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1969 DIGILAW 244 (KER)

Dudachan v. Sreenivasa Kini

1969-10-28

T.S.KRISHNAMOORTHY IYER, V.P.GOPALAN NAMBIYAR

body1969
Judgment :- 1. The question raised in the second appeal relates to the right of a Varamdar' defined in the Kerala Land Reforms Act, 1963 (Act 1 of 1964) to restrain the land-owner by a decree for permanent injunction from entering therein and exercising the right of prawn fishing. 2. The dispute between the parties relates to 17 acres 70 cents of single crop paddy lands which were the subject-matter of varam agreement between the plaintiff and the defendant for the years 1126 to 1134 evidenced by Exts. D1 to D9. Exts. D10 to D16 are the karars executed in favour of the defendant by which the plaintiff was given the right of prawn fishing in the Nilam during the years 1127 to 1136. 3. The plea on behalf of the plaintiff who was nonsuited by the courts below is that after Act 1 of 1964 he must be considered to be in exclusive possession of the entire 17 acres 70 cents of the Nilam with the result that the landowner is not entitled to exercise the right of prawn fishing therein. S.2 (60) of Act 1 of 1954 defines 'varam' and 'varamdar' thus: "'Varam' means an arrangement for the cultivation of nilam with paddy and sharing the produce, made between the owner or other person in lawful possess ion of the nilam and the person who undertakes cultivation under such arrangement and includes the arrangements known as pathivaram, pankuvaram and pankupattam; and 'varamdar' means the person who undertakes cultivation under a varam arrangement." It is agreed between the parties that Exts. D1 to D9 evidence a varam arrangement coming under the above definition. 4. The point to be considered is whether the plaintiff who is a varamdar can prevent the defendant from exercising the right of prawn fishing in the property. The right of prawn fishing was not the subject-matter of varam arrangement either under Exts. D1 to D9 or under Exts. D10 to D16. Under Exts. D10 to D16 the right of prawn fishing for each year was given to the plaintiff by the defendant for a definite sum of money and the legal effect of Exts. D10 to D16 is only to create a license in favour of the plaintiff. D1 to D9 or under Exts. D10 to D16. Under Exts. D10 to D16 the right of prawn fishing for each year was given to the plaintiff by the defendant for a definite sum of money and the legal effect of Exts. D10 to D16 is only to create a license in favour of the plaintiff. The submission of the learned counsel for the plaintiff was based on the fact that 'varamdar' is a 'tenant' under S.2 (57) of Act 1 of 1964 and therefore he should be considered to be in exclusive possession of the property from the date of Act 1 of 1964 and the owner is not entitled to interfere with his right and enjoyment of the holding. So the argument is that the attempt on the part of the landlord to enter into the property for exercising the fishery rights is an interference with the enjoyment of the property by the varamdar and has to be prevented by a decree for injunction. S. 2, sub-S. (57) which defines 'tenant' states: "tenant' means any person who has paid or has agreed to pay rent or other consideration for his being allowed by another to possess and to enjoy the land of the, latter, and includes (a) 0) a person who is deemed to be a tenant under S.4, S.5, S.6. S.7, S, 8, S.9 or S.10". S.10 which alone is relevant in this connection reads: "Certain other persons to be deemed tenants: Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, the following classes of persons shall be deemed to be tenants (i) (iii) a varamdar." The plea of the learned counsel for the plaintiff was that even though a varamdar is brought in S.2 (57) of the Act in an inclusive manner when once he is a tenant under the Act he must be deemed to be one who has been allowed by the owner to possess and to enjoy his land. However ingenious this contention may be it is difficult to accept it as tenable. S.10 declares a varamdar to be a deemed tenant and he has been brought in as a tenant in the definition clause not because he is qualified to become one under the body of the definition clause. However ingenious this contention may be it is difficult to accept it as tenable. S.10 declares a varamdar to be a deemed tenant and he has been brought in as a tenant in the definition clause not because he is qualified to become one under the body of the definition clause. The word 'include' observed Lord Waston in Dilworth v. Commissioner of Stamps. Dilworth v. Commissioner for Land and Income Tax, (1899) A. C. 99 at 105 is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occuring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include." As was pointed out by De souza, A. J. C. in Emperor v. Jiand, AIR 1928 Sind 149 at 153: "It is a well-known rule of interpretation that the word 'includes' is used as a word enlargement and ordinarily implies that something else has been given beyond the general language which precedes it; to add to the general clauses a spices which does not naturally belong to it". 5. It thus follows that a varamdar because of S.2 (57) is not a tenant for all purposes. In this connection we will refer to the decision in Emperor v. B. H. De souza, I. L. R. (1911) 35 Bombay 412, where it was observed thus: "It is recognised in England to be a rule with regard to the effect of interpretation-Jauses of a comprehensive nature such as we have here that they are not to be taken as strictly defining what the meaning of a word must be under all circumstances, but merely as declaring that things may be comprehended within the term where the circumstances require that they should". S.10 of Act 1 of 1964 itself shows that a varamdar has got only occupation of the land, but such occupation is no doubt considered as possession under S.2 (45) for purposes of the Act. 6. S.10 of Act 1 of 1964 itself shows that a varamdar has got only occupation of the land, but such occupation is no doubt considered as possession under S.2 (45) for purposes of the Act. 6. In this connection the learned counsel for the plaintiff relied on S.13 of Act 1 of 1964 which provides that every tenant shall have fixity of tenure in respect of his holding and no land from the holding shall be resumed except as provided in S.14 to 22 and submitted that after Act 1 of 1964 the right of the landlord is only to get the fair rent fixed or the contract rent and he has no other interest in the property. Though there was an attempt on the part of the learned counsel for the plaintiff to derive some support from the decision in Chori Ouso v. Sasoon Hekgua, 1968 K.L.T. 428, we do not find anything in the said decision to assist him. The quest ion which was decided there was, that a varamdar is a cultivating tenant as defined under the Act and is therefore competent to file an application for fixation of fair rent. Whatever may be the position of a varamdar under Act 1 of 19&4 his position prior to Act 1 of 1964 cannot admit of any doubt at all. A varamdar has no possession and no interest in the land. The utmost that he can claim is the right of a licencee coupled with a grant. We do not think that S.13 of Act 1 of 1964 apart from declaring that his right to cultivate the Nilam as varamdar will not be disturbed by the landowner has conferred on him any right in the Nilam to the prejudice of the owner of the Nilam which he did not have prior to Act 1 of 1964 excepting those specifically conferred by the said Act. We have therefore no hesitation to overrule the contention of the learned counsel for the plaintiff that subsequent to Act 1 of 1964 the varamdar must be deemed to be in possession of the holding. We are using the expression "possession" in contradistinction to the definition of possession under Act 1 of 1964 which includes also the occupation of varamdar. 7. The learned counsel for the plaintiff then relied on item (viii) in Sl. We are using the expression "possession" in contradistinction to the definition of possession under Act 1 of 1964 which includes also the occupation of varamdar. 7. The learned counsel for the plaintiff then relied on item (viii) in Sl. No. (1) in Schedule III of Act 1 of 1964 which prescribes the rate for calculating fair rent under S.27 of the Act. The said item provides that in respect of Nilam where fishing is carried on for part of the year by a varamdar the rate of rent will be the aggregate of rent fixed as for Nilam and 1/8th of the gross annual income derived from fishing in such manner as may be prescribed. R.18-A which provides for the calculation of gross income from fishing in Nilam reads: "The gross annual income derived from fishing in the case of a nilam where fishing is carried on for part of the year by a varamdar shall be the avarage of the annual income derived from fishing from that nilam for the three years immediately preceding the date of application for determination of the fair rent in respect of the nilam, or, where fishing was not carried on in any year during the three years immediately preceding the date of such application, the annual income derived from fishing for the year in which fishing was carried on the nilam last, immediately preceding the said date". 8. The contention based on the above was that in the case of a Nilam where it is possible for a varamdar to exercise the right of fishing during part of the year, the income from fishing also has to be taken into account in the fixation of fair rent for the Nilam under S.27 of Act 1 of 1964 and this is an indication to show that after Act 1 of 1964 the varamdar alone is entitled to the right of fishing in the Nilam. In our view the entry in item (viii) in Sl. No. (1) of Schedule III of the Act comprehends only those cases where the varamdar in respect of a Nilam has secured the right of fishing as a part of the varam arrangement and will not apply to cases where the right of fishing in the Nilam is the subject-matter of separate agreement between the parties. No. (1) of Schedule III of the Act comprehends only those cases where the varamdar in respect of a Nilam has secured the right of fishing as a part of the varam arrangement and will not apply to cases where the right of fishing in the Nilam is the subject-matter of separate agreement between the parties. In the course of the discussion at the bar the plaintiff's counsel conceded that if on the date of Act 1 of 1964 the landowner had granted the fishing right to a stranger and not to the varamdar, there is no provision in the Act by which the varamdar can interfere with the right of fishing. It was also conceded by the plaintiff's counsel that in such cases the income from prawn fishing need not be taken into account for fixing fair rent as required by item (viii) in Sl. No. (1) of Schedule III of the Act. It was only by an accident that during the period covered by Exts. D10 to D16 the right of fishing was given to the varamdar himself. The right of cultivation of Nilam with paddy and the right of fishing in the Nilam When it is not under cultivation are two independent rights capable of being enjoyed separately without any hindrance to each other. In the case of a varamdar until he purchases the rights of the landowner in the Nilam, the right of fishing will continue only to vest in the latter. We are not shown any specific provision in Act 1 of 1964 by which it can be said that rights in the Nilam which are not the subject-matter of contract between the parties will also vest in the varamdar. 9. We are therefore of the view that the second appeal is without substance and we dismiss the same. No Costs. Dismissed.