Appeal No 582 of 1965
Appeal by special leave from the judgment  and order dated August 23 1961 of the Madras High Court in Appeal No 157 of1957
CR Pattabhiraman and R Thiagarajana for the appellants
Vedantachari G Kausalya and section Balakrishnan for the respondent
The Judgment of the Court was delivered by Hegde J
This is an appeal by special leave
It is directed against the decision of the High Court of Madras in AS No 157 1957
This case has a fairly long history but we shall set out in this Judgment only such facts as are necessary for the decision of the issues debated before us
In the course of his arguments Mr CR pattabhiraman learned Counsel for the appellant urged two grounds in support of this appeal
They are 1  the appellant being an occupancy tenant  of the suit properties he cannot be evicted from the land 510 in view of the provisions of the Madras Estates Land Act Madras Act I of 1908 as amended by the Madras Estates Land Third Amendment Act Madras Act XVIII of 1936 and 2 that under any circumstance the appellant should be held as enjoying the lands in question by personal cultivation and there fore he cannot be evicted in view of the provisions of the Madras Cultivating Tenants Protection Act Madras Act XXV of 1953
The respondent is the owner of the suit properties
It leased out two different portions of those properties to the appellant under two lease deeds dated 11 9 1945 and 27 7 1946 Exhs
A 7  A 8 respectively for a period of three years
Even before the lease period came to an end the respondent sued the appellant for the possession of the suit properties on various grounds
The appellant pleaded that the cannot be evicted from the suit properties in view of the protection afforded to him by section 6 of the Madras Estates Land Act
He claimed occupancy right  in the suit properties on the basis of the provisions of that Act
The trial court upheld his contention and dismissed the suit
But in appeal the High Court held that as the case fell within the scope of section 85 of the Madras Estates Land Act the appellant was not entitled to the benefit of section 6 of that Act
It accordingly allowed the appeal and remanded the case to the trial court for the trial of the other issues
During the pendency of the appeal in the High Court the Madras Cultivating Tenants Protection Act came into force
On the basis of the provisions of that Act the appellant claimed before the trial court after remand that he should be considered as a cultivating tenant under that Act and if so held he cannot be evicted from the suit properties
Both the trial court as well as the High Court rejected both the aforementioned contentions of the appellant
As regards the occupancy right pleaded they held that the matter is concluded by the earlier decision of the High Court
The trial court held that the appellant cannot be considered as a cultivating tenant under the Madras Cultivating Tenants Protection Act as he is not proved to have cultivated the properties by his own physical labour as claimed by him
That Court opined that mere supervision of the work of the hired labour cannot be considered as Physical labour of the appellant
The High Court affirmed this conclusion observing But the evidence disclosed that the cultivation of the suit lands was carried on by the appellant solely with the aid of hired labour
Neither the appellant nor any member of his family took part in the cultivation operations in respect of the suit lands
We therefore agree with the learned District Judge in his view that the appellant does not satisfy the test of carrying on personal cultivation to qualify for becoming a cultivating tenant
He could not therefore claim the benefits conferred by the various protection Acts in force
 511 We have to first decide whether the appellant can be permitted to raise the contention that he has occupancy right in the suit properties in view of the decision of the High court of Madras in AS No 241 of 1949
In other words whether that decision operates as res judicata as regards his claim to the occupancy fight
We are unable to agree with Mr Pattabhiraman that the High Court did not finally decide the appellant s claim to occupancy right in the suit properties in AS No 241 of 1949 and that it merely made some tentative observations in respect of the same leaving the matter for a fresh decision by the trial court
The High Court has specifically gone into the appellant s claim to occupancy right examined the relevant provisions of the Madras Estates Land Act took into consideration the decisions bearing on the point and thereafter came to a firm conclusion that the appellant s claim is unsustainable
The case was remanded to the trial court for the trial of the issues that have not been decided earlier
Therefore we have now to see whether the plea of occupancy right can be gone into afresh
There is hardly any doubt that the trial court could not have gone into that issue again
It was bound by the Judgment of the High Court
It is also clear that that decision was binding on the Bench which heard the appeal
On this question judicial opinion appears to be unanimous and it is a reasonable view to take
We are unable to agree with the contention of the respondent that the decision of the High Court of Madras in AS No 241 of 1949 on its file precludes the appellant from reagitating in this Court the plea that he has occupancy right in the suit properties
An identical question came up for decision in this Court in Satyadhyan Ghosal and Ors
vs Sm
Doorajin Debi and Ant1 wherein this Court ruled that such a decision can be challenged in an appeal to this Court against the final Judgment
As it is open to the appellant to recanvass the correctness of the decision of the High Court regarding his claim for occupancy right we shall now go into the merits of that claim
The suit land was in an Inam village but it was not an estate  within the meaning of the Madras Estate Land Act as it originally stood but it became an estate  by virtue of the amending Act XVIII of 1936
The lands in dispute are not admittedly private lands 
Prior to the amending Act came into force the respondent had obtained a decree for possession against the tenants who were then in the suit lands
It is also not in dispute that no tenant had obtained any occupancy fight in those lands prior to 1936
Therefore all 1  512 that we have to see is whether the appellant can be said to have acquired occupancy right in those lands in view of the leases in his favour
For deciding this question we have to examine the scope of section 61 and section 85 of the Act as they now stand
Section 61 reads thus Section 61  Subject to the provisions of this Act every ryot now in possession or who shall hereafter be admitted by a landholder to possession of ryoti land situated in the estate of such land holder shall have a permanent right of occupancy in his holding
Explanation 1 
For the purposes of this Sub section the expression every ryot in possession  shall include every person who having held land as a ryot continues in possession of such land at the commencement of this Act
Explanation 2
In relation to any inam village which was not an estate before the commencement of the Madras Estate Land Third Amendment Act 1936 but became an estate by virtue of that Act or in relation to any land in an inam village which ceased to be part of an estate before the commencement of that Act the expression now  and commencement of that Act  in this sub section and Explanation 1 shall be construed as meaning and thirtieth day of June 1934 and the expression hereafter  in the sub section shall be construed as meaning the period after the thirtieth day of June1934
 Section 8  5  reads as follows If before the first day of November 1933 the landholder has obtained in respect of any land in an estate within the meaning of Sub clause d of Clause 2 of Section 3 a final decree or order of a competent Civil Court establishing that the tenant has no occupancy right in such land and no tenant has acquired any occupancy right in such land before the commencement of the Madras Estates Land Third AmendmentAct 1936 the land holder shall ifthe land is not private land within the meaning of this Act have the right notwithstanding anything contained in this Act for a period of twelve years from the commencement of the Madras
Estates Land Third Amendment Act 1936 of admitting any person to the possession of such land on such terms as may be agreed upon between them Provided that  nothing contained  in this sub section shall be deemed during the said period of twelve years 513 or any part thereof to affect the validity of any agreement between the land holder and the tenant subsisting at the commencement of the Madras Estates Land Third Amendment Act 1936
 The parties are agreed that the facts of this case satisfy the requirements of section 85 of the Act
That being so the respondent was entitled for a period of twelve years from the commencement of the Madras Estate Land Third Amendment Act 1936 to admit any person to the possession of the suit lands on such terms as may be agreed upon between him and his lessee notwithstanding anything contained in the Act
While section 61 is subject to the provisions of the Act section 85 is not controlled by any other provision of the Act
Therefore if the case falls both within section 6 1  as well as section 8 5  then the governing provision will be section 8  5  and not section 6  1 
Once it is held  that the present case falls within section 8 5  it necessary follows that it is taken out of the scope of section 6 1  But what is argued on behalf of the appellant is that when section 85 says that the land holder shallhave  the right notwithstanding anything contained in the Act for a period of twelve years from the commencement of the Madras Estate Land Third Amendment Act 1936 of admitting any person to the possession of such land on such terms as may be agreed upon between them it merely means that for the said period of twelve years the tenants on the land cannot claim the benefit of section 6 1  of the Act but they get those rights immediately after the twelve years period is over
It was urged on behalf of the appellant that the object of the Act is to confer occupancy right on the tenants in respect of all lands included the inam excepting the private lands  of the inamdar at the same time the legislature thought that in respect of lands coming within the scope of section 8  5  a period of grace should be allowed to the inamdar so that he may adjust his affairs once that period is over all lands other than private lands  would be governed by the provisions of section 61
Another facet of the same argument was that section 61 is the main provision it has general application that provision contains the policy and purpose of the law section 85 is an exception therefore section 61 should be construed liberally and section 85 should be strictly construed with a view to advance the purpose of the law
Further we were asked to take into aid the policy laid down in the proviso to section 85 while ascertaining the legislative intention behind section 85
This proviso applies to agreements entered into between landholders and their tenants prior to the 1936 amendment
It was said that there was no discernible reason for treating the agreements in force on October 31 1936 the date of commencement of the amended Act
differently from agreements entered into after that date and since the legislature has expressly stated that the former shall be in force only for a period of twelve years it is not reasonable to hold that in the case Of leases subsequent to Oct 514 31 1936 it intended to lay down a different rule
We do see some force in these contentions but in our opinion none of these considerations are sufficient to cut down the plain meaning of the words that the landlord has a right of admitting any person to the possession of such land on such terms as may be agreed upon between them Such terms must necessarily include the term relating to the period of the lease
We have to gather the intention of the legislature from the language used in the statute
The language of section 85 is plain and unambiguous
Hence we cannot call into aid other rules of construction of statutes
If it was the intention of the legislature that the terms of the agreements entered into between the land holders and their tenants during the period of the twelve years mentioned earlier should come to an end at the close of the period and thereafter the provisions of the Act other than those in section 85 should govern the relationship between them it should have said so
From the language of section 85 it is not possible to hold that the contract itself is exhausted or stands superseded at the end of the twelve years period mentioned therein
If the legislative intention is not effectuated by the language employed in section 85 then it is for the legislature to rectify its own mistake
It must be remembered that this legislation is in operation only in some parts of the Madras State as it was prior to the formation of the Andhra State in 1954
In other words it is a State legislation
The Madras High Court has consistently taken the view right from 1955 that agreements entered into by virtue of section 85 under which tenants were admitted into possession of lands falling within the scope of that provision do not get exhausted or superseded merely by the expiry of twelve years period mentioned in that sub section
On the other hand under section 8  5  a land holder is given a right during the said period of twelve years to admit tenants to possession of such lands on such terms as may be agreed upon
It was so held for the first time in this very case before it was remanded to the trial court for further trial
That decision is reported in Navaneethaswaraswami
Devasthanam Sikki represented by its Executive Officer vs LK Ganapathi Thevar1
This view was affirmed by a Full Bench of that High Court in Sri Navaneethaswaraswami Devasthanam Sikki represented by its Executive Officer vs
P Swaminatha Pillai2
The learned Counsel for the appellant invited our attention to three decisions of the Madras High Court and one of Andhra Pradesh High Court
The first decision to which our attention was invited is Muminia Damudu and Ors
vs Datla Papayyaraju Garu by Muktyar Putravu Ramalingaswami and Ors3
That is a decision of Hotwill J sitting singly
Therein it was head that when 1 2 ILR 3 AIR 1944 Mad
515 the legislature spoke in section 85 of the tenant acquiring occupancy right during the period between the passing of the final decree and the commencement of the Act it was referring to acquisition of occupancy rights otherwise than under the Act the legislature must have intended by section 85 to exempt from the general operation of section 6 all cases where the 1andholder had obtained a decree prior to 1st November 1933 unless the tenant subsequent to the passing of the final decree had acquired occupancy right independently of the Act
Consequently where the landlord obtained a final decree referred to in section 85 before 1st November 1933 the tenant cannot be said to have acquired occupancy rights under section 6 merely because he was in possession on 30th June 1934 so as to render section 85 inapplicable
We fail to see how this decision bears on the rule with which we are concerned in this appeal
In Korda Atchanna vs Jayanti Seetharamaswami1 Viswanatha Sastri J differed from the view taken by Hotwell
J in the decision cited above
This decision also does not bear on the question of law we are considering
In Thota Seshayya and six ors
vs Madabushi Vedanta Narasimhacharyulu2 a Bench of the Madras High Court while considering the vires of section 85  observed We are satisfied that section 85 is giving some limited privileges for a limited period to the landholders who have obtained decrees before 1st November 1933 has acted on a classification based on some real and substantial distinction beating a reasonable and just relation to the object sought to be attained and that the classification cannot be called arbitrary or without any substantial basis and must be upheld as perfectly valid and not impugning in the least on article 14 or 15 of the Constitution of India
We may add that tenants who have been given now occupancy rights under the third amendment where they had none before cannot reasonably complain of the restrictions put on the acquisition of such new occupancy rights in a few cases where justice requires such restrictions as in section 85
The tenants acquired the right only under those conditions and cannot very well complain about them
 From these observations we are asked to spell out that the learned Judges had come to the conclusion that all contracts entered into between the landholders and their tenants during the twelve years  period mentioned in section 85 came to an end at the end of that period
In the first place this conclusion does not necessarily flow from the observations quoted above
Even if such a conclusion can be spelled out the observations in question are mere obiter on the question for decision before us
That was also the view taken by the Division Bench of the Madras High Court in Nava 1
AIR 1950 Mad
ILR Ll3Sup
CI68 2 516 neetheeswaraswami Devasthanam Sikkil vs L K Ganapathi Thevar1 
In Vadranam Ramchandrayya and ant vs Madabhushi Ranganavakamma2 a Division Bench of the Andhra pradesh High Court followed the decision of the Madras High Court in Thota Seshayya and ors
vs Madabushi Vendanta Narasimbhacharyulu3
Therein again the Court was not called upon to consider the scope of section 85
For the reasons already mentioned we are unableto hold that the appellant had acquired occupancy right in the suit properties
This takes us to the question whether the appellant can be considered as a cultivating tenant  within the meaning of the Madras Cultivating Tenants Act 1955
If he can be considered a cultivating tenant then he cannot be evicted from the suit properties except in accordance with the provisions of that Act
In the Cultivating Tenants Act as it originally stood the definition of a cultivating tenant was as follows  Cultivating tenant in relation to an land means a person who carries on personal cultivation on such land under a tenancy agreement express or implied and includes i any such person who continue in possession of the land after the determination of tenancy agreement
 If this definition had remained unaltered then on the basis of the findings of the trial court and the High Court the appellant could have been held as a cultivating tenant as cultivation today is a complex process involving both mental as well as physical activity
But by the time this case came to be instituted the definition of cultivating tenant  was amended by additing an explanation to the original definition
That explanation reads A person is said to carry on personal cultivation on a land when he contributes his Own physical labour or that of the members of his family in the cultivation of that land The true effect of the amended definition came up for consideration before a Division Bench of the Madras High Court in Mohamed Abubucker Lebbai and anr
vs The Zamindar of Ettayapuram Estate Koilapatti4
 Therein it was held that in order to fall within the definition of cultivating tenant  a person should carry on personal cultivation which again requires that he should contribute physical labour
The use of physical labour includes physical strain the use of muscles and sinews
Mere supervision of work or maintaining of accounts or distributing the wages will not be such contribution of physical labour as to attract the definition
This view was upheld by this Court in section N Sunda 1 19552 MLJ 112
2 1957 2 Andhra Weekly Reports p 114
3 ILR 4 1961 1 MLJP 256
517 laimuthi Chettiar vs Palaniyandayan1 to which one of us was a party
In view of the said decision it follows that on the facts found in tiffs case the appellant cannot be considered as a cultivating tenant
In the result this appeal fails and the same is dismissed with costs
RKPS Appeal dismissed
1 1966 I SCR 450


Summary:
The respondent was the owner of the suit properties leased to the appellants by lease deeds executed in 1945 and 1946 and sued the appellant for their possession on various grounds
The appellant claimed an occupancy right  in the properties and pleaded that he could not be evicted in view of the protection afforded to him by section 6 of the Madras Estates Land Act 1 of 1908
The Trial Court upheld his contention and dismissed the suit but the High Court allowed an appeal holding that as the case fell within the scope of section 85 of the Act the appellant was not entitled to the benefit of section 6 it therefore remanded the case for trial on other issues
During the pendency of the appeal in the High Court the Madras Cultivating Tenants Protection Act came into force and therefore the appellant claimed before the Trial Court after remand that he was a cultivating tenant  within the meaning of the Act and could not for this additional reason be evicted
Both the Trial Court as well as the High Court rejected the appellant s contentions
In the appeal to this Court it was contended on behalf of the appellant that although section 85 of Madras Act 1 of 1908 may govern the present case but when section 85 says that the land holder shall have the right notwithstanding anything contained in the Act for a period of twelve years from the commencement of the Madras Estate Land Third Amendment Act 1936 of admitting any person to the possession of such land on such terms as may be agreed upon between them it merely means that for the period of twelve years the tenants on the land cannot claim the benefit of section 61 of the Act but they get those rights immediately after the twelve years period is over furthermore that section 61 is the main provision it has general application and contains the policy and purpose of the law section 85 is an exception therefore section 61 should be construed liberally while section 85 should be strictly construed with a view to advance the purpose of the law
It was also contended that the Trial Court as well as the High Court were in error in holding that the decision of the High Court prior to the remand was binding on both courts and could not be reagitated before them
HELD Dismissing the appeal
i While section 61 is subject to the provisions of the Act section 85 is not controlled by any other provision of the Act
Therefore if the case falls both within section 61 as well as section 85 then the governing provision will be section 85 and not section 61
As the present case fell within section 85 it necessarily followed that it was taken out of the scope of section 61
513 C D From the language of section 85 it is not possible to
hold that the contract itself is exhausted or stands superseded at the end of the twelve year period mentioned therein
514 C D 509 Executive Officer vs
LK Ganapathi Thevar  and Sri Navaneethaswaraswami Devasthanam Sikki represented by its Executive Officer vs
P Swaminatha Pillai ILR  referred to
Muminia Damudu and Ors
vs Datla Papayyaraju Garu by Muktyar Putravu Ramalingaswami and Ors
 AIR 1944 Mad 136 Korda Atchanna vs Jayanti Seetharamaswami AIR 1950 Mad 357 Thota Seshayya and six Ors
vs Madabushi Vedanta Narasimhacharyulu ILR and Vadranam Ramchandrayya and Anr
vs Madabhushi Ranganavakamma 1957 2 Andhra Weekly Reports p 114 distinguished
ii On the facts found in the present case the appellant could not be considered a cultivating tenant  after the amendment of the definition of a cultivating tenant  in the Madras Cultivating Tenants Act 1955 became of the addition of the explanation in order to fall within the definition of cultivating tenant  a person should carry on personal cultivation which again requires that he should contribute physical labour
The use of physical labour includes physical strain the use of muscles and sinews
Mere supervision of work or maintaining of accounts or distributing the wares will not be such contribution of physical labour as to
attract the definition
516 G Mohamed Abubucker Lebbai  Anr
vs The Zamindar of Ettayapuram Estate Koilapatti 1961 1 MLJ p 256 and SN Sundalaimuthi Chettiar vs palaniyandayan   referred to
iii The trial court could not go into the question of the claim to an occupancy tenant s right after the judgment of the High Court at the time of the remand
That decision was also binding on the bench which heard the appeal
However the appellant was entitled to reagitate the issue in the present appeal
Satyadhyan Ghosal and Ors
vs Sm
Deorajin Debi and Anr
   referred to