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. 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.
(3.) 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.;