JUDGMENT

M.N. Shukla, J. - This is a defendant's second appeal against the decree of the court below in the plaintiffs' favour whereby the appellant was restrained by an injunction from interfering with the respondents' possession over the plots in suit.

2. The plaintiff's case was that they were Zamindars up to the date of the abolition of the Zamindari, they had held the land in suit as their `Khudkasht' on the date immediately preceding the date of vesting and hence they had become Bhumidhars of the same under the provisions of Section 18 of the U.P. Zamindari Abolition and Land Reforms Act. The plaint allegations were that in Sawan or Bhadaon 1359 Fasli they reclaimed the plots, that formerly the land was lying uneven and full of trees, that the plots were in their possession since then, that on account of failure of rains that year the plots could not be sown though they had been prepared for sowing crops and next year that is in 1360 Fasli Kharif crops were sown. It was alleged that the Sub-Divisional Magistrate, Mat, issued a notice directing the plaintiffs to vacate the plots in suit, that they filed objections which were rejected and hence they were obliged to file the present suit.

3. The defence of the Gaon Sabha (appellant) was that the plots were lying Banjar and had been used as pasture land since times immemorial; that since the date of vesting the plaintiffs were not cultivating the plots which were cultivated for the first time in 1953 and hence they had no right or title to the plots and their suit was liable to be dismissed.

4. The plaintiffs led evidence to prove that they held the aforesaid plots as their Khudkasht on the date immediately preceding the date of vesting. The plaintiffs' witnesses however, merely deposed that the plaintiffs had reclaimed the land in July, August and September, 1359 Fasli by cleaning and levelling it but the land was actually sown in 1360 Fasli. Plaintiff Laxmi Narain himself as a witness unequivocally admitted that the Kasht was done in the month of June 1360 Fasli. The lower appellate court, however, on the basis of such evidence drew the inference that the land was brought under cultivation in 1359 Fasli as it had been titled and prepared for sowing purposes. In my opinion such inference was founded on an incorrect view of law. The court below proceeded on the footing that the plaintiffs were unable to show that the plots were used for pasturage on the relevant date, that the land was not Banjar on the date of vesting and, therefore, it followed that the land was cultivated on the date of vesting. This was an erroneous assumption of law. The lower appellate court fell into the error of treating the `date of vesting' as the crucial date. The relevant date for determining the accrual of Bhumidhari rights under Section 18 i.e. `the date immediately preceding the date of vesting'. The date of vesting was 1st July, 1952, which is equivalent to 1360 Fasli and the date immediately preceding the date of vesting would fall in 1359 Fasli which year would be coextensive with the period 1st July, 1951 to 30th June, 1952. Hence the decisive factor for determining whether Bhumidhari rights had accrued under Section 18 was as to whether the person claiming such rights was in possession of or held or should be deemed to have held as Khudkasht the land in question on the 30th of June, 1952.

5. It would be apposite to refer to this place the definition of the term 'Khudkasht' in the U.P. Tenancy Act which has been adopted under U.P. Act No. I of 1951. Under Section 3 (9) of the U.P. Tenancy Act Khudkasht means "land other than sir cultivated by a landlord, and under proprietor or a permanent tenure holder as such either himself or by servants or by hired labour." The language plainly implies that the land must be actually cultivated before it can acquire the character of Khudkasht. Mere preparation for cultivation cannot be equated with actual cultivation. There is no justification for enlarg