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31. Incidentally, if we read the further provisions:

"Since this reservation of grazing land does not constitute 'cultivation' it does not qualify for declaration of sir right under Section 68(3)."

the purpose of the legal fiction created in the Central Provinces Land Revenue Act, Explanation (1) to the definition of the word 'khudkasht' becomes still clearer. The legal fiction was resorted to because, as the aforesaid observations in the Settlement Instructions show, reservation of grazing land did not constitute cultivation and consequently the land so reserved could not come within the definition of khudkasht in Section 2(5) if the aid of the Explanation (1) was not taken. But, if such land had yet to be classed as khudkasht in cases where the necessary 'agricultural practice' was proved, the legislature enjoined on us to treat such 'uncultivated' land as 'cultivated' and thereby included in the definition of the word 'khudkasht'. We may also, at the same time, remember that where the legislature provides that something is to be deemed other than what it is, we must be careful to see within what bounds and for what purpose it is to be so deemed: Gover's case, (1875) 1 ChD 182 at p. 188 and Ex parte Walton: In re, Levy, (1881) 17 Ch D 746 at p. 756.

45. It is because of the aforesaid consideration that we have to consider whether the mere record of land as grass, bir, chhota ghas or by any other name, in the annual papers for the year 1948-49 changes the character of the land which was originally khudkasht and which ought to be legally recorded as khudkasht in consequence.

46. Khudkasht is not a right as sir is. As its name implies, its primary meaning is 'One's own cultivation' and vide the definition in the Central Provinces Land Revenue Act, 1917 minus the Explanation (1), land which is cultivated by the proprietor as such and which is not his sir. It is because of this emphasis on personal cultivation that a legal fiction had to be resorted to by the legislature when it bid us to treat as cultivated land which was not actually cultivated. Giving the legal fiction its full import for the purpose for which it was created, we arrive at the position that land allowed to lie fallow according to agricultural practice shall be treated as khudkasht even though it is not in personal cultivation of the proprietor as such.

49. Thirdly, when the lands were recorded as khudkasht during the last Settlement even though they were actually not under the personal cultivation of the proprietor, it must have been on the basis that they were fictionally under his cultivation.

50. Fourthly, in my opinion, the Settlement entry could not be made nugatory without any specific adjudication of the rights of a person in whose favour the entry was made.[

51. Fifthly, there is considerable force in the contention of the learned counsel for the proprietor that any other interpretation would create a number of anomalies, such as if the land were in possession of a stranger and thus cut of the persona] cultivation of the landlord, it ought to lose its character as khudkasht but, in fact, it continues to be the khudkasht of the landlord, though in illegal occupation of a stranger, because on the landlord obtaining its possession it is again recorded as his khudkasht.

89. The term 'khudkasht', unlike 'sir' does not denote any special right. It is only a description of the land that is under the personal cultivation of the proprietor. In this connection the decision in 25 Nag LR 16: (AIR 1929 Nag 108) does not lead to a different conclusion. That case only dealt with the question whether the land recorded as khudkasht but left uncultivated and kept under grass by a proprietor was 'Khali Pad', within the meaning of the wazib-ul-arz over which the villagers had a right of grazing their cattle, but that obviously is a different question. Therefore, unless any particular land can properly be deemed to be 'khudkasht" within the meaning of the C. P. Land Revenue Act, it would vest in the State under Section 4(1) of Act I of 1951, whether it was grass land, forest or trees. The basic condition of 'khudkasht" being personal cultivation by the proprietor, it cannot be dispensed with wholly by the explanation. The Explanation can only cover cases where land was initially 'khudkasht' within the main definition but was later allowed to lie fallow for resuming cultivation at a subsequent date. The period of rest would, of course, depend upon the nature of the soil and, therefore, would vary from region to region. The period of rest may thus be determined with reference to the agricultural practice obtaining in any particular part of the country. But it does not mean that the basic condition of agriculture, meaning cultivation, as enunciated by their Lordships of the Supreme Court in (S) AIR 1957 SC 768 (supra), can be dispensed with.