( 1. ) THIS is defendants second appeal.

( 2. ) NECESSARY facts for the disposal of this appeal are : The plaintiffs/respondents, who are all real brothers, filed a suit for declaration of title and possession of the suit-land, consisting of Khasra No. 479, area 3 bigha and 13 biswa, situate at village kakardha, Tahsil Dabra, District Gwalior. They were granted Patta of the suit-land on 8-12-1958, vide Ext. P-2. They were put in its possession on 26-7-1963, but were dispossessed by the appellants/defendants on 9-7-1964. (For convenience, the parti are referred to here-in-after as the plaintiffs and defendants ). The defendants resisted the suit on the ground that their forefathers were the Zamindars of the suit-land and it had been in their possession from much before the abolition of the Zamindari. At the time of the abolition of the Zamindari by the Madhya Bharat Zamindari Abolition Act, 1951 (for short, the act), the suit-land was in their khudkasht and for that reason it was saved to them and had not vested in the State on the date of vesting, 2-10-1951.

( 3. ) THE trial Court dismissed the suit, accepting the defendants case that the suit-land was their khudkasht land. It had not vested in the State. The State had, therefore, no right to grant Patta to the plaintiffs.

( 4. ) THE plaintiffs went in appeal, and the lower appellate Court reversing the findings of the trial Court, decreed the suit. It held that the suit-land was not the khudkasht land of the defendants. It had, therefore, vested in the State and the Patta (Ext. P-2) granted to the plaintiffs is valid.

( 5. ) THE very short question which calls for determination in this appeal is what is meant by khudkasht land. Section 4 (2) of the Act which saved the khudkasht land to an ex-Zamindar, is in the following terms :

"s. 4 (2 ). Notwithstanding anything contained in sub-section (1), the proprietor shall continue to remain in possession of his Khudkasht land so recorded in the annual village papers before the date of vesting. " Section 2 (c) of the Act defined khudkasht as follows :-

"s. 2 (c ). "khudkasht" means land cultivated by the Zamindar himself or through employees or hired labourers and includes sir lands. "

( 6. ) INTERPRETING the provisions of Sections 2 (c) and 4 (2) of the Act, A. P. Sen, J. (as he then was), speaking for the Division Bench, laid down in Khuman Singh vs. Dhan singh, 1971 MPLJ 750 = 1971 JLJ 577, that emphasis is laid on personal cultivation and the words "so recorded" imply that the land must not only be "khudkasht" within the meaning of Section 2 (c) but must also be so recorded immediately before the date of vesting within the meaning of Section 4 (2 ). (Please also see State of M. P. vs. Ramratan 1984 RN 171 and Vishal Singh vs. Brijraj Singh, 1964 JLJ SN 5 (HQ ).

( 7. ) THERE is no denying the fact that the defendants ancestors were the zamindars. The question would be whether at the time of the abolition of the zamindari the suit-land was personally cultivated by the defendants and it was recorded as the khudkasht of the defendants. 2 19-1951 was the date of vesting under the Act. The law required that the land should be actually recorded as khudkasht before the date of vesting.

( 8. ) AS to the personal cultivation of the suit-land by the defendants, it is sought to be made out that grass was being grown on it at the relevant time, i. e. , before the date of vesting. It would be pertinent to note that the defendants had not come to the Court with such a case by way of their pleadings in the written statement. What is to be seen is whether in and before Samvat 2007 was the suit-land recorded as khudkasht ? The khasra for Samvat 2007, Ext. C-1, had been totally misread and misconstrued by the trial Court, when it said that the defendants ancestor Mst. Bitto Bais name was recorded in column 5 of the Khasra as cultivator. This is totally wrong. Column No. 5 of that Khasra (for Samvat 2007) wherein ought to be recorded the name of th