Sri Lanka Law Reports
(198912 Sri LR
COURT OF APPEAL
P.R.P. PERERA, J. & PALAKIDNAR, J.
C.A. No. 89/89 – P.C. RATNAPURA No. 191(92031)
JUNE 15 AND JULY 5, 1989.
Lease – Landowner leasing gemming rights – Landowner being in occupation buildshouse – Can removal of house be ordered? – Primary Courts Procedure Act, section69(2) – Indian Criminal Procedure Code, section 147(2).
One Jamis gave a lease of gemming rights of a land in his occupation. He built ahouse on it to the detriment of the lessee's gemming rights. The Primary Courtordered the removal of the house acting under section 69(2) of the Primary CourtsProcedure Act.“
The order that can be made under section 69(2) in regard to a right to any land otherthan the right to possession is a declaration of entitlement of such right afterdetermination by the court subject to a final determination by a competent court andprohibition of all disturbance or interference with the exercise of such right by such aparty. The order is of a prohibitory nature preventing an interference with the exerciseof such a right.' This cannot include a positive order of removal of a structure.
Case referred to:
1. Banerjie v. Rahman 29 AIR 1942 Calcutta 244.
APPLICATION for revision of an order of the Primary Court of Ratnapura.
Mahanama de Silva for petitioner.
Sanath Jayatilleke for respondent.
Cur. adv. vult.
October 20, 1989.
' Jamis the Petitioner is a co-owner of a land called“Gatapigewatta” in the Ratnapura District. Kannangara theRespondent in year 1979 obtained, a ten year lease of gemmingrights on this'land till 14th June 1989. It was also stated in the leasethat the Respondent, Jamis should not disturb Kannangara in digginggem pits and gemming in this land.
CAJarriis v. Kannangara (Palakidnar, J.)351
The learned Primary Court Judge by his order dated 26.1.89declared that in terms of the lease Kannangara has a right to gem inthis land and that such right should not be disturbed. Proceedingfurther in the order the Primary Court Judge obsecved that there wasno mention of any disturbance to the gemming rights of theRespondent Kannangara.The complaint was regarding the building ofa house on the land in dispute on the 30th August 1987 by Jamis-and his children who were in occupation of this land. Thecomplainant further told the police that this building should bestopped till this land was divided. He based his claim on the footingthat he- had rights in this land.
The learned trial Judge having correctly assessed the dispute,however proceeded to hold that Jamis in building a house was tryingto create a new possession and issued an order that this houseshould be removed by the Police.
It was conceded by the complainant in his complaint that Jamiswas living on this land. Thus the dispute was an extention of Jamis’s.possession to the detriment of Kannangara’s rights under the lease.
Thus if there was any infringement of such a right it would be of abreach of contract under the lease. The remedy 1s a civil one in termsof damages arising bout of such breach.
It is to.be noted that the learned trial Judge has not viewed thedispute in this manner. There is a finding of fact that Kannangara’sgemming rights have not been disturbed.
It now remains to be considered whether the Primary CourtJudge’s order to remove the structure could have been lawfully madewithin the ambit of the powers given to him by section 69(2) of thePrimary Courts Procedure Act.
The order that, can be made under this subsection in regard to aright to any land other than the right to possession is a declaration ofentitlement of such right after determination by the court subject to afinal determination by a competent court and prohibit all disturbanceor interference with an exercise of such right by such party.
The order therefore is clearly of a prohibitory nature preventing aninterference with the exercise of such a right.
Whether such an order would lawfully include the removal of astructure is a matter which can only draw a negative reply. An orderto remove the structure is not an order prohibiting the disturbance or
Sri Lanka Law Reports
(198912 Sri LR
interference with a declared right. An order of removal is a positiveorder. Such an order was considered in testing the validity of anorder made by a Magistrate to remove a stable which was erected toobstruct a pathway under section 147(2) of the Indian CriminalProcedure Code. The words of the section are identical with thewords of section 69(2) of the Primary Courts Procedure Act, No. 44of 1979.
A full bench of the Calcutta High Court in the case of Banerjie vsRahman (1) held that the words making an order prohibiting anyinterference with the exercise of such right does not vest a Magistratewith pcwer to make a positive order of removal of a stable built on apath.
I agree with that view and set aside the order of the learnedPrimary Court Judge and grant relief as prayed for by the Petitionerto this application with costs fixed at Rs.325/-.
P.R.P. PERERA, J. – I agree.
Order set aside.