EDIRISINGHE v. CHARLIS SINGHO

033-SLLR-SLLR-2000-V-3-EDIRISINGHE-v.-CHARLIS-SINGHO.pdf


EDIRISINGHE
v.
CHARLIS SINGHO
COURr OF APPEALHECTOR YAPA, J. (P/CA)
U.DE Z. GUNAWARDANE. J.
CAPHC 13/94.
HC KEGALLA 184/9018™ JUNE. 1999
Agrarian Services Act. 58 of 1979 – S.5(6) – Eviction – Restoration oja person who had surrendered tenancy Rights ■ Ultra vires ■ Waiver orabandonment oj tenancy – Surrender oj Rights – Doctrine of Estoppel.
The Commissioner after Inquiry, directed that the Respondent, whoclaimed to be the tenant cultivator be restored to possession on the basisthat he had been evicted by the Appellant who became the owner of thefield under Deed No. 2469. This Order was affirmed by the High Court.On Appeal.
Held :
The Deed shows unmistakably that the sale of the land was notsubject to any ande rights: but the ande rights have been transferred tothe Appellant.
From the conduct of the Respondent (tenant) in consenting to be anattesting witness to such a transaction which purports to transfer anderights, active assent on the part of the Respondent to the waiver orsurrender of his rights may be inferred.
As the Respondent was the one who acted as the intermediary aninference that there was a waiver or abandonment of tenancy rights, ifnot a surrender of such rights by the Respondent is irresistible in the lightof the fact that the Respondent had acquiesced in the act of the previousowner of selling the land with the tenancy rights.
It is reasonable to assume that the Respondent consented to be asignatory to the deed, as an attesting witness, as a manifestation of thewillingness to sell the land to the Petitioner free of ande rights:
Eviction cannot take place subsequent to a surrender of the rightto persons. The Commissioner in ordering the restoration of the
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Respondent had acted without legal power to do so. Prior surrendernegates an eviction.
Per Gunawardena, J.
“Surrender would be the act of law and would prevail inspite of theintention of parties. Surrender occurs by operation of law, whenparties to a lease do some act so inconsistent with the subsistingrelation of landlord and tenant as to imply that they have both agreedto consider the Surrender is made.
Surrender differs from abandonment. Abandonment of rights issimply an act on the part of a lessee/tenant. Surrender is a contractualact and occurs by mutual consent.
Surrender must be reflected in a consensual act where asabandonment is a unilateral act on the part of the tenant.
The act of the Respondent (tenant – signing such a deed) (as anattesting witness) is tantamount to a representation or holding out by theRespondent, that the Appellant obtains title free from tenancy rightswhich works an estoppel as against the Respondent (tenant).
APPEAL from the Provincial High Court of Kegalle.
Cases referred to :
R v. Fulham Rent Tribunal (1950) 2 All ER 211
Appuhamy and another v. Menike and others (2000) 2 SLR 40
Lyon v. Reed (1844) 13 M & W 285
Foster v. Robinson (1950) 2 All ER 341
Raja Bandaranayake for the Appellant.
J.C. Boange for Respondent.
Cur. adv. vult.
November 16, 2000.
U. DE Z. GUNAWARDENA, J.
This is an appeal from an order made by the High Court,Kegalle, on 30. 10. 1992 dismissing an appeal against an orderdated 26. 10. 1990 made by the Commissioner of AgrarianServices directing that the respondent, who claims to be thetenant-cultivator in respect of the paddy field in question viz.Muttetuwe Kumbura be restored to possession on the basisthat he had been evicted by the Appellant who is admittedly the
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owner thereof – the appellant having purchased the same ondeed No. 2469 dated 16. 07. 1988.
The learned Counsel for the respondent had pointed outin his written submissions that there being a reference to thetenancy rights in the aforesaid deed (Whereby the appellantbecame the owner of the land in question) it is not open to theappellant who is the owner of the land in question to contendthat he (the appellant) purchased the land free from tenancyrights. But. in the circumstances of this case, that submissionhas somewhat recoiled on its propounder. It is not clear fromthe said deed as to who the tenant had been. But the deed(No. 2469) places one matter beyond controversy, that is, thatthe land had been sold not subject to, but with the tenancyrights, if that were possible in law. To quote the relevantexcerpt from the deed : . . .
“ S Qod e?Ozs 0aes8c3 sagd ea» SO e?88 Qcag eq’ epq
C3@® S0.”
What calls for special remark in this regard is the fact thatthe respondent who claims to be the tenant had been one of theattesting witnesses to the execution of the deed of transfer infavour of the appellant. The deed shows unmistakably that thesale of the land was not subject to any Ande rights, ascontended by the learned Counsel for the respondent (tenant),but that Ande rights had also been transferred to theappellant. I do not think that it is possible in law to transferAnde rights in that manner, but from the conduct of therespondent in consenting to be an attesting witness to such atransaction, whereby or which purports to transfer Anderights, active assent on the part of the respondent to the waiveror surrender of his rights (assuming that he was, in fact, atenant cultivator prior to the date of the sale) may legitimatelybe Inferred. It is also not without significance that it was therespondent who acted as the intermediary or the brokerbetween the appellant and the former owner in the matter ofthe sale of the land in question to the appellant. In the
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circumstances an inference that there was a waiver orabandonment of tenancy rights if not a surrender of suchrights by the respondent (assuming that the respondent wasa tenant under the previous owner) is almost irresistible in thelight of the fact that the respondent had acquiesced in the actof the previous owner, of selling the land with the tenancyrights – an act of which the respondent had knowledge, but towhich he made no demur – so to say. On the contraiy by signingthe deed of transfer as a witness, as explained above, therespondent had formally consented to such a transfer andgiven his imprimatur to the transaction, so to speak, that is,a transfer of his rights as well, which in the circumstanceswould constitute evidence of abandonment or waiver orsurrender of tenancy rights – if, in fact, the respondent hadbeen a tenant previously. I think it would be more correct to saythat there was a surrender, regarding which aspect more willbe said later on.
As the respondent ought to be held to have parted with orsurrendered his Ande rights, of his own free will, if, in fact, hehad any, it is illogical to conclude that he was ousted on 11. 04.1990, as alleged by the respondent – a date which is ninemonths subsequent to the date of the executing of the deed oftransfer (of ownership of the relevant land) in favour of theappellant. For the respondent to be ousted on 11. 04. 1990 -he should have continued to exercise Ande rights evenafter he surrendered them – a conclusion which would beunwarranted and unrealistic in that it would not be marked bygood practical sense in eveiyday matters. It is reasonable toassume that the respondent consented to be a signatory to thedeed (as an attesting witness) as a manifestation of hiswillingness to sell the land to the petitioner free of Ande – rightswhich Ande rights the respondent now claims. That therespondent did not exercise Ande rights, after he surrenderedsuch rights, to which his signing of the aforesaid deed on16.07. 1988 as an attestingwitness almost un-erringly points,is vindicated, in some degree, also by the fact that therespondent’s name does not appear as a tenant cultivator in
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the cultivation committee register in respect of the years 1988and 1989. It is impossible to establish an ouster or eviction on11. 04. 1990, as alleged by the respondent when, in fact, theevidence strongly, if not conclusively, suggests the inferencethat the respondent had surrendered Ande rights if, in fact, hehad had any such rights, prior to 16. 07. 1988 – that being thedate of the purchase of the land by the appellant, on theaforesaid deed to which deed of transfer the respondent hadbeen a signatory and by which deed the appellant had bought,or rather purported to buy, the land free from Ande rights.
THE CRUCIAL AND DECISIVE QUESTION ARISING IN THISCASE IS NOT SO MUCH AS TO WHETHER THE ACT OF THERESPONDENT IN SIGNING THE DEED OF TRANSFER (INFAVOUR OF THE APPELLANT) WHEREBY THE PREVIOUSOWNER HAD PURPORTED TO SELL THE LAND FREE FROMANDE RIGHTS HAD WORKED A FORFEITURE OF THETENANCY RIGHTS. IF ANY, OF THE RESPONDENT. BUTWHETHER IT COULD RATIONALLY BE THOUGHT THAT THERESPONDENT CONTINUED TO BE IN POSSESSION OF THEANDE RIGHTS NOTWITHSTANDING THE RELINQUISHMENTOF SUCH RIGHTS AS EVIDENCED BY THE ACQUIESCENCE.IF NOT, THE CONSENT OF THE RESPONDENT TO SUCHTRANSFER (OF ANDE RIGHTS) ON 16. 07. 1988 as evidencedby the respondent’s signing the deed of transfer, as explainedabove. It is on that date, that is, on 16. 07. 1988 that the deedpurporting to transfer Ande rights was executed. And it is onthat date, therefore, that the relinquishment or surrender bythe respondent of Ande rights must be held to have occurred.But as the ouster complained of by the respondent had takenplace allegedly on a very much later date i.e. on 11. 04. 1990,it is difficult, if not, impossible to say that the respondent hadbeen wrongfully dispossessed, which is what eviction means,in the context, when, in fact, he had surrendered his rightspreviously i.e. on 16. 07. 1988.
It is only if it had been established that the respondent(tenant) had been evicted by the landlord that the
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Commissioner could, under Section 5 of the Agrarian ServicesAct, have ordered that the respondent be restored topossession and not otherwise. It is regrettable that neitherthe Commissioner, nor the High Court Judge, nor thelearned Counsel who argued the matter before us, mostlaboriously, had appreciated or had been even conscious ofthe overwhelming significance of this fact i.e. that an evictioncannot take place, in point of time, subsequent to a surrenderof the right to possess – this case is being a singular exampleof such relinquishment or handing over of the right.
The main ground on which the learned High Court Judge,Kegalle, had dismissed the appeal against the order of theCommissioner of Agrarian Services seems to be that the appealto the High Court was not on a question of law. It is true thatin terms of Section 5(6) of the Agrarian Services Act. No. 58 of1979 an appeal against an order made by the Commissioner,either restoring to possession or refusing such restoration ofthe tenant, is appealable solely on a question of law. Thelearned High Court Judge had been of the view that finding bythe Commissioner that the respondent was tenant – cultivatorand the consequent order restoring the respondent topossession on that footing was one based on a factual basis.Both the learned High Court Judge and the Commissioner hadmade an error with respect to the precondition to the exerciseof the power to restore a tenant – precondition, being, asexplained above, eviction by the landlord. For theCommissioner to exercise the power of restoration, as he had,in fact, done in this case, the precedent fact of eviction of thetenant by the landlord must exist or must be proved. Thisaspect or question had been wholly overlooked or glossedover, both by the learned High Court Judge and by theCommissioner – for both of them had been wholly imperviousto the overwhelming significance of the fact that therespondent had signed the deed of transfer (in favour of theAppellant) thereby evincing his willingness to part with orsurrender his rights of tenancy – if, in fact, he had had any. Thelearned High Court Judge had failed to appreciate that the
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legislature had conferred the decision – making power on theCommissioner on the basis, or assumption that such powerwould be exercised on the correct legal basis. As I myself hadexplained, quoting Lord Goddard C.J., in my judgment inanother case i.e. C.A. 14/99 : “if a certain state of facts has toexist before an inferior tribunal have jurisdiction, they caninquire into the facts in order to decide whether or not theyhave jurisdiction, but cannot give themselves jurisdiction bya wrong decision upon them.”
The Commissioner in ordering the restoration of therespondent to possession had clearly acted without the legalpower to do so. The Commissioner would have had the legalpower to restore a tenant to possession only if there had beena dispossession by the landlord. The ground for this is the ultravires doctrine, for the Parliament had never intended to conferon the Commissioner a power to reinstate a tenant who hadNOT been evicted and who had on his own surrenderedpossession. In order for the power of restoration to be exercisedby the Commissioner there must be a factual precondition,which is: that the tenant ought to have suffered eviction. TheCommissioner made a serious error in regard to thatprecondition and thereby acted without jurisdiction. This is aclassic example of a case where the Commissioner had actedultra vires, that is, without statutory backing. But the errorthat both the Commissioner and the learned High Court Judgemade was with respect to a precondition to the exercise of thepower – precondition, as explained above, being that thereshould have been an eviction of the respondent (tenant). It isthe error that the Commissioner made with respect tothat precondition (viz. eviction) to the exercise of power (ofrestoration) that had led to Commissioner acting withoutjurisdiction in making an order of restoration. As the ordermade by the„.( Commissioner re-instating the respondent(tenant) is ex facie bad, inasmuch as it had been made withoutthe legal power to do so, an appeal against such an order mustbe treated as one on a question of law – MORE SO AS THEREWAS NO DISPUTE OR CONTROVERSY AS TO THE FACT THAT
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THE RESPONDENT HAD, IN FACT, SIGNED THE DEED OF.TRANSFER AS AN ATTESTING WITNESS. As pointed out byBrian Thompson in his textbook on Constitutional andAdministrative law : “Perhaps we can say that reasons ofprinciple and pragmatism are combined by the Courts whenthey distinguish law from fact, Where matters are serious thenthe law category is more likely to be applied but whereextensive examination of evidence is required or differing viewsmay reasonably be arrived at, or the court is happy with theexpertise of the body whose decision is challenged, matters aremore likely to be designated as questions of fact.”
The relevant order of the Commissioner has to be set asidebecause on its face it is clearly made without jurisdiction forthe Commissioner has ordered the restoration of a person (therespondent) who had surrendered his rights of tenancy andhad thereby not only ceased to be a tenant but had also ceasedto possess in the capacity when, in fact, for the commissionerto have the jurisdiction to restore a person to possession,that person ought not only to be a tenant but ought also tohave been wrongfully evicted. As such, the order of thecommissioner dated 10. 11. 1990 restoring the respondent topossession on the basis that the respondent (tenant) had beenwrongfully evicted or dispossessed is clearly wrong or illegal -as one made in excess of jurisdiction. The respondent’s act ofsigning the deed of transfer (as explained above) clearlyevinced or indicated the surrender by the respondent of histenancy rights.
It is to be observed that “eviction” of the tenant is ajurisdictional fact-in that it is on that fact that the jurisdictionof the Commissioner to restore the tenant depends. Asexplained in Wade : “as to those jurisdictional facts thetribunal's decision cannot be conclusive, for otherwise itcould by its own error give itself powers which were neverconferred upon it by parliament”. In the case in hand, too, theCommissioner had given himself the power to restore a tenant,rather a person, to possession by making an error himself-the
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error that Commissioner made being to hbld that there hadbeen an eviction of the tenant (respondent) when, in truth, therespondent himself had surrendered or had agreed to forgo hisrights of tenancy. Prior surrender negates an eviction.
In this regard, it would be instructive to advert to a caseViz. R. v. Fulham Rent Tribunal,,). It is worth reproducing theobservation made with regard to the above-mentioned case inWade and Forsyth (7th edition) Page 287. “For example, a renttribunal had power to reduce a rent where it appear that apremium had been paid; but where the payment had. in fact,been made in respect of work done by landlord and not inrespect of the grant of the lease, it was not in law a premium.By treating it as such the tribunal made a mistake of law andacted in excess of its powers …”
In the instant case too, the Commissioner by erroneouslyholding that the respondent (tenant) had been evicted hadgiven himself a power which was never conferred upon him bythe Parliament which had resulted in the usurpation of ajurisdiction which he (the Commissioner) had not; for theParliament conferred upon the Commissioner the power torestore a tenant, as has been repeatedly stated in this order,only in one situation, that is, when the latter had beenwrongfully evicted.
The learned High Court Judge’s order is as wrong as wrongcan be for he had erred by holding that the appeal relates to aquestion of fact and not of law and so dismissing it on thatbasis. One had very often to encounter this problem ofdistinguishing between “law” and “fact” in relation to section147 of the Civil procedure Code, when one functions as aDistrict Judge which section states that when issues both oflaw and of fact arise-issues of law shall be tried first when theCourt is of opinion that the case may be disposed of on issuesof law only. A question of fact involves the resolution ofa factual dispute whereas a question of law involves theapplication of the law to preliminary facts, which have to be
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established before the law can be applied, or the interpretationof a law. To quote from Wade : “Whether these facts onceestablished satisfy some legal definition or requirement mustbe a question of law, for the question then is how to interpret,and apply the law to those established facts. If the question iswhether, some building is a “house" within the meaning of theHousing Act – its location, condition, purpose of use, andso forth are questions of fact. But once these facts areestablished, the question whether it counts as a house withingthe meaning of the Act is a question of law. The fact themselvesnot being in dispute, the conclusion is a matter of legalinference. ”
In this case, too, one has to apply the law to theestablished facts, or rather to the established fact viz. that therespondent (tenant) had, be it noted, admittedly, been asignatory, as explained above, to the relevant deed of transferin favour of the appellant. The inferences to be drawn from thatfact are matters of legal inferences : (a) does the fact that therespondent had signed the relevant deed, wherein it is statedthat the relevant land is sold inclusive of Ande rights, involvea surrender or more accurately, a surrender of tenancy byoperation by law; (b) if so, that is, if. in fact, the respondent hadpreviously surrendered his Ande rights, can, it ever be saidthat there was an eviction of the respondent (tenant) within themeaning of Section 5(7) of the Agrarian Services Act No:. 58 of1979. It cannot be too strongly emphasized that it is onlywhen such eviction or dispossession is “established” that theCommissioner has the jurisdiction or the power to restore thetenant to possession and not otherwise for it is ludicrous toorder the restoration of a tenant who is, in fact, in possessionand had not been evicted or had surrendered possession as therespondent, in fact, had done.
The act of the respondent in being a signatoiy to the saiddeed of transfer wherein it is stated that the land is sold tothe appellant with or inclusive of tenancy rights, when viewedin a realistic perspective, is incompatible and cannot be
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integrated with a continuing or subsisting relation of landlordand tenant. On the contrary such an act on the part of therespondent (tenant), not only forcibly points to a mutualunderstanding between the erstwhile landlord (who was thevendor to the appellant) and the respondent (tenant) that bothof them had “mutually agreed to consider the surrender asmade" but also to a holding out or offering of inducement bythe respondent (tenant) to the appellant to believe that he (theappellant) gets an unfettered title to the land in question – freefrom the encumbrance of tenancy rights.
This is an appropriate context in which to explain the legalconcept of surrender or how the surrender, by operation of law,works. As I had explained in my own judgment in Appuhamyand another v. Menike and others121 “surrender would be the actof law and would prevail inspite of the intention of parties". AsParke B. had stated in Lyon v. Reed!3' (referred to at page 205in Spencer Bower) it is the act itself that amounts to surrender.To quote: “In such a case there can be no question of intention.The surrender is not the result of intention. It takes placesindependently of and even inspite of intention."
Thus it would not avail or the help the respondent (tenant)to say that he did not intend to surrender Ande rights althoughhe signed the deed wherein it is stated that the land istransferred inclusive of Ande rights for, as stated above, it isthe act of the party that matters, (of course, in this case, therespondent had not said, at least, for the sake of formality, thatalthough he signed the deed, he did not intend to part withAnde rights. This is quite understandable and the explanationfor that is obvious for everybody had been oblivious to thisaspect of the case as to whether or not the act on the partof the respondent in signing the deed of transfer, above -mentioned, is tantamount, in law, to a surrender). It would beinstructive to refer to case of Foster v. Robinson141 where thestatutory tenancy was held to have been surrendered byoperation of law as it had been verbally agreed, in that case,between the defendant’s father and the Landlord – that the
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defendant’s father owing to his old age and infirmity need notpay any further rent but could continue to live in the cottagefor the rest of his life, rent free. Thereafter rent was neitherdemanded nor tendered and the defendant’s father continuedto live in the cottage without making any payment till he died.Earlier the defendant’s father had worked for the landlord onthe farm and paid an annual rent to the landlord who was theowner of both the farm and the cottage. It was held that theagreement between the defendant’s father and the landlordthat the former could occupy the cottage rent free was effectualto produce a surrender of tenancy by operation of law and thedefendant was estopped from asserting that the old tenancystill existed.
Surrender occurs by operation of law “when parties to alease do some act so inconsistent with the subsisting relationof landlord and tenant as to imply that they have bothagreed to consider the surrender as made. “(Black’s LawDictionary – page 1295 – 5,h edition). Surrender differs fromabandonment. Abandonment of rights is simply an act on thepart of a lessee or tenant. Surrender is a contractual act andoccurs by mutual consent. Surrender must be reflected in aconsensual act whereas abandonment is a unilateral act onthe part of the tenant.
In a way, there is even justification for saying that theprivate law doctrine of estoppel comes into play for thecircumstances of this case even warrants a finding that the actof the respondent (tenant) in signing such a deed, in the stateof things or facts obtaining in this case, is tantamount to arepresentation or holding out by the respondent, that theappellant obtains title free from tenancy rights, which worksan estoppel as against the respondent (tenant). Estoppelserves to stop the respondent (tenant) benefiting from thestrict legal rights of the situation. When the respondent signedthe relevant deed the appellant was entitled to think that therespondent will not assert his rights of tenancy as against him.Such an act on the part of the respondent – tenant would
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undoubtedly have operated as an inducement to the appellantto buy the land – because the appellant was getting the landfreed from Ande rights or, at least, he was persuaded to thinkso.
From what has been stated above it would be abundantlyclear that one was justified in drawing the legal inference thatthe respondent had given up, or, to use the lawyer's jargon,surrendered his rights of tenancy which bars or precludesthe Court from holding that there was an eviction of therespondent (tenant) as contemplated by law, that is, section5(7) of the Agrarian Services Act No: 58 of 1979.
For the aforesaid reasons the order dated 30. 11. 1992made by the Learned High Court Judge upholding theCommissioner’s order restoring the respondent to possessionis hereby set aside. And it goes without saying that theaforesaid order of the Commissioner, too, will automatically,as it were, stand vacated.
HECTOR YAPA, J. (P/CA) – I agree.
Appeal allowed. Order of the Commissioner stand vacated.