Punchi Banda v. Siriwardena & Others
v.SIRIWARDENA & OTHERS
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CA NO. 1103/99DC MAHO NO. 1009/LJULY 12, 2001
Civil Procedure Code s. 217 (g), 323, 325 – Resistance to execution of Writ -Agrarian Services Act, No. 56 of 1979 – Tenant cultivator – Constructivepossession – Possession subject to tenancy rights of cultivator – Declaration ofa right or status.
The plaintiff sought to be declared as the tenant cultivator and further sought interimrelief to restrict the defendant from entering the field. The defendant-respondentprayed for the dismissal of the action and an order declaring the defendant tobe the tenant cultivator. The District Court declared the defendant as the tenantcultivator and restricted the plaintiff from entering the field. In appeal the Courtof Appeal approved part of the judgment and varied same by deleting the words"the plaintiff … be evicted from the field".
On an application for writ made by the defendant-respondent the plaintiff-petitionerwas dispossessed and the defendant placed in possession. On a complaint lodgedby the plaintiff-petitioner court ordered the restoration of the plaintiff-petitioner backinto possession.
The Fiscal was met with resistance by the defendant.
The plaintiff-petitioner thereafter complained to court.
On a preliminary objection taken, the application was dismissed, the District Courtholding that what has been declared is a status or right only.
The order of the Court of Appeal is in line with the meaning given to thewords "Constructive Possession". The possession granted to the plaintiff-petitioner was the claim the latter holds by virtue of some title without havingactual occupancy.
Sri Lanka Law Reports
 2 Sri LR.
The order of the Court of Appeal declared the right of the tenant cultivatorto cultivate the field in the capacity of a tenant cultivator.
The Court of Appeal did not declare that the tenant cultivator be ejectedand the plaintiff-petitioner be placed in possession as the tenant cultivator.Nor had the tenant cultivator ceded his rights under the provisions of theAgrarian Services Act to enable the plaintiff-petitioner to be tenant cultivatoror for that matter the owner cultivator.
The right of possession that the plaintiff-petitioner was entitled to wassubject to tenancy. The possession was subject the rights of the defendant-respondent to the tenancy which would necessarily include occupancy.
The right the plaintiff-petitioner was declared entitled to by the Court ofAppeal was in fact constructive possession subject to the tenancy rightsof the defendant-respondent.
APPLICATION for leave to appeal.
Wijedasa Rajapaksha, PC with Kapila Liyanagamage for plaintiff-petitioner.
W. Dayaratne for defendant-respondents.
Cur. adv. vult.
August 22, 2001
The plaintiff in DC Maho case No. 1009/L filed plaint on 20. 10. 78claiming, inter alia, that the plaintiff be declared the tenant cultivatorof the field described in the schedule thereto, and also moved foran interim injunction to restrain the defendants or their servants fromentering the said field. The defendants on 19. 10. 81 while prayingthat the plaintiff's action be dismissed also sought an order declaringthe defendants to be the tenant cultivators of the field described inthe schedule to the plaint aforesaid. The case went to trial on elevenissues and on 18. 10. 82 the learned District Judge dismissed theplaintiff's action with costs and further declared the 1st defendant tobe the tenant cultivator and restrained "the plaintiff and his agentsand servants from entering the field aforesaid”.
Punchi Banda v. Siriwardena & Others (Udatagama, J.)
In appeal, the Court of Appeal on 06. 02. 91 affirmed part of theabove judgment of the learned District Judge dated 18. 10. 82 andvaried same by deleting the following words: “the plaintiff and hisagents and servants be ejected from the field".
Later an application for writ by the respondent appears to havebeen filed, and allowed on 20. 11. 95. Subsequently, submissionswere made by the plaintiffs-petitioners that the said order dated20. 11. 95 was made on false representations but counter claimedby the respondents to have been made inadvertently and that in anyevent writ issued had also been in error.
However, on a perusal of the proceedings, I find the order thathad emanated from the Court of Appeal was in fact to vary thejudgment of the learned District Judge dated 18. 10. 82 and toprecisely delete the part directing the ejectment of the plaintiff-petitioner.Nevertheless, this had been corrected subsequently, vide order of thelearned District Judge dated 14. 07. 97, by which order the latter whilstdeclaring the 1st defendant to be the tenant cultivator restored theplaintiff-petitioner to possession.
On the 2nd respondent and his wife dispossessing the plaintiff-petitioner on a subsequent occasion which incident was inquired intoby the learned District Judge, on 25. 05. 98, pursuant to that inquirydirected the fiscal to restore the plaintiff-petitioner back into possession.However, the fiscal who went to execute that order met with resistanceonce again, and vide his report marked 20/98, (P10) reported theincident of resistance to Court. The plaintiff-petitioner by P11 dated12. 08. 98 complained to court of the second instance of resistanceto the writ and moved for relief, which application was objected toby the defendants-respondents.
The learned District Judge by his order dated 10. 05. 99, however,accepted the preliminary objections of the defendants-respondents andrefused relief.
Sri Lanka Law Reports
 2 Sri L.R.
The plaintiff-petitioner by this application seeks to canvass thatorder.
The learned District Judge in the course of the impugned orderstated that although the plaintiff-petitioner had not submitted the basisof his application dated 12. 08. 98 as referred to above, in that, theprovision under which the plaintiff-petitioner claimed relief had not beenspecified, the learned District Judge, however, went onto observe thatby the tenor of the claim, the latter understood the application to bemade under the provisions of section 325 of the Civil Procedure Code.
Section 325 aforesaid provides for the procedure in the event ofresistance to the execution of a writ.
The finding of the learned District Judge pertaining to the variationof the judgment of the learned District Judge dated 18. 10. 82 appearsto be that the Court of Appeal on 06. 02. 91 while affirming thejudgment of the District Court had additionally deleted part of thatjudgment, and the resulting position, as stated by the learned DistrictJudge, was a decree under the provisions of section 217 (G) of the 6oCivil Procedure Code. It was also the finding of the learned DistrictJudge that the end result of the Court of Appeal direction was adeclaration of a right or status. The learned District Judge further pointsout that as the order of the Court of Appeal is a declaration of aright or status, that section 217 (c) of the Civil Procedure Code couldnot apply and consequently the learned District Judge proceeded tohold that section 323 of the Civil Procedure Code would also not apply.
Section 323 aforesaid refers to the mode of application for theexecution of a decree for the recovery of property. The learned DistrictJudge accordingly held that section 323 has no application as the ?ofinal order to be executed is only a declaration of a right or statusand that even section 325 which flows from section 323 would notapply.
Punchi Banda v. Siriwardena & Others (Udalagama, J.)
The definite finding of the learned District Judge therefore appears■ to be that the plaintiff-petitioners in any event had no right to seekrelief under section 325 aforesaid as he is not a judgment-creditor.
It is the submission of the learned President's Counsel for theplaintiff-petitioner that the District Judge has no jurisdiction to questionthe decree of the Court of Appeal. It is also his position that thepetitioner was restored to possession on 12. 09. 97.80
"Possession" according to Black's Law Dictionary, 4th edn, is "thedetention and control or the manual or ideal custody of anything whichmay be the subject of property for one's use and enjoyment eitheras owner or as the proprietor of a qualified right in it, and either heldpersonally or by another who exercises it in one's place and name.The same Dictionary describes "constructive" possession to be“possession not actual but assumed to exist where one claims to holdby virtue of some title without having the actual occupancy".
It is my considered view that the order of the Court of Appeal isin line with the meaning given to the word constructive possession. 90As stated in the order of the Court of Appeal referred to above, thepossession granted to the petitioner was the claim the latter holdsby virtue of some title without having actual occupancy. The orderof the Court of Appeal in no uncertain terms declared the right ofthe tenant cultivator to cultivate the field in the capacity of a tenantcultivator. The Court of Appeal did not declare or order that the tenantcultivator be ejected and the plaintiff-petitioner placed in possessionas the tenant cultivator of the field, nor had the tenant cultivator cededhis rights under the provisions of the Agrarian Services Act to enablethe plaintiff-petitioner to be a tenant cultivator or for that matter the 100owner cultivator. I
I am not inclined to the view as submitted by the learned President'sCounsel for the plaintiff-petitioner that the learned District Judgeexercised an extraordinary revisionary jurisdiction that he was not
Sri Lanka Law Reports
 2 Sri L,R.
entitled to. I would hold that the learned District Judge in fact correctlydetermined and interpreted the order of the Court of Appeal dated06. 02. 91.
The confusion, if there was one, obviously occurred due to thefact that a tenant cultivator is entitled to occupy and cultivate the fieldwhich act necessarily need to have ingredients of possession attached 110to it. The right of possession that the plaintiff-petitioner was entitledto was subject to tenancy. In terms of the provisions of the AgrarianServices Act, No. 58 of 1979 the plaintiff-petitioner while he is entitledto receive rent, acts of ploughing, reaping and harvesting wereexclusively a tenant's right and by no stretch of imagination could theplaintiff-petitioner, on the pretext of the Court of Appeal order grantinghim possession oust the tenant cultivator. The possession was subjectto the rights of the defendants-respondents to the tenancy which wouldnecessarily include occupancy. In the circumstances, I would hold thatthe right which the plaintiff-petitioner was declared entitled to by the 120order of the Court of Appeal was in fact constructive possessionsubject to the tenancy rights of the defendants-respondents.
For the above reasons I find no reason to vary or set aside theorder of the learned District Judge dated 10. 05. 99. The plaintiff-petitioner's application is dismissed with costs fixed at Rs. 7,350.
NANAYAKKARA, J. – I agree.
PUNCHI BANDA v. SIRIWARDENA & OTHERS