G. P. S. DE SILVA, C.J.
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 140/94C.A. NO. 148/88MAY 05, 1995.
Agrarian Services Act, No. 58 of 1979 sections 5(3), 45(3) and 68 – TenantCultivator – Entry in Agricultural Lands Register.
Marthelis was the tenant cultivator of a paddy field 2 acres in extent from about1948. The original landlord was the elder brother of the appellant who succeededhim in 1974.
On 09 May 1980 Marthelis complained to the Assistant Commissioner ofAgrarian Services that he had been evicted from the paddy field on 21 March1980.
The inquiry commenced on 24 January 1983. It was interrupted by an applicationby the appellant to the Court of Appeal seeking a direction that the AssistantCommissioner should also inquire into his complaint that Marthelis was notmaking proper use of the land. The inquiry was resumed on 02 September 1987.Marthelis admitted he had engaged several persons to cultivate the paddy fieldnone of whom was a member of his family within the meaning of the definition of“member of the family” in section 68 of the Act. The appellant's case was thatMarthelis had permitted them to cultivate a distinct portion of the land whileMarthelis himself was cultivating only 4 lahas or 1/4 acre of the land.
Appellant admitted having evicted Marthelis only from the extent of 1/4 acrewhich Marthelis cultivated. The others who were cultivating the land had vacatedit when asked. He was prepared to permit Marthelis to cultivate the said 1/4 acrebut Marthelis refused; the appellant retook the entire land.
The Assistant Commissioner held that Marthelis was the tenant cultivator of theentire land and that he had been evicted therefrom. The Court of Appeal upheldthe decision of the Commissioner.
Although Marthelis' name appeared in the Agricultural Lands Register astenant cultivator of the entire land in terms of section 45(3) of the Act an entry inthe register is only prima facie evidence of the facts stated therein. The entry isrebuttable.
On the facts Marthelis was not a cultivator within the meaning of section 68.The other persons who cultivated the land were not members of his family withinthe meaning of that section; nor did he cultivate it “jointly” with them. He was acultivator only of 1/4 acre at the time of his eviction.
APPEAL from judgment of the Court of Appeal.
Rohan Sahabandu for petitioner.
Substituted respondent absent and unrepresented.
Cur. adv. vult,
September 24, 1995.
This is an appeal by the owner of a paddy land called “Galwelaalias Wewe Kumbura” who is dissatisfied with an order made underS. 5(3) of the Agrarian Services Act, No. 58/1979 holding that oneMarthelis Hemasundera (now deceased) was the tenant cultivator ofthe said land and had been evicted therefrom, on or about21.03.1980. The substituted respondent is the son of the saidMarthelis Hemasundera. The appellant’s appeal to the Court ofAppeal was dismissed. Hence this appeal.
Special leave to appeal was granted on the question whether thesaid Marthelis was a cultivator within the meaning of S. 68 of theAgrarian Services Act at the time of the alleged eviction.
It is common ground that Marthelis had been tenant cultivator ofthis paddy field, in extent 2 acres, from about the year 1948. Theoriginal landlord was the elder brother of the appellant who wassucceeded by the appellant in 1974.
On 09.05.80 Marthelis complained to the Assistant Commissionerof Agrarian Services that he had been evicted from the paddy fieldon 21.03.80. The inquiry into this complaint commenced on 24.01.83.It was interrupted by Court of Appeal Application No. 670/84, filed bythe appellant seeking a direction that the Assistant Commissionershould also inquire into his complaint that Marthelis was not makingproper use of the land. The inquiry was resumed on 02.09.87. At theend of the inquiry, the Assistant Commissioner made his order dated27.07.88.
At the inquiry, Marthelis admitted that he had engaged severalpersons to cultivate the paddy field, none of whom was a member ofhis family within the meaning of the definition of “member of thefamily” in S. 68 of the Act. Marthelis said that they had assisted him.However, the appellant's case was that Marthelis had permitted themto cultivate distinct portions of the land; and that Marthelis himselfcultivated only an extent of 4 lahas or 1/4 acre of the land. WhenMarthelis denied this, the appellant produced, marked VI certifiedcopy of proceedings of an inquiry held by the AssistantCommissioner on 04.03.80 where Marthelis was represented by hisson (the substituted respondent). According to the evidence of theson at that inquiry, the land had been cultivated in the followingmanner.
H. P. Martin – 3 lahas
H. P. Marthelis – 4 lahas
K. Hewasundera – 8 lahas
Peter Ranasinghe – 4 lahas
H. P. Premaratne – 4 lahas
In determining the truth of the appellant’s version, it is relevant tonote that in 1980 Marthelis was an old man who was short of hearing.At the commencement of the eviction inquiry in 1983 he was 81 yearsof age. His son was a Grama Sevaka and did not claim to haveassisted his father in cultivating the paddy field in dispute, as amember of the family.
Appellant admitted having evicted Marthelis only from the extent of1/4 acre which Marthelis cultivated. Others who were cultivating theland were told to vacate it, which they did. He was prepared to permitMarthelis to cultivate the said 1/4 acre but Marthelis was notagreeable to accept it. As such, he retook the entire land.
The Assistant Commissioner held that Marthelis was the tenantcultivator of the entire land and that he had been evicted therefrom.He observed that the entries in the agricultural lands register XI – X4and the admission of the appellant that he evicted Marthelis from anextent of 1/4 support this finding. The Court of Appeal observed thatthe question whether Marthelis was the cultivator is a question of factand that the appellant had failed to establish that Marthelis cultivatedonly 1/4, to the satisfaction of the tribunal. As such, the Court affirmedthe decision of the Assistant Commissioner.
In reaching his decision the Assistant Commissioner proceededon the basis that in view of an agreement between the parties that itwas unnecessary to consider the question of sub letting the land, theonly question for decision was whether Marthelis had been evicted.
I am of the view that both the Assistant Commissioner and theCourt of Appeal failed to consider the relevant question whether inthe light of the fact that distinct portion of the land had been given toother persons for cultivation, Marthelis had the status of a “cultivator”at the time of the alleged eviction. S. 68 of the Act provides thus:
“Cultivator” with reference to an extent of paddy land meansany person, other than an agrarian services committee, who byhimself or by any member of his family, or jointly with any otherperson carries on such extent-
two or more of the operations of ploughing, sowing andreaping; and
the operation of tending or watching the crop in eachseason during which paddy is cultivated on such extent."
On the facts of this case Marthelis was not a ‘cultivator’ within themeaning of S. 68. The other persons who cultivated the land were not“members” of his family within the meaning of that section; nor did hecultivate it “jointly" with them. He was a cultivator only of 1/4 acre. Herefused to remain as the tenant cultivator of that extent, even thoughthe appellant was prepared to permit it.
No doubt Marthelis’ name appears in the agricultural lands registeras "tenant cultivator’’ of the entire land; but in terms of S. 45(3) of theAct an entry in the register is only prima facie evidence of the factsstated therein. It means that the entry is rebuttable; and as pointedout it has been established that at the time of the alleged eviction,Marthelis was cultivator of only 1/4 acre.
For the foregoing reasons, I allow the appeal and set aside thejudgment of the Court of Appeal and the decision of the AssistantCommissioner. There will be no costs.
G. P. S. DE SILVA, C.J. -1 agree.RAMANATHAN, J. -1 agree.Appeal allowed.
DHARMARATNE v. HEWASUNDERA