WANASUNDERA, J.—Nastthu v. llambantota Police
1978 Present: Malcolm Perera, J. and Wanasundera, J.
C. MOHAMED NASUHA, Petitionerand
OFFICER-IN-CHARGE, HAMBANTOTA POLICE, andAnother, Respondents
S. C. 656/76—M. C. Hambantota, 78014
Administration of Justice Law, No. 44 of 1973, sections 62, 63—Right tostack paddy stalks before threshing—Whether servitude—Enjoy-ment of right intermittent—Has person vested with such rightpossession as contemplated by these sections—Applicability of■ these sections in such case.
The right of stacking the paddy stalks before the threshing is aright in the nature of a servitude and accordingly such a right wouldcome within the meaning of the expression “ dispute affecting land ”in section 62 of the Administration of Justice Law, No. 44 of 1973.The person vested with such a right of servitude undoubtedly haspossession of that right or, to use a mors exact term, quasi-posses-sion of that right even though the enjoyment of that right, takingplace only at harvest time, is intermittent. Accordingly a Magistrateis entitled to make an order under section 63 in respect of suchright.
Cases referred to :
Tikiri Appu v. Dingirala, 36 N.L.R. 267.
Weerasinghe v. Perera, 43 N.L.R. 575. *
Nayan Manjuri Dasi. v. Fasley Hag Sardur, (1922) A.l.R. Cal. 502-Sheik Amir Hamze v. Sheikh Yakuk, (1957) I.L.R. 2 Cal. 316.
Appeal from an order of the Magistrate’s Court,Hambantota.
N. R. M. Daluwatte, for the respondent-petitioner.
L. M. de Silva, State Counsel, for the 1st respondent.
J. W. Sabasinghe, for the complainant-respondent.
Cur. adv. vult.
March 21, 1978. Wanasundera, J.
In this matter counsel raised the question as to whether ornot sections 62 and 63 of the Administration of Justice Law canhave application in the case of a right in the nature of a servitudewhich has only been used intermittently by the complainant.The servitude involved here is a right claimed by the complainantto stack sheaves of paddy, after reaping, on a high land belongingto the respondent-petitioner.
On the findings of the learned Magistrate, the complainant,along with a few others had, since 1972, used this piece of ground(godella) for stacking paddy stalks at harvesting time. This landis about one-fourth of an acre in extent and consists of highground. It is surrounded by a stretch of paddy fields where boththe complainant and the respondent-petitioner had their paddyfields.
!•—A 46060 (79/11)
WANASXTNDERA, J.—Naauha v. Hambantota Police
The complainant had bought his paddy field in 1972. Hisbrother who gave evidence on his behalf also had a paddy fieldin this stretch, which he had bought in 1968 or 1969. Their evi-dence is to the effect that, since their purchase of the fields, theyhave always stacked the paddy stalks, after reaping, on thisgodella. Although farmers are usually accustomed to stackthe cut paddy stalks in their own fields, the evidence in &iis caseshows that these particular paddy fields go under water and ithas therefore been the practice to stack this paddy on the godellaclose by.
The respondent-petitioner bought his field in 1970. In 1973 hebought this godella iiythe name of his wife. In January 1975, hesays, he received a letter from the Chairman of the CultivationCommittee, directing him to cultivate this godella, as it waslying fallow, and that if he did not comply with the order, thenthe land would be taken and given to others for cultivation.Consequent to this the respondent-petitioner states that he andhis cultivator started cutting the earth to convert this godella alsointo a paddy field. When the respondent-petitioner starteddestroying the godella, the complainant went to the Police, andthe Police, after inquiry into the matter, warned the parties notto create a breach of the peace. Notwithstanding this action bythe Police, the respondent-petitioner had continued his attemptto convert this godella into a paddy field.
The learned Magistrate accepted the evidence of the com-plainant and his witnesses and held that this godella had beenused by them since 1972 to stack the paddy stalks during theharvesting. He was also of the view that the petitioner, after hebought this godella, had formed the idea of converting it intoa paddy field, so that he could get complete possession of it. Hegave no weight to the letter cf the Chairman of the CultivationCommittee and held that the respondent-petitioner had soughtthe assistance of his friend, the Chairman of the CultivationCommittee, who had thought of a mode by which the respondent-petitioner would be able to get complete enjoyment of thisproperty.
Counsel for the petitioner raised the question as to whetherthe rights claimed in this case constituted a servitude or rightin the nature of a servitude affecting land. It seems to me thatthe facts adduced are sufficient to establish a right in the natureof a servitude affecting land. Such a right could arise where theowner of one property, qua owner, becomes entitled to do some-thing or to prohibit the doing of something for his own benefiton the land of another. The instances of servitudes categorised
WANASUNDERA, J.—Nasuha v. Hambantota Police.
in the text books and decided cases are by no means exhaustiveof all the servitudes known to the law. We have in this countryrecognised a local servitude ; that of threshing paddy onland—Tikiri Appu v. Dingirala, 36 N.L.R. 267 and Weerasinghevs. Perera, 43 N.L.R. 575. The right of stacking the paddystalks before the threshing is implicit in that servitude. There isno reason why, in certain circumstances, this right could not beregarded by itself as a separate servitude. I, therefore, hold thatthis is a right in the nature of a servitude within the meaning ofthe relevant provisions.
The right of stacking harvested paddy stalks can take placeonly at harvest time. This enjoyment of that right is accordinglyintermittent and, in this case, the right claimed has been exer-cised at intervals of about six months. Mr. Daluwatta submittedthat, as the date of the alleged “ dispossession ” was not withina period of two months immediately preceding the date onwhich the notices were issued under section 62, no order can-bemade under the provisions of section 63(3). This provision, heargued, indicated the inapplicability of those sections to a rightsuch as one now claimed.
The definition of “dispute affecting land” in section 62(4)includes a dispute relating to “any right in the nature of aservitude affecting the land”. Such a right, therefore, fallsclearly within the applicable provisions. Where such a rightexists, we must presume that the Legislature has also providedthe necessary statutory provisions for remedial orders to bemade in respect of such a right. I
I have looked at the corresponding Indian statutory provisionsand, though they are not comparable to ours, a reference to theIndian law may be of some use. In India, much emphasis hasbeen laid on the requirement of the likelihood of a breach ofthe peace and on the need for the continuity of possession,when it is sought to apply these provisions. In regard to thefirst condition, I find that there was sufficient evidence beforethe learned Magistrate, in the present case, of the likelihood of abreach of the peace. As stated earlier, notwithstanding thecomplaint to the Police and the action by the Police, therespondent-petitioner has persisted in his provocative acts.Further, what is involved here is not a mere denial of the rightclaimed or some act preventing the exercise of that right, butan attempt to destroy it comoletely. By trying to convert thehigh land into a paddy field, the respondent-petitioner has soughtto destroy the character of the praedium upon which alone thf*
WAN ASUNDER A, J.—Na&uha v. HambarUota Police
complainant can base his rights. In these circumstances, I think,the complainant was justified in bringing this matter beforethe Magistrate’s Court.
The need for a continuity of possession has been discussed inthe following cases. In Nayan Manjuri Dasi v. Fasley Huq Sardar,(1922) A.I.R. 502, the complainants were four stall holders in ahat (probably a private market place) which was held once aweek. The respondent was the owner of the hat. The hat washeld in a place surrounded by walls with gates for entrance andexit and these gates are shut at night. According to the evidence,the stall holders remove their goods and leave the hat at the endof the day. The gates of the hat are closed and the place isthen empty, and in charge of the respondent. The complainantsclaimed the right to continue in occupation of the hat for thepurpose of their vocations. On the other hand, the respondentclaimed the right to let them out to other persons on betterterms. Walmsley, J., observed :
“ Several rulings have been cited before us, but withone exception they do not seem to have any application to thequestion before us. The exception is the case of ManikChandra Chakravarti v. Preo Nath Kuar, (1912) 17 C.W.N.205 — 17 I.C. 533 = 17 C.L.J. 397. It is quite true that thefacts of that case again are considerably different from thoseof the present case ; but they have this in common that oneof the parties claimed the right to hold possession of a pieceof land not continuously throughout the year but at longrecurring intervals once every year while in this case thestall-holders claim possession once every week. The differ-ence appears to be one of degree rather than of kind. Thelearned Judges in disposing of that case said that an enquiryunder section 145 of the Criminal Procedure Cede must bedirected to the decision of the absolute continuing possessionof either party of the subject matter of dispute.
It appears to me that that element of continuity ofpossession is an ingredient which is necessary, at any rate,in cases where interruption is not due to seasonal variations,in proceedings under section 145 of the Criminal ProcedureCode. ”
This case was followed by Mukerjee, J. in Sheikh Amir Hamzev. Sheikh Yakuk, (1957) I.L.R. (2) Cal. 316. Here, the disputedland was claimed to have been used by members of the Maho-medan public on two occasions in the year, that is to say, duringthe Iddujoha and Bakrid festivals. The Muslim public are said to
S'. ANASUNPliKA, J.—j'uaulta,-v. U j-mbantola i'olice14#
asseiuuic on me disputed plot in large numbers on tnose two daysfor tiic puipc-se or saying meir prayers. However, at oiner tunes,this la.iu nuu ueen used as a piay ground by the local scnooLThe animation was that the respondents attempted to interferewith tue possession of members of the Mahomedan public bycultivating the land.
The Magistrate came to the conclusion that the Mahomedanpublic were in actual physical possession and that they wereentitled to possession for the purpose of saying Id prayers twiceannually until evicted in due course of law.
In appeal, the order of the Magistrate was set aside. One groundrelied on was that, since possession of the disputed land wasclaimed in connection with Id prayers, the provisions of section145 were inappropriate and that the matter should have beendealt with under section 147 of the Indian Code of CriminalProcedure.
It was next contended that there must be a continuity ofpossession for the purpose of obtaining an order under section145 of the Code. Justice Mukerjee observed at page 318 :
“Possession in order to be dealt with under s. 145 ofthe Code of Criminal Procedure, assuming that sectionapplied, has to be continuous in the sense indicated byimplication in s. 145 itself. There may be occasions whenright of user of property which is the subject-matter ofdispute is not capable of continuous exercise literally so-called ; but then in a case of this kind where possession ofa plot of ground is claimed on behalf of a party it is necessaryfor that party to establish that the claim of possession isnot intermittent but continuous, at any rate, in so far asthe nature of the property admits. There may be instanceswhere continuous possession is interrupted and such instanceis envisaged in the first proviso to sub-s. (4) of s’. 145 of.the Code. In the present case, however, the nature of theproperty to which the dispute relates is such that the partyclaiming to be entitled to possession must succeed in adducingevidence of continuous actual physical possession. This viewfinds support in a Bench decision of this Court in the caseof Navnn Manjuri Dasi v. FnHe.y Huq Sardar, (1922) T.L.R.40 Cal. 871, where it was held‘that possession contemplatedh” s. 145 of the Code is, in cases where interruption is notrh,a tG seasonal variations, continuous and not merely(''■r.ncinnal possession. ”
1 **— A 4Mnn (11/79)
VangadusaUim v. Karuppan
’ It seems to me that these cases deal with a situation wherethere is only occasional possession or temporary occupationwhile the possession of the property remains in the owner not-withstanding its temporary interruption by others. As far as Ican gather, the situation referred to in these two cases appearsto fall short of the rights enjoyed by the owner of a dominantservitude or easement. Where a servitude or easement is con-cerned. the person vested with that right undoubtedly haspossession of that right or, to use a more exact term, quasi-possession of that right. Having regard to the definition containedin section 62(4), there could be no question that the relevantprovisions of our law apply to rights in the nature of servitudes.This itself pre-supposes that an interference with the kind’ofpossession associated with such servitude would bring theseprovisions into operation. The “ possession ” referred to in theseprovisions must be wide enough to take in the possessionassociated with a servitude.
This is sufficient to dispose of the matter. I, however, find thatthe order made by the learned Magistrate is in terms of section63(2) and not under section 63(3), which was the provision onwhich Mr. Daluwatte based his submissions. The Magistratehas merely declared that the complainant was entitled to theright claimed by him and also prohibited any disturbance of thateight.8
In these circumstances, I see no reason to interfere with theorder of the learned Magistrate. I therefore refuse the application
Malcolm Perera, J.—I agree.
A. C. MOHAMED NASUHA, Petitioner and OFFICER-IN – CHARGE, HAMBANTOTA POLICE