007-SLLR-SLLR-1994-V2-PUNCHI-NONA-V.-PADUMASENA-AND-OTHERS.pdf
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Punchi Nona v. Padumasena and Others
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PUNCHI NONA
v.
PADUMASENA AND OTHERS
COURT OF APPEALISMAIL. J.
PRIMARY COURT.
MATARA CASE NO. 47970.
C.A. NO. 104/90.
MAY 03 AND JUNE 09.1994.
Primary Courts Procedure – Primary Courts Procedure Act, ss. 66( 1) (a), (b),68(1) & (3), 69 – Distinction between section 68(1) & (3) and section 69 -Jurisdiction distinction between section 66(1) (a) and section 66(1) (b) – Section68(1) of the Primary Courts Procedure Act is concerned with the determination asto who was in possession of the land on the date of the filing of the information toCourt.
Section 68(3) becomes applicable only if the judge can come to a definite findingthat some other party had been forcibly dispossessed within a period of twomonths next preceding the date on which the information was filed. Thedistinction in section 69 is that it requires the Court to determine the question asto which party is entitled to the disputed right preliminary to making an orderunder section 69(2) of the Act.
Where the information is filed under section 66(1) (a) of the Primary CourtsProcedure Act by a police officer, a Primary Court is vested with jurisdiction toinquire into the dispute. The Police Officer is empowered to file the informationonly if there is a dispute affecting land and a breach of the peace is threatened orlikely. However, when an information is filed by a party to the dispute undersection 66(1) (b) it is left to the judge to satisfy himself that there is a disputeaffecting land owing to which a breach of the peace is threatened or likely.
The jurisdiction conferred on a Primary Court under section 66 is a specialjurisdiction. It is a quasi-criminal jurisdiction. The primary object of the jurisdictionso conferred is the prevention of a breach of the peace arising in respect of adispute affecting land. The Court in exercising this jurisdiction is not involved inan investigation into title or the right to possession which is the function of a civilcourt. He is required to take action of a preventive and provisional nature pendingfinal adjudication of rights in a Civil Court.
In an information by a private party under section 66(1) (b) it is incumbent uponthe Primary Court Judge to initially satisfy himself as to whether there was a threator likelihood of a breach of the peace and whether he was justified in assumingsuch a special jurisdiction under the circumstances. Failure to so satisfy himselfdeprives the judge of jurisdiction.
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Case referred to:
Veiupiitai and Others v, Sivanathan [1993] 1 Sri L.R. 123,126.
APPLICATION for revision of order of the Primary Court Judge, Matara.
W. Dayaratne fa respondent-petitioners.
Ananda Kasturiaratchiior 1st respondent.
2nd respondent absent and unrepresented.
Cur. adv. vult.
October 14, 1994.
SMAIL, J.
The 1st respondent initiated proceedings in the Primary Court,Matara by filing a plaint and an affidavit together with a letter from thegrama sevaka, all dated 31.10.89. The caption to the plaintdescribed it as an action instituted in terms of section 66(1) (b) of thePrimary Courts Procedure Act.
It was averred in her plaint and the affidavit that she was inpossession of the land called 'Kottege Ruppewatte’ in extent of aboutan acre, and that the petitioners entered the land forcibly on27.10.89, caused damage by cutting down trees and had built acadjan house thereon. The grama sevaka’s letter annexed to thepleadings and which was issued at the request of the 1st respondentfor the purpose of instituting legal proceedings certified that she wasin possession of the said land. The 1st respondent prayed that thepetitioners be evicted and that she be given vacant possession of thesaid land. This prayer was stated to be sought in terms of section66(1) and (2) of the Primary Courts Procedure Act, No. 44 of 1979.
The case for the 1st respondent Punchi Nona was that she was inpossession of this land since 1946 and that though her son AbrahamChandratilake Pujitha Thilakawardana had later become its owner, yetshe continued to possess the said land along with her son. She didnot produce any deed or further evidence in regard to her claim tothe said land.
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The 2nd respondent in his affidavit stated that he purchased thesaid land called Kottagodage Ruppewatte in extent 1A OR OP fromthe said Pujitha Thilakawardana by deed No. 2766 dated 26.01.92attested by D. Samaratunge N.P and that since then he hadundisturbed and uninterrupted possession of the land until he soldthe same to the petitioners by deed No. 10 dated 3.10.89 attested byP. Batagoda N.P.
The petitioners in their affidavit stated that possession of the saidland was handed over to them by the 2nd respondent when theypurchased it from him on the said deed No, 10 dated 3.10.89. Theyconfirmed that they commenced clearing the land on 27.10.89 andthat on 30.10.89 they erected a cadjan shed in which they arepresently living.
The 1 st respondent claims to have made a complaint to the policebut no such statement was produced in the course of theproceedings. However it is in evidence that the 1st respondent madea complaint to the grama sevaka on 31.10.89.
The grama sevaka who submitted a report dated 3.01.90 on thedirection of Court stated that the 1st respondent had made acomplaint to him on 31.10.89 to the effect that petitioners had forciblyentered the land and had caused damage to the value of Rs. 5000/-.The grama sevaka visited the land and met the petitioners whoinformed him that they had purchased the land for valuableconsideration. They produced the deed before him at his office on3.11.89. According to the observation of the grama sevaka thepetitioners had cut 3 coconut trees at the entrance to the land andwere engaged in erecting a cadjan shed. He concluded by statingthat this was the subject-matter of the dispute.
The grama sevaka had earlier issued a letter, annexed to theplaint, dated 31.10.89 at the request of the 1st respondent that shewas in possession of the land. He had also issued a letter dated3.11.89 at the request of the petitioners to the effect that they were inoccupation of the land since 27.10.89 after purchasing the same. Theland was a bare land with no buildings standing thereon. The reportof the grama sevaka to Court and his letters issued at the instance of
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the parties did not contain any fresh material besides the admittedfacts relating to the purchase of the land by the petitioners, enteringinto occupation by them, clearing the land on 27.10,89 and erectinga cadjan shed on 30.10.89. There is no reference either to thepurchase of the land by the 2nd respondent in 1982 or to hispossession of the land since then prior to its sale to the petitioners.
The learned Primary Court Judge at the conclusion of theproceedings found the facts, as admitted, to be that the 2ndrespondent sold the land to the petitioners and handed overpossession to them on 3.10.89. As the 1st respondent alleged thatthe petitioners forcibly entered the land on 27.10.89 and evicted her,the Judge proceeded to consider the question as to who was inpossession of the land prior to its sale to the petitioners. The Judgeupon a consideration of the report of the grama sevaka and upon aconsideration of the affidavits filed by the parties held that the 1strespondent was in possession of the land before its purchase by thepetitioners and made order restoring possession of the land to her.He has failed to refer to the deeds produced by the 1st and 2ndrespondents.
•The petitioners seek to have the said order dated 31.10.90revised. The petitioners in the present application filed dated 8.2.90had pleaded that they have invested money in the purchase of thisland and that they were living with their children in a house put up onthe land. They therefore moved for an order that no furtherproceedings be taken consequent upon the order of the PrimaryCourt Judge till the final determination of this application. An interimorder to this effect was made by this Court on 28.3.90.
Counsel for the petitioners submitted that there has been nofinding by the Judge as to who was in possession of the land at thetime of the filing of the information as required by section 68(1) of thePrimary Courts Procedure Act. His submission further is that theJudge has failed to arrive at a determination on the affidavits anddocuments furnished and that he has acted solely on the report ofthe grama sevaka in arriving at the decision that the 1 st respondenthad possession of the land prior to its purchase by the petitioners. Healleged that the report of the grama sevaka was based on hearsay
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material and that he had been posted to the area only a few monthspreviously.
In my view the error is more fundamental. The learned Judge hasproceeded to treat the dispute as one in regard to possession of theland under section 68(1) of the Primary Courts Procedure Act when itwas in fact a dispute under section 69(1), as to who was entitled tothe right to the land other than the right to the possession of suchland. It was in the forefront of the case for the 1st respondent thatthough the ownership of the land passed to her son that shecontinued to possess the land together with her son. She has notfurnished any specific dates in regard to this. It is common groundthat the land was a bare land with no buildings standing on it. On theother hand, the petitioners claimed to be entitled to the land on thedeed of purchase from the 2nd respondent. The 2nd respondenthimself claimed to have purchased the land in 1982 from the 1strespondent’s son. It was then the duty of Court to have determinedunder section 69(1) of the Act as to which of the parties had acquiredthe ownership of the right to the land or became entitled to the rightto the land,
Section 68(1) of the Act is concerned with the determination as towho was in possession of the land on the date of the filing of theinformation to Court. Section 68(3) becomes applicable only if theJudge can come to a definite finding that some other party had beenforcibly dispossessed within a period of 2 months next preceding thedate on which the information was filed. The distinction in section 69is that it requires the Court to determine the question as to whichparty is entitled to the disputed right preliminary to making an orderunder section 69(2) of the Act. By failing to appreciate the nature ofthe dispute between the parties initially, the Court failed to considerthe merits of the rival claims in deciding as to who is entitled to thedisputed right. The plaint filed was itself no assistance as it claimedrelief under unrelated sections in the Act.
However the main submission on behalf of the petitioner was thatthe Judge did not have the jurisdiction to deal with the informationfiled by the 1st respondent as there was no finding by him that thedispute was likely to cause a breach of the peace. Where the
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information is filed under section 66(1) (a) of the Primary CourtsProcedure Act by a police officer a Primary Court is vested withjurisdiction to inquire into the dispute. The Police Officer isempowered to file the information only if there is a dispute affectingland and the breach of the peace is threatened or likely. However,when an information is filed by a party to the dispute under section66(1) (b) it is left to the judge to satisfy himself that there is a disputeaffecting land owing to which a breach of the peace is threatened orlikely. As observed in Velupillai and Others v. Sivanathan (1,“…when aninformation is filed under section 66(1) (b) the only material that theMagistrate would have before him is the affidavit information of aninterested person and in such a situation without the benefit of furtherassistance from a police report, the Magistrate should proceedcautiously and ascertain for himself whether there is a dispute affectingland and whether a breach of the peace is threatened or likely’.
In the present case the 1st respondent filed a plaint together withan affidavit and prayed for the eviction of the petitioners and forrestoration of possession. The petitioners then filed their affidavitsetting out the basis on which they lawfully came to occupy the land.The learned Primary Court Judge has failed to express his view inregard to the question of the dispute escalating and causing abreach of the peace. The grama sevaka did not state that heanticipated a breach of the peace and there was no intervention bythe police though the 1st respondent claimed to have made astatement. The jurisdiction conferred on a Primary Court undersection 66 is a special jurisdiction. It is quasi-criminal jurisdiction. Theprimary object of the jurisdiction so conferred is the prevention of abreach of the peace arising in respect of a dispute affecting land.The Court in exercising this jurisdiction is not involved in aninvestigation into title or the right to possession which is the functionof a civil Court. He is required to take action of a preventive andprovisional nature pending final adjudication of rights in a civil Court.It was therefore incumbent upon the Primary Court Judge to haveinitially satisfied himself as to whether there was a threat or likelihoodof a breach of peace and whether he was justified in assuming sucha special jurisdiction under the circumstances. The failure of thejudge to satisfy himself initially In regard to the threat or likelihood ofthe breach of peace deprived him of the jurisdiction to proceed with
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the inquiry and this vitiates the subsequent proceedings. For thesereasons, acting in revision, I set aside the order of the Primary CourtJudge dated 30.1.90.
The Application is allowed with costs.
Application allowed.
Order set aside.