V. Sethuraman, J.
1. This appeal has been filed by the plaintiff in O.S. No. 841 of 1973 in the Court of the District Munsif of Pollachi. The suit is for an injunction restraining the defendant from interfering with the possession of the suit property. The plaintiff claimed to be a cultivating tenant covered by the provisions of the Tamil Nadu Act XXV of 1955. This suit came to be filed under the following circumstances. There was one Nanjappa Goundar, who had a daughter by name Chinnammal and a grand-daughter by name Kandammal. Nanjappa executed a will on 15th May, 1924, by which he gave a life-interest in the suit property in favour of his daughter Chinnammal and the absolute remainder in favour of his grand-daughter. He died in the year 1941. On 27th October, 1948, Chinnammal and Kandammal granted a lease in favour of the plaintiff. Kandammal died in the year 1932, even before the absolute estate in her favour could take effect. After the death of Kandammal, Chinnammal, the life estate holder executed a sale deed on 31st October, 1953, conveying the suit property in favour of the plaintiff claiming that she was entitled to the entire property. Chinnammal died on 9th December, 1969. After her death, the husband of Kandammal filed a suit O.S. No. 326 of 1970 In the Court of District Munsif, Coimbatore, seeking a declaration that the sale deed executed by Chinnammal was void and could not take effect after her lifetime and also for possession. The suit ended in favour of the husband of Kandammal. There was an appeal, which was dismissed. The husband of Kandammal took out execution of this decree, and then the present suit came to be filed on 29th September, 1973, alleging that the defendant-husband of Kandammal, was attempting to trespass into the suit property and for an injunction restraining him from interfering with the possession of the plaintiff. In the written statement in OS. No. 326 of 1970 the plaintiff put forward the case that he had absolute title in his favour and that he was a bona fide purchaser without knowledge of any defect in title. He did not put forward any case on the basis that, even assuming that his title to the property was not accepted, the prayer for possession could not be granted, as he was a cultivating tenant within the scope of the Tamil Nadu Act XXV of 1955. However, in the present suit he put forward the claim that he was a cultivating tenant entitled to the protection of the Tamil Nadu Act XXV of 1955 and that the husband of Kandammal could not disturb his possession.
2. In the written statement filed by the husband of Kandammal it was pointed out that this plea of the plaintiff being a cultivating tenant entitled to the protection of the Tamil Nadu Act XXV of 1955 was not open to him and was barred by res Judicata in view of the fact that be did not put forward this plea in O.S. No. 326 of 1970. It was pointed out that the plaintiff in the present case had even deposited the mesne profits into the Court as per the directions of the appellate Court in the other suit. The right as a lessee or cultivating tenant was, it was pleaded, merged with the title that he claimed over the property, and that he did not have or continue to have any right as a cultivating tenant after this merger. It was pointed out that the present suit was only an attempt to hold on to possession of the property illegally and that it was only an attempt to resist the execution of the decree, which was binding on him.
3. The learned District Munsif held that there was no substance in the plea of res judicata and that the protection of the tenancy legislation could be claimed at this stage. Reliance was placed on Section 3 of the Madras Cultivating Tenants Protection Act, which enjoined that no cultivating tenant should be evicted from his holding, by or at the instance of the landlord, whether in execution of a decree or order of a Court or otherwise, except for the grounds mentioned in the said Act. As the plaintiff was held to be entitled to the protection as a cultivating tenant, the suit for injunction was decreed. On appeal, the learned Subordinate Judge of Udumalpet reversed this judgment holding that the plaintiff had not proved his tenancy, and that as there was a decree for declaration and possession in favour of the defendant, the plaintiff could not set up the plea of tenancy, as the said plea was barred by res judicata. The result was that the decree passed by the lower Court was set aside and the appeal was allowed It is this judgment which is now contested by the unsuccessful plaintiff.
4. Two questions arise for consideration in the present appeal. The first question is whether the plaintiff is a cultivating tenant entitled to the protection of the Act. The second question is whether even assuming that he is so entitled, the plea that he is a cultivating tenant, was barred by res judicata.
5. As regards the first question, there is no dispute that there was a lease jointly granted by Chinnammal and Kandammal on 27th October, 1948 in favour of the plaintiff. He continued to be in possession of this property as a tenant till 31st October, 1953 when he purchased the suit property from Chinnammal. The sale deed itself is not exhibited in this case. However, there can be no dispute about the fact that that the sale deed would be binding on Chinnammal during her lifetime. As mentioned already, she died on 9th December, 1969. Thus, between 31st October, 1953 and 9th December, 1969 there was a conveyance in favour of the plaintiff and then as a result of the life estateholder's title coming to an end, he lost his title to the property. The learned Counsel for the appellant argued that the appellant-plaintiff would be in the position of a person, who had denied the title of the landlord to the suit property and the lease in whose favour would have come to an end, or would have determined on such denial. Thus, the point that required to be examined is whether this is a case in which it can be stated that as a result of denying title of the landlord, the lease in his favour could be said to have determined.
6. Section 111 of the Transfer of Property Act provides that a lease of immovable property determines by forfeiture in case lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. A Bench of this Court has examined the effect of the determination of the lease in respect of a building by the denial of title of a landlord by a tenant in D A. Sanjeevi Naidu v M.N. Chittibabu Mudaliar. Sanjeevi : AIR1953Mad473 claimed possession and mesne profits. He was granted a decree for possession. The tenant raised the objection in the execution proceedings that notwithstanding the decree, he was not liable to be evicted because of the provisions of Section 7(1) of the Madras Buildings (Lease and Rent Control) Act of 1949. It was provided in Section 7(1) that a tenant in possession of a building shall not be evicted therefrom, whether in execution of a decree or otherwise and whether before or after, the termination of the tenancy, except in accordance with the provisions of that Section. In the second proviso to that section it was provided that where the tenant denied the title of the landlord or claimed right or permanent tenancy, the Controller had to decide whether the denial or claim was bona fide and if he recorded a finding to that effect, the landlord was entitled to sue for eviction of the tenant in a civil Court, which could pass a decree for eviction on any of the grounds mentioned in the section notwithstanding that the Court found that such denial did not involve forfeiture of the lease or that the claim was unfounded. The claim of the tenant in that case was that he came into possession of the building under a lease in his favour on 15th April, 1944 and that though that lease expired in 1947, he must be deemed to be holding over as a tenant, since his claim under the agreement to sell the property in his favour had been negatived by the Court In dealing with this submission it was held that as the tenant had set up title in himself, it might be taken as established that under the general law the tenancy had been duly terminated. The definition of tenant in the Rent Control Act included a person continuing in possession after the termination of the tenancy in his favour and the tenant in that case was found to be such a person. In that appeal against the suit, the tenant's claim for title was negatived. As regards his right as a tenant, it was pointed out that he continued to be a tenant all along and that therefore, he was entitled to the protection of the Rent Control Act. He could not, therefore, he evicted in execution of the decree for possession obtained by the landlord.
7. There is, however a later decision in Veeraswami Naicker and Anr. v. Alamelu Ammal and Ors. : AIR1965Mad442 which appears to take a different view. In that case also there was a lease in favour of the tenant from 29th April, 1933. The landlord terminated the lease on 30 June, 1958. The tenant then denied the landlord's title on the ground that he had purchased the suit site from the landlord himself. The landlord, therefore, gave another notice purporting to terminate the tenancy on the ground that the tenant had denied the title and set up title in himself. A suit for eviction followed. The trial Court as well as the first appellate Court found against the claim of title by the tenant They however, differed on the question whether he was entitled to the protection of the Madras City Tenants' Protection Act of 1922. The lower appellate Court was of the view that he was not entitled to the protection. The definition of 'tenant' in that case also comprehended persons continuing in possession, after the tenancy had come to an end, and in dealing with this question as to whether the tenant in such a case was entitled to the protection, this Court observed at page 192 as follows:
A tenancy may come to an end for a number of reasons, as for instance denial of landlord's title. Such a denial under the ordinary law of transfer of property brings about forfeiture. The argument for the appellant before us in that even such a case will be within the actual words of the third category in the definition (the third category being the persons who continued in possession after the termination of the tenancy). But there is a fallacy in the argument. When a person, who continues to be in possession after termination of tenancy, claims that he does so, as he is entitled to the property, as his own, it is obvious that there is hardly any room for such an owner to seek protection of his possession under the provisions of the Act. Clearly the Act is not intended to protect such owners, for there is no need for it. We are of the view that such a case will not fall within the third category of persons entitled to protection under the Act.
8. The decision in D.V. Sanjeevi Naidu v. M.N. Ckittibabu Mudaliar : AIR1953Mad473 had been cited and has not been noticed.
9. The legal character of the person continuing to hold the property after the termination of the lease in his favour by a denial of the landlord's title in the context of the Madras City Tenants' Protection Act came up for consideration before V. Ramaswami, J., sitting singly in R. Govindaswami v. Bhoopalan and Ors. : (1977)2MLJ206 There was a lease in favour of the tenant who failed to pay the rent. There was a notice of termination of tenancy. The tenant's defence in the suit for recovery of possession was that he had purchased the property under an oral sale and that he was not holding the property as a tenant. The trial Court held that the oral sale pleaded by the tenant was not true and that he was a tenant of the suit site. It was however, held that he was not entitled to an order for sale under Section 9 of the Madras City Tenants' Protection Act, as the provision were not applicable to non-residential buildings. There was a subsequent notification applying the benefit of legislation to the nonresidential buildings also. The question before this Court was whether, where the tenancy had come to an end by reason of the tenan's denial of the landlords title, the tenant could claim, the benefit of the Madras City Tenants' Protection Act. The decision of this Court in veeraswamy Naicker and Anr. v. Alimelu Ammal and Ors. : AIR1965Mad442 was cited as showing that the tenant was not protected by the Act. The learned Judge held that in view of the decision of the Supreme Court in Damadi Lal and Ors. v. Parashram and Ors. : 1976CriLJ1755 the decision of this Court in Veeraswamy Naicker and Anr. v. Alamelu Ammal and Ors. : AIR1965Mad442 would not be good law.
10. In Damadi Lal's case : 1976CriLJ1755 the Supreme Court was concerned with the question of the rights of a tenant in possession, after the termination of his tenancy. Though in some earlier cases it was held chat a person in possession after termination of the tenancy, though entitled to the statutory protection against eviction, had no estate or interest in the property and had only a personal right to remain in occupation, in Damadi Lal's case it was held that this question whether he would be entitled to the benefit of the tenancy legislation would depend upon the provisions of the Act, under which the right is claimed by the tenant, and if the pr. visions showed that the tenant, even after the determination of the tenancy was treated on par with those persons who had contractual tenancy in their favour, the right of the person in possession after the determination of the tenancy was the same as a contractual tenant and that he could not be denied the right of protection under the Act. The learned Judge, therefore, held that the tenant would be entitled to the protection of Madras City Tenants' Protection Act of 1922. In view of this decision, with which I agree, it would follow that the tenant would ordinarily be entitled to the protection even if he had lost his claim for title so long as in origin there was a tenancy and so long as it could be said that he continued to be tenant in possession of the properly even subsequent to the determination of the lease in his favour by reason of his denial of the landlord's title.
11. The learned Counsel for the respondent contended that this principle would not be applicable to the cases where the tenancy legislation conferring certain rights came to be passed after the determination of the lease. In other words, what is sought to be argued in the present case is that the plaintiff in this care had acquired title to the property on 31st October, 1953 when the Madras Cultivating Tenants Protection Act had not been enacted. The submission was that the tenant in the present c. se had lost his position as a tenant in 1953 and that he could not be said to be a person, who continued to be in possession of the property after the determination of the tenancy agreement at the time Act XXV of 1955 came into force.
12. The Tamil Nadu Act of XXV of 1955 received the assent of the President on 24th September, 1955 and came into force thereafter. The definition of 'cultivating tenant' was added in the year 1958. As it originally stood, the definition ran as follows:
Cultivating tenant' in relation to any land....
(i) means a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied; and,
(a) any such person as is referred in Sub-Clause (i) who continues in possession of the land after the determination of the tenancy agreement.
There was an amendment of this provision in the year 1969. The provision as amended in 1969 runs as follows:
(i) means a person who contributes his own physical labour or that of any member of his family in the cultivation of any land belonging to another, under a tenancy agreement, express or implied; and
(a) any such person who continues in possession of the land after the determination of the tenancy agreement.
13. There seems to be some substance in the contention of the learned Counsel for the respondent that the Act would apply only to a person, who was a tenant at the time when the Act came into force. The Act has a preamble saying that it was enacted for the protection of cultivating tenants in certain areas in the State of Madras from unjust eviction. Therefore, for this Act to apply, at the time when the Act came into force, the appellant must have been a tenant, so that there was need for any protection to him from unjust eviction. If the appellant was not a tenant at the time when the Act came into force, he could not claim protection on the basis that he had continued in possession of the land after the determination of the tenancy agreement. Only when at the commencement of the Act he was tenant he would be a tenant who continues in possession of the land after the determination of the tenancy agreement in consequence of the denial of the landlord's title by him. But that is not the position here, as the tenancy had merged with his ownership in the year 1953. This is not one of those cases where his ownership is itself in dispute During the period between 31st October, 1953, and 9th December, 1969 there is no dispute about his being the owner of the property. The only question was whether he was entitled to claim ownership subsequent to that date. He could not maintain his ownership after the date, as the vendor had only a life interest in the property which determined on her death. The result is that he would not be entitled to the protection under the Act.
14. Section 4 of the Act provides for restoration of possession to any cultivating tenant, who was in possession of the land on 1st December, 1953 and who was not in possession thereof at the commencement of the Act. Such a person could apply under Section 4 to the Revenue Divisional Officer for restoration of his possession on the same terms as those applicable to the possession of the land on the 1st December. 1953. This provision also shows that the Act contemplated cases of possession by Cultivating tenant only retrospectively upto 1st December 1953. In this ease, the sale deed in favour of the plaintiff was prior to 1st December, 1953 i.e., on 31st October, 1953 Therefore, it would be unreasonable to give any further retrospective operation to the provision of the statute and grant him protection, as if the Act was in force on or before 31st October. 1953. In Annamalal Goundan v. Venkatasami Naidu and Ors. : AIR1959Mad354 after the expiry of the period of the lease a registered agreement was entered into between the parties under which the properties were sold to the lessee. The balance of consideration due to the vendor was tendered, but the landlord declined to accept it. Hence a sale deed could not be and was not executed. The landlord applied for eviction under the Cultivating Tenants Protection Act. The question was whether the landlord was entitled to evict such a person. It was held that the moment possession was taken under the contract of sale, the original relationship of landlord and tenant ceased to exist and that the landlord could not take advantage of the provisions of the Tamil Nadu Act XXV of 1955 and file an application for eviction. It was also held that it was not open to the landlord to contend that the right of possession claimed by the vendee was referable to the contract of lease after the contract of sale was partly performed. It was contended on the basis of this decision, for the respondent herein that the relationship of landlord and tenant got terminated immediately after 31st October, 1953, in the present case and, that, therefore, there was no tenancy at all thereafter. However in that decision it was not necessary to go into the question whether the person could be covered by the expression 'cultivating tenant', if he was in possession of the property after the determination of the lease in his favour. I do not, therefore, consider that this decision has any application to the case on hand. But that does not in any way affect the decision given above viz., that the appellant was not a tenant of the suit property when Act XXV of 1955 came into force, and was not entitled to claim any tenancy right.
15 Assuming that he is entitled to the protection of Act of XXV 1955, the second question that arises for determination in this case may be examined i.e, whether the plea that he is a 'cultivating tenant' is barred by res judicata. The earlier suit between the same parties was for declaration, possession and mesne profits. There was a decree in favour of Kandammal's husband, that is the defendant herein, and the decree has been affirmed on appeal. There was no second appeal against that decision. At no stage in those proceedings, the plaintiff herein put toward any claim that he was a 'Cultivating tenant.' It cannot be disputed that he could have put forward such a claim as an alternative defence to the prayer for possession, in the prior proceedings, which he did not. A matter which might and ought to have been made ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in such suit and the provisions of Section 11 of the Code of Civil Procedure read, with Explanation IV thereof, would, therefore, apply. The learned Counsel for the appellant submitted that the plea of res judicata would have no force in the present case, as the result of Act XXV of 1955 was only to prevent any decree for possession being executed. Section 3(1) of that Act provides that no cultivating tenant shall be evicted from his holding by of at the instance of the landlord, whether in execution of a decree or order of a Court or otherwise except in the manner provided under that Act Therefore, even assuming that the defendant-respondent had a decree in his favour, it is urged that the decree could not be executed, and the plea of res judicata has no scope for application in the present case. I am unable to agree with this submission. It is true that Section 3(1) prohibits eviction at the instance of the landlord in execution of a decree of a Court. However, the plea of his being a cultivating tenant should have been taken in the earlier proceedings. There is already a decree in favour of the defendant-respondent. That decree cannot be collaterally attacked in the present proceedings. The present suit has come to be filed only because that decree could not be challenged or otherwise resisted in the course of the execution proceedings. This is, therefore, an attempt to set at naught that decree by filing a separate suit. If this plea had been taken in the earlier suit, it would have been suitably adjudicated upon. As the plaintiff did not in those proceedings take up this plea, it is too late in the day for him to take up such a plea, by filing the present suit. The whole scheme behind Section 11 of the Code of Civil Procedure, is to avoid multiplicity of proceedings and the scheme will be set at naught if he is permitted to put forward such a plea at this stage.
16. The result is, the Court below was justified in holding that the plaintiff was barred by res judicata from putting forward his plea based on his being a cultivating tenant. The appeal is dismissed There will be no order as to costs.