JUDGMENT

M. C. Desai, C.J. - 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 conse