Judgment

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 his Judgment only such facts as are necessary for the decision of the issues debated before us.

2. 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 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 before he cannot be evicted in view of the provisions of the Madras Cultivating Tenants Protection Act (Madras Act XXV of 1953).

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."

4. We have to find 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 dorm to the occupancy right.

5. We are unable to agree with Mr. Pattabhiraman that the High Court did not finally deride the appellant s claim to occupancy right in the suit properties m A. S. No.