IQBAL v. MAJEDUDEEN AND OTHERS

030-SLLR-SLLR-1999-V-3-IQBAL-v.-MAJEDUDEEN-AND-OTHERS.pdf


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Iqbal v. Majedudeen and Others
213
IQBAL
v.MAJEDUDEEN AND OTHERS
COURT OF APPEALYAPA, J„
GUNAWARDANA, J.
C.A. (PHC) NO. 100/97.
HCRA NO. 820/96
M.C. COLOMBO NO. 72192/3.
SEPTEMBER 7, 1998.
DECEMBER 15, 1998.
MAY 8, 1999.
Primary Courts Procedure Act – Possession – Actual or constructive – Forcibledispossession – S. 68 (3) – Breach of Peace – Dispossession in the absenceof the party.
The 1st respondent-respondent upon the death of her husband, went to live withher mother, and the premises in question, where she was living earlier was lockedup by her. The 2nd respondent-appellant, after she returned to Sri Lanka, brokeopen the door of the premises and entered into possession.
The 1st respondent-respondent was restored to possession by the Primary Courtand the High Court. On appeal –
Held:
The fact for determining whether a person is in possession of any corporealthing, such as a house, is to ascertain whether he is in general controlof it.
The law recognises two kinds of possession:
(i) When a person has direct physical control over a thing ata given time – actual possession.
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(ii) When he though not in actual possession has both the powerand intention at a given time to exercise dominion or controlover a thing either directly or through another person -constructive possession.
“Forcibly dispossessed" in s. 68 (3) means, that dispossession had takenplace against the will of the persons entitled to possess and withoutauthority of the law.
“Breach of the Peace is likely” does not mean that the Breach of the Peacewould ensue for certainty, rather it means that a Breach of the Peace isa result such as might well happen or occur or is something that is, soto speak, on the cards.
Mahenthiran with Ms. P. Narendran for petitioner.
M. C. M. Muneer with Ms. Inoka Ranasinghe for respondents.
Cur. adv. vult.
September 30, 1999.
GUNAWARDANA, J.
This is an appeal against an order dated 30. 06. 1997 made by theHigh Court dismissing an application in revision in respect of an orderdated 27. 12. 1996 whereby the learned Primary Court Judge hadrestored, in terms of that order, Samsunnisa Majeebuden (hereinafterreferred to as the 1st respondent) to the possession of the premisesin dispute, ie No. 24/67, Maha Vidyalaya Mawatha, Colombo 13.
The aforesaid 1st respondent had made a complaint to the KotahenaPolice on 15. 08. 1996 to the effect that she was ousted from thepossession of the relevant premises on or about the same date bythe 2nd respondent-petitioner-appellant, viz Affeerun Nihar HasnoonIqbal.
The 1st respondent in her statement to the Police, referred toabove, had stated that she upon the death of her husband, somewhere
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in June, 1995, with whom she had been living along with their children,went to live with her mother at No. 49/20, 17th lane, Kotahena, butthat she kept the premises in question locked up and retained controlthere of. The 1st respondent had explained that she went to live withher mother temporarily as she had to live in seclusion on the deathof her husband for a period of 04 months in observance of the customprevalent amongst Muslims.
The statement marked 1 V 21 made by the 2nd respondent-petitioner-appellant to the Police on the same date, ie 15. 08. 1996is revealing, in that she had admitted therein, that some time aftershe returned to Sri Lanka, somewhere in May, 1995, from the MiddleEast, she broke open the door of the premises No. 24/67 which isthe subject-matter of this case, and entered into possession thereof.The 2nd respondent-petitioner-appellant had, in that statement to thePolice, even chosen to give a reason for doing so – the reason givenby her being that the premises, ie No. 24/68 occupied by her wasnot spacious enough for her family consisting, as it did, of six personsor members. In her statement to the Police, the 2nd respondent-petitioner-appellant had clearly admitted that she gained entry into orpossession of premises No. 24/67 (which is the subject-matter of thiscase) which premises had been closed or locked up by the 1strespondent. This admission, that is, that the premises in question waskept locked up by the 1st respondent confirms the fact that the 1strespondent had actual control and management of the same whichserved to show that the 1st respondent had possession of the propertyin question, before the 1st respondent was, admittedly, ousted by the2nd respondent-petitioner-appellant. The test for determining whethera person is in possession of any corporeal thing, such as a house,is to ascertain whether he is in general control of it. Salmond observesthat a person could be said to be in possession of, say, a house,even though that person is miles away and able to exercise very littlecontrol, if any. It is also significant to note that in her statement tothe Police, the 2nd respondent-appellant had admitted that the 1strespondent lived in the relevant premises during the life-time of thelatter's husband. It is interesting to notice that the 1st respondent's
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position that she was in possession and was ousted by 2nd respond-ent-petitioner-appellant is largely proved, as explained above, on thestatement that the 2nd respondent-petitioner-appellant herself hasmade to the Police.
The law recognizes two kinds of possession:
when a person has direct physical control over a thing at agiven time, he is said to have actual possession of it;
a person has constructive possession when he, though not inactual possession, has both the power and the intention at agiven time to exercise dominion or control over a thing eitherdirectly or through another person. In this case in hand, perhaps,it cannot be said that the 1st respondent has actual physicalpossession because she was not in physical occupation of thehouse in question; but she clearly had, at least, constructivepossession because she, by keeping the premises locked, clearlyexercised not only dominium or control over the property inquestion but also excluded others from the possession thereof. By keeping the premises locked, she, ie the 1st respondent,had not only continued to retain her rights in respect of theproperty in question but also was exercising a claim to theexclusive control there of, and her affidavit evidence is that shehad not terminated her intention to revert to the physicaloccupation of the relevant premises.
The report of the officer in charge of the Police station wherebythis dispute was brought to the cognizance of the Primary Court hadbeen filed on 16. 09. 1996 and according to the statements that hadbeen made to the Police, the 2nd respondent-petitioner-appellant hadentered into occupation of the relevant premises on or about 15. 08.1996. But, as the dispossession of the 1st respondent had beeneffected forcibly within 02 months of the date immediately precedingthe date on which information regarding the dispute had been filedby the Police, the 1st respondent is entitled to be restored to
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possession. "Forcibly dispossessed" in 68 (3) of the Primary Courts'Procedure Act, means that dispossession had taken place against thewill of the person entitled to possess and without the authority of law.Such dispossession is calculated to or tend to a breach of the peacealthough, in this instance, there had been no such breach, becausethe dispossession had taken place in the absence of the party, iethe 1st respondent who would have opposed and resisted thedispossession had she been, in fact, present on the scene, at therelevant time.
There is somewhat of an interesting feature in this case: it wasthe 2nd respondent-petitioner-appellant who had, rather surprisingly,first, made a statement to the Police, regarding this incident, whereinshe had made the admissions referred to above – one such admissionbeing, as pointed out above, that she entered into occupation of thepremises No. 24/67 which had till then remained locked up by the1st respondent. This statement had been made on 15. 08. 1996 at9.30 am, whereas the 1st respondent, who was ousted, had madethe complaint, subsequently, on the same day at 4.30 pm. In herstatement, the 2nd respondent-petitioner-appellant had stated that shewas making that statement to the Police for, to use her own words,her "future safety or protection" – perhaps, protection from or againstthe consequences of her own wrongful act. it is significant to notethat by the time, ie 9.30 am, that the 2nd respondent-petitioner-appellant made the statement to the Police, nobody had made anycomplaint against her regarding her entry into premises No. 24/67,for the 1st respondent's complaint of ouster, although made on thesame date, ie 15. 08. 1996 was later in point of time, ie at 4.30 pm.It is not difficult to put two and two together and infer that the 2ndrespondent-petitioner-appellant had been prompted, by the conscious-ness of her own wrongdoing in forcibly entering the premises underthe control of the 1st respondent – to make the first move in bringingwhat she had done to the notice of the Police. I
I see no reason to interfere with the said orders made by thelearned Magistrate and the High Court Judge respectively, restoring
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the 1st respondent to possession of the premises in question, vizNo. 24/67, Maha Vidyalaya Mawatha, Colombo 13, and I affirm boththe said orders. The appeal is hereby dismissed.
In conclusion, it is to be remarked that it would not be inopportuneto add to what I have said above, in regard to the vexed or muchdiscussed question: under what circumstances can it be said that agiven dispute is likely to lead to a breach of the peace. A hint orslight indication relative to that question may be helpul, in that it wouldoffer a directing principle in regard to the question whether any givendispute or circumstances are likely to lead to a breach of the peacewhich expression generally signifies disorderly, dangerous conduct andacts tending to a violation of public tranquility or order. One may safelyconclude that if the entry into possession is done or effected by forceor involves force it is, in the nature of things, such an *entry as islikely to evoke resistance which would invariably be fraught with thedanger that it would be productive of friction. “BREACH OF THEPEACE IS LIKELY" DOES NOT MEAN THAT THE BREACH OF THEPEACE WOULD ENSUE FOR A CERTAINTY; RATHER, IT MEANSTHAT A BREACH OF THE PEACE (OR DISORDER) IS A RESULTSUCH AS MIGHT WELL HAPPEN OR OCCUR OR IS SOMETHINGTHAT IS, SO TO SPEAK, ON THE CARDS.
HECTOR YAPA, J. – I agree.
Appeal dismissed.