M. C. Desai, C.J. - (1.) The only question raised before our brother Broome was whether respondent No. 1 was entitled to adhivasi rights even though he was not in occupation or possession. His name was entered as in possession of the land in dispute in the records of 1356F, but what is contended on behalf of the appellant is that he was not in actual possession and that consequently he could not get adhivasi rights. But this is not what Sec. 20(b) of the U.P. Zamindari Abolition and Land Reforms Act lays down; under it the mere entry of occupancy in the records of 1356F, is enough to entitle the person to adhivasi rights and it does not require him to be in actual possession or occupation in addition. It seems that the legislature was anxious to obviate the necessity of an elaborate enquiry into a highly disputable question of possession which would arise in innumerable cases. An entry in a village record is a tangible thing and visible on the face of it, whereas possession is an intangible thing to be inferred from circumstances and right to possession is a matter of law. Presumably the legislature in order to save time and energy of Courts relied upon a mere entry and did not insist upon actual possession; otherwise much time and energy of Courts would have been wasted in thousands of enquiries into the questions of possession and the right to possession.
(2.) The Act makes a clear distinction between, (1) occupation or cultivatory possession, (2) right to possession and (3) being recorded as occupant. Section 12 refers to land which "was in the personal cultivation" of a thekadar; what a thekadar should prove in order to claim rights of a hereditary tenant tinder this section is that he was in personal occupation of the land; obviously an entry recording him to be in cultivatory possession would not be enough. Similarly Sec. 13(2) refers to land "in the personal cultivation of the thekadar." Sec. 14(1) speaks of possession of mortgagee and of his right to hold or possess the land after the enforcement of the Act. Sec. 14(2) and Sec. 15 confer certain rights upon certain persons on account of their having the land in their personal cultivation on the date immediately preceding the date of vesting. Sec. 16 confers hereditary tenant's rights upon a person "who was recorded as occupant of any land" in a record and "who on the date immediately preceding the date of vesting, was in possession of the land or was entitled to regain possession thereof", or who was recorded as occupant of any land in the record of rights prepared for 1356F, and who on the date immediately preceding was in possession of the land. This provision makes clear the following matters:- (1) Recording as occupant is quite distinct from being in possession, (2) where being in possession is required in addition to being recorded as occupant the legislature has expressly provided for it, (3) a person can acquire rights on the basis of his being recorded as occupant even though he be out of possession, and (4) being recorded as a tenant is being recorded as occupant. The reference in Sec. 16(i) to a person's being entitled to regain possession shows that he might have been out of possession even though he was recorded as occupant. A person can be in cultivatory possession or occupation either (1) in his own right, whether as a proprietor or a tenant or a sub-tenant or a mortgagee or thekadar, or (2) as a licensee of a person belonging to any of the above classes or (3) as a trespasser, i.e. having no right to be in possession. Possession of the first and third kinds only is recorded in the record of rights prepared under Sec. 32 (e) of the Land Revenue Act, possession as a licensee, whether as an agent or servant (marafatdar) or as a co-sharer (sajhidar) is recorded in the khasra but not in the khatauni because it is not under a right independently of a licence. A person belonging to class (1) only is entitled to regain possession if he has deprived of it and consequently section 16(i) must refer to entry as occupant of a person having a right to be in possession. This is made clear by the explanation to Sec. 16, which excludes from its scope land recorded in the names of persons holding it as grove-holders, ex-proprietary tenants, occupancy tenants, hereditary tenants, fixed rate tenants, land free grantees and sub-tenants. But for this express exclusion, all these persons would be persons recorded as .. occupants of the land within the meaning of Sec. 16. In the remarks column of a khasra if the person whose name is recorded against a plot of land in any other column, is out of possession and a trespasser is in possession, an entry called dawedar kabiz entry is made in the remarks column; this person also can be said to be recorded as occupant of the land. But an entry as occupant of land does not mean only such an entry. Of course when such an entry is made, only the person in respect of whom it is made would be the person recorded as occupant; the other persons whose names are recorded in other columns of the khasra, even though they may have a right to be in possession, cannot be said to be recorded as occupants for the simple reason that they are not in occupation or physical or cultivatory possession. Possession is exclusive; two persons claiming adversely to each other cannot be in possession at the same time and if a person is recorded as dawedar kabiz, only he is to be deemed to be recorded as occupant and not other persons, whom he has dispossessed, even though their names are also recorded in some columns. Even if they have a right to regain possession and, therefore, may be said to be in legal possession, they are not in physical or cultivatory possession and the entry of their names, which would have been an entry recording them as occupants if there had been no dawedar kabiz entry in the remarks column, ceases to be such an entry when another person is recorded as occupant. Just as two persons claiming adversely to each other cannot be in occupation at the same time, so also there cannot be two entries recording two different persons as in occupation of the same land. Sec. 18 confers bhunzidhari rights upon certain persons possessing or holding land in a certain capacity and having a transferable right. Sec. 19 confers sirdari rights upon certain tenants who held land on the date immediately preceding the date of vesting. Sec. 20 confers adhivasi rights upon two sets of persons. Cl. (a) is of persons who, on the date immediately preceding the date of vesting, were tenants of sir or sub-tenants barring those dealt with earlier. Cl. (b) includes every person who "was recorded as occupant . . . . in the khasra or khatauni of 1356F. or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under Cl. (c) of sub-Sec. (1) of Sec. 27 of the United Provinces Tenancy (Amendment) Act, 1947, or . . . . of any land to which Sec. 16 applies, in the khasra or khatauni of 1356F but who was not in possession in the year 1359F." Sec. 20 is subject to the provisions of Secs. 18 and 21. Sec. 20 (b) is very clumsily drafted; Cl. (b) (i) deals with a person who was recorded as occupant or who was entitled to regain possession, and Cl. (b) (ii) starts with the words "of any land to which Sec. 16 applies" and it is left to be determined whether they are to be read with "recorded as occupant" or with "entitled to regain possession," which are the only words with which they can be read. There is difficulty in reading them with "recorded as occupant" because of the intervening clause "or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under Cl. (c) of sub-Sec. (1) of Sec. 27 of the United Provinces Tenancy (Amendment) Act, 1947" One cannot skip over this clause and read them with the earlier clause. There is difficulty also in reading them with "was entitled to regain possession" be-cause they are put in Cl. (ii) whereas those words appear in Cl. (i). If they were to be read with those words, Cl. (i) should have consisted only of a provision relating to a person recorded as occupant and clause (ii) should have consisted of a provision relating to a person who was entitled to regain possession under Sec. 27 or of any land to which Sec. 16 applies. Further, Sec. 16 does not by itself confer any right on any person to regain possession; on the other hand it itself deals with a person who was entitled to regain possession before its enactment. The words have got to be read with one set of the words or the other and it seems better to read them with the words "was recorded as occupant," because there would be far less difficulty in doing so than in reading them with the words "was entitled to regain possession." Interpreting this clause of Sec. 20 in this manner one finds that adhivasi rights are conferred upon a person recorded as occupant even though he might not have been in possession in 1359F. A person who was not in possession in 1359F, might not have been in possession in 1356F, also and even then he would be entitled to adhivasi rights. The provision excluding the persons who became bhumidhars or asamis shows that otherwise they also would have been entitled to adhivasi rights; this means that an entry as occupant includes an entry as occupant as a tenant or under lawful title. Explanation (II) providing that where an entry referred to in Cl. (b) has been corrected before the date of vesting, or under the Land Revenue Act, the entry so corrected shall prevail, confirms that an entry will prevail even though incorrect and that the legislature intended to act upon entries regardless of the question of their correctness. The most important and common respect in which an entry as occupant would be incorrect is that the person was not in occupation at all; if this entry has not been corrected in the manner mentioned in Explanation (II), it will prevail over the fact of the non-occupation of the person. Sec. 21 confers Asami rights upon persons belonging to certain clauses, who on the date immediately preceding the date of vesting "occupied or held land"; this provision makes a distinction between occupying land and being recorded as occupant by selecting the former words in place of the latter words used in the immediately preceding section and also in its own sub-Sec. (2). The result of this survey of provisions of the Act is that if a case is governed by Sec. 20(b) (i), first limb, the person will get adhivasi rights, regardless of whether he was actually in occupation or not and whether he had a right to be in occupation or not. If he was not required to be in occupation at all, it stands to reason that the question whether he had a right to be in occupation or in what capacity or under what right he was in occupation cannot arise at all. Occupation in any capacity or right, or even without a right, is always better than non-occupation and, if non-occupation is not a hurdle in the way of acquisition of adhivasi rights, occupation without a right can still less be a hurdle.
(3.) Judge-made Law on this question is very confusing and some of the decisions are irreconcilable. In Nanak Chand v. Board of Revenue, 1955 A.L.J. 408 Agarwala, J., Chaturvedi, J. concurring, observed at page 411: "It seems to us that clauses (b) (i) and (b) (ii) of Sec. 20 do not require the proof of actual possession in the year 1356F. What they require merely is the entry of a person's name as an occupant in the Khasra or Khatauni of 1356F. The words of the section are clear. (Every person who was recorded as occupant in the Khasra or Khatauni in 1356F. etc.) The words are not 'every person who was an occupant in 1356F:' not are the words "every person who was recorded as an occupant in the year 1356F, and who was also in possession in that year.' There is no warrant for introducing words in the section which are not there. This conclusion is reinforced by what is stated in Explanation II.": We are in full agreement with these observations. The learned Judges dissented from the Board of Revenue's view expressed in Pirthvi Pal Upadhya v. Hardeo Bhar, 1955 A.L.J. (Rev.) 95 and, rightly, if we may say so with respect.;