030-SLLR-SLLR-1989-V-1-NORIS-SINGHO-v.-JOKINU-FERNANDO.pdf
358
Sri Lanka Law Repons
/19891 1 Sn L R
NORIS SINGHO
-v.
JOKINU FERNANDO
COURT OF APPEALWIJETUNGA. J:
C. A. APPLICATION NO. 6/83JANUARY 23. 1989.
Landlord and tenant —tenant Cultivators — Agrarian Services Act No. 58 of1979. (date of commencement 25.9.79) — Lease of the paddy land to anotherwith. tenant cultivator's (appellant) consent — Is the complaint to theCommissioner for 'eviction' under Section 5(3) of the said Act justified? — Is theapplication time barred under the proviso to Section 5(4) of the said Act?
The appellant, agreeing to the respondent's suggestion to lease the saidpaddy land to another, had permitted a third party to cultivate the same. Theappellant'had-thereafter complained to the Commissioner alleging that therespondent had evicted him from the said land, stating the date of eviction as1 978. The application was dismissed on the basis that the complainant hadfailed to prove eviction.
Held
The complainant not only gave up possession of his own free will bdttook'no steps t<5 resume possessron. The Commissioner was therefore right'when he held that there had been no eviction.
The complainant has failed to specify the date of the alleged evictioneither in his application to the Commissioner or in his evidence at the inquiry.It was for the'complainant to bring himself within the proviso by placingbefore the Commissioner acceptable proof. This too he has failed to do. Thusthe application itself should be rejected on the ground that it is time-barred.
Cases referred to:
1. Ariyaratne v. Edwin 68 NLR 470.
W. Obeysekera for Complainant-Appellant
L. Geethananda for Respondent-Respondent.
APPEAL from the order of the learned Assistant Commissioner of AgrarianServices.•.
Cur. adv. vult
Noris Singho v. Jokinu Fernando (Wijetunga.J.)
359
CA
March 31. 1989-•
WIJETUNGA. J.
The. Complainant-appellant, who claimed to be the tenantcultivator of a paddy land, belonging to the respondent-respondent. appeals from the order of the learned AssistantCommissioner of Agrarian Services .(Inquiries) dismissing hisapplication on the basis that the complainant had failed toprove that the respondent had evicted him from the paddyland in question..
On the evidence. led. the Assistant Commissioner has cometo the finding that the complainant was the tenant cultivator. But. as on his own admission, the complainant had agreed .tothe respondent's suggestion to lease the said paddy land to athird party and-. had accordingly permitted another person tocultivate the same, the Assistant Commissioner holds thatthere had been no 'eviction'. He further observes that, if asclaimed by the complainant, the paddy land had been leasedwith'his consent for only one season and'on his attempting toresume cultivation -during-lthe next season., a dispute hadarisen, then an inference of eviction may have been possiblefrom such circumstances. But he finds,that there had been nosuch dispute in respect of this paddy land. Further, hecomments, that it is not even clear from the evidence as towhen the complainant last cultivated this.paddy land.,
In his application dated 30.7:81. the complainant mentions•the date of eviction as. 1978. But, in his evidence before theAssistant Commissioner he has stated at one stage, that he• Ceased to cultivate the paddy land from the Yala season of1 977: however, under cross-examination he has stated that hecultivated the paddy land during a season in 1978. Thus, atthe verymost, the . complainant does mot claim to havecultivated the paddy, land beyond 1 978. This becomes relevantto the other question which was'urged in appeal, viz; whetherthe application is time-barred; to which I will, refer later. :
Section 5(3) of the Agrarian" Services Act provides that"where a.tenant cultivator of any extent of paddy land notifies
360
Sn Lanka Law Reports
f 1989) 1 SnL. R.
the Commissioner that he has been evicted from such extent,such. Commissioner may hold an inquiry for the purpose ofdeciding the question whether or not such person had beenevicted."
The whole basis, therefore, of such an inquiry is the questionof eviction. In Ariyaratne v. Edwin H) a Divisional Bench of theSupreme Court considered the meaning of the word 'evict' inSection 3(2) of the.Paddy Lands Act and held that a personcannot be said to have been ‘evicted’ if he either gave uppossession of the paddy land in question or else did not takesteps to resume possession after his contract or agreementwas terminated .and that in such a case, the Commissioner hasno jurisdiction to excercise the powers conferred on him bySection 3(2). In the instant case too, the' complainant has notonly given up possession of his own free will, but had also nottaken steps to '. resume possession. The AssistantCommissioner was. therefore,• right when he held that therehad been no eviction. It then follows that the AssistantCommissioner had no jurisdiction to exercise the other powersconferred on him by Section 3 of the Agrarian Services Act.
The other question ra.ised in appeal, as mentioned earlier, iswhether the application is time-barred. Section 5(4) of the Act'provides that the notification referred to in subsection (3) shallbe made within one .year from the date , of such eviction;Provided, however, that where such tenant cultivator has beenevicted at any time within two years prior to the date ofcommencement of this Act. such notification shall be madewithin two years of the commencement of the Act.
As already stated, eviction has not been established in thiscase. Even assuming that there had been eviction, theapplication should be made wi.thin the time prescribed by law.The date of commencement of this Act is 25.9.79. If as statedin evidence by the complainant at a certain stage, he.ceased tocultivate the paddy land in January. 1977. even the proviso tosubsection (3) cannot come to his rescue as the eviction, ifany, is not within two years of the date of commencement ofthe Act. –
CANoris Singho v. Jokinu Fernando (Wijetunga. J.)361
On the other hand, if the alleged eviction took place in1978, the complainant has failed to specify the date of sucheviction either in his application to the AssistantCommissioner or in his evidence at the inquiry. As subsection'(3) requires such notification to.be made within one year,subject to the proviso, it was for the. complainant to bringhimself within the proviso by placing before the AssistantCommissioner acceptable -proof Of such .circumstances. Thistoo. he has failed to do. Thus, the application itself should berejected on the ground that it is time-barred.
For the reasons aforesaid. I would dismiss this appeal'withcosts.
Appeal dismissed