Allis v. Senevirathe and others (A. De Z. Gunawardana, J).
v.SENEVIRATNE AND OTHERS
COURT OF APPEALA.DE.Z GUNAWARDANA, J.
C.A. No. 430/83A. T. No. KGL/4993OCTOBER 10 AND 17, 1989
Agrarian Services Act, No. 58 of 1979 ss. 2(1), 2(2) and 5(3) – Requirement that theAsst. Commissioner should make the consequential order upon a finding of evictionof a tenant-cultivator.
After inquiry the Asst. Commissioner of Agrarian Services found that the appellanthad been cultivating the field in question from 1975 onwards as joint cultivator with the1st respondent and had been evicted. However, the Asst. Commissioner hasdismissed the application of the appellant pn the basis that although the appellant wasonly a joint-tenant-cultivator from 1975 onwards, the appellant has prayed that he bedeclared' entitled to be the sole-tenant-cultivator of the whole field. The Asst.Commissioner has held that such a declaration would affect the rights of the other jointcultivator, 1st respondent, Seneviratne and therefore the appellant was not entitled tothe relief he claimed.
Section 2(1) and section 2(2) of the Agrarian Services Act recognise the conceptsof sole-tenant-cultivator and joint-tenant-cultivator. However seption 5(3) does notmake a distinction between sole-tenant-cultivator and joint-tenarit'-cultivator. When ajoint-tenant-cultivator had been evicted he would be as much entitled to be restored tohis cultivation rights as a sole-tehant-cultivator.
The fact that the appellant had asked for a' larger relief than what he is entitledto should not prevent him from getting the lesser relief that he is entitled to.
APPEAL from order of the Assistant Commissioner of Agrarian Services
Gamini Jayasinghe for the Appellant
Respondents absent and unrepresented.
A. DE. Z GUNAWARDANA, J.
In this case W. Allis the appellant, who was a tenant cultivator, ofthe field named Meekanuwita, in extent 1A OR 20P, made anapplication to the Asst: Commissioner of Agrarian Services, Kegalle,on 27.5.1977 stating that he was evicted from the said field on8.4.1977, and an inquiry was held by the Assistant Commissioner.The'respondents to the application were M.R. Seneviratne, who hadbeen cultivating this field along with the appellant from 1975 – 1977,
Sri Lanka Law Reports
11989) 2 Sri LR
and his brothers Kiri Banda and Punchi Banda and sister BandaraMenike. The original first respondent to this application was, themother of the respondents, G.R. Loku Menike, and upon her deathPunchi Banda was substituted in her place.
When this matter came up for inquiry, the appellant, Allis, gaveevidence and took up the position that he was the sole tenantcultivator of this field from 1960.-1975. He stated.that in 1975 underpressure from Arachchi Ukku Banda, the brother of Loku Menike, hewas forced to take on the respondent Seneviratne also as a jointtenant cultivator. However in re-examination he had taken up theposition that Seneviratne came and helped him because of theinfluence of the Arachchi, and that his claim is to be the tenantcultivator of the whole field. At the conclusion of his evidence, he hadfurther added that he is not willing to share the field with Seneviratneand that, what he is asking for is to be declared entitled to be thetenant cultivator of the whole field..He’produced documents markedP1 to P9 to prove his rights relating to his claim for tenant cultivationrights. The documents P9 particularly, showed that his name hadbeen registered from 1971-1975 as sole tenant cultivator and as jointtenant-cultivator with Seneviratne from 1975-1977. He called severalother witnesses who supported his claim that he was the tenantcultivator of this field.
The 4th respondent Punchi Banda who gave evidence on behalf ofthe respondents, took up the position that Allis was employed as apaid worker, to work in this field. He was not specific about the dateon which Allis came to- work in this field. He knew about thesematters only from around 1970. He also said that after Seneviratene,his brother, took over the field in 1975 or thereabout, Allis was apaid-worker under Seneviratne. However in cross-examination he hasadmitted that Allis had on several occasions taken produce from thisfield to his house and handed them over to his mother. Further morehe had seen Allis working in this field and had seen him doingvarious acts relating to the cultivation of this field.
At the conclusion of inquiry the Asst. Commissioner had rejectedthe evidence of the respondents that appellant did not cultivate thisfield and has held that appellant has cultivated the field. He hasaccepted the documents Pi to P9 as proof of the fact that appellanthas been cultivating this field. The Asst. Commissioner also has heldthat in 1975 AlliS ceased to be the sole tenant-cultivator of this field
CAAllis v. Seneviratne and others (A. De Z. Gunawardana, J).337
and that he had become a joint-tenant-cultivator of the field withSeneviratne from 1975 onwards. However he has dismissed theapplication of the appellant on the basis that although the appellantwas only a joint-tenant-cultivator from 1975 onwards he had requiredthat he be declared entitle to be the sole-tanant-cultivator of thewhole field. The Asst. Commissioner has taken up the position thatsuch a finding would affect the rights of Seneviratne and thereforeAllis was not entitled to the relief that he claimed.
The learned Counsel for the appellant submitted that the Asst.Commissioner has found that the appellant is a joint-tenant-cultivatorand that he had been evicted from the said field. In thecircumstances he submitted that the learned Commissioner shouldhave made the consequential order that the appellant be restored tohis tenant cultivation rights, jointly with Seneviratne.
Section 2(1) of the Agrarian Services Act specifically sets out theconditions when a person is said to be a sole-tenant-cultivator.Section 2(2) specifies when a person is said to be ajoint-tenant-cultivator. Therefore it is clear that the statute recognisesthe concepts of sole-tenant-cultivators and joint-tenant-cultivators.However, section 5(3) does not make a distinction between a soletenant-cultivator and joint-tenant-cultivator. When ajoint-tena'nt-cultivator had been evicted he would be as much entitledto be restored to his cultivation rights as. a sole-tenant-cultivator sincethe statute recognises such a distinction.
The learned Counsel for the appellant does not dispute the findingof the Asst. Commissioner that the appellant is ajoint-tenant-cultivator with Seneviratne.
The fact that the appellant has asked for a larger relief than he isentitled to, should not in my view prevent him from getting the lesserrelief which he is entitled to. In the circumstances, it is appropriate togive effect to the said finding of the Asst, Commissioner and restorethe tenant cultivation rights to the appellant in common withSeneviratne.
Accordingly this Court makes order setting aside the order of theAsst. Commissioner, dismissing the application of the appellant.
It is hereby ordered that the appellant W. Allis be restored to histenant cultivator’s rights in respect of the said field in common withthe respondent M.R. Seneviratne. Appeal is allowed, no costs.
ALLIS v. SENEVIRATNE AND OTHERS