Sinnadtirai v. Kangasabai
1978Present: Walpita, J. and Ratwatte, J.
ALLICUDDY SINNADURAT, Petitionerand
SUBRAM ANIAM KANAGASABAI and TWO OTHERS,Respondents
S. C. 940/76—M.C. Jaffna 14069
Administration of Justice Law, No. 44 of 1973, section 62, 83—Complaintregarding dispuze to a pathway—Whether consideration of titleor right to possession of land relevant—Scope and nature ofsummary inquiry under section 62.
Where a petitioner claiming to be owner of a certain landcomplained under section 62 of the Administration of Justice Lawto the Magistrate that the path leading to his land had beenobstructed by the respondents and the dispute that had thusarisen was likely to cause a breach of the peace, it would be amisdirection if the learned Magistrate in the course of the inquirywere to consider the title of the petitioner to his land or his rightto possession, which matters were not in dispute. The principalpurpose of a summary inquiry of this nature is to prevent a likelybreach of the peace. The dispute in this instance involving a rightto a servitude, the learned Magistrate should accordingly haveconsidered it under section 63 (5) and (6) of the Administration ofJustice Law.
WAJLPITA, J.—Sinnadurai v. Kanagasabai
Application to revise an order of the Magistrate’s Court,Jaffna.
P. Nagendra, for the petitioner.
M. Sivcirajasingham, for the 1st 2nd, 3rd respondents.
cur. adv. vult.
January 24, 1978. Walpita, J.
The petitioner claiming to be owner of a land called‘Uthalanai’ on a deed of sale No. 5350 dated 5.10.75 complainedto the Magistrate that the lane leading to his land had on 26-7.76been obstructed by the respondents who had erected a fenceacross the entrance to the land. He alleged that the dispute thathad arisen was likely to cause a breach of the peace. He there-fore moved under section 62 of the Administration of JusticeLaw for an inquiry and an order for the removal of the obstruct-ing fence.
On this application the Magistrate took steps to notice theparties concerned. The respondents filed a statement of claim.In that they also claimed to be owners of two lands called‘ Uthalanai ’ which were situated to the east of the land claimedby the petitioner. While pleading they were in possession of thelands they owned they alleged the petitioner was not in posses-sion of the land claimed by him and was therefore not entitledto relief under section 62 of the Administration of Justice Law.
The learned Magistrate on 28.9.76, a day fixed for inquiry madean interim order-that the respondents were not to obstruct thepath pending further inquiry.
On 13.11.76, this case was transfered to the High Court, Jaffna,as, according to the journal entry of the date, a connected matterhad been forwarded to that court at the request of the parties.The circumstances under which this was done is not quite clear.The High Court Judge who has concurrent jurisdiction thencontinued the inquiry. After this further inquiry the judge madeorder that the Chairman of the Village Committee one Thiruna-vukkarasu enclose the path which was the subject of the disputeand no parties should use the path till the dispute is resolved ina civil court.
This application for revision is with regard to this order of theHigh Court Judge acting as Magistrate.
WAX.PITA, J. —Sinnvaurai v. Kanagasabai
The simple issue in the case was whether the path leading tothe petitioner’s land had been obstructed and whether this disputebetween the parties was likely to lead to a breach of the peacewhich would entail the Magistrate taking action to preserve thepeace while the dispute was resolved in a civil court. It seems tome the learned Judge has lost sight of the real dispute involved.The respondents did not claim the land which the petitioner saidwas his under the Deed 5350 referred to earlier, though theyalleged there was a defect in the petitioner’s title and-that hehad no possession of his land. They also said the petitioner hadno right to a path over their land though they admitted there wasa path while a market functioned earlier on the land thepetitioner claimed.
The learned Judge though he noted th^t the dispute waswhether the respondents obstructed the path that leads to thepetitioner’s land has gene on to look into the title of thepetitioner to his land. Having considered the title of the petitionerto his land, he points out various defects in his title and said thathe temporarily holds, that the petitioner has no right to theland and therefore there was no use having an inquiry for apath to the land.
In my view the learned Judge has misdirected himself as towhat the dispute in this case was. The dispute between theparties is not as to possession or title of the petitioner to theland but to the path leading to that land. Indeed the respondentnever claimed the petitioner’s land. So the learned Judge’sinvestigation of the petitioner’s title to his land was unwarranted.In a summamy inquiry held under section 62 the disputeseffecting land may be a dispute as to the right of possession ofa land or part of a land, the right to crops or produce of any landor part of a land or as to any right in the nature of a servitudeaffecting the land. In the present case clearly the dispute was asto a right in the nature of a servitude and not as to possessionof the land claimed by the petitioner. So that the examinationof the title of the petitioner and his right to possession wasunnecessary.
Section 63 (5) states that when the dispute relates to any rightto any land or part of a land other than the right to possession ofsuch land or part the Magistrate shall determine as to who isentitled to the right which is the subject of the dispute and makean order under section 63 (6). Under sub-section (6), the Magis-trate can declare a person entitled to such right with directions asto the exercise of such right. As the dispute involved a right to aservitude the Magistrate should have considered this dispute
WALPITA, J.—Sinnadurui vJKnnagasabai
under section 63 (5) and (6) and not gone on to consider the rightto possession of the petitioner’s land which could not have beenin dispute as the respondents made no claim themselves to thepetitioner’s land. In a summary inquiry of this nature it was anirrelevant investigation, the principal purpose of such inquirybeing to prevent a likely breach of the peace. The threat to thepeace in this case arose from the obstruction to the path leadingto the petitioner’s land and not from a denial of the right topossession of his land. The respondents in their affidavit filed inthis court have realised this and have attempted to explain theaverment in their statement of claim that the petitioner wasnever in possession of his land as meaning he was obliged toprove that he had a right to possession of the land and itsappurtenances. As has being pointed out by me the dispute wasone relating to the use of a servitude and not the possession ofthe petitioner’s land. These are two distinct things. What therespondents contend may be necessary for the petitioner toprove in a civil action when he claims a right to the servitude.But it is obviously unnecessary here. In a summary inquiryunder section 62 the principal concern is with a likely breachof the peace a'nd the need to take action to preserve that peace.
In my view irrelevant matters have been taken into conside-ration by the Magistrate and he has come to a wrong conclusion.
I hold therefore that the Magistrate’s order was wrong1 andI set it aside. A further inquiry should now be held before anotherMagistrate. He will consider whether there is still a likelihoodof a breach of the peace on this dispute and make an appropriateorder.
The petitioner is entitled to costs of this application.
Ratwatte, J.—I agree.
ALLICUDDY AINNADURAI, Petitioner and SUBRAMANIAM KANAGASABAI and TWO OTHER