Sri Lanka Law Reports
 2 Sri LR.
COURT OF APPEALTILAKAWARDANE, J. ANDUDALAGAMA, J.
CA NO. 751/95
DC KURUNEGALA NO. 976/MBMARCH 27, 2001APRIL 02, 2001
Agrarian Services Act – s. 2 (1), s. 11 (2), s. 11 (9), s. 68 – Tenanat cultivatorbecoming usufructuary mortgagee – Remaining a tenant cultivator – Cessationof tenancy – Rights in violation of provisions in the Act – Null and void.
The plaintiff-respondent-respondent prayed for a discharge of a usufructuary mortgageand to eject the defendant-appellant. The defendant-appellant claimed ande rights.
The position of the plaintiff-respondent was that, when the defendant-appellantbecame a usufructuary mortgagee and by operation of law he also became anowner cultivator thereby precluding him from claiming rights of tenancy; and thathe loses his claim to rights of an ande cultivator.
The District Court held with the plaintiff-respondent.
On appeal –
By virtue of s. 2 a cultivator of any extent of paddy land let to him undereither oral or written agreement shall be subject to the provisions of theAct.
Cessation of Tenancy rights in violation of s. 11 (2) would be null and void.
Interpretation section (s. 68) could not be used to deprive a tenant cultivatorof his tenancy rights simply because the tenant cultivator acquired the statusof a usufructuary mortgagee.
Munasinghe v. Somapala (Udalagama, J.)
Per Udulagama, J.
"Notwithstanding the meaning given to "Owner Cultivator" in s. 68 evenif he becomes a ususfructuary mortgagee, vide s. 2, when the appellantbecame a Tenant Cultivator' he could cede his rights only as providedfor by ss. 11 (2) and 11 (3) . . . the tenant only keeps to himself theground rent due to the landlord by virtue of the said usufructuary bond..'"
APPEAL from the judgment of the District Court of Kurunegala.
M. R. De Silva for substituted defendant-appellant.
D. M. G. Disanayake with C. Uyanage for plaintiff-respondent.
Cur. adv. vult.
July 23, 2001UDALAGAMA, J.
The plaintiff-respondent filed DC Kurunegala case No. 975/MB againstthe defendant-appellant praying for a discharge of usufructuary mortgagebond No. 19666 dated 27. 09. 68 and to eject the defendantfrom the paddy-field in question. The defendant-appellant filed answerclaiming tenancy rights (Ande) and denied the plaintiff-respondent'sright to eject him.
The submission of the plaintiff-respondent appeared to be that videsection 68 of the Agrarian Services Act which provides for theinterpretation of sections, that the defendant-appellant when he becamea usufructuary mortgagee by the operation of law he also becamean owner cultivator thereby precluding him from claiming rights oftenancy. That he loses his claim to rights of a tenant cultivator.
Apparently, this submission had been accepted by the learnedDistrict Judge and by his judgment dated 11. 12. 95 he has held,inter alia, that the defendant-appellant ceased to be a tenant cultivatoron the execution of the usufructuary mortgage bond referred to above.
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 2 Sri LR.
The defendant-appellant appealed therefrom.
Perusing the evidence particularly the answers in cross-examinationof the plaintiff-respondent it is abundantly clear that the latter receivedhis share in money in lieu of same in paddy (page 54 of the proceedings).The plaintiff-respondent had also accepted the position of the defendant-appellant that the latter's name appeared in the Paddy Lands Registeras an ‘Andet cultivator (pages 67 & 68 of the proceedings). In answerto the last question in cross-examination the plaintiff-respondent hascategorically stated that the appellant had worked the field from 1966which is clearly two years before the date of the execution of themortgage bond referred to above. Apart from this, P2, a documentproduced by the plaintiff-respondent from his own custody comprisingdetails of the Paddy Lands Register, had the appellant's name as thetenant cultivator and the name of the respondent as the owner inthe respective columns of the said document. It was not the positionof the plaintiff-respondent that the defendant-appellant was, in fact,a "labourer" or that wages were paid for his services. Significantly,however, the plaintiff-respondent has also admitted that the defendant-appellant paid him money. This reference is obviously to the moneyin lieu of the share of paddy the plaintiff-respondent was entitled tofrom the appellant. The submission of the respondent that the appellantwas cultivating the field by virtue of P1 is not borne out by P2 whichclassifies the appellant as the tenant cultivator of the respondent.Considering this evidence, I am inclined to the view, contrary to thestance taken up by the respondent who thereby contends that uponthe purported discharge of the usufructuary bond referred to abovepossession should be returned to the respondent, that, in fact, it isthe appellant who had accrued rights of a tenant prior to the executionof the said mortgage bond and is thereby entitled to the benefitsgranted to a tenant under section 2 (1) of the Agrarian ServicesAct and that a tenant cultivator's rights could not be ceded unlessprovisions of sections 11 (2) and 11 (3) of the said Act was compliedwith. Sections 11 (2) and 11 (3) of the Agrarian Services Act readsas follows:
Munasinghev. Somapala (Udalagama, J.)
“11 (2). A tenant cultivator of any extent of paddy land may,with the written sanction of the Commissioner given after suchinquiry and on such terms as he may deem necessary, cede hisrights in respect of such extent to his landlord if such landlord isalso the owner of such extent.
11 (3) Any transfer of possession by the tenant cultivator inviolation of provisions of subsection (1) or (2) shall be null andvoid and shall render the person in occupation of such extent tobe evicted in accordance with the provisions of section 6 and onsuch eviction the provisions of subsection 5 of section 4 shall 60apply."
Thus, a cessation of tenancy rights in violation of section 11 (2)would be null and void vide the provisions of section 11 (3) referredto above. I am of the view that the learned District Judge erred whenhe came to a finding that the interpretation section in the AgrarianServices Act could be used to deprive a tenant cultivator of his tenancyrights simply because the tenant cultivator acquired the status of ausufructuary mortgagee. Besides, there is no provision in law whichprevents a tenant cultivator acquiring such status while being a tenant.
In the instant case the tenant only keeps to himself the ground rent 70due to the landlord by virtue of the said usufructuary mortgage bond.
By virtue of section 2 of the Agrarian Services Act a cultivator ofany oxtent of paddy land let to him under either oral or writtenagreement shall be subject to the provisions of the Act. The plaintiff-respondent as stated above had in no uncertain terms admitted thatthe respondent did cultivate the field in question prior to the executionof the mortgage bond, nowhere in the evidence of the plaintiff-respondent has he stated that the defendant was only a paid labourer.
A tenancy is thus created vide section 2 of the Agrarian ServicesAct and as in the instant case the defendant becomes the tenant socultivator of the particular extent of paddy land. Such a tenant cultivatorcan cede his rights of tenancy only with the written sanction of the
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 2 Sri LR.
Commissioner under the provisions of the Act as stated above.Notwithstanding the meaning given to “owner cultivator” in section 68of the Act even if he becomes a usufructuary mortgagee, vide section2 of the said Act, when the appellant became a tenant cultivatorhe could cede his rights only as provided for by sections 11 (2) and11 (3) referred to above.
On a consideration of the evidence led in the lower Court and alsoconsidering the documents filed and for the reasons stated above, 90I would in the circumstances hold that the learned District Judge erredwhen he came to a finding on the arguments placed before him bythe respondent and the interpretation relied upon by the respondentthat by operation of law once the tenant cultivator loses his rightsof tenancy he is precluded from claiming tenancy rights subsequently. I
I hold that on the evidence led that it was abundantly clear thatthe defendant-appellant was the tenant even before the usufructuarymortgage bond and that the appellant even after the acquisition ofthe status of a usufructuary mortgagee for a limited period as evidentfrom P1 would continue to be a tenant cultivator and his substantial 100rights to tenancy would continue and only come to an end, videprovisions of sections 11 (2) and 11 (3) of the Act referred to above.
For the reasons stated above, the appeal is allowed.
The judgment of the learned District Judge dated 11. 02. 95 isset aside with taxed costs.
TILAKAWARDANE, J. – I agree.