036-SLLR-SLLR-1982-2-LOKU-BANDA-v.-UKKU-BANDA.pdf
704
Sri Lanka Law Reports
(1982) 2 S L R.
LOKU BANDA
v.UKKU BANDA
SUPREME COURT
SHARVANANDA, J., VICTOR PERERA, J., AND SOZA, J.
S.C. 50/80 – C.A. 49/78, M.C. MAWANELLA 4287SEPTEMBER 3, 1982
Administration of Justice Law, Sections 62, 63 – Ande rights protected byAgricultural Lands Law – Magistrate’s duties when breach of peace is threatenedover dispute as to possession rights.
Rasnekkumbura belonged in. equal shares to Loku Banda, Ukku Banda andWarsakone. Loku Banda was an ande cultivator of Ukku Banda's.lot. Disagreementarose and the matter was referred to the Conciliation Board. AH three agreedto a survey and by survey Plan No. 1016 Lot 1 was allotted to Ukku Banda,Lot 2 to Warsakone and Lot 3 to Loku Banda.
On 1.4.76 Ukku Banda cultivated his land but was. dispossessed by Loku Bandaon 2.4.76. On 8.4.76 Loku Banda was ousted.'
The Magistrate inquired into the matter and declared that Loku Banda was.entitled to cultivate Lot 1 as ande cultivator while Ukku Banda was entitled toreceive his landlord’s share until a judgment was given by a competent Court.
The Court of Appeal reversed the Magistrate's Order on the footing that theright to cultivate was an aspect of possession.
Held •
That the right to cultivate can vest in a person different from the person who
has the right to possession.
What the Magistrate had to decide was who was entitled to the right to cultivate.
The Magistrate's finding that Loku Banda had an ande right to cultivate Lot
1 was correct as ande rights are protected by the Agricultural Lands Lawand therefore not wiped out by the certificate of the Conciliation Board.
705
SCLoku Banda v. Ukku Hiuit'a iSuzti. J )
Case referred to:
(1) Kanagasabai v. Mylvaganam (1976) 7H NLR 2R0.
APPEAL from judgment of Court of Appeal:
Sanath Jayalilake for appellant.
Petitioner-respondent absent and unrepresented.
2nd respondent absent and unrepresented.
Cur.adv. vidt.
October 27. 1982SOZA, J.
This appeal raises an important question relating to the interpretationand application of the provisions of sections 62 and 63 of theAdministration of Justice Law No.44 of 1973 (now replaced bysections 66 to 72 , 74 and 75 of the Primary Courts Procedure ActNo.44 of 1979) where Magistrates were called upon to deal withdisputes affecting land which arc likely to cause a breach of thepeace and where only the right to cultivate is in issue.
In the case before us the dispute concerned the right of one LokuBanda the appellant before us to cultivate the one-third portion ofthe paddy field called Rasnekkumbura alias Dettapathe Kumburabelonging to M.V. Ukku Banda the first respondent. The whole fieldcalled Rasnekkumbura alias Dettapathe Kumbura belonged in equalshares to the said Loku Banda, Ukku Banda and one Warsakonc.Loku Banda claimed the right to cultivate not only his own one-thirdshare but also Ukku Banda's one-third share as ande cultivator.Disagreement arose among the three owners and the matter wasreferred to the Conciliation Board of the area. At the inquiry whichthe Board held on 17.1.1975 the three co-owners agreed that thefield be surveyed and divided into three lots and that each of themwould work and from then on possess his separate lot. The Sinhalesewords used in the certificate of the Conciliation Board (1D2) are“Oi&cae)zs>(5iQisiO eiOsdm©iQzad <3@au.2d 80 egsfcS 8i*®Os5
jQzadisOJ Ozacn geo." The field was accordingly surveyed bysurveyor M.B. Ranatunga and divided into three equal lots on13.3.1976 and 9.4.1976. The three lots were depicted in Ranatunga’splan No. 1016 which though marked 1D1 in the proceedings beforethe Magistrate is not before us. Ukku Banda was allotted' Lot 1,Warsakone Lot 2 and Loku Banka Lot 3 in the said plan. Uponthe division being made Ukku Banda began to cultivate Lot No.lbut Loku Banda lost no time in claiming his rights to be the ande
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(1982) 2 S L R.
cultivator of the same Lot. The dispute led to complaints to thePolice being lodged by both Loku Banda and Ukku Banda and theOfficer in Charge of the Aranayake Police ..Station who is the 2ndrespondent before us filing an information on 7.S.1976 relating tothe dispute before the Magistrate of Mawanella.
At the inquiry before the Magistrate Loku Banda contended thatat no stage, had he surrendered his ande rights and to establish theexistence of these rights he produced convincing proofs. He claimedthe right to cultivate Lot No.l which had been allotted to UkkuBanda at the division concluded on 1.4.1976 and he maintained thathe had in fact cultivated this Lot from 2.4.1976 till 8.4.1976 .whenhe was obstructed by Ukku Banda. Ukku Banda relied on thesettlement entered before the Conciliation Board in terms of whichhe claimed he was entitled to cultivate. and possess Lot 1 and he.said he had in fact entered into possession of it^on 1.4.1976 andbegun to cultivate it when on 2.4.1976 he was disturbed by Loku Banda.
.n The learned Magistrate inquired into the matter and by his orderdated 9.11.1977 for which he gave his reasons on 23.11.1977 declaredthat Loku Banda was entitled to cultivate Lot 1 as ande cultivatorwhile Ukku Banda was entitled to receive his landlord’s share of theincome of Lot .1. Ukku Banda was ordered not to obstruct. LokuBanda from cultivating Lot 1 until the tenancy rights.,, pertaining tothis Lot were .resplved.in,the appropriate forum. The. learned Magistratefelt that no question of the wiping out of the ande rights of LokuBanda. had arisen before the Conciliation Board. Indeed such a. question could only be dealt with under- the provisions of theAgricultural Lands Law No.42 of 1973 by the. institutions referredto there.
' It is beyond question that the rights of an ande cultivator are,except in the limited circumstances referred to in the AgriculturalLands Law, virtually unassailable and inalienable. Further theproceedings before.the Conciliation Board do not show that LokuBanda expressly waived his ande rights. A landlord can work andpossess a field through his cultivator. Hence the words “work”(©iQa»d)and “possess”({QaStS) used in the settlement before the ConciliationBoard do not necessarily imply that Loku Banda waived his anderights. The ande rights which Loku Banda had, attached to the soilrights of ■ Ukku Banda. So at the partition which the co-ownerseffected those ande rights attach themselves to the particular Lot,here Lot 1, which Ukku. Banda was awarded..-In these, circumstances
sc
Loku Banda v. Ukku Banda (So:a, J )
707
the view of the Court of Appeal that the agreement for Ukku Bandato work and possess Lot 1 wiped out the rights Loku Banda had. tocultivate it in the exercise of his ande rights, is not supportable.
The legal provisions under which the Magistrate could' have actedare set out particularly in sections 62 and 63 of the Administrationof Justice Law No.44 of 1973. The Magistrate has jurisdiction to Setunder those sections when the existence of a dispute affecting' anyland situated within his territorial jurisdiction and likely to cause abreach of the peace is reported. The expression “dispute affeotingland” according to s.62(4) of the Administration of Justice Lawinclude^. ^n,yi dispute:
as to the right to possession of any land, or part of a land, or
as to the boundaries of any jand or part of a land, or
as to the right to cultivate any land or part of a land, Or
as to the right to the crops or produce of any land or .partof a land, or
as to any right in the nature of a servitude affecting the land.
The definition is not exhaustive. Subsections 1,2,3 and 4 of section63 apply when the dispute relates to the right to possession of anyland or any part of a land, that is, a dispute falling under (a)-above.Subsections 5 and 6 of this section apply when the dispute relatesto any right to any land or any part of a land other than the- rightto possession of such land or part,'that is, a dispute falling under(b) to (e) above.
The Court of Appeal proceeded on the footing that the right tocultivate is an aspect of possession which cannot be dissociated frompossession. As a general proposition this is not invariably true. Theright to cultivate can vest in a person different from the person whohas the right to possession. The.statute itself recognises this distinctionand has spelt out provisions for disputes relating to possession of aland or part of a land which are different from the provisions relatingto rights in a land or part of a land other than the right to possession.When the dispute relates to possession the Magistrate must determinewho was in possession on the date when he issued notice on hishaving reason to believe that there was in existence a dispute affectingland and likely to cause a breach of the peace or within two monthsprior to the issue of such notice where a forcible dispossession has■Occurred. The order which the Magistrate then makes will declare‘ which of the disputants is entitled to possession and prohibit alldisturbance to his possession until he is evicted under the judgment,
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(1982) 2 S.L.R.
order or decree of. a competent court., Where there has been forcibledispossession within .the period of two months prior to the date ofthe issue of notice the Magistrate may in addition to such declarationand prohibition, direct that the. party specified in his order be restoredto possession. When the dispute relates to possession, the Magistratemay make his determination without reference to the merits of therival claims of the parties – see the proviso to subsection 7 of section 63.
Where the dispute relates to any right to any land or part of aland other than the right to possession, the Magistrate will declarethat the person named in his order is entitled to the disputed rightuntil he is deprived of it by virtue of the judgment of a competentcourt and prohibit all disturbance or interference with the exerciseof such right other than under the authority of such judgment. Theproviso to subsection 7 of section 63 does not apply here. Hence byimplication the Magistrate would have to consider the merits of therival claims in deciding who is entitled to the disputed right. Thishe will do on the. basis of the material before him. The order whichthe Magistrate, makes may also contain directions as to the exerciseof the right or the sale of the crop or produce and as to the custodyand disposal of the proceeds of such sale. It is significant that whenthe order of the Magistrate relates to the right to possession it couldbe made without referehce to the merits of the claims of the disputantsand it is operative until eviction is ordered by the judgment, orderor decree of a competent Court whereas when it relates to any otherright it must be made after consideration of the merits of the rivalclaims on the basis of the statements of the rival parties and suchevidence as may have been admitted by the Magistrate in his discretionaiid his'order is Operative until deprivation of that right by a judgmentof a competent Court^ The omission of the words “order or decree”is'not without significance – see subsections 2' and 6 of s.63. Here1 wobld'like to add' that I reserve my opinion as to whether acompetent" civil court cannot by an interim injunction or orderappointing'a" receiver, direct the eviction of the person secuted orput in possession by the Magistrate as we did not hear argument onthe question.
It is clear then that the approach prescribed by the statute whenthe dispute relates to the possession of a land or part of a land isdifferent from the approach prescribed when the dispute relates toa right other than the right to possession. Therefore it would notbe correct to treat the right to cultivate as an aspect of the right topossession for the purposes of the application of the provisions of
SCl.oku Banda r. l!kku Banda (Snzu. J )709
section 63. The decision of Sharvananda, J. in Kanagasabai vMylvaganam (1) on. which reliance appears to have been placed bythe Court of Appeal would not be applicable to the instant casebecause that was a case where the subject of the dispute was theright to possession of a land – business premises to be exact.
Given that here was a dispute affecting land which was likely tocause a'breach of the peace, all that the learned Magistrate wascalled upon to do in the instant case was to decide who was entitledto the right to cultivate the disputed Lot. The evidence stronglysupports the Magistrate’s finding that Loku Banda was the andecultivator of Ukku Banda’s share and was entitled to the right tocultivate it and that-after the division these ande rights .attached tothe disputed Lot 1. The reference to working and possessing thefield in the certificate 1D2 of the Conciliation Board cannot wipeout the ande rights of Loku Banda which > are under the statutoryprotection of the provisions of the Agricultural Lands Law.
The appeal is therefore allowed and the judgment of the Courtof Appeal is set aside and the order of the Magistrate restored. Inview of the circumstances under which the present dispute arose Iaward no costs.
SHARVANANDA, J. – I agree.VICTOR PERERA^ J. – I agree.Appeal allowed.