Case: L.R. Ganapathi Thevar Vs. Sri Navaneethaswaraswami Devasthanam,Sikki

3. 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 and 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 he 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 S. 8 (5) 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 offer 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 aforemention 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 too 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."

Reasoning: 5. We are unable to agree with Mr. Pattabhiraman that the High Court did not finally deride the appellants claim to occupancy right in the suit properties m A. S. 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 trialHigh Court has specifically gone into the appellants 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 appellants 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.6. 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.7. We are unable to agree with the contention of the respondent that the decision of the High Court of Madras in A. S. 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.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 Estates 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 right in those lands prior to 1936. Therefore all that we have to see is whether the appellant can be said to have acquired occupancy right in arose lands in view of the leases in his favour. For deciding this question we have to examine the scope of S. 6 (1) and Section 8 (5) of the Act as they now stand.The parties are agreed that the facts of this case satisfy the requirements of Section 8 (5) of the Act.That being so the respondent was entitled for a period of twelve years from the commencement of the Madras Estates 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 6 (1) is subject to the provisions of the Act, Section 8 (5) 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 Sec. 8 (5) and not Section 6was 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 6 (1). Another facet of the same argument was that Section 6 (1) is the main provision; it has general application; that provision contains the policy and purpose of the law; Section 8 (5) is an exception; therefore Section 6 (1) should be construed liberally and Section 8 (5) should be strictly construed with a view to advance the purpose of the law. Further we were ask to take into aid the policy laid down in the proviso to Section 8 (5) while ascertaining the legislative intention behind Section 8 (5).(5).14. For the reasons already mentioned we are unable to hold that the appellant had acquired occupancy right in the suit properties.The true effect of the amended definition came up for consideration before a Division Bench of the Madras High Court in Mohamed Abubucker Labbai v. The Zamindar of Ettayapuram Estate Koilapatti, 1961-1 Mad LJ 256.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 S. N. Sudalaimuthu v. Palanivandayam, 1966-1 SCR 450   = (AIR 1966 SC 469  ) to which one of us was a party. In view of the said decision, it follows that on the facts found in this case, the appellant cannot be considered as a cultivating tenant.