JUDGMENT : Hon'ble Rajan Roy, J. Heard. This is a writ petition under Article 226 of the Constitution of India, challenging the order of the S.D.M, under Section 210 of the U.P. Land Revenue Act, 1901(hereinafter referred to as the 'Act'), as also the order of the Additional Commissioner (Judicial), passed under Section 219 of the said Act,1901 upturning the order of the Tehsildar passed under Section 34 of the Act, 1901 on the ground that while passing the mutation order dated 18.11.2014, the relevant pre-requisites prescribed in law were not taken into consideration. Therefore, the SOC remanded the matter back to the Tehsildar for consideration afresh in the light of the observations made. Relevant extract of the judgment of the S.D.M. is as under: ^^fu;r frfFk ij mHk; i{kks ds fo}ku vf/koDrk dks lquk x;k rFkk i=koyh dk voyksdu o ifj'khyu fd;k x;kA vihykFkhZx.k ds firk jruyky dh e`R;q fnukad 20-03-2003 dks gqbZ Fkh rFkk ftuds }kjk fu"ikfnr iathd`r olh;r 17-12-1991 mudh e`R;q ds i'pkr~ izHkkoh gqbZA blds vfrfjDr jruyky }kjk fnukad 22-09-1988 dks Hkxokunhu ds i{k esa Hkh cSukek fd;s tkus dk mYys[k fd;k x;k gSaA Hkxokunhu }kjk o"kZ 2006 esa cSukes ds yxHkx 18 o"kZ ckn nkf[ky [kkfjt dh dk;Zokgh dh xbZ tks dh vne iSjoh esa fnukad 30-11-2006 dks fujLr gqbZA Hkxokunhu }kjk iquZLFkkiuk izkFkZuk i= yxHkx lkvkns'k vr% izLrqr vihy Lohdkj dh tkrh gSA uk;c rglhynkj xkslkbZxat }kjk ikfjr vkns'k fnukad 18-11-2014 dks fujLr fd;k tkrkA voj U;k;ky; dh i=koyh bl funsZ'k ds i{kks dk lk{;] ftjg,oa lquokbZ dk lE;d volj nsrs gq, xq.k&nks"k ds vk/kkj ij lEer vkns'k ikfjr djsA bl U;k;ky; dh i=koyh ckn vko';d dk;Zokgh i=koyh lhy nrj gksA^^ On a bare perusal of the above quoted extract of the judgment, it is revealed that the land in question was alleged to have been sold by the original tenure holder in favour of the petitioner by a registered sale deed on 22.9.1988, but no mutation proceedings were initiated at his behest till 2006, when, for the first time he submitted a report as referred to in Section 34 of the Act, 1901. During the mutation proceedings, the respondents claimed to have already been recorded on the basis of a Will alleged to have been executed by the concerned tenure holder on 17.2.1991 in their favour, being his daughters. During the mutation proceedings, the respondents claimed to have already been recorded on the basis of a Will alleged to have been executed by the concerned tenure holder on 17.2.1991 in their favour, being his daughters. Be that as it may, the S.D.M. opined that no finding regarding possession had been recorded by Tehsildar as is mandatory under the provisions of law. No such finding was recorded that Bhagwandeen, the petitioner herein was in possession of the land in question since 1998 based on the sale deed or that the appellants (respondents herein) were in possession. For the aforesaid reasons and considering the fact that the mutation proceedings had been initiated after 18 years of the alleged execution of the sale deed, the appeal of the respondent was allowed. Being aggrieved, the petitioner herein filed a revision which was dismissed by the revisional court affirming the order of the appellate court. The contention of the learned counsel for the petitioner Sri V.K. Pandey, is that the possession required to be seen under Sections 34 and 35 of the Act, 1901 is not necessarily actual physical possession, but constructive possession, meaning thereby lawful possession and a trespasser, who may be in possession, cannot be treated to be so as against a lawful claimant based on a Will deed or succession, in proceedings under section 34 of the Act, 1901 as has been held by Full Bench of the Board of Revenue of U.P. reported in 1973 RD Page 211 (Dassiyan Vs. Smt. Sukhan). Based on the aforesaid, he contended that the revisional court and the appellate courts have failed to appreciate that what possession would have to be considered, whether actual possession or constructive possession? He also contended that, in fact, the petitioner was in possession since 1988 and a recital regarding handing over of possession to him by the vendor, i.e., original recorded tenure holder is also contained in the sale deed itself. The sale deed not being denied and neither being void the revisional court could not have ignored the same. Therefore, the remand order is a futile exercise. The respondents cannot claim any right vis-a-vis the claim of the petitioner herein. The sale deed not being denied and neither being void the revisional court could not have ignored the same. Therefore, the remand order is a futile exercise. The respondents cannot claim any right vis-a-vis the claim of the petitioner herein. The legal position as set out in the Full Bench decision of the Board of Revenue, and its application will depend upon the facts of a case but it is relevant to refer to a recital contained therein in paragraph 18 which reads as under: "Provided the trespasser had not perfected his title." This is evident from the Supreme Court decision in the case of Kotturuswami versus Veravva, which has been relied by the Board of Revenue, that the right of lawful claimant would not be defeated, provided the trespasser had not perfected his title, which is obviously a reference to his adverse possession. In the present case the respondents also claim to be in possession of the land in question since 1991 i.e. 15 years based on a will executed by the original tenure holder, their father. Be that as it may, the fact of the matter is that the petitioner had submitted a report for mutation of his name in the year 2006, i.e., after 18 years of execution and registration of the alleged sale deed on 22.9.1988. In this regard, the provisions contained in Section 34 of the Act, 1901 are relevant. According to sub-section (1) of Section 34, every person obtaining possession of any land by succession or transfer (other than the succession or transfer which had already been recorded under Section 33-A) shall report such succession or transfer to the Tehsildar of the Tehsil in which the land is situate. The words "every person obtaining possession of any land by succession or transfer" are relevant in this regard. In this regard, sub-section (4) is also relevant, which prescribes, "if a person so succeeding or otherwise obtaining possession" is a minor or otherwise disqualified, the guardian or other person, who is in-charge of his property, shall make the report required by this succession. Thus, the importance of possession under Section 34 is evident from the use of the said words therein. Thus, the importance of possession under Section 34 is evident from the use of the said words therein. Whether this possession should be only actual physical possession or would include lawful possession may be relevant depending upon the facts of the case as has been considered by the Full Bench of the Board of Revenue, but apart from the aforesaid, when read conjointly with Section 35 which lays down the procedure on receipt of such report, the position which emerges is that on receiving a report of succession or transfer under Section 34, or upon facts otherwise coming to his knowledge, the Tehsildar shall make such enquiries as appears necessary and if the succession or transfer appears to have taken place, he shall direct the annual register to be amended accordingly. Section 35, thus, envisages such enquiry as appears necessary by the Tehsildar. The discretion to be exercised by the Tehsildar in this regard is on a fair consideration of the facts of the case and the pre-requisites as mentioned in Section 34 regarding possession. In this regard, it is not out of place to refer to that the provisions of the Revenue Court Manual, which also lays down the procedure to be followed by the revenue courts, including the proceedings under Section 34. The relevant Rules in this regard are A-366 to A-384 contained in Chapter 37A of the said Manual. Rule A-368 of the Manual refers to enquiry under Section 35 by the Tehsildar in the concerned Tehsil. Rule A-372 provides that in the event of omission of certain particulars or incorrect mentioning of the same, the Tehsildar shall ascertain from the person making the report or from any other source considered convenient, such particulars as may be necessary to complete or correct the report. Rule A-373 refers to necessary enquiries being made by the Tehsildar without waiting for the issue of proclamation about the existing entries in the relevant papers and other details pertaining to the land in question from the office of the Registrar Kanoongo and from the Halqa Lekhpal also, if necessary. Here again, the words "if necessary" confer a discretion upon the Tehsildar, which has to be exercised as per law and in the light of Sections 34 and 35, and not otherwise, i.e., not whimsically. Here again, the words "if necessary" confer a discretion upon the Tehsildar, which has to be exercised as per law and in the light of Sections 34 and 35, and not otherwise, i.e., not whimsically. Rule A-375 provides that the proclamation shall also require a person who has obtained possession and also any other persons who may wish to file objection to attend on the date to be specified in the proclamation and for producing such evidence, as may be in his possession in support of his objection. Rule A-379 provides that in all the cases of transfer where an objection is filed under Rule A-375, the Tehsildar shall record necessary evidence adduced by the parties. He may also ask for evidence about it if he has reasons to believe that declaration made in the affidavit under Rule A-367 is not sufficient and in order. It further provides that "on completion of the enquiry he shall submit a report to the Collector". This part of the provision has become superfluous, as now after the amendment in Section 35, the reference to Collector is not required, and it is the Tehsildar who has to decide disputed questions also, but what is relevant is that the provision contemplates completion of the enquiry by the Tehsildar. In view of the aforesaid provisions, it is evident that the Tehsildar before passing the order under Section 34, is required to apply his mind and conduct an enquiry in the light of the provisions referred herein above, and it is for this reason, as he did not do so, therefore, the S.D.M. has remanded the matter back for consideration of the matter afresh, especially considering the fact that the mutation report was submitted by the petitioner after 18 years. It is not known as to who is in possession of the land in question. The order of the Tehsildar does not even refer to the report of the Lekhpal or his statement regarding possession. As regards the contention of the counsel for the petitioner that the possession is not actual possession but constructive possession, it is always open for him to take this plea before the Tehsildar, which shall be considered as per law, as, the plea will depend upon the facts of a case and no straight jacket formula can be laid down in this regard. The word "possession" in Sections 34 and 35 would certainly not be that of a rank trespasser, but it also does not exclude other possessions if they may have perfected their title and how far that is relevant in proceedings under Section 34 which do not confer any title as they are summary proceedings can also be seen by the Tehsildar. Whether in these circumstances, if petitioner is not in actual possession can he seek a declaration of title in his name after 18 years of execution of the sale deed or would such claim be barred by limitation etc., if so, can such a person claim mutation of his name in such circumstances is an aspect which will have to be considered by the Tehsildar. Therefore all these aspects will have to be considered by the Tehsildar. In these circumstances, this Court in this writ petition, which is filed under Article 226 of the Constitution of India, does not find any reason to interfere with the order of remand passed by the courts below. The writ petition is accordingly dismissed, without prejudice to the rights of the parties before the Tehsildar. The Tehsildar is ordered to decide the matter after hearing the parties as per law within four months from the date a certified copy of this order is submitted. The parties shall not alienate the land in question till decision by the Tehsildar as aforesaid.