HerathvPeter(S.B. Goonewardene, J.)
IN THE SUPREME COURT OFTHE REPUBLIC OF SRI LANKA
S.C. APPEAL 45/83.
D.C. HOMAGAMA 1593/L.
Suneetha Rohini Dolawatta,
1 st Defendant-Appellant-Respondent
Dassanayakage Elpi Nona,
Before: :Sharvananda, C.J., Wanasundera, J., and Ranasinghe, J-
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Counsel: Lalanath de Silva, with Mrs. Anoma Hegoda. (or Plaintiff-Res-pondent-Appellant.
Manix Kanagaratnam, with K.S. Ratnavel and W.A. Jayawickrema, for 1st De-fendant-Appellant-Respondent.
Argued on : 7.8.85Decided on: 27.9.85.
The Plaintiff-Appellant instituted these proceedings in the DistrictCourt for a declaration of title in respect of the paddy land describedin the schedule to the plaint, and for ejectment of the 1stDefendant-Respondent therefrom and for damages. The Plain-tiff-Appellant pleaded: that she bought the said paddy lapd fromthe 2nd Defendant-Respondent, in the year 1980: that the 1stDefendant-Respondent, claiming to be the tenant-cultivator of thesaid paddy-land, is in wrongful possession: that the 1stDefendant-Respondent had fraudulently got himself registered as thetenant-cultivator.
The 1st Defendant-Respondent repudiated the claim of wrongfulpossession;, and maintained that: he has been the tenant-cultivator ofthe said paddy-land since 1971: that the 2nd Defendant-Respondent,who is the mother of the Plaintiff-Appellant, having failed to eject himfrom the said paddy-land forcibly, has transferred the said paddy-fieldto the Plaintiff-Appellant: that the two of them, the mother anddaughter, are now making a collusive attempt to have him ejected.
At the commencement of the trial a preliminary question of law,relating to the jurisdiction of the District Court to entertain andproceed with this action, was raised on behalf of the 1stDefendant-Respondent. The issue was decided in favour of theP-laintiff-Appellant by the learned trial judge. On an appeal against thesaid Order, the Court of Appeal, however, reversed the decision ofthe trial Court; and, having upheld the 1st Defendant-Respondent’splea of jurisdiction, has dismissed the Plaintiff-Appellant's action.
The submission putforward onbehalf of the1st
Defendant-Respondent, and which has found favour with the Court ofAppeal, is: that the Agrarian Services Act No. 58 of 1979 creates newrights, and also sets out the procedure to be followed in regard to theexercise, assertion and enforcement of such rights: that, regulationshave been made under the said Act not only for the preparationrevision and maintenance of the register, referred to in Sec 45(1) of
Dolawatta v. Gamage and another (Ranasinghe, J.)
the said Act, but also for the amendment of any particulars containedin such register: that any amendment of any entry in such register-should therefore be sought to be effected only in terms Of suchregulations: that, as sub-sec (3) of Sec 45 makes all entries in suchregister prima facie evidence of such particulars, it is not open to acourt to go behind such entries and examine the accuracy andcorrectness of such entries: that any dispute relating- to a paddy-landarising between the land-lord and a person, whose, name, has Ipeenentered as a; tenant-cultivator in such register in respect- of suchpaddy-land, can only be gone into and settled in the manner-set outin the said Act: that the jurisdiction of the courts to entertain and;determine such dispute has been ousted.
The question which this Court has now to decide is: whether thefact that the name of the 1st Defendant-Respondent has beenentered as a tenant-cultivator' in the register of agricultural landsmaintained under the provisions of Sec 45(1) of the AgrarianServices Act No. 58 of 197.9 precluded the District. Court fromdetermining,' in these proceedings instituted by the Plaintiff;Appellant,whether or not the 1 st Defendant-Respondent is a tenant-cultivator ofthe said paddy-field within the meaning of the said Agrarian ServicesAct.'
It is a clear and settled principle of law that the normal right ofaccess to the ordinary courts of law established by the ordinary lawof the land cannot be taken away except by statute law which soprovides either expressly or by necessary implications Sanmugan vs.Badulla Cooperative Stores Union Ltd., 54 NLR 16 at 18; HendrickAppuhamy vs. John Appuhamy 69 N 29 at 32; Re Vandervell Trusts,.1969(3) AER 496, at 500.
The judgment of the Court of Appeal, finding in favour of the 1stDefendant-Respondent, has been based mainly upon the judgment ofthe Supreme Court in the case of Hendrick Appuhamy vs. JohnAppuhamy (supra), where Sansoni, C.J. concluded, after aconsideration of the provisions of the now-repealed Paddy Lands. ActNo. 1 of 1958, which was the earliest enactment in the sphere ofagricultural lands legislation, and the precursor to the aforementionedAgrarian Services Act No. 58 of 1979 now in force, that, as the saidPaddy Lands Act creates new rights and obligations and alsoprovides the sole machinery to which a landlord must resort if hewants to have his tenant-cuitivator evicted or his paddy field property,
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cultivated, no other remedy was availabe to the landlord since thesaid Act was passed, and that the said Act takes away thejurisdiction of the Courts by necessary implication. No submissionshave been addressed to this Court against the correctness of theview so expressed in the said judgment. The view so expressed inthat judgment in respect of the said Paddy Lands Act would holdgood even in regard to the Act now in force, the Agrarian ServicesAct No. 58 of 1979 referred to earlier. Any dispute in respect of apaddy-field arising between a landlord and a tenant, as defined bythe provisions of the said Act, and in relation to which expressprovision is made therein will be regulated by the provisions socontained in the said Act; and any such dispute would have to bedetermined in the manner set out in the said Act. Such disputecannot be brought before and sought to be determined by a court oflaw.
This principle will apply only if the dispute, which arises in respectof a paddy-field, is a dispute between a person, who is a landlordwithin the meaning of the said law, and a person, who is atenant-cultivator within the meaning of the self-same Act. The twoparties to the dispute should §ach bear the character which the Actrequires that each should in fact and in law bear and possess, inorder to enable one to enforce the rights the Act gives him againstthe other, and to subject the other to perform the obligations whichthe Act compels him to perform. If one or the other does not in factand in law possess the character each is so required to have andpossess, then the provisions of this law cannot be availed of by one,and be imposed against the other.
The facts and circumstances upon which the decision in HendrickAppuhamy vs. John Appuhamy (supra) was based were: the plaintiffwas the owner of a paddy field in an area in which the Paddy LandsAct of 1958 was in force: the defendant was his tenant-cultivator: theplaintiff complained to the Cultivation Committee of the area againstthe defendant under Sec. 14 of the said Act: the plaintiff, withoutobtaininig a decision from the Cultivation Committee, filed an actionin the District Court against the defendant to have the defendantejected on the ground that he, the defendant, had failed to maintainit diligently. Sec 14 of the said Act enabled a landlord upon anapplication to the Cultivation Committee,to become an
owner-cultivator of an extent of paddy land in respect of which there
Dolawatta v. Carnage and another (Ranasinghe, J.)
is a tenant-cultivator. This section therefore laid down the procedureby which a landlord could recover an extent of paddy-land which wasin the possession of his tenant-cujtivator. It was upon these facts andcircumstances that Sansoni, C.J., held that the District Court had nojurisdiction to entertain and proceed with the plaintiff’s action and theonly remedy open to the plaintiff was to seek the relief which, theprovisions of the said Act provided. In that case the plaintiff clearlyadmitted that he was the landlord of the said paddy-field and that thedefendant, whom he was bringing before the District Court, was histenant-cultivator in respect of the said paddy-field. The plaint wasclearly and categorically presented on the basis that he was thelandlord and the defendant the tenant-cultivator, within the meaningof the said Paddy Lands Act, in respect of the paddy-land which wasthe subject-matter of the action and to which the [provisions of thesaid Act applied. There was no dispute raised or challenge made inrespect of the relationship between the plaintiff and the defendant.The relationship of the landlord and tenant-cultivator, which was theprerequisite to the application of the provisions of the Paddy LandsAct, was accepted and admitted as existing between the plaintiff andthe defendant.
The Plaintiff-Appellant in this case has, however, come before theDistrict Court alleging that the 1st Defendant-Respondent is atrespasser; and although he, the Plaintiff-Appellant, avers that he is'the landlord of the paddy-field, which is the subject-matter of theaction, he does not accept the 1st Defendant-Appellant as thetenant-cultivator of the said paddy-field. In fact fie expressly deniesthat the 1st Defendant-Appellant is the tenant-cultivator. He aversthat, although the 1 st Defendant-Appellant has had himself registeredas a tenant-cultivator, such registration has been obtainedfraudulently. There is thus no acceptance by the Plaintiff-Appellant ofone of the essential basic facts and circumstances, the clear aindundisputed existence and acceptance of all of which alone wouldbring into operation the statutory provisions of the relevantagricultural-lands law, the Agrarian Services Act No. 59 of 1979.
The District Court of Homagama had, in this case, jurisdiction overthe parties named as the . plaintiff and the defendant. It also hadterritorial jurisdiction over the subject-matter in regard to which reliefwas sought. The plaint presented to the District Court of Homagamain this case alleged the existence of all the relevant facts and
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circumstances necessary tor the conferment of authority on the saidDistrict Court to entertain-and proceed with the claim for relief. TheDistrict Court of Homagama thereupon became vested with thenecessary jurisdiction irrespective of whether or not the facts andcircumstances so alleged were, in fact, true.
Whilst discussing the question of when and how jurisdiction isconferred upon a court, Nagalingam, J. has, in the case of Marjan vs.Burah 51 NLR 34 at 38, quoted with approval the words of HukumChand 1894 edt. p. 240, that jurisdiction “does not depend uponfacts or the actual existence of matters or things but upon theallegations made concerning them"; and also Hukum Chand'scitation of the passage from Van Fleet: “If certain matters and thingsare alleged to be true and relief prayed which the tribunal has powerto grant if true that gives it jurisdiction over the proceedings …. Agreat deal of trouble had arisen from the mistaken conception thatjurisdiction depends upon facts or the actual existence of matters andthings instead of upon allegations made concerning them”. – videalso: Abdulla vs. Menika, 23 NLR 301 at 305.
Sec. 45(3) of the aforesaid Agrarian Services Act of 1979 providedthat an entry made in the register, maintained in terms of sub-section(1) of the said section 45, is “prima facie evidence of the facts statedtherein”. The effect of an entry being declared to be “prima facieevidence” of the facts set out therein is that it is “evidence whichappears to be sufficient to establish the fact unless rebutted orovercome by other evidence”, and “is, not conclusive” – Sarker,Evidence, 10 edt. p. 27: “it is evidence which if not balanced oroutweighed by other evidence 'will suffice to establish a particularcontention” – Halsbury 4th edt, Vol.. 17, p 22, Sec. 28. A similar viewwas expressed by Drieberg, J., in the case of Velupillai vs.Sidembram 31 NLR 99:
“Prima facie proof” in effect means nothing more than sufficientproof – proof which should be accepted if there is nothingestablished to the contrary; but it must be what the'; lawrecognises as proof, that is to say, it must be something whicha prudent man in the circumstances of the particular case oughtto act upon – S.3, Evidence Ordinance”.
Having quoted with approval the. citations referred to above,Samarakoon C.J., in Undugoda Jinawansa Thero vs. YatawaraPiyaratne Thero, S.C. Appln. 46/81, S.C.M. 5.4:82 stated, in regard
Dolawatta v. Gamage and another (Ranasinghe, J.)
to the evidentiary value of an item of evidence which is considered“prima facie evidence”, thus:
“It is only a starting point and by no means an end to thematter. Its evidentiary value can be lost by contrary evidence inrebuttal…If after contrary evidence has been led the scales areevenly balanced or tilted in favour of the opposing evidence thatwhich initially stood as prima facie evidence is rebutted and is
no longer of any valueEvidence in rebuttal may be either oral
or documentary or both….The Register is hot the onlyevidence”.
The entry in the said Register would not, therefore, prevent thePlaintiff-Appellant from leading evidence to the contrary. It would beopen to the Plaintiff-Appellant to satisfy the District Court – if theDistrict Court has otherwise jurisdiction to adjudicate upon thePlaintiff’s claim – by evidence, that the 1st Defendant-Appellant is hot,despite his registration as such, in law a “tenant-cultivator” as setout in the aforesaid Act.
The plaintiff, who sued for a declaration of title and ejectment fromtwo lands in the case of Dodanwela vs. Baindiya, 72 NLR p. 10 wasmet with the plea: that the said lands were paddy-lands: that thedefendant was the cultivator of the said lands : that the defendantcould not be ejected by reason of the provisions of the Paddy LandsAct. The District Court went into the question whether or not thedefendant was the cultivator of the two paddy-fields; and held that,whilst the defendant was the cultivator of land No. 1, he was not soin regard to land No.2. On the basis of such finding, the District Courtentered judgment in favour of the plaintiff, but only in regard to landNo.2. In appeal, the Supreme Court held that the defendant hadfailed to establish that he was the cultivator, within the meaning ofSec 63 of the Paddy Lands Act, of even land No. 1; and judgmentwas accordingly entered in favour of the plaintiff in regard to bothlands. The plaintiff in that case too did not accept the defendant asthe cultivator of the said paddy-lands. He averred that the defendantwas a tresspasser. Even though the defendant invoked the provisionsof the Paddy Lands Act, yet, the courts did go into the questionwhether the defendant was in law the “cultivator” within the meaningof the Paddy Lands Act, as claimed by the defendant, or whether hewas just a tresspasser as maintained by the plaintiff.
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In this view of the matter I am of opinion that, having regard to theaverments in the plaint filed in this case in the District Court ofHomagama, the District Court of Homagama had jurisdiction to haveentertained the said plaint, and to proceed to the trial of the issuesarising from the pleadings filed by the Plaintiff-Appellant and the 1stDefendant-Respondent, and also has jurisdiction to go into thequestion whether the 1st Defendant-Respondent is in fact and in lawa tenant-cultivator as contemplated, by the provisions of the saidAgrarian Service Act No. 58 of 1979.
If, during the course of the trial, however, the learned District Judgeis satisfied that the 1st Defendant-Respondent is, in fact and in law,the tenant-cultivator, as defined in the said Agrarian Services Act 58of 1979, of the paddy-field which is the subject-matter of theseproceedings, then the learned District Judge will have no power tocontinue the proceedings any further. The learned District Judge willthen, in view of such finding, have no jurisdiction to proceed anyfurther with the adjudication of the other issues submitted for hisdecision. The Plaintiff-Appellant’s claim for ejectment of the 1stDefendant-Respondent from the said paddy-field would thereafterhave to be determined in the manner set out in the aforesaidAgrarian Services Act No. 58 of 1979.
The Plaintiff-Appellant's appeal is, accordingly, allowed. Thejudgment of the Court of Appeal is- set aside; and the Order of thelearned District Judge – that the District Court has jurisdiction todetermine, in these proceedings, whether or not the 1stDefendant-Respondent is, in law, the tenant-cultivator of the saidpaddy-field – is affirmed. The Record is directed to be sent back tothe District Courtjpf Homagama for the District Court to proceed withthe trial as indicated above.
The 1st Defendant-Respondentis directed to pay the
Plaintiff-Appellant the costs of appeal, of both this .Court of the Courtof Appeal. The costs of the proceedings held so far in the DistrictCourt are to be costs in the cause.
SHARVANANDA, C.J. – I agree.
WANASUNDERA, J. – I agree.
IN THE SUPREME COURT OF THE REPUBLIC OF SRI LANKA