Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
L.R. GANAPATHI THEVAR
Vs.
RESPONDENT:
SRI NAVANEETHASWARASWAMI DEVASTHANAM,SIKKI
DATE OF JUDGMENT:
01/08/1968
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
BACHAWAT, R.S.
CITATION:
1969 AIR 764 1969 SCR (1) 508
ACT:
Madras Estates Land Act 1 of 1908, ss. 6(1) and 8(5)--scope
of.
Madras Cultivating Tenants Protection Act 19 ’cultivating
tenant’--meaning of.
HEADNOTE:
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 s. 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 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 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 s. 8(5) of Madras Act 1 of
1908 may govern the present case, but when s. 8(5) 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
s. 6(1) of the Act but they get those rights immediately
after the twelve years period is over; furthermore, that s.
6(1) is the main provision; it has general application and
contains the policy and purpose of the law; s. 8(5) is an
exception; therefore s. 6(1) should be construed liberally
while s. 8(5) should be strictly construed with a view to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
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 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 falls both within s. 6(1) as well
as s. 8(5), then the governing, provision will be s. 8(5)
and not s. 6(1). As the present case fell within s. 8(5) it
necessarily followed that it was taken out of the scope
of s. 6(1). [513 C-D]
From the language of ’s. 8(5), 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 v.L.K. Ganapathi Thevar, (1955) 2
M.L.J., 112; and Sri Navaneethaswaraswami Devasthanam Sikki,
represented by its Executive Officer v.P. Swaminatha Pillai,
I.L.R. (1958) Mad. 921; referred to.
Muminia Damudu and Ors. v. Datla Papayyaraju Garu by
Muktyar Putravu Ramalingaswami and Ors., A.I.R. 1944 Mad.
136; Korda Atchanna v. Jayanti Seetharamaswami,
A.I.R. 1950 Mad. 357; Thota Seshayya and six
Ors. v. Madabushi Vedanta Narasimhacharyulu, I.L.R.
1955 Mad. 1151 and Vadranam Ramchandrayya and Anr. v.
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. v. The Zamindar of
Ettayapuram Estate, Koilapatti, (1961) (1) M.L.J., p. 256
and S.N. Sundalaimuthi Chettiar v. palaniyandayan, (1966)
1 S.C.R. 450; 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. v. Sm. Deorajin Debi and Anr.,
[1960] (3) S.C.R. 590, referred to,.
JUDGMENT:
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
of1957.
C.R. Pattabhiraman and R. Thiagarajana, for the appellants.
Vedantachari, G. Kausalya and S. Balakrishnan, for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
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
A.S. 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. C.R. 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 s. 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 s. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
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 A.S. 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 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 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
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. Doorajin Debi and Ant.(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 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) [1960] 3 S.C.R. 590.
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 s. 6(1) and s. 8(5) of the Act as they
now stand. Section 6(1) reads thus:
"Section 6(1) :---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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
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 June,1934."
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 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
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 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 notwithstanding 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 falls
both within s. 6( 1 ) as well 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 land-holder shall"have ....
the right notwithstanding anything contained in the Act for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
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 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 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 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 general
application; that provision contains the policy and purpose
of the law; s. 8(5) is an exception; therefore s. 6(1)
should be construed 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(5).
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 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 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 s. 8(5) should govern the relationship between
them it should have said so. From the language of s. 8(5),
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 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 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 s. 8(5) under which
tenants were admitted into possession of lands falling
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
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 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 v. L.K. Ganapathi Thevar(1). This view
was affirmed by 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. Datla Papayyaraju Garu by Muktyar Putravu Ramalingaswami
and Ors.(3). That is a decision of Hotwill, J. sitting
singly. Therein it was head that when
(1) [1955] 2 M.L.J. 112.
(2) I.L.R. (1958) Mad. 921.
(3) A.I.R. (1944) Mad. 136.
515
the legislature spoke in s. 8(5) 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 s. 8(5)
to exempt from the general operation of s. 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 s. 8(5) before 1st
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(1), 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. v. Madabushi Vedanta Narasimhacharyulu(2), 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 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 Art. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
s. 8(5). 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 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,
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. 357.
(2). I.L.R. [1955] Mad. 1151.
Ll3Sup. CI/68--2
516
neetheeswaraswami Devasthanam Sikkil v. L. K. Ganapathi
Thevar(1) ..
In Vadranam Ramchandrayya and ant. v. Madabhushi
Ranganavakamma(2), a Division Bench of the Andhra pradesh
High Court followed the decision of the Madras High Court in
Thota Seshayya and ors. v. Madabushi Vendanta
Narasimbhacharyulu(3). Therein again the Court was not
called upon to consider 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 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. v. The Zamindar
of Ettayapuram Estate, Koilapatti(4).’ 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
will not be such contribution of physical labour as to
attract the definition. This view was upheld by this Court
in S. N. Sunda-
(1) (1955)2 M.L.J. 112.
(2) (1957) 2 Andhra Weekly Reports, p. 114.
(3) I.L.R. (1955) Mad. 1151
(4) (1961) 1 M.L.J.P. 256.
517
laimuthi Chettiar v. Palaniyandayan(1) 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.
R.K.P.S. Appeal dismissed.
(1) [1966] I S.C.R. 450.
518