Weerasinghe v. Sepala and Another( Anandacoomaraswamy, J.)
SEPALA AND ANOTHER
G. P. S. DE SILVA, C. J.
WIJETUNGA, J. ANDANANDACOOMARASWAMY, J.
S. C. APPEAL NO. 72/95C. A. APPLICATION NO. 1324/86M. C. KEGALLE NO. 60857/8514th June, 1996.
Primary Courts Procedure Act – Right of a tenant cultivator to cultivate apaddy land – Right to possession of land – sections 68, 69 of the Act.
An Assistant Commissioner of Agrarian Services ordered the Appellant(Landlord) “to give possession” of a paddy land to the Respondent to cultivateit as the lawful tenant cultivator. This order was not complied with; whereuponthe Respondent disturbed the possession of the land by the Appellant. ThePrimary Court Judge, after inquiry, ordered the “restoration of possession”to the Appellant.
The order of the Primary Court Judge should have been under section 69and not under Section 68 of the Primary Courts Procedure Act, as the disputeis not the right to possession but the right to cultivate.
Cases referred to:
Loku Banda v. Ukku Banda (1982) 2 Sri L. R. 704.
Ramalingam v. Thangarajah (1982) 2 Sri L. R. 693.
APPEAL from the judgment of the Court of Appeal.
J.C. Weliamuna for Appellant.
Respondent absent and unrepresented.
Cur. adv. vult.
2nd August, 1996.ANANDACOOMARASWAMY, J.
This is an appeal from the judgment of the Court of Appeal allowingthe application to revise the order of the Primary Court Judge andsetting aside the order of the Primary Court Judge and directing thelearned Primary Court Judge to hold a fresh inquiry on the dispute asto whether the Petitioner (now Petitioner-Respondent) is entitled to theright to cultivate the field as tenant-cultivator, if the parties so desire.
The facts relevant to this appeal are briefly as follows:
The Respondent to this appeal was served with an order of evictionfrom a paddy land for non payment of rent in terms of setion 18 of theAgrarian Sevices Act. Consequent to the said order, on or about14.10.83, the Appellant took over possession of the land and theRespondent was in fact evicted. The Respondent instituted anapplication for a writ of Certiorari seeking to quash the said order ofeviction. By order dated 5-7-85, the Court of Appeal quashed the saidorder of eviction and directed the Respondent to deposit Rs. 2,598/-with the Asst. Commissioner of Agrarian Services Kegalle within twoweeks; and failure to comply with the said order would result in eviction.This was complied with. Therefore the said Asst. Commissioner by hisletter dated 23.8.85 ordered the Appellant to give possession of theland to the Respondent to cultivate the said field as the lawful tenantcultivator. The Appellant did not comply with the said order. On 4.9.85the Respondent disturbed the possession of the land by the Appellant,when the Respondent went to cultivate the said field. Hence the Policethe Complainant-Respondent-Respondent filed an action in the PrimaryCourt and the Primary Court Judge after inquiry ordered the restorationof possession to the Appellant, which order was set aside by the Courtof Appeal holding that the order by the Primary Court Judge shouldhave been under section 69 and not under section 68 of the PrimaryCourts Procedure Act, as the dispute is not the right to possession butthe right to cultivate. The Court of appeal therefore set aside thejudgment of the learned Primary Court Judge and directed a fresh inquiryas to the right to cultivate and not as to the right of posession, ifparties desire.
In Loku Banda v. Ukku Bandaf'] it was held that, “the right to cultivatecan vest in a person different from the person who has right topossession”. As the issue before Court was whether the Respondenthad the right to cultivate the said field the right to possession does notarise and therefore the decision in Ramalingam v. Thangarajah(2) hasno application to the facts of this case, and the learned Primary CourtJudge misdirected himself in proceeding to inquiry in this case on thebasis that it is a claim to possession of the said paddy field, and theCourt of Appeal rightly set aside the judgment of the learned PrimaryCourt Judge. However the Court of Appeal granted leave to appeal tothis Court.
For these reasons we dismiss the appeal. No costs.
G.P.S. DE SILVA, C.J. – I agree.
WIJETUNGA, J.-1 agree.
WEERASINGHE v. SEPALA AND ANOTHER