Judgment :- 1. The revision petitioners are accused 1 and 4 and they stand convicted by the Munsiff-Magistrate, Ettumanoor under S.379 read with S.34 IPC., and sentenced to pay a fine. They, along with three others, were charged with offences falling under S.379, 506 (ii) and 34 IPC., in that they committed theft of coconuts from Pwl's compound, and when he went and obstructed, he was threatened, brandishing deadly weapons. Accused Nos.1 and 2 are husband and wife, and No. 3 is their daughter. Accused 4 and 5 are labourers with whose help the coconuts are stated to have been plucked. Accused 1 to 3 are kudikidappukars in the property and according to the 1st accused, he is entitled to 10 cents surrounding his kudikidappu under the present Land Reform Act, and it is in that bonafide belief that the nuts were plucked. Learned Magistrate acquitted accused Nos. 2, 3 and S on the ground that no criminal intention can be attributed to them. The act attributed to them is that they collected the nuts, and took them away from the scene. The 4th accused on the other hand, was the climber who according to the learned Magistrate, had shared the dishonest intention of the 1st accused. The conviction and sentence have been confirmed in appeal by the Additional Sessions Judge of Kottayam. 2. I do not think, the conviction entered on the 4th accused, can be sustained. Like the 5th accused he too was only a labourer and if no dishonest intention can be attributed to the 5th accused, there is no reason why the same argument cannot prevail in respect of the 4th accused also. Learned State Prosecutor himself did not press for a conviction against the 4th accused. 3. Now, the case of the 1st accused has to be considered in some detail. He seeks protection on the argument that it was under a bonafide belief that from 1-1-1970 he was entitled to enjoy the 10 cents of property surrounding his kudikidappu that the nuts were cropped by him. In support of the stand taken by him, reliance has been placed by the learned counsel on the ruling reported in Pappu v. Damodaran (1967 KLT. 918); and also Chandi Kumar v. Abanidhar Roy (AIR. 1965 SC. 585). In support of the stand taken by him, reliance has been placed by the learned counsel on the ruling reported in Pappu v. Damodaran (1967 KLT. 918); and also Chandi Kumar v. Abanidhar Roy (AIR. 1965 SC. 585). The Supreme Court held in the above decision: "A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right. By the expression colour of a legal right is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however weak." In the above cited KLT. decision also the learned Single Judge has proceeded almost on the same lines. The question therefore, that arises for consideration is whether the belief entertained by the accused, was bonafide, or that it was only a false pretence. Under S.80-B of the Land Reforms Act a kudikidappukaran is entitled to purchase the kudikidappu occupied by him, and may apply to the Land Tribunal for such purchase; and under S.80-C he is to deposit the first instalment of the purchase price payable by him under sub-section (8) of S.80 A with the Land Tribunal within a period of six months from the date on which the order of the Land Tribunal under sub-section (3) of S.80B becomes final. After the order of the Land Tribunal has become final, and on the deposit of the first instalment of the purchase price or on the deposit of the purchase price in a lump, or where no purchase price is due from the Kudikidappukaran after set off as provided in sub-section (5). of S.803, the Land Tribunal shall issue a certificate of purchase in such form, and containing such particulars as may be prescribed, and thereupon the right, title and interest of the land owner, the intermediaries, if any and the person in possession where he is not the land owner, in respect of the land allowed to be purchased, shall vest in the kudikidappukaran. It is thus clear that the 10 cents to which the kudikidappukaran is entitled as in the present case, would vest in him only after all the formalities are complied with, and the certificate of purchase is issued by the Land Tribunal. The 1st accused was aware of the fact that these requirements of the law have to be complied with, and an application was actually moved by him before the Land Tribunal and that is pending. Before waiting for the final order of the Tribunal, and the issuance of the certificate, he started cropping nuts from the 10 cents which in the above circumstances cannot be justified, and the defence of bonafide claim of right cannot protect him. Learned counsel stated that under S.72 of the Act the landlord's right has become vested in Government from 11 1970 and as such pw.1 has no right to institute the complaint. This, I do not think, is correct. Under S.72 the right, title and interest of land owners, and intermediaries in respect of holdings held by cultivating tenants entitled to fixity of tenure alone will vest in the Government. Of course, tenants will include holders of "Kudiyirippus" also, but "kudikidappukaran" will not come under that. Holder of "kudiyirippu" is different from "kudikidappukaran". "Kudiyirippu" means a holding or part of a holding consisting of the site of any residential building, the site or sites of other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building and easements attached thereto, but does not include a kudikidappu (See S.2 (26)). So, a kudikidappu is not taken in under kudiyirippu. So, a kudikidappu is not taken in under kudiyirippu. S. 2 (25) reads: 'Kudikidappukaran' means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and (a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or (b) who has been permitted by a person in lawful possession of any land to occupy, with or without to pay rent, a but belonging to such person and situate in the said land and 'kudikidappu' means the land and the homestead or the but so permitted to be erected or occupied together with the easements attached there to: Holdings held by cultivating tenants alone will come under S.72 and a 'cultivating tenant' means a tenant who is in actual possession of and is entitled to cultivate the land comprised in his holding. 4. In the above circumstances, it cannot be said that a bonafide belief was entertained by the 1st accused that he is entitled to crop the nuts from the 10 cents surrounding the kudikidappu by virtue of Act 35 of 1969. Having initiated the proceedings before the Land Tribunal for getting possession of the 10 cents, he ought not to have taken the law into his own hands in the mean time, and cropped the nuts. Learned counsel stated also that no physical act of cropping or removal of the nuts was committed by the 1st accused, and from the statement of pw.1 it would appear that he was simply looking on without committing any overt act. This is not correct. In the first place, pw.1 did not depose that the 1st accused was only a silent observer. On the other hand, he has stated that it was at the behest of the 1st accused that the 4th accused climbed the tree, and cropped the nuts; wrongful gain has accrued to him and none else. This is not correct. In the first place, pw.1 did not depose that the 1st accused was only a silent observer. On the other hand, he has stated that it was at the behest of the 1st accused that the 4th accused climbed the tree, and cropped the nuts; wrongful gain has accrued to him and none else. Ist accused is, therefore, the principal offender and in his 342 statement be has taken upon himself the entire responsibility of cropping the nuts. In the circumstances no particular overt act need be proved against him for justifying his conviction under S.379. Of course in the course of his evidence, and also in the written complaint pw.1 exaggerated the incident, but that cannot stand in the way of the substratum of truth being accepted by the court. The charge under S.506 (ii) has rightly been found against by the learned Magistrate. In the circumstances, the conviction and sentence passed on the 1st accused, are confirmed, and the revision petition is dismissed so far as he is concerned; but the revision is allowed so far as the 4th accused is concerned, and his conviction and sentence are set aside, and be is acquitted. Fine, if realised, will be refunded to him.