K.L. Pandey, J.

The questions referred to this Bench are:

(i) Whether the appellant can sue for a declaration of his title on the strength of the registered lease deed dated 4 January 1947?

(ii) Whether he can claim such a declaration even if he has not been in possession of the suit land?

(iii) Whether the word 'possession' in the expression "who immediately before the date of vesting was in possession of any holding as an absolute occupancy tenant or an occupancy tenant" occurring in section 45(1) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, means actual physical possession or merely a right to possession?

The facts of this case, so far as they are necessary, may be briefly stated. One Krishna Chandra Sharma was the proprietor and landlord of village Kishangarh Bhatnora. He executed in favour of his brother-in-law, Beharilal (appellant), a registered patta dated 4 January 1947 without any premium and thereby granted to him occupancy right in respect of 91 acres of land of the village in return for Rs. 40 payable annually as rent. When the Madhya Pradesh Abolition of Proprietary Bights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter called the Act), came into force, the Revenue Authorities refused to recognise the appellant as occupancy tenant of the land and treated it as vested in the State. Thereupon he instituted the suit, out of which this appeal arises, for a declaration that he was the occupancy tenant of the land.

While the Court of first instance held that the patta dated 4 January 1947 was a fictitious and sham transaction, the lower appeal Court took the view that, since it was executed before 16 March 1950, its genuineness was not open to challenge. However, both the Courts below hold that the appellant was not in possession of the land and the lower appeal Court dismissed the suit on the ground that because the appellant was not in possession of the land immediately before the date of vesting, that is, 31 March 1951, he could not be regarded as an occupancy tenant within the meaning of section 45(1) of the Act.

On the first question, our opinion is that the appellant can sue for a declaration of his title on the basis of the lease deed dated 4 January 1947 if it was a real as opposed to a fictitious document. On the other hand, if it was only a sham transaction by which the land was put in a false name and there was no intention to transfer any interest in the land to the appellant, he could not get under the deed any title to the land. In that event, although he may bring a suit for a declaration of his title, he would be disentitled to the relief claimed. Whether, in the instant case, the transaction is the one or the other is a question of fact requiring decision with due regard to all the circumstances of the case: Nainsukhdas Sheonarayan Shop v. Goverdhandas AIR 1948 Nag 110 : ILR 1947 Nag 510.

On the second question, we are of the view that if title had passed and was subsisting on the date of the suit, the fact that the plaintiff had not been in possession of the land would not be material.

The last question referred to us relates to the meaning and effect of the expression "who immediately before the date of vesting was in possession of any holding" in sub-section (1) of section 45 of the Act which reads as follows:

Subject to the provisions of section 41, any person who immediately before the date of vesting was in possession of any holding as an absolute occupancy tenant or an occupancy tenant shall, on and from the date of vesting, be deemed to be a tenant of the State and shall hold the land in the same rights and subject to the same restrictions and liabilities as be was entitled or subject to immediately before the date of vesting.

As the learned single Judge has stated in his reference, the question is whether the word 'possession' in the expression mentioned in the last paragraph means actual physical possession or is wide enough to inc