DIAS S.P.J.—Vkku Baud,, r. Tikiri Banda
1951Present: Dias S.P.J.UKKU BANDA, Appellant, and TIKIRI BANDA, RespondentS. C. 185—C. It. Panwila. SI4
Anda cultivation—Informal agreement—Quantum of proof necessary—Preventionof Frauds Ordinance (Cap. 57), Section 3 (1).
Plaintiff alleged that by an informal agreement he and the defendant agreedthat the plaintiff was to cultivate a piece of land and that bath of them werelo share the produce.
Held, that in order to obtaiu the benefits of section ij (l) of the Prevention ofFrauds Ordinance it had to be proved that the agreement was for a period notexceeding twelve months and that at the date of the agreement the land was'chena.
.Appeal from a judgment of the Court of Requests, Panwila.
T. B. Disxanayake. for the defendant appellant.
P.Somatilakam., for the plaintiff respondent.
Cur. adv. vult.
January 17, 1951. Dias S.P.J.—
The defendant-appellant had obtained leave and licence from thesuperintendent of Hatale Estate to cultivate a piece of jungle landbelonging to the estate. The appellant says it was ‘ ‘ a little more than| of an acre ”.
The plaintiff’s case is that by an informal oral agreement he and theappellant agreed that the plaintiff was to cultivate this land and that heshould appropriate J of the produce and render to the appellant a £share. The plaint does not state, nor does the evidence indicate, whenthis informal agreement was entered into or for what period it was tocontinue. These facts have a material bearing on this case.
Plaintiff’s complaint is that the appellant on August 21, 1949, wrong-fully appropriated the whole of the produce to the plaintiff’s loss and-damage of Rs. 500. The appellant’s case is that there was no agreementbetween plaintiff and himself, and that the plaintiff was a labourer whowas employed to clear half an acre of chena land, and that the plaintiffworked for about a week and was paid his wages.
The Commissioner of Requests has held, and his finding cannot bedisturbed, that plaintiff was not a labourer, but that there was an informalagreement between the parties under which the plaintiff and the appellantwere to share the produce.
The manner .in which the issues have been framed and the evidenceled have tended to mask the real issue which arose for decision. At thecommencement of the trial the parties framed six issues. After theplaintiff had closed his case, and the appellant was in the witness box,the defence raised the real issue in the case, viz., No. 7, which the Com-missioner noted as issue 1. On July 21, 1950, after the case was closed,28-N.L.R. Vol.-Liii
XMAS S.P.J.—Ukku Banda v. Tikiri Banda
the Judge reserved his judgment until August 4, 1950. On that daythe date was put off until August 11. On that day the Commissionerrecorded “ I am framing the following additional issues ”, which heproceeded .to number 5 to 8, overlooking the fact that there were alreadyin existence the earlier issues 5 to 7. In his judgment he has answeredissues 1 to 8 and has ignored the other three. Furthermore, both counseland I found it difficult to ascertain what the issues were winch he wasdealing with.
The real question for decision is this: It being conceded that theinformal oral agreement is one which is obnoxious to the provisions ofs. 2 of the Prevention of Frauds Ordinance (Chapter 57), is it saved bythe provisions of s. 3 (1) of that Ordinance ?
The onus on that issue lies on the plaintiff, but the evidence is far fromclear. It is plain from the' difficulties which the Commissioner encoun-tered in writing his judgment, that it was the vague manner in which theplaintiff either deliberately, or inadvertently, led his proof that causedall the trouble.
S. 3 (1) of Chapter 57 reproduces the provisions of Ordinance No. 21- of1887. This statute was enacted by reason of the decision of the FullBench in Sayatoo v. Kalinguwa 1 where it was laid down that an agreementbetween parties for the cultivation of land in “ anda ” is a “contractor agreement for establishing an interest affecting land ” within themeaning of s. 2 of the Prevention of Frauds Ordinance. Burnside C.J.said: “ I do not think we should concern ourselves in interpreting thelaw whether our decisions would encourage or discourage agriculture, orimpose hardships. We should not make law”. Clarence J. said:•“ If the operation of the enactment will be to inflict hardship, we mustleave it to the Legislature to interpose; we are not at liberty on thataccount to legislate ourselves ”. Bias J. was of the view that the pro-visions of s. 2 of the Prevention of Frauds Ordinance was “ to do awaywith anda cultivation ”. Naturally, this was a severe blow to thepeasants who from time immemorial had given their paddy fields andchenas for cultivation in consideration of the cultivators being paidfor their labour by a share of the produce. The Legislature thereforeintervened.
The preamble to Ordinance No. 21 of 1887 says: “ Whereas it isexpedient to exempt certain contracts for the cultivation of paddy fieldsand chena lands from the operation ” of Ordinance No. 7 of 1840 (Chapter57). Section 1 of the Ordinance enacts : —
“ The provisions of section 2 of the Ordinance No. 7 of 1840 shallnot be taken to apply to any contract or agreement for the cultivationof paddy fields or chena lands for any period not exceeding twelvemonths, if the consideration for such contract or agreement shall bethat the cultivator shall give the owner of such fields or land any shareor shares of the crop or produce thereof.”
This section with a few immaterial amendments has been reproducedas s. 3 (1) of Chapter 57 in the Bevised Edition of the Ordinances.
1 (1*87) 8 S. C. C. 67.
DIAS S.P.J.—Ukka Banda v. Tikiri Banda
It is therefore clear that in order to obtain the benefits of. this provision,it must be proved: —
that the land is a paddy field, or a chena land ;'
(Jo) that the informal contract or agreement must'be for a period notexceeding twelve months; and
the consideration for such contract or agreement must be that thecultivator is to give the owner a share of the crop or produce.Should the proof fail on any one of these points, s. 8 (1) will not apply, andthe case will be caught up by the general rule in s. 2 which makes theinformal agreement of no force or avail.
In de Silva v. Thelenis l, referring to s. (3) de Sampayo J. said: “ Whenan exception is introduced into the general law, the rule I think is toconstrue the exception strictly, so that the general law may have fulloperation, subject only to the particular exception ”. Therefore, the onuslay upon the plaintiff in this case to bring his case fairly and squarelywithin the exception, and not leave it, as he has done, in a nebulous state.
This land is not a paddy field. The plaintiff has not satisfied theCommissioner that it is a chena, for the Judge says that ** the nature ofthe crop suggests that this land was more a chena land and not a regularlycultivated land ”. S. 8 (1) does not apply to a land which is “ more achena than a regularly cultivated land ”. It was the duty of the plaintiffto have proved to the Judge’s satisfaction that it was a chena at the datehe took it for cultivation. There is, however, a more serious obstaclein the way of the plaintiff. It was bus dtity also to prove that his agree-ment with the defendant was for a period “ not exceeding twelve months ”,If it was for a longer period, the provisions of s. 3 (1) will not apply.
The case of Eliyas v. Savunhamy 1 is in point. The informal agreementin that case was for an indefinite period of future cultivation, and itestablished in effect a kind of partnership in the land. The facts alsodisclosed that this partnership had continued for seven years prior tothe action being filed. Therefore, de Sampayo J. held that the case fellunder s. 2 and not under s. 3 (1). I respectfully agree.
I set aside the judgment and decree appealed against and send thecase for a new trial on the following specific issues: —
On what date was the informal agreement entered into between
the plaintiff and the defendant ?
Was the said agreement for a period not exceeding twelve months ?
Was the said land a “ chena ” land within the meaning of s. 3 (1) of
Chapter 57 at the date of the agreement ?
Plaintiff will be entitled to succeed only if he proves that the agreementwas for a period not exceeding twelve months, and that at the date ofthe agreement the land was a chena. The new trial shall take placebefore another Commissioner. The parties shall not be at liberty tocanvass the question that plaintiff was a cultivator and not a labourer.
Each party will bear their costs of the first trial and of this appeal.All other costs will be in the discretion of the Commissioner of- [Requests.
Sent back for new trial.
1 (1916) 3 C. W. R. 130.* (1914) 18 N. L. R. 82.
ISJ. N. B. 69182 (10/6 7}
UKKU ABNDA, Appellant, adn TIKIRI BANDA, Respondent