental entity, it is employed in a number of federal statues to describe the area to which various congressional statutes apply. “Possession” in the sense of ownership, and as a degree of title, and as indicating the holding or retaining of property in one’s power or control, is treated in Property.” 50. In “Black’s Law Dictionary” Seventh Edition (1999), published by West Group, St. Paul, Minn., 1999, at page 1183: “possession. 1. The fact of having or holding property in one’s power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object. Paul, Minn., 1999, at page 1183: “possession. 1. The fact of having or holding property in one’s power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object. 3. (usu. pl.) Something that a person owns or controls; PROPERTY (2). 4. A territorial dominion of a state or nation.” 51. In Black’s Law Dictionary (supra) the following categories of possession have also been referred and explained: “Actual possession, adverse possession, bona fide possession, civil possession, constructive possession, corporeal possession, derivative possession, direct possession, effective possession, exclusive possession, hostile possession, immediate possession, incorporeal possession, indirect possession, insular possession, mediate possession, naked possession, natural possession, notorious possession, peaceable possession, pedal possession, possession in fact, possession in law, possession of right, precarious possession, quasi possession and scrambling possession.” 52. Since the nature of possession, its various ingredients and effect etc. in the peculiar kind of this case may be required to be considered at the appropriate state, we find it necessary to see the manner in which the above kinds of categories of possession have been described in Black’s Law Dictionary (supra): actual possession. Physical occupancy or control over property. adverse possession. A method of acquiring title to real property by possession for a statutory period under certain conditions, esp. a non-permissive use of the land with a claim of right when that use is continuous, exclusive, hostile, open, and notorious. constructive adverse possession. Adverse possession in which the claim arises from the claimant’s payment of taxes under color of right rather than by actual possession of the land. bona fide possession. Possession of property by a person who in good faith does not know that the property’s ownership is disputed. civil possession. Civil law. Possession existing by virtue of a person’s intent to own a property even though the person no longer occupies or has physical control of it. constructive possession. Control or dominion over a property without actual possession or custody of it. - Also termed effective possession; possessio fictitia. corporal possession. Possession of a material object, such as a farm or a coin. - Also termed natural possession; possissio corporis. derivative possession. Lawful possession by one (such as a tenant) who does not hold title. direct possession. constructive possession. Control or dominion over a property without actual possession or custody of it. - Also termed effective possession; possessio fictitia. corporal possession. Possession of a material object, such as a farm or a coin. - Also termed natural possession; possissio corporis. derivative possession. Lawful possession by one (such as a tenant) who does not hold title. direct possession. Something that a person owns or controls. effective possession. See constructive possession. exclusive possession. The exercise of exclusive dominion over property, including the use and benefit of the property. hostile possession. Possession asserted against the claims of all others, including the record owner. See Adverse Possession. immediate possession. Possession that is acquired or retained directly or personally. - Also termed direct possession. incorporeal possession. Possession of something other than a material object, such as an easement over a neighbour’s land, or the access of light to the windows of a house. - Also termed possessio juris; quasi-possession. indirect possession. See mediate possession. mediate possession. Possession of a thing through someone else, such as an agent. - Also termed indirect possession. naked possession. The mere possession of something, esp. real estate without any apparent right or colorable title to it. natural possession. Civil law. The exercise of physical detention or control over a thing, as by occupying a building or cultivating farmland. notorious possession. Possession or control that is evident to others; possession of property that, because it is generally known by people in the area where the property is located, gives rise to a presumption that the actual owner has notice of it. - Also termed open possession; open and notorious possession. peaceable possession. Possession (as of real property) not disturbed by another’s hostile or legal attempts to recover possession. pedal possession. Actual possession, as by living on the land or by improving it. possession in fact. Actual possession that may or may not be recognized by law. - Also termed possessio naturalis. possession in law. 1. possession that is recognized by the law either because it is a specific type of possession in fact or because the law or some special reason attributes the advantages and results of possession to someone who does not in fact possess. 2. see constructive possession. - Also termed possessio civilis. possession of a right. possession in law. 1. possession that is recognized by the law either because it is a specific type of possession in fact or because the law or some special reason attributes the advantages and results of possession to someone who does not in fact possess. 2. see constructive possession. - Also termed possessio civilis. possession of a right. The de facto relation of continuing exercise and enjoyment of a right as oppose to the de jure relation of ownership. - Also termed possession juris. precarious possession. Civil law. Possession of property by someone other than the owner on behalf of or with permission of the owner. quasi possession. See incorporeal possession. scrambling possession. Possession that is uncertain because it is in dispute. 53. In “Words and Phrases” Permanent Edition, Vol. 33 (1971), published by St. Paul, Minn. West Publishing Co., at pages 91-92: “‘Possession’ as used in statute is not synonymous with physical bodily presence of adverse claimant; continuous bodily presence is not required, but rather question is one of fact which must be determined from circumstances of each case. “Possession” is a common term used in every day conversation that has not acquired any artful meaning. “Possession”, in any sense of term, must imply, first, some actual power over the object possessed, and, secondly, some amount of will to avail oneself of that power. “Possession” is one of the most vague of all vague terms, and shifts its meaning according to the subject-matter to which it is applied,—varying very much in its sense, as it is introduced either into civil or into criminal proceedings. Possession is that condition of fact under which one can exercise his power over a corporeal thing to the exclusion of all others. To constitute possession, there must be such appropriation of the land to the individual as will apprise the community in its vicinity that the land is in his exclusive use and enjoyment, and notice of possession to be sufficient must be of the open and visible character, which from its nature will apprise the world that the land is occupied, and who the occupant is.” 54. In “Jowitt’s Dictionary of English Law” Vol. In “Jowitt’s Dictionary of English Law” Vol. 2 Second Edition-1977, Second Impression-1990, published by London Sweet & Maxwell Limited, at pages 1387-1389: “Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed; hence, if a piece of land is deserted and left without fences or other signs of occupation, it is not in the possession of anyone, and the possession is said to be vacant. The question whether possession of land is vacant is of importance in actions for recovering possession. Possession is actual, where a person enters into lands or tenements conveyed to him; apparent, which is a species of presumptive title, as where land descended to the heir of an abator, intruder, or disseisor, who died seised; in law, when lands had descended to a man and he had not actually entered into them, or naked, that is, mere possession, without colour of right. The primary meaning is physical control. A secondary meaning is physical control by an agent or servant, or by relation back, e.g., by the owner having entered without remaining in physical possession (Ocean Accident etc., Corporation v. Ilford Gas Co. [1905] 2 K.B. 493). Possession may also extend over a thing in itself uncontrolled within an inclosure which is controlled, such as horses, sheep or cattle within a fenced field. See Animals Ferae Naturae. Possession may connote different kinds of control according to the nature of the thing or right over which it is being exercised. A man may possess an estate of land; if he leases it he will be in possession of the rents and profits and the reversion, but not of the land which is in the lessee who may being an action of trespass against the lessor. A man may possess an estate of land; if he leases it he will be in possession of the rents and profits and the reversion, but not of the land which is in the lessee who may being an action of trespass against the lessor. In regard to real property a mere right without possession is not sufficient to found an action of trespass; for instance, until 1926 a lessee before entry having a mere interesse termini could not bring an action for trespass on the land demised (Wallis v. Hands [1893] 2 Ch. 75). See Possessio Fratris. The adage, possession is nine parts of the law, means that the person in possession can only be ousted by one whose title is better than his; every claimant must succeed by the strength of his own title and not by the weakness of his antagonist’s. Possession does not necessarily imply use or enjoyment. Possession gives rise to peculiar rights and consequences. The principal is that a possessor has a presumptive title, that is to say, is presumed to be absolute owner until the contrary is shown, and is protected by law in his possession against all who cannot show a better title to the possession than he has. With reference to its origin, possession is either with or without right. Rightful possession is where a person has the right to the possession of (that is, the right to possess) property, and is in the possession of it with the intention of exercising his right. This kind of possession necessarily varies with the nature of the right from which it arises; a person may be in possession of a thing by virtue of his right of ownership, or as lessee, bailee, etc.; or his possession may be merely permissive, as in the case of a licensee; or it may be a possession coupled with an interest, as in the case of an auctioneer (Woolfe v. Horne (1867) 2 Q.B.D. 358). So the right may be absolute, that is, good against all persons: or relative, that is, good against all with certain exceptions; thus a carrier or borrower of goods has a right to their possession against all the world except the owner. So the right may be absolute, that is, good against all persons: or relative, that is, good against all with certain exceptions; thus a carrier or borrower of goods has a right to their possession against all the world except the owner. In jurisprudence, the possession of a lessee, bailee, licensee, etc., is sometimes called derivative possession, while in English law the possessory interest of such a person, considered with reference to his rights against third persons who interfere with his possession, is usually called a special or qualified property, meaning a limited right of ownership. Possession without right is called wrongful or adverse, according to the rights of the owner or those of the possessor are considered. Wrongful possession is where a person takes possession of property to which he is not entitled, so that the possession and the right of possession are in one person, and the right to possession in another. Where an owner is wrongfully dispossessed, he has a right of action to recover his property, or, if he has an opportunity, he can exercise the remedy of recaption in the case of goods, or of entry in the case of land.” 55. In “Legal Thesaurus” Regular Edition-William C. Burton (1981), published by Macmillan Publishing Co., Inc. New York., at page 391: “POSSESSION (Ownership), noun authority, custody, demesne, domination, dominion, exclusive, right, lordship, occupancy, possessio, proprietorship, right, right of retention, seisin, supremacy, tenancy, title ASSOCIATED CONCEPTS: action to recover possession, actual possession, adverse possession, chain of possession, constructive possession, continuity of possession, continuous possession, debtor in possession, estate in possession, holder in possession, hostile possession, lawful possession, mortgagee in possession, naked possession, notorious possession, open and notorious possession, party in possession, peaceable possession, person in possession, physical possession, purchaser in possession, quiet possession, right of possession, tenant in possession, undisturbed possession, uninterrupted possession, unlawful possession, wrongful possession. FOREIGN PHRASES: Traditio nihil amplius transferre debet vel potest, adeum qui accipit, quam est apud eum qui tradit. Delivery ought to, and can, transfer nothing more to him who receives than is in possession of him who makes the delivery. Jus triplex est,-propietatis, possessionis, et possibilitatis. Right is threefold,-of property, of possession, and of possibility. In aequali jure melior est conditio possidentis. In a case of equal right the condition of the party in possession is the better. Pro possessione praesumitur de jure. Jus triplex est,-propietatis, possessionis, et possibilitatis. Right is threefold,-of property, of possession, and of possibility. In aequali jure melior est conditio possidentis. In a case of equal right the condition of the party in possession is the better. Pro possessione praesumitur de jure. A presumption of law arises from possession. Nihil praescribitur nisi quod possidetur. There is no prescription for that which is not possessed. Privatio praesupponit habitum. A deprivation presupposes something held or possessed. Duorum in solidum dominium vel possessio esse non potest. Sole ownership or possession cannot be in two persons. Cum de lucro duorum quaeritur, melior est causa possidentis. When the question of gain lies between two persons, the cause of the possessor is the better. Longa possessio parit jus possidendi, et tollit actionem vero domiNo. -Long possession creates the right of possession, and deprives the true owner of his right of action. Aliud est possidere, aliud esse in possessione. It is one thing to possess; it is another to be in possession. Quod meum est sine facto meo vel defactu meo amitti vel in alium transferri non potest. That which is mine cannot be transferred to another without my act or my default. Quod meum est sine me auferri non potest. What is mine cannot be taken away without my consent. Nul charter, nul vente, ne nul done vault perpetualment, si le donor n’est seise al temps de contracts de deux droits, sc. Del droit de possession et del droit de propertie. No grant, no sale, no gift, is valid forever, unless the donor, at the time of the contract, has two rights, namely, the right of possession, and the right of property. Donatio perficitur possessione accipientis. A gist is perfected by the possession of the receiver. Melior est conditio possidentis, et rei quam actoris. The condition of the possessor and that of the defendant is better than that of the plaintiff. In pari delicto melior est conditio possidentis. When the parties are equally in wrong, the condition of the possessor is the preferable one. Longa possessio jus parit. Long possession begets right. Donator nunquam desinit possidere, antequam donatorius incipiat possidere. A donor never ceases to possess until the donee begins to possess. Non valet donatio nisi subsequatur traditio. A gift is invalid unless accompanied by possession. Nemo dare potest quod non habet. No one is able to give that which he has not. Longa possessio jus parit. Long possession begets right. Donator nunquam desinit possidere, antequam donatorius incipiat possidere. A donor never ceases to possess until the donee begins to possess. Non valet donatio nisi subsequatur traditio. A gift is invalid unless accompanied by possession. Nemo dare potest quod non habet. No one is able to give that which he has not. Terra manens vacua occupanti conceditur. Land remaining vacant is given to the occupant. Non potest videri desisse habere qui nunquam habuit. A person who has never had cannot be deemed to have ceased to have it. In pari causa possessor potior haberi debet. In an equal cause he who has the possession has the advantage. Cum par delictum est duorum, semper oneratur petitor et melior habetur possessoris cause. When there is equal fault on both sides, the burden is always placed on the plaintiff, and the cause of the possessor is preferred. POSSESSION (Property), noun asset, belonging, bona, chattel effect, goods, holding, item, item of personalty, money, movable, possessio, res, resource, treasure, valuable. FOREIGN PHRASES: Non possessori incumbit necessitas probandi possessiones ad se pertinere. It is not incumbent on the possessor of property to prove that his possessions belong to him. POSSESSIONS, noun assets, belongings, bonorum, capital, chattels, colonies, domain, dominions, earnings, effects, equity, estate, fortune, funds, goods, holdings, items of personalty, material wealth, movables, pecuniary resources, personal property, personalty, possessio, private property, property, res, resources, stock, stock in trade, territory, treasure, wealth, worldly belongings.” 56. In “Mitra’s Legal & Commercial Dictionary” 5th Edition (1990) by A.N. Saha, published by Eastern Law House Pvt. Ltd., at pages 558-559: Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed. Possession is a polymorphous term which may have different meanings in different contents. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed. Possession is a polymorphous term which may have different meanings in different contents. It is impossible to work out a completely logical and precise definition of “Possession” uniformly applicable to all situations in the context of all statutes. Suptd. And Legal Rememberancer v. Anil Kumar, AIR 1980 SC 52 :1979 Cr LJ 1390: (1979) 2 SCWR 334: 1979 Cr App R (SC) 282. Possession must be conscious possession. S.D.O., Shiv Sagar v. Goapl Chandra, AIR 1971 SC 1190 . Possession must be de facto possession as also precarious possession. Bishambhar v. State of Bihar, 1979 Cr LJ (NOC) 197: 1979 BLJ 319. Possession or occupation may take various forms and even keeping the household affects by the owner in the premises is act of occupation. Bimal Devi v. Kailash Nandan, AIR 1984 SC 1376 . There are two varieties of possession—(a) real or actual possession, and (b) constructive or symbolical possession. The meaning of possession depends on the context in which it is used. English law has never worked out a completely logical and exhaustive definition of possession. Towers & Co. Ltd. v. Gray (1961) 2 All ER 68: (1961) 2 QB 351. Possession need not be physical possession, but can be constructive, having power and control over the gun. Gunwantlal v. State, AIR 1972 SC 1756 .” 57. In P. Ramanatha Aiyar’s “The Law Lexicon” with Legal Maxims, Latin Terms and Words & Phrases, Second Edition 1997), published by Wadhwa and Company Law Publishers, at pages 1481-1483: “1. Physical control, whether actual or in the eyes of law, over property; the condition of holding at one’s disposal (S. 66, T.P. Act); 2. the area in one’s possession (S. 37, Indian Evidence Act). Possession is a detention or enjoyment of a thing which a man holds or exercise by himself or by another, who keeps or exercise it in his name. “Possession is said to be in two ways-either actual possession or possession in law. “Actual Possession,” is, when a man entreth into lands or tenements to him descended, or otherwise. Possession is a detention or enjoyment of a thing which a man holds or exercise by himself or by another, who keeps or exercise it in his name. “Possession is said to be in two ways-either actual possession or possession in law. “Actual Possession,” is, when a man entreth into lands or tenements to him descended, or otherwise. “Possession in Law, is when lands of tenements are descended to a man, and he hath not as yet really, actually, and in deed entered into them: And it is called possession in law because that in the eye and consideration of the law, he is deemed to be in possession, inasmuch as he is liable to every mans action that will sue concerning the same lands or tenements.” The term has been defined as follows: Simply the owning or having a thing in one’s power; the present right and power to control a thing; the detention and control of the manual or ideal custody of anything which may be the subject of property, for one’s use of enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name; the detention or enjoyment of a thing which a man holds or exercise by himself or by another who keeps or exercises it in his name; the act of possession a having and holding or retaining of property in one’s power or control; the sole control of the property or of some physical attachment to it; that condition of fact under which one can exercise his power over a corporeal thing at his pleasure, to the exclusion of all other persons. 171 IC 159=1937 ALJ 951=1937 ALR 913=1937 AWR 823=AIR 1937 All 735; 12 Bom LR 316=5 IC 457; 6 Bom LR 887; 16 CPLR 13; 4 NLR 78=8 Cr LJ 18. There can be no possession without intention or consciousness or will. Norendranath Masumdar v. The State, AIR 1951 Cal 140 . (S. 19(f) Arms Act. 1878). Possession need not be physical possession but can be constructive, having power and control over the gun, while the person to whom physical possession is given holds it subject to that power or control. Gunwantlal v. The State of M.P., AIR 1972 SC 1756 , 1759. (S. 19(f) Arms Act. 1878). Possession need not be physical possession but can be constructive, having power and control over the gun, while the person to whom physical possession is given holds it subject to that power or control. Gunwantlal v. The State of M.P., AIR 1972 SC 1756 , 1759. Possession is a polymorphous term which may have different meanings in different contents. The possession of a fire arm must have the element of consciousness or knowledge of that possession and when there is no actual physical possession a control or dominion over it, there is no possession. The word “possession” naturally signifies lawful possession. The possession of a trespasser could not be a possession of a tenant so as to attract Section 14(1). Bhagat Ram v. Smt. Lilawati Galib, AIR 1972 HP 125 , 130. The word ‘possessed’ means the state of owning or having in one’s hand or power but even this broad meaning will not apply in the case of a share or a woman when there has been no partition by metes and bounds. Modi Nathubai Motilal v. Chhotubhai Manibhai Besai, AIR 1962 Guj. 68 , 77. Obtaining a symbolic possession is in law equivalent to obtain actual physical possession and has the effect of terminating the legal possession of the person bound by the decree and order. Umrao Singh v. Union of India; AIR 1975 Del. 188 , 191. The word ‘possession’ implies a physical capacity to deal with the thing as we like to the exclusion of every one and a determination to exercise that physical power on one’s own behalf. In Re Pachiripalli Satyanarayanan, AIR 1953 Mad 534 . Where an estate or interest in realty is spoken of as being “in possession”, that does not, primarily, mean the actual occupation of the property; but means, the present right thereto or to the enjoyment thereof. The word “possession” in Section 28 of the Limitation Act XV of 1877, embraces both actual possession and possession in law, 6 CWN 601. The word “possession” in C.P. Code, includes constructive possession, such as possession by a tenant. 25 B. 478(491). Possession in Specific Relief Act (I of 1877), S. 9 does not include joint possession, but refers to exclusive possession. 23 IC 618 (619). The word “possession” means the legal right to possession. Health v. Drown, (1972) 2 All ER 561, 573 (HL).” 58. 25 B. 478(491). Possession in Specific Relief Act (I of 1877), S. 9 does not include joint possession, but refers to exclusive possession. 23 IC 618 (619). The word “possession” means the legal right to possession. Health v. Drown, (1972) 2 All ER 561, 573 (HL).” 58. There is a distinction between the terms “possession”, “occupation” and “control”. The distinction between “possession” and “occupation” was considered in Seth Narainbhai Ichharam Kurmi and another v. Narbada Prasad Sheosahai Pande and others, AIR 1941 Nagpur 357 and the Court held: “Bare occupation and possession are two different things. The concept of possession, at any rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled with a mental element, namely, the animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The adverse possession of which the law speaks does not necessarily denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best and the most conclusive proof of possession in this sense but the two are not the same. It is also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupation especially when this is of just a small room or two in a house and when this occupation is shared with others. The nature of the ouster and the quantum necessary naturally varies in each case.” 59. The distinction between “possession”, “occupation” or “control” was also considered in Sumatibai Wasudeo Bachuwar v. Emperor, AIR (31) 1944 Bom. 125 and the Court held: “Some documents containing perjudicial reports were found in a box in the house occupied by the applicant and her husband. When the house was raided by the police, the husband was out and the applicant (wife) produced the keys with one of which the box could be opened. In addition to perjudicial reports, there were some letters in the box addressed to the applicant. Held,. When the house was raided by the police, the husband was out and the applicant (wife) produced the keys with one of which the box could be opened. In addition to perjudicial reports, there were some letters in the box addressed to the applicant. Held,. (1) that, prima facie, the box containing the documents would be in the possession of the husband and the mere fact that in his absence he had left the keys with the applicant (wife) would not make her in joint possession with himself; nor did the fact that there were letters in the box addressed to the wife mean that she was in joint possession of all the contents of the box; (2) that the wife was in the circumstances in possession of the box within the meaning of R. 39(1) of the Defence of India Rules; (3) that occupation in R. 39 (2) of the Defence of India Rules meant legal occupation, and the applicant could not be held to be in occupation or control of the house so as to render her guilty under R. 39 of the Defence of India Rules.” 60. In “Mitra’s Law of Possession and Ownership of Property” reprint 2010 published by Sodhi Publication, Allahabad, certain kinds of possession in the light of Courts’ verdict have been stated as under : Continuous possession.—The meaning of the word “continue” means to keep existing or happening without stopping and the word “continuous” describes something that continues without stopping. In a case where the plaintiff was in possession for a period of five years at a time on the basis of a lease, the moment the period of lease expired, the Court held in Kartik Mandal v. State of Bihar, AIR 2009 Pat 33 , that he was bound to restore before the possession of the settler and cannot claim to be in continuous possession. Effective possession.—Where the plaintiff did not get the possession of the land as to control it as per his desire means that he is not having effective possession of the land as held in Alkapuri Co-operative Housing Society Ltd. v. Jayantibhai Naginbhai, AIR 2009 SC 1948 . De jure possession.—A possession deemed in law though actually it is in possession of another is de jure possession as held in Kottakkal Co-operative Urban Bank v. Balakrishna, AIR 2008 Ker 179 . De jure possession.—A possession deemed in law though actually it is in possession of another is de jure possession as held in Kottakkal Co-operative Urban Bank v. Balakrishna, AIR 2008 Ker 179 . Exclusive possession.—In Nirmal Kanta (Smt.) v. Ashok Kumar, 2008 (7) SCC 722 , the respondent No. 2 was accommodated by respondent No. 1 to assist him in his cloth business by helping customers to assess the amount of cloth required for their particular purposes. The said activity did not give respondent No. 2 exclusive possession for that part of the shop room from where he was operating and where his sewing machine had been affixed. This view taken by the Court below was upheld by the Apex Court. Hostile possession A possession against the real owner within his knowledge constitute hostile possession. Where a person is not sure who is the true owner, the question of his being in hostile possession does not arise and it would also not result in assuming that he was denying title of true owner. This is what was held by this Court in Ramzan v. Smt. Gafooran (supra). When a person claims possession over a property showing himself to be the owner, the question of showing hostile possession would not arise. Similarly, in Gopendra Goswami v. Haradhan Das, AIR 2009 Gau 41 , it was held that mere possession over a land cannot be treated hostile to the title of the real owner unless it is shown that the real owner has the knowledge and thereupon the possession of the stranger continued. Physical possession.- It is the actual possession over the land. (See : Dhara Singh v. Fateh Singh, AIR 2009 Raj. 132 ) Wrongful possession.- Possession contrary to law is the wrongful possession. 61. Possession can also be classified as under: (a) De facto possession (b) De jure possession (c) Symbolic possession (d) Joint possession (e) Concurrent possession. Besides, some more categories are forcible possession, independent possession, lawful possession, permissive possession and settled possession. 62. The concept of possession in ancient laws may be stated that Possession in Roman law recognised two degrees of possession, one is being detentio (or possessio naturalise) of the object/thing; and the other is possessio strictly or possessio civilise. Roman law appears to be mainly concern with developing a theory to distinguish between detention and possession from each other. 62. The concept of possession in ancient laws may be stated that Possession in Roman law recognised two degrees of possession, one is being detentio (or possessio naturalise) of the object/thing; and the other is possessio strictly or possessio civilise. Roman law appears to be mainly concern with developing a theory to distinguish between detention and possession from each other. Physical control of an object by sale, a bailee or an agent was considered only as detention and all other kinds of physical control were treated as possession. 63. In Muslim law a man in possession of property although by wrongful means has obvious advantages over the possessor. The possessor is entitled to protection against the whole world except the true owner. [The Principles of Mohammedan Jurisprudence (1911)]. 64. In ‘Ancient Indian Law’ possession was nothing but a legal contrivance based on the considerations of dharma. Use and enjoyment of property was restricted and controlled by the holy scriptures. In old Hindu law possession was of two kinds. (a) with title; and (b) without title where possession continued for three generations. Enough importance, however, was given to title (agama) to prove possession. Katyayana said, “there can be no branches without root, and possession is the branch”. 65. Possession, therefore, has two aspects. By itself it is a limited title which is good against all except a true owner. It is also prima facie evidence of ownership. In Hari Khandu v. Dhondi Nanth, (1906) 8 Bom LR 96, Sir Lawrence Jenkins, C.J. observed that possession has two fold value, it is evidence of ownership and is itself the foundation of a right to possession. The possession, therefore, is not only a physical condition which is protected by ownership but a right itself. 66. In Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, AIR 1980 SC 52 , the possession was described by the Court in paras 13, 14 and 15 as under: “13. “Possession” is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the contexts of all statutes. Dias & Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorizing it is that of “possession”. It is impossible to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the contexts of all statutes. Dias & Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorizing it is that of “possession”. Much of this difficulty and confusion is (as pointed out in Salmond’s Jurisprudence, 12th Edition, 1966) caused by the fact that possession is not purely a legal concept. “Possession”, implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid) 14. According to Pollock & Wright “when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing. 15. While recognising that “possession” is not a purely legal concept but also a matter of fact; Salmond (12th Edition, page 52) describes “possession, in fact”, as a relationship between a person and a thing. According to the learned author the test for determining “whether a person is in possession of anything is whether he is in general control of it”. 67. From the above discussion, and applying the same herein, it can be said that though plaintiff was shown in revenue records in the capacity as Bhumidhar, to be in possession of land and trees standing thereon, but still it cannot be said to be effective possession but it is short of possession of an owner. It can be said to be an “derivative corporal possession”. Here is a possession which is said to be nine points of law, i.e. he who has conscious control of an object need only surrender his control to one who can establish a superior claim in law. The plaintiff’s possession over land was in the capacity of a tenant i.e. Bhumidhar but the de facto possession as owner is that of State Government. 68. The plaintiff’s possession over land was in the capacity of a tenant i.e. Bhumidhar but the de facto possession as owner is that of State Government. 68. Counsel for plaintiff-respondent sought to argue that trees go with land but this proposition as such in absolute terms, in our view, is not correct. One of the earlier decisions of this Court in this regard is Mohammad Sadiq v. Laute Ram, 23 All. 291, wherein it was held that trees growing upon land, on partition, go with land. That was a case where land was jointly owned and when there was a partition of land, it was held that trees go with the partitioned land for the reason that there was no otherwise dispute regarding ownership of trees vesting in one or other parties for any other fact except that there was a joint ownership in respect with land. This decision was followed in another matter where also the facts were similar, i.e. Sunder Lal and others v. Dharam Pal and others, AIR 1915 All 75. 69. In Lalta Singh v. Patiraj Singh (supra), this Court held that a person, who is Bhumidhar of land, by reason of such tenancy rights itself cannot claim to be owner of trees standing on the land, unless it is shown that he has planted the same or otherwise own the same. 70. Even if we follow the principle, ‘’trees goes with land”, yet the finding has to be recorded against the plaintiff since plaintiff is not the owner of land. In absence of any other evidence to show that plaintiff own the trees standing on the land in question having planted or otherwise, it cannot derive its claim only from his status of Bhumidhar. We have no hesitation in observing that Trial Court in the case in hand has proceeded in a very perfunctory manner while deciding the suit. It has failed to look into the real issues in correct perspective. Point No. 2, therefore, is answered against the plaintiff and in favour of appellant. We hold that plaintiff, may be in symbolic possession of trees standing on the land in question having bhumidhari rights over the land in question, but plaintiff did not have ownership rights over the trees in question. The findings of Trial Court otherwise are reversed. 71. Point No. 2, therefore, is answered against the plaintiff and in favour of appellant. We hold that plaintiff, may be in symbolic possession of trees standing on the land in question having bhumidhari rights over the land in question, but plaintiff did not have ownership rights over the trees in question. The findings of Trial Court otherwise are reversed. 71. Now we come to point No. 3 with regard to Notification under Section 4 of Act, 1927. The Notification Under Section 4 is issued only showing intention of State to create a Reserve Forest Area by including the land mentioned in the Notification. This Notification by itself neither create nor divest any substantial right in any manner. Unless final Notification under Section 20 of Act, 1927 is issued, which will have the effect of setting up a Reserve Forest Area making a land forest land, a Notification under Section 4 is only a commencement of proceeding towards such end. The Notification under Section 4 does not result in altering anybody’s right or changing status of land in any manner. Therefore, mere fact that Notification under Section 4 of Act, 1927 was issued, in our view, has no legal consequences in favour or against any of the parties to the suit and point No. 3 is answered accordingly. 72. Now we come to point No. 4, whether there existed a cause of action to maintain suit. 73. From the plaint, it is evident that cause of action claimed to have arisen when plaintiff found on 1.6.1972 that Lekhpal has not made entries of trees in Column 21 of Khasra for which plaintiff gave a notice on 29.12.1972 under Section 80 C.P.C. to Collector and then filed suit for declaration. The question is “whether absence of an entry in khasra with regard to trees did result in a “cause of action” to maintain a suit for declaration with regard to ownership over trees”. 74. The concept of cause of action is a “bundle of facts is required to be proved to show the reason for which plaintiff was impelled to go for litigation in Civil Court for recovery of individual rights or redressal of individual wrong etc.” In other words, a cause of action is a bundle of facts which are required to be proved for obtaining relief. The absence of entry of trees in revenue record has nothing to do as such with the dispute relating to title over trees. It cannot be said that cause of action has arisen for that reason alone. The cause of action means every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. 75. If there is an error in any entry of revenue record, the remedy lies before Revenue authorities under U.P. Land Revenue Act, 1901 (hereinafter referred to as “Act, 1901) by moving an application for making correction in revenue record, if any. Mere fact that some entry is missing or wrongly mentioned in revenue record does not result in denial of title for the reason that entries in revenue record is only indicative of possession and not title. 76. In Narain Prasad Agarwal v. State of Madhya Pradesh, 2007 (8) SCALE 250, the Court said: “Record of right is not a document of title. Entries made therein in terms of Section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt that such a presumption is rebuttable.” 77. In Gurunath Manohar Pavaskar and others v. Nagesh Siddappa Navalgund and others, AIR 2008 SC 901 , the Court said: “A revenue record is a not a document of title. It merely raises a presumption in regard to the possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Indian Evidence Act.” 78. It merely raises a presumption in regard to the possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Indian Evidence Act.” 78. Further, mere entries in revenue record are not conclusive proof of actual physical possession of the person whose name is entered therein as held in Corea v. Appu Hamy, Corea v. Appu Hamy, 1912 Appeal Cases 230, Thakur Nirman Singh and others v. Thakur Lal Rudra Pratap Narain Singh and others, AIR 1926 PC 100 , Smt. Sawarni v. Smt. Inder Kaur and others, JT 1996 (7) SC 580, State of U.P. v. Amar Singh and others, (1997) 1 SCC 734 , Balwant Singh and another v. Daulat Singh and others, JT 1997 (5) SC 703, Suman Verma v. Union of India and others, (2004) 12 SCC 58 and State of Madhya Pradesh v. Narmada Bachao Andolan and another, (2011) 7 SCC 639 . 79. It is not the case of plaintiff that State of U.P or any of its authorities raised any dispute regarding title over trees standing on the land in question so as to give rise to a cause of action for filing a suit for declaration in this regard. In fact, the plaintiff itself never claimed to be owner of trees in dispute before filing suit in question. It is only by way of filing suit it sought such a declaration for the first time. The land in question vested in State long back. When bhumidhari rights were transferred to plaintiff by Sri Vishwanath Pratap Singh in 1959, even on that date, there was nothing to show that Sri Singh was owner of trees. If the date on which proprietorship rights over land in question vested in the State of U.P. is taken to be the first date when cause of action with regard to ownership over trees in question can be said to have arisen, the suit in question on the date of its filing was hopelessly barred by limitation. After the date when the State got proprietorship rights over land in dispute, at no point of time plaintiff claimed ownership over the trees in question. The question of denial of title of plaintiff with regard to trees, therefore, neither does arise nor there was any occasion therefor since such a dispute was never raised by plaintiff. After the date when the State got proprietorship rights over land in dispute, at no point of time plaintiff claimed ownership over the trees in question. The question of denial of title of plaintiff with regard to trees, therefore, neither does arise nor there was any occasion therefor since such a dispute was never raised by plaintiff. Mere fact that it made an enquiry in revenue record and discovered something, would make no difference for the reason that as already said entries in revenue records only reflect on possession and is not an evidence of title. 80. This Court, therefore, has its own reservation on this point and is satisfied that there had not arisen any cause of action for maintaining suit for declaration regarding title over trees standing on the land in dispute, but we are not deciding this appeal on the basis of this question alone, and, on the contrary, since in respect of points No. 1 and 2, we have already taken a view otherwise than what was held by Trial Court, we propose to decide this appeal accordingly and are not reversing judgment of Trial Court only on our answer to the question with respect to cause of action. 81. Now coming to points No. 5 and 6, in the plaint, the number of trees, the kind and nature of trees etc. have not been detailed at all. The plaint is totally silent in this regard. Per contra, defendant in written statement has given details about the plots over which no trees are standing, being barren/forest land, and the plots on which some trees are there and the nature of trees have also been given. From the record, it appears that initially an Advocate Commissioner was appointed by Trial Court for making valuation of trees who assessed valuation of trees to Rs. 30,68,600/-, but he neither gave details of number and nature/kind of trees nor other details so as to justify, how he worked out valuation to 30 lacs and odd. PW- 1 Ram Gopal in his oral deposition estimated value of trees at Rs. 40 lacs but he also could not give details of trees etc. and as to how he came to such estimation. PW- 1 Ram Gopal in his oral deposition estimated value of trees at Rs. 40 lacs but he also could not give details of trees etc. and as to how he came to such estimation. Trial Court in para 2 of judgment has said that none of the parties are in position to disclose actual number of trees lying over total area of land in dispute. This finding clearly shows that at least no pleading or evidence could be led by plaintiff to show number of trees and other details. The Trial Court thus has completely misled itself by ignoring to consider pleading in written statement wherein details of trees, their nature and number were given. It is for the said number of trees, defendant witnesses, i.e. DW-1 assessed valuation of trees as Rs. 80,000/- while another witness, i.e. DW-2, Supervisor Kanoongo, valued trees at Rs. 3000/- in village Babura Raghunath Singh and Rs. 1500/- at village Katra. Trial Court has relied on Advocate Commissioner’s report and applying reduction of 50 per cent has assessed the valuation of trees to Rs. 15 lacs and odd. 82. Report of Advocate Commissioner is nothing but an evidence. When considering the said evidence, it was incumbent upon Trial Court to find out the basis on which valuation of trees was assessed by Advocate Commissioner. When it was a guess work without showing number of trees, kind of trees etc., the valuation assessed by Advocate Commissioner founded on mere conjectures and surmises could not have been relied on at all. Making valuation of trees by applying reduction of 50 per cent is also based on assumption and is erroneous. Once the details of trees are given in written statement of defendants, in absence of any otherwise evidence, there was no reason for making valuation of trees as claimed by plaintiff on conjectural basis, ignoring number of trees and kind of trees mentioned in written statement altogether. Therefore, we have no manner of doubt that the manner in which valuation of trees has been assessed by Court below is also apparently illegal and unsustainable. Therefore, the finding in respect of issue No. 4 is hereby reversed. The points No. 5 and 6 in this appeal are decided accordingly. 83. In the result, appeal is allowed. The judgment and decree of Trial Court dated 8.11.1976 is hereby set aside. Therefore, the finding in respect of issue No. 4 is hereby reversed. The points No. 5 and 6 in this appeal are decided accordingly. 83. In the result, appeal is allowed. The judgment and decree of Trial Court dated 8.11.1976 is hereby set aside. Original Suit No. 36 of 1973 filed by plaintiff is hereby dismissed with costs throughout. ——————