1. The question arising for decision in this appeal is whether a varomdar has possession of the nilam entrusted to him for cultivation and if so what exactly is the scope and extent of such possession. The case of the appellant is that the accused 14 in number, Forming themselves into an unlawful assembly entered the property (paddy land 6 and odd acres in extent, At engandiyoor which the complainant was cultivating under varom arrangement) with the common object of reducing the property to their possession by force, By scaring away the complainant and his men by criminal intimidation and threats, And also to commit mischief by forming mud heaps in the property. The complainant on seeing the danger before him, Reported immediately to the valapad police station. Accused 1 and 2 are the jenmis or owners of the property and the case of the complainant is that they had permitted him to cultivate the nilam with paddy on pankuvarom and he has been doing the cultivation from 1131. On 17 4 64 petitions were moved by him before the land tribunal, Chowghat for fixation of fair rent; exts. P - 2 and p - 3 are the certified copies of the petitions. The filing of the petitions before the land tribunal was not relished by accused 1 and 2 and accordingly they collected their men accused 3 to 14, And on 22 5 64 at about 6 a. M. Entered the property as stated above. The complaint was investigated by the police and it was finally referred as false. The refer notice is ext. P - 1. Pw. 1 the complainant, Thereupon moved the magistrate for appropriate reliefs and his complaint was taken on file as c. C. 897/64. The learned sub magistrate of chowghat found accused 1 and 2 guilty under s. 143,447 and 426 read with s. 109 ipc., And sentenced them to pay a fine of rs. 50/ - each, Under each count; accused 3 to 5 were convicted under s. 143, 447 and 426 and sentenced to pay a fine of rs. 50/ - each, Under each count; accused 6 to 14 were convicted under s. 143 and 447 and sentenced to pay a fine of rs. 50/ - each, Under each count. Learned district magistrate of trichur in appeal has quashed the conviction and sentence and acquitted the accused. He has held that a varomdar has no possession of the land which he cultivates and he cannot, Therefore, Sustain an action in trespass against the landlord. Learned counsel who appeared for the appellant did not press for the confirmation of the sentence under s. 143 and 426. He confined himself only to the offence under s. 447 ipc.

2. The question, Therefore, That arises for consideration, As already indicated, Is whether the varomdar has possession of the land entrusted to him for paddy cultivation and whether such possession would clothe him with the right to keep away from the property, Everybody else including the jenmi. For a proper and full consideration of the question, We have necessarily to turn back and examine the various enactments at least from act i of 1957 which have a direct bearing on the question. The legal position before act 1 of 1957 was that a'pankupattomdar' had no possession of the land and he was entitled only to a share of the crop as set forth in the agreement between him and the landlord, Or according to the custom that prevailed in regard to such mode of cultivation. In act 1 of 1957, Varomdar' is defined as:

"a person who under the system known as varom, Pathivarom, Pankuvarom or pankupattom or by any other name, Has agreed, Whether in writing or not, With the owner or other person in lawful possession of any land to cultivate the land and share with him the produce of the land"

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3. In interpreting the scope and limits of the possessory powers enjoyed by the varomdar by virtue of the above provision in the enactment, A single bench of this court held in balan v. State of kerala (1959 klt. 885 (2)) that the owner is in lawful possession of the land and that the only right which the 'varomdar' gets under the agreement is the right to cultivate the land and share the produce.

4. Since then, Act 4 of 1961 (the kerala agrarian relations act, 1960) and act 1 of 1964 (the kerala land reforms act, 1963) were passed, Which according to the appellant have enlarged the powers of the varomdar and have raised his status to that of a "tenant" with fixity of tenure. After the passing of act 4 of 1961 this question came up again before another single bench of this court in dudachan v. Sreenivasa kini (1962 klt. 1) and there it was held that a varomdar has possession of the land. In para 5 of the judgment the learned judge would observe:

"the learned advocate of the respondent takes objection to this line of reasoning. According to him, The varomdar under act 4 of 1961 has only two" rights, Namely, The right to fixity of tenure and the right to purchase the land occupied by him under varom. He goes even to the extent of contending that the varomdar has no possession of the land he is holding under the varom arrangement. This contention, I mean the contention that the varomdar has no possession of the land held by him in varom, Is evidently untenable, Because s. 2 (40) specifically lays down that the occupation of land by a varomdar is possession. I fail to understand why the benefits contemplated by the act to a varomdar should be confined to the right of fixity of tenure and to the right to purchase the lands with him under varom. The respondent's learned advocate further contends that the land held by a varomdar under a varom arrangement is not a holding. I do not see any force in this contention either. S. 2 (15) defines 'holding' as a parcel or parcels of land held under a single transaction by a tenant from a landlord. If a varomdar is a tenant, Which undoubtedly he is under s. 2 (50) (i) (h), Then a varom arrangement regarding a parcel of land between the varomdar and the landlord is certainly a holding under s. 2 (15). I do not find any escape from the position that the legislature intended to confer the status of a tenant on the varomdar and the several provisions of the act indubitably point in that direction. "

5. This was followed by another single bench decision 1963 klt. 408 where the view taken in 1959 klt. 885 (2) (cited supra) was reiterated and the learned judge observed:

"clauses (54) and (55) of s. 2 of act 4 of 1961 make it clear that a varomdar has, As such, Only the right to cultivate the land in question with paddy (and in the absence of some other contract which would not be part of the varom arrangement, No right of fishing which is the right the petitioner claims) and that the person under whom he holds is the person in possession under law. Clauses (40) makes it equally clear that a varomdar like any other licensee has only a right of occupation which is not possession in the legal sense of that word although it is called possession for the purposes of the act, And a varomdar being made a tenant under clause (50) only by the device of an inclusive definition it does not follow that he satisfies the definition in the body of the clause as a person allowed to possess and to enjoy the land."

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6. It is in this background that we have now to approach the question. The status of a tenant has now been conferred on the varomdar and he is now entitled to all the rights and privileges which the act (act 1 of 1964) has conferred on the "tenant". S. 2 (57) of act 1/64 defines a 'tenant' as a person who has paid or has agreed to pay rent or other consideration, For his being allowed by another to possess and enjoy the land of the latter and under s. 10 the varomdar has also been brought under the above category. The varomdar has thus the right "to possess and enjoy' the land. From the expression 'in lawful possession' appearing in s. 2 (60) where 'varom' is defined, It was argued that even after the creation of a varom tenure the possession would continue with the landlord only, For all legal purposes. We do not think that the above expression used in s. 2 (60) could be interpreted in that manner. S. 2 (60) runs:

"'varom" means an arrangement for the cultivation of nilam with paddy and sharing the produce, Made between the owner or other person in lawful possession of the nilam"

this, In our view, Can mean only the person who was in lawful possession at the time the varom arrangement was entered into; in other words, The person who can grant varom may fall under either of the two categories, I. E., The owner, Or other person in lawful possession like the lessee, Sub - lessee, Manager of a joint family, Karnavan of a tarwad etc. Such persons alone can lawfully enter into a varom arrangement. A trespasser, For instance though in possession cannot make a varom agreement since his possession is not lawful possession; he is only in unlawful possession. The expression 'lawful possession can qualify only the latter, I. E. "other person" and not the owner. Owner's possession will always be lawful possession. 'possession' is defined in s. 2 (45) in these terms:

it "possession" in relation to land includes occupation of land by a person deemed to be a tenant under s. 4, 5, 6, 7, 8, 9 or 10. "

we have already seen that varomdar has been salvaged and brought into the fold of the real tenant by s. 10. So the possession in relation to land must enure to his benefit also. Learned counsel for the respondents argued that possession under s. 2 (45) connotes only a limited possession for the purposes of the land reforms act and it is not possession for all legal purposes. We saw from s. 2 (57) that a tenant is allowed to possess and enjoy and we have also seen from s. 10 that a varomdar has been given the status of a tenant and it must necessarily follow that the legal incidents which flow from possession in relation to a "tenant" must enure to the varomdar also since he too has been brought under the category. It is true that the status of a tenant is conferred on the varomdar by the device of a deeming provision but that does not disqualify him from claiming the benefits, Rights and privileges that a normal tenant is entitled to claim under the act. He is a "cultivating tenant" and the land held by him is a "holding" and he can apply to the land tribunal for fixation of fair rent and he has also the right under s. 53 to purchase the landlord's rights. His rights are also heritable and alienable as is seen from s. 50. None of these incidents would attach itself to a licensee. It would, Therefore, Be improper to equate the varamdar with a licensee. A licensee under certain circumstances is revocable by the grantor. The rights possessed by a varomdar, On the other band, Are not subjected to any such limitations. His possession is entitled to the same protection, As the possession of a tenant under the kerala land reforms act. This would account for the absence in the act of protective measures which we see in act 30 of 1958. That act was in amendment of act 1/57. Under act 1 of 1957 we saw that the varomdar had no possession, But he had the right to cultivate. Being one not in possession of the land for all legal purposes, His right to cultivate had to be protected; in other words, The limited or restricted possession that he enjoyed had to be safeguarded against inroads or interference from others including the landlord. Hence by way of amendment, S. 7 - a and 7 - b were incorporated. S. 7a (1) confers upon a person claiming to be in possession and cultivating the land, The right to apply to the tahsildar if prevented or obstructed from cultivating the land that he is entitled to cultivate, And the tahsildar is given the power to restore him to possession and under sub - section (3) the person obstructing is made liable to punishment with imprisonment for a term which may extend to 6 months or with fine which may extend to rs. 500/ - or with both. These penal provisions are absent in the present act for the obvious reason that they are unnecessary since the possessory rights now held by the varomdar would normally entitle him to protection under the ordinary penal law of the lands on a careful consideration of the various provisions of the act it is difficult for us to see that the possession of the varomdar is in any way abridged or inferior to the possession of the land by the other tenants. The possession considered in the two sets of rulings quoted above was: (1) possession for purposes of paying the tenant's dues in kind or in money at his option; and (2) possession of land in the interval between the harvest and the raising of the crop for the next term (the question considered in the latter case was whether possession of the varomdar would entitle him to fishing at a time when the land is not subjected, To paddy cultivation). In the present case on the other hand we are concerned with possession for purposes of raising the paddy crop and whether such possession would invest the varomdar with the right to maintain an action in criminal trespass against the owner.

7. The object of the unlawful assembly, It is alleged, Was to drive away the tenant from the property. The prosecution case is that the complainant and his men were engaged in agricultural operations in the land when accused 3 to 14 under the orders of accused 1 and 2 entered the land and with threats and intimidation drove them away, And they were prevented from carrying on the cultivation. These acts, The owner has no right to do. The varom tenant is entitled to fixity of tenure just like any other tenant and we have already seen that his right to cultivate the land with paddy cannot, On any account, Be questioned. The landlord's right is only to get his share of the paddy and for that limited purpose his entry might be justified; but such entry should be bonafide and not with the object of molesting the varomdar in his act of cultivation.

"the plea of bonafide claim of right is not always a valid defence and is capable of being rebutted by proof of the intent specified in s. 441. Thus where the accused asserting a bonafide claim, Entered land with intent to stop its ploughing by the complainant who had possession, The entry with intent to commit an offence under s. 441, Made them liable under s. 447 in spite of their assertion of a bona fide claim based on title."

(vide criminal law of india by mayne, 4th edn. P. 734).

disturbance of the tenant's right to cultivate is thus an offence and the entry into the property with intent to commit such an offence or to intimidate, Insult or annoy the person in possession would amount to criminal trespass. Here, We are confronted with a difficult situation. The learned trial magistrate has convicted the accused for mischief and criminal trespass and acquitted them of criminal intimidation. The offence of mischief, As already indicated, Was not pressed before us. Thus the offence that calls for consideration is only criminal trespass falling under s. 447 ipc. But before entering a conviction under s. 447 it has to be clearly found that the complainant was in possession as varomdar. The first court, No doubt, Has entered a clear finding on this question. The learned magistrate would observe:

"under these circumstances i find that pw. L was in possession of the said paddy fields on a pankuvarom basis at the time of incident."

the learned appellate magistrate in acquitting the accused has not applied his mind to this aspect of the case. It is his duty on a reappraisal of the evidence to uphold or reject this finding. That he has not done. On the other hand, He has proceeded in a hypothetical manner saying that:

"even assuming for argument's sake that pw. 1 was cultivating his paddy fields on pankuvaram basis an offence of criminal trespass will not stand."

this is not the way; he must find one way or the other. We are, Therefore, Compelled to remand the case to the appellate magistrate for re - hearing and disposal afresh after entering a finding on the question whether the complainant is a varomdar and that he was in possession as such. He will also address himself to the question whether the evidence in the case has established the ingredients of criminal trespass as set forth in s. 441 ipc.

8. The judgment of the learned appellate magistrate is hence set aside and the case is remanded to his court for a rehearing and disposal according to law.

9. In the connected appeals, Criminal appeal nos. 75 and 76 of 1966 also the decision of the learned appellate magistrate will stand reversed and the cases remanded to him for rehearing and disposal in the light of the observations made in criminal appeal 74 of 1966.

remanded.