L. R. GANAPATHI 1HEVAR v. SRI NA V Ai"IEETHASWARASWAMI DEV ASTHANAM, SIKKI August I , 1968 [R. S. BACHAWAT AND K. S. fuGDE, JJ.J Madras Estates Land Act 1 of 1908, ss. 6(1) and 8(5)-scope of. Madras
C.~u/1ivating Tenanrs Protection Act 19 'cultivating tenant'- 1neaning of. The respondent was 1he O\>o'Tlcr of the suit properlies leased to the appellants by lease deeds executed in 1945 and 1946 and sued the appel· !ant for thfir possession on various grounds.
The appellant claimed an 'occupancy right' in the properties ancl pleaded that he could not be evicted in view of 1he protection afforded to him by s. 6 of the Madras Estates Land Act I of J 908. The Trial Court upheld his contention and dismissed the •uit but the High Court allowed an appeal holding that as the case fell within the scope of s. 8(5) of the Act, the appellant was not entitled to the benefit of s. 6; it therefore remanded the case for trial on other issues. During the pendency of the appeal in the High Court, the Madras Culti- vating Tenants Protection Act came into force and therefore 1hc appellant claimed hcforc the Trial Court after remand that he was a 'cultivating tenant' within the incaning of the Act and could not, for this additional reason, be evicted. Hoth the Trial Court as \\'ell as the High Court rejected the appellant's contention'\.
In the appeal to this Court it was contended on behalf of the appellant that although s. 8(5) of ~ladras Act I of 1908 may govern the present case, but when s. 8(5) says that the land·holder shall–'have the right not· withstanding anything contained in the Act for a period oJ twelve years from 1he commencement of the \fadra.s E.stale Land (Illird Amcndmcn1) Act, 1936 of admitling any per.son 10 the posse.'>'\ion of .such Jand on such tc'rm.s as may he agreed upon hcl\\'ecn them". it merely means th:1t for the period of tweh·e years. the tenants on the land cannot claim the benefit of s. 6( 1) of the Act but they get those rights immediately after lhe twelve years period (.; over; furlhcrmorc, that s. 6( I) is the main orovi~on; it has general application and contains the policy and purpc:J6e of the law: s. 8(5) is an exception~ therefore s. 6(1) .should be construed liberally \\1hile s. 8(5) should he strictly construed with a view to advance the purpose of the l<l\V.
ft was also contended that the Trial Coun as well as the High C'-0urt were in error in holding that the decision of the High C..ourt prior to the remand \\'as bindtng on both courts and could not be reagitated before then1.
HELD : D.ismissing the appeal. (i) While s. 6( I) i~ suhjcct to the provisions of the Act. s. 8(5) Wi not controlled by any other provision of the Act. Therefore if the case falls both withins. 6(1) as \\'ell ass. 8(5), then the govcrnin~. provision will be s. 8(5) and nots. 6( I). A' the pre.sent case fell within s. 8(_1) it necessarily follo\\'Cd that it was taken
out of the scope of s. 6( l). 1513 C-DJ From tl1e language of -~. 8( 5), it is not possihle to hold lhat the con- lract irsclf is exhausted or stands superseded at the end of the twelve
year period mentioned therein. (514 C-D! c c GANAPATHI v. NAVANEETHASWARASWAMI (Hegde, J.) 50~ Executive Officer v. L. K. Ganapathi Thevar, (1955) 2 M.L.J., 112;. and Sri Navaneethaswuraswami Devasthanam Sikki, represented by its Executive Officer v. P. Swaminatha Pillai, I.L.R. (1958) Mad. 921; referred to.
Muminia Damudu and Ors. v. Datila Papayyaraju Garu by Muktyar Putravu Ramalin!faswami and Ors., A.LR. Mad. 136; Korda Atchanna v. Jayanti Seetharamaswami, A.I.R. 1950 Mad. 357; Thota
Seshayya and six Ors. v. Madabushi Vedanta Narasimhacharyulu, I.LR. l955 Mad. 1151 and Vadranam Ramchandrayya and Anr. v. Madahhushi 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 'cnltivating tenant' in the Madras Cultivating Tenants Act, 1955, because 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 labonr. The nse of physical labour includes physical strain, the use of muscl"" and sinews. Mere supervision of work, or maintaining of accounts or distributing the wages will not be such contribution of physical laboµr as to attract the definition. [516 GJ
Mohamed Abubucker Lebbai & Anr. v. The Zomindar of Ettayapuram Estate, Koilapatti, (1961) (I) M.LJ., p. 256 and S, N. Sundalaimuthi Chettiar v. Palaniyandayan, (1966) 1 S.C.R. 450; referred to. (iii) The trial court could not ~o 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 benoh which · heard the appeal. However, the appellant was entitled to reagitate the issue in the present appeal.
Satyadhyan Ghosal and Ors. v. Sm. Deorajin Debi and Anr., [1960) (3) S.C.R. 590, referred to. CIVIL APPELLATE JURISDICTION : Civil 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 of 1957. C. R. Pattabhiraman and R. Thiagarajana, for the appellants. V. Vedantachari, G. Kausalya and S. Balakrishnan, for the
respondent. The Judgment of the Court was delivered l:Jy Hegde, J. This is an appeal by special leave. It is directed against the decision of the High Court of. Madras in A.S. No. 157 of 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. C. R. Pattabhiraman, lear- ned 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 [1969] i S C.R 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 land~ m question by personal cullivation and therefore he ca~nol be evicted in view
of the provisions of the Madras Cullivating Tenants Protection Act (Madra.s Act XXV of 1953). The respondent is the owner of the suit properties. Ir le~sed out two different portions of those properties to the appdlant under two lease deeds dated 11-9-1945 and 27-7-1946 (Exl1s. 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 ap- pellant pleaded that he cannot be evicted from the suit properties in view of 'the protection ufforded to him by s. 6 of the .\fadra:; Estates Land Act.
He claimed 'occupancy right' in the suit pro- perties 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 scopz of s. 8(5) of the Madras Estates Land Act. the appellant was not entitled to the benefit of s. 6 of that Act.
It accordingly allm\'cd the appeal and remanded the case to the trial court for the t1 i;il 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 daimcd before the trial court after remand that he should be con- sidered as a cultivating trnant 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 hoth the aforementioned con- tentions 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 hy the appellant solely with the aid of hired labour. Neither the appellant nor any member of his family took part in the cultivation opera-
tions in respect of the suit lands. We therefore agr>…e with the learned District Judge in his view that the ap- pellant does not satisfy the test of carrying on personal cultivation to qualify for hecoming a cultivating tenant.
He could not therefore claim the benefits conferred by the various protection Acts in force." c u c GANAPATH! v. NAVANEETHASWARASWAMI (Hegde, J.) We have to first decide whether the appellant can be permit- ted 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 A.S. No. 241 of 1949.
In other words whether that decision operates as res judicata as regards his clalin to the occupancy right. We are unable to agree with Mr. Pattabhiraman that the High Court d.id not finally decide the appellant's clalin to occupancy right in the suit properties in 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 trial court. The High Court has specifically gone into the appellant's claim to occu- pancy right, examined the relevant provisions of the Madras Esta- tes Land Act, took into consideration the decisions bearing on the point and thereafter came to a firm conclusion that the appel- lant'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 oph1ion 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 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. An identical
question came up for decision in this Court in Satyadhyan Ghosal and Ors. v. Sm. Deorajin Debi and Anr. (1 ) 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 mean· ing of the Madras Estate Land Act as it originallv 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 11)
[1969] I S.C.R. that we have to see is whether the appellant can be said to ha1·e 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 s. 6(1) and s. 8(5) of the Act as they .now stand. Section 6( I) reads thus : "Section 6(1) :-Subject to the provisions of thi; 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 per- manent right of occupancy in his holding. Explanation (I). For the purposes of this Sub-sec-
tion, the expression 'every ryot in possession' shall include every person who, having held land as a ryot, continues in possession of sucli. land at the commence- ment 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 (I) shall be construed as meaning and thirtieth day of June 1934, and the ex-
pression 'hereafter' in the sub-section shall he construed as meaning the period after the thirtieth day of June, 1934." Section 8 ( 5) reads as follows : "If before the first day of November 1933 the land-
holder 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 Amendment) Act, 1936, the land-holder shall, if the 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
c !~;-, c GANAPATH! v. NAVANEETHASWARASWAMI (Hegde, I.) or any part thereof to affect the validity of any a.gr~ ment between the land-holder and the tenant subs1stmg 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 s. 8(5) 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 notwithstand- ing anything contained in the Act. While s. 6(1) is subject to
the provisions of the Act, s. 8(5) is not controlled by any other provision of the Act. Therefore if the case ialls both within s. 6 (1) as we]] as s. 8 ( 5) then the governing provision will be s. 8 ( 5) and not s. 6 ( 1). Once it is held that the present case falls within s. 8 ( 5) it necessary follows that it is taken out of the scope of s. 6 ( 1), But what is argued on behalf of the appellant is that when s. 8 ( 5) says that the !and-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 oi such land on such terms as may be agreed upon be- tween them" it merely means that for the said period of twelve years, the tenants on t_he land cannot claim the benefit of s. 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 res- pect of all lands included the inam excepting the 'private lands' of the inamdar; at the same time the legislature thought that in res- pect of lands coming within the scope of s. 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 s. 6(1).
Another facet of the same argument was that s. 6(1} is the main provision; it has gene- ral application; that provision contains the policy and purpose of the law; s. 8(5) is an exception; therefore s. 6(1) should be con- strued liberally and s. 8(5) 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 s. 8(5) while ascertaining the legislative intention behind s. 8(5l. This proviso applies to agreements entered into between land- holders and their tenants prior to the 1936 amendment. It was said that there was no discernible reason for treatinct the agree- ments in force on October 31, 1936 (the date of co~mencement 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 1.0 holcl that in the case of leases subsequent to Oct. (1969] l S.C.R.
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 arc 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 inten- tion of the legislatu,re from the language used in the statute. The
language of s. 8(5) 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 en- tered 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 s. 8(5) should govern the relationship bet- ween them it should have said so.
From the language of s. 8(5), it is not possible to hold that the contract itself is c~hausted or stands superseded at the end of the twelve years period mentioned therein. If the legislative intention is not effectuated by the langu- age employed in s. 8(5) 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 for- mation 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 s. 8(5) 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 s. 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 :he first time in this very case before it was remanded to the trial court for further trial.
l11at decision is reported in Navaneethaswaraswami. Devasthanam, Sikki re- presented by its Executive Officer v. L. K. Ganapathi Thevar('). This view was affirmed bv a Full Bench of that High Court in Sri Navaneethaswaraswami Devasthanam Sikki represented by its
Executive Officer v. P. Swaminatha Pillai( 2 ). 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. v. Dot/a Papayyaraju Garu by Muktyar Putravu Ramalingaswami and Ors. (8). That is
a decision of Horwill, J. sitting singly. Therein it was held that ~hen (!) (1955] 2 M.I..J. Il2. (2) I.LR. (1958) Mad. 921. (3) A.l.R. (1944) Mad. I 36. c c ·-: • GANAPATHI v. NAVANEETHASWARASWAMI (Hegde, J.)
the legislature spoke in s. 8(5) of the tenant acquiring occupancy right during the period between the passing o~ the final d~~:e and the commencement of the Act, it was refernng to acqms1tlon of occupancy rights otherwise than under the Act; the legislatur~ must have intended by s. 8(5) to exempt from the general operation of s. 6, all cases where the landholder 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 ins. 8(5) before !st November, 1933, the tenant cannot be said to have acquired occupancy rights under s. 6 merely because he was in possession on 30th June 1934 so as to render s. 8(5) inapplicable. We fail to see how this decision bears on the rule with which we are concerned in this
appeal. In Korda Atchanna v. Jayanti Seetharamaswami('), Viswanatha Sastri, J. differed from the view taken by Horwell, 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. v.
Madabushi Vedanta Narasimhacharyulu('), a Bench of the Madras High Court while considering the vires of s. 8 ( 5) observed : "We are satisfied that s. 8(5) is giving some limited privileges for a limited period to the landholders who
have obtained decrees before !st November 1933, has acted on a classification based on some real and substan- tial distinction bearing a reasonable and just relation to the object sought to be attained, and that the classifica- tion cannot be called arbitrary or without any substan-
tial basis, and must be upheld as perfectly valid and not impugning in the least on Art. 14 or 15 of the Constitu- tion 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 com- plain of the restrictions put on the acquisition of such new occupancy rights in a few cases where jnstice requires such restrictions as in s. 8 ( 5). The tenants
acquired the right only under those conditions and can- not 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 dudng the twelve years' period mentioned in s. 8(5) 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, ihe observations in question are mere obiter on the question for decision before us. That was also the view ta~i by the Division Bench of the Madras High Court in Nava- (I). A.IR. 1950 Mad. 357.
L13Sup.CT/68-2 (2). T,L.R. [1955] Macl. 11 >1. [ 1969] 1 s.c.R. .1eeiheeswaraswami Devasthanam Sikkil v. Ganapathi Thevar('). In Vadranam Ramchandrayya and a11r. v. Madabhushi Ranganavakamma('), a Division Bench of the Andhra Pradesh
High Coun followed the decision of the Madras High Coun in Thota Seshayya Qlld ors. v. Madabushi Vendanta Narasimbhachar- yulu(3). Therein again the Court was not called upon to con-
sider the scope of s. 8(5). For the reasons already mentioned we are unable to 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~ a cultivating tenant then he cannot be evicted from the suit pro- perties except in accordance with the provisions of that ACL In the Cultivating Tenants Act as it originally stood the definition of a cultivating tenant was as follows :-
"Cultivating tenant in relation to any land means a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied, and in- cludes (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 considera- tion before a Division Bench of the Madras High Coun in Mohamed Abubucker Lebbai and anr. v. The Zamindar of Etta- yapuram Estate, Koilapatti(').
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 Coun in S. N. Sunda- (1) (1955) 2 ~.L.J. 112.
(2) (1957) 2 Andhr:i Weekly Report•, p, 114, (3) 1.L.R. (1955) ~!od. 1151 (4) (1%1) I M.l.J. p. 256. c GANAPATH! v. NAVANEETHASWARASWAMI (Hegde, J.) laimuthi Chettiar v. Palaniyandayan(') 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.
In the result, this appeal fails and the same is ilismissed with costs. R.K.P.S . Appeal dismissed. (J) [1966] l S.C.R. 450.