SIRISENA v. NANDAWAITHE

015-SLLR-SLLR-1993-2-SIRISENA-v.-NANDAWAITHE.pdf


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Tilak Karunaratne v. Mrs. Sirimavo Bandaranaike and Others
(Ramanathan, J.)
125
SIRISENA
v.NANDAWATHIE
SUPREME COURT.
G.P.S. DE SILVA, C.J.
KULATUNGA, J. AND RAMANATHAN, J.
S.C. APPEAL NO. 56/92.
A. NO. 42/83 F.
C. GAMPAHA NO. 22 564/P.
MARCH 22, APRIL 29 AND MAY 17. 1993.
Vindicatory Action – Title under partition decree – Defendant claiming as tenant- S. 3 (2) Agricultural Lands Law – Lease pendente lite – Partition Act, S. 67.
The plaintiff-respondent sued the defendant-appellant for a declaration of title andejectment in respect of a paddy field allotted to her by a partition decree. Thedefendant-appellant who had been appointed by a co-owner as tenant cultivatorof a larger land (including the said paddy field) during the pendancy of the partitionaction claimed the right to remain in occupation of the said paddy field by virtueof the provisions of S. 3 (2) of the Agricultural Lands Law No. 42 of 1973.
Held :
The defendant-appellant had been appointed as tenant cultivator of thepaddy field " pendente lite * in breach of S. 67 of the Partition Act. That leasewas void.
The defendant-appellant is not entitled to the protection under S. 3 (2)of the Agricultural Lands Law.
Cases referred to :
Ranasinghe v. Marikar 73 NLR 361.
Kirihamy v. Mudiyanse 23 NLR 272.
Appuhamy v. Nonis 23 NLR 415.
APPEAL from a judgment of the Court of Appeal.
126Sri Lanka Law Reports[1993] 2SriL.R.
P. A D. Samarasekera, PC with Kirthi Sri Gunawardena for Defendant-Appellant.
Rohan Sahabandu for Plaintiff-Respondent.
Cur. adv. vutt.
June 17, 1993.
KULATUNGA, J.
The plaintiff-respondent (hereinafter sometimes referred to as “ theplaintiff ") filed the above action against the defendant-appellant(hereinafter sometimes referred to as " the defendant ") for adeclaration ot title, ejectment and damages in respect of a paddyfield depicted as Lot"" in partition plan No. 2909 dated 21.08.76
in D.C. Gampaha case No. 15033/P.
PLAINTIFFS TITLE TO LAND IN SUIT
The corpus of the said partition action was a land called UlahitiyawaPillewa, in extent 2A.1R.32P. a portion of which was a paddy field,in extent 3R.15P. In September, 1968 the plaintiff had purchased anundivided 1/16 from and out of the said land on deed No. 6881. Byplaint dated 09.12.68 (P3) the plaintiff instituted the aforesaid partitionaction. As on the date of the preliminary survey, one Senaratne, the5th defendant in the partition action (son of Hendrick Appuhamy, the4th defendant) was in possession of the entire paddy field depictedas Lot 'C' in preliminary plan No. 2448 dated 02.10.69 (P4). As perfinal plan No. 2903 dated 21.08.76 (P2) the paddy field was lottedinto four lots V, “5", •<*", "c»". and the final decree dated 02.11.76(P1) declared the plaintiff entitled to Lot “c*“ in extent 1R.22.5P.
In his evidence in the partition action (P11) Hendrick said thathe had asweddumized the paddy field in about 1936 and cultivatedit for about 15 years ; that thereafter, his children cultivated it afterwhich he had given portions of it for ande cultivation to a numberof persons and that as at the date of his testimony (02.04.74) thedefendant was cultivating it as his ande cultivator.
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EVIDENCE IN THE ACTION
At the time of the institution of the present action, Hendrick was deadand his son Senaratne testifying for the plaintiff said that Hendrickwho was indisposed towards the plaintiff appointed the defendant asa tenant cultivator of the entire paddy field during the pendancy ofthe partition case. However, it is to be noted that Hendrick ownedonly a small share of the corpus of the action. Thus the partitiondecree gave Hendrick and two other defendants jointly an extent of9.5P. only, depicted as lot V in the final plan P2.
In his evidence the defendant said that he became the cultivatorof the paddy field in 1969 or 1970. In cross-examination he said thathe was not cultivating it on the day the Surveyor came for thepreliminary survey. Senaratne said during that period, he was thecultivator. Nandiris Appuhamy (the plaintiffs husband) said that byletter dated 30.12.72 (P5) the plaintiff complained to the AssistantCommissioner of Agrarian Services that Hendrick had, that year,purported to appoint the defendant as the tenant cultivator of the entirepaddy field whilst the partition action was pending. The plaintiffrequested that the defendant's tenancy rights be limited to the sharethat may be allotted to Hendrick. However, the Agrarian ServicesDepartment officials decided to register the defendant as the tenantcultivator of the field and to postpone the final decision until theconclusion of the partition action.
We next have the plaintiff's letter dated 02.01.73 addressed tothe A.C.A.S. (P8) objecting to the registration of the defendant asa tenant cultivator. This was followed by a letter dated 02.06.75 (P9)addressed to the Chairman, Agricultural Productivity Committee whereinthe plaintiff repeated her objection to the registration of the defendantas a tenant cultivator. After the conclusion of the partition action shecomplained to the Chairman, Agricultural Tribunal by letters dated25.09.76, 25.02.77 and 01.06.77 that the defendant was forciblycultivating the portion of the paddy field allotted to her. Copies ofthe last two letters have been produced marked P10.
Despite these protests the defendant continued to cultivate theentirety of the paddy field. He also paid acreage tax for 1972 (V3)and for 74/75 (V4) and further, insured the crop for 1976 (V5). Theregister of agricultural lands for 1979/80 (V5) shows the defendantas the tenant cultivator of the said paddy field.
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According to the evidence of Nandoris Appuhamy, Piyadasa(Cultivation Officer) and Abeygunawardena (Grama Sevaka), the plaintiffhad refused to accept the landlord's share of paddy from thedefendant but was made to accept paddy on two occasions and asum of Rs. 40 on one occasion, under protest and through theintervention of the said officials. This is confirmed by the evidenceof the defendant himself who said that he had to obtain suchintervention whenever the plaintiff refused to accept the landlord'sshare.
It was the plaintiffs position that the defendant was in unlawfuloccupation of lot “<y in Plan P2. This was only a portion of the entirepaddy field originally let to him by Hendrick. The defendant, however,continued to occupy the said lot after the partition decree claimingthat he had since become the tenant thereof under the plaintiff.
It was in this background that the plaintiff was constrained to filethis action on 26.05.80 for a declaration of title and ejectment anddamages against the defendant. On behalf of the plaintiff it wascontended before the District Court that the letting of the paddy fieldby Hendrick (a co-owner of the land) during the pendency of thepartition action did not create a tenancy as against the plaintiff whodid not consent to or acquiesce in such letting and hence the plaintiffwas entitled to the share allotted to her absolutely (free from anyencumbrance) ; and that the defendant's rights of ande cultivatorshould be confined to the share allotted to Hendrick. In support ofthis contention, Counsel for the plaintiff cited the decision in Ranasinghev. Marikar <’> the head note of which reads :
“ Where there is a valid letting of the entirety of premises towhich the Rent Restriction Act applies, a sale of the premisesunder the Partition Act does not extinguish the rights of the tenantas against the purchaser, even if the tenant's interest is notexpressly specified in the interlocutory decree entered in thepartition action. S. 13 of the Rent Restriction Act protects anytenant of rent-controlled premises " notwithstanding anything inany other law " except upon grounds permitted by the section.
But if rent-controlled premises are owned by co-owners andone of them lets the entirety of the premises without the consentor acquiescence of the other co-owners, the protection of the Rent
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Restriction Act is not available to the tenant as against a purchaserwho buys the premises subequently in terms of an interlocutorydecree for sale entered under the Partition Act. In such a case,the tenant cannot resist an application by the purchaser to beplaced in possession of the premises
JUDGMENT OF DISTRICT COURT-APPEAL TO COURT OFAPPEAL
The learned District Judge held that there was evidence,documentary evidence, that the defendant had cultivated tfield as its tenant cultivator for several years prior to theof this action, commencing in about the year 1970 and ithe plaintiff's action. The plaintiff appealed to the Court <against the judgment of the District Court. In resisting thCounsel for the defendant relied on S. 3 (2) of the AgricultuLaw No. 42 of 1973 which provides :
" Notwithstanding anything in any other law, the tenantof any extent of paddy land which is purchased by arunder the Partition Act or which is allocated to a co-owia decree for partition shall be deemed to be the tenantof such purchaser or of such co-owner, as the case mathe provisions of this law shall apply accordingly
JUDGMENT OF^ THE COURT OF APPEAL
The Court of appeal held that section 3 (2) of the AgricultuLaw has no application to the facts of this case as the partitin question had been instituted in 1968 and the said Law <effect in 1973; and that in the light of the decision in flcv. Marikar (supra), there was no evidence that the defena tenant cultivator (as against the plaintiff) within the m" tenant cultivatorn under the law in that he had commenced <of the paddy field after the institution of the partition actiontoo without an oral or documentary agreement between hinplaintiff. Accordingly, the Court of Appeal allowed the appeal,the judgment of the District Judge and entered judgmerplaintiff as prayed for. From that judgment the defendantto this Court.
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[1993] 2 Sri L.R.
SUBMISSIONS OF COUNSEL ON APPEAL FROM JUDGMENT OFCOURT OF APPEAL
Learned President's Counsel for the .defendant-appellant submittedthat the decision in Ranasinghe v. Marikar (supra) has no applicationto this case in that firstly that decision considered the effect ofS. 13 of the Rent Restriction Act (Cap. 274) which is different fromS. 3(2) of the Agricultural Lands Law, the like of which is to be foundin S. 14 of the Rent Act No. 7 of 1972 ; Secondly, that in Marikar’scase the entirety of the premises was let by a co-owner but in thiscase only a portion was let. Counsel further submitted that the saidS. 3 (2) (which has been re-enacted as S. 5 (2) of the Agrarian.Services Act No. 58 of 1979) does not make any distinction betweenpersons whose tenancy had commenced prior to the institution ofthe partition action and those whose tenancy had commenced afterthe institution of such action. The protection conferred by that sectionwould enure to any person who is a tenant at the time of the purchaseunder the Partition Act or the allocation of land to a co-owner undera decree for partition. It was also submitted that rights of parties areto be determined as at the time of the institution of the action i.e.26.05.80.
Counsel submitted that in any event, the plaintiff-respondent hadfailed to apply to Court under S. 52 of the Partition Law for deliveryof possession of the land allotted to her in the partition action andfiled this action four years after the partition decree during whichperiod the defendant-appellant remained in occupation of the landas the tenant cultivator, paying rent to the plaintiff-respondent ; thatshe accepted rents paid by the defendant-appellant; and that therebythe defendant-appellant became the tenant cultivator of the paddyfield under the plaintiff-respondent.
During the hearing of this appeal, it appeared to us that S. 67of the Partition Act (Cap. 69) has relevance to a consideration ofthe defendant-appellant's claim based on S. 3 (2) of the AgriculturalLands Law in the event of a finding that the evidence fails to establisha letting of the paddy field to him by the plaintiff-respondent afterthe conclusion of the partition case. S. 67 prohibits any voluntaryalienation, lease or hypothecation of any undivided share or interestin the corpus after a partition action is registered as a lis pendens,until the final determination of the action and provides that any such
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alienation, lease or hypothecation shall be void. The question iswhether assuming that the decision in Ranasinghe v. Marikar (supra)has no application to a case in which the claim is made under S.3 (2) of the Agricultural Lands Law, the benefit to " be deemed tobe the tenant cultivator of a co-owner " conferred by that sectionis available to the defendant-appellant who relies upon a lease whichwas prohibited by S. 67 of the Partition Act. In view of the factthat this appeal raised complicated questions of law, Counsel for theparties were permitted to tender further submissions in writing.
In his written submissions, learned Counsel for the plaintiff-respondent traced the history of the Partition Law. He drew ourattention to the fact that S. 17 of the Partition Ordinance No. 10 of1863 (corresponding to S. 67 of the Partition Act No. 16 of 1951(Cap. 69) provided that whenever legal proceedings for a partitionor sale of any property are instituted “ it shall not be lawful for anyof the owners to alienate or hypothecate his undivided share orinterest therein °, unless and until the Court has refused to grantthe application for such partition or sale, as the case may be ; and" any such alienation or hypothecation shall be void (Vide Cap.56 of the 1938 L E.). In Kirihamy v. Mudiyanse (2) it was held thata lease made during the pendancy of a partition action is not void,as it is not an alienation within the meaning of S. 17 of the PartitionOrdinance. This decision was followed in Appuhamy v. Nonis (3).S. 67 of the Partition Act which replaced the Partition Ordinancespecifically mention leases as being in the prohibited class of trans-actions during the pendancy of a partition action and provides thatthey too shall be void. As such, Counsel submits that the letting ofthe paddy field by Hendrick to the defendant-appellant during thependancy of the partition act was void.
Counsel for the plaintiff-respondent further submits that S. 3 (2)of the Agricultural Lands Law No. 42 of 1973 could not haveretrospectively affected rights under the Partition action in questionwhich was instituted in 1968 in that the plaintiff-respondent had a" vested right “ to a decree free from all encumbrances under thePartition Law and that on the authority of Ranasinghe v. Marikar(supra) the lease, if any, by Hendrick (to which the plaintiff-respondentwas not a party) did not prejudice the rights of the plaintiff-respondentto the portion of the paddy field allotted to her by the partition decree.
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Learned President's Counsel for the defendant-appellant submitsthat S. 67 of the Partition Act has no relevance to the matter fordecision by this Court. If, however, there was an application fordelivery of possession in the partition action itself, the questionwhether the person sought to be ejected was a tenant cultivator asat the date of the institution of the partition action would be relevanton the basis that the rights of parties have to be determined as atthe date of the partition action. Even in such a case, the Court willhave to consider whether S. 3 (2) of the Agricultural Lands Law iswide enough to protect a tenant whose tenancy had commencedduring the pendancy of the partition action under a co-owner of theland.
Counsel then proceeds to reiterate the point which he made duringthe oral submissions that in any event, the evidence establishesthat the plaintiff-respondent had by her conduct accepted andacknowledged the defendant-appellant as her tenant during the periodof four years between the final decree in the partition action and theinstitution of this action in May 1980 ; that as such the District Judge'sfinding that defendant's occupation of the paddy field was not wrongfulbut was as tenant cultivator is correct and has been wrongly set asideby the Court of Appeal.
CONSIDERATION OF THE APPEAL
I cannot agree with the submission that the evidence in the caseestablishes a tenancy between the plaintiff-respondent himself andthe defendant-appellant quite apart from the letting of the paddy fieldby Hendrick. The plaintiff-respondent who purchased 1/16 share ofthe land in 1968 did not have possession of the land ; and it seemsthat in the partition action she preferred to have allotted to herselfa portion of the paddy field to the South as the same was adjacentto another land owned by her. She persistently objected to the andeclaims of the defendant-appellant both before and after the partitiondecree. The acceptance of paddy on two occasions and a sum ofRs. 40 on the occasion were obviously under protest. I
I do not agree with the submission that the failure of the plaintiff-respondent to apply for delivery of the land under S. 52 of the PartitionLaw constitutes an acknowledgement of the ande claim of thedefendant-appellant. The plaintiff-respondent in filing this action has
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exercised her unchallenged right to file a vindicatory action on thebasis that the defendant-appellant was in unlawful occupation of theland.
In the circumstances, I hold that the evidence does not establishthat the plaintiff-respondent had engaged the defendant-appellant asher tenant cultivator after the entering of the partition decree (orearlier). The learned District Judge himself did not make any findingon this aspect of the case. He only held that the defendant-appellanthad cultivated the paddy field as its tenant cultivator for several yearsprior to the institution of this action.
Consequently, we have to decide whether, assuming that thedecision in Ranasinghe v. Marikar (supra) has no application wherea claim is made under S. 3 (2) of the Agricultural Lands Law, thedefendant-appellant's claim under that section is barred by S. 67 ofthe Partition Act. After a careful analysis, I find that the learnedPresident's Counsel's submission is to the following effect.
In a case where an application for delivery of possessionof the land has been made in the partition action itself, S. 67would bar the claim of a person who has been appointed a tenantcultivator during the pendancy of the action on the basis that rightsof parties have to be decided as at the date of the institution ofthe action. Even in such a case, it is arguable that S. 3 (2) iswide enough *to protect such tenant as the protection provided bythat section is conferred on any person who is a tenant cultivatoras at the date of the decree.
S. 67 is irrelevant to this action because the rights of theparties are to be determined as at the institution of this action(i.e. in May 1980) on which date the defendant-appellant was atenant cultivator on the strength of the letting by Hendrick andhence the plaintiff-respondent is bound to continue him as a tenantcultivator. I
I am of the opinion that there is no merit in the submission that
S.67 is irrelevant (except perhaps in a case of an application fordelivery of possession of the land), for in determining the rights ofparties in the situations referred to at (1) and (2) above, the relevantconsideration is not the date at which rights of parties are to be
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determined but the legitimacy of the tenancy in respect of which theprotection under S. 3 (2) is claimed. If such tenancy is legitimateit is protected, even if it is not specified in the decree, notwithstandingprovision as to the finality of a partition decree.
It is a condition precedent to the protection under S. 3 (2) thatth claimant should be the D tenant cultivator" of the land purchasedunder the Partition Act or allocated to a co-owner under the decreefor partition. Under S. 2 (1) of the law “ tenant cultivator" is definedas being any person who is the cultivator of any extent of paddyland let to him under any oral or written agreement. This connotesa valid lease. However, lease effected after the registration of thepartition action as a lis pendens is void in terms of S. 67 of thePartition Act.
It is quite probable that the defendant-appellant was appointed asthe tenant cultivator of this land by Hendrick somewhere in 1972 asthe plaintiff-respondent's complaint P5 states. The learned DistrictJudge appears to have assumed (without a serious consideration ofthe evidence) that the defendant-appellant was a tenant from about1970. This action was instituted in 1968 and the preliminary surveywas held in 1969. Commission to survey the land is issued underS. 16 of the Partition Act at the same time as the order is madefor the issue of summons. Summons are issued under S. 13 afterthe Court is satisfied that a partition action has been registered asa lis pendens. I am, therefore, satisfied that Hendrick had appointedthe defendant-appellant as tenant cultivator of the paddy field" pendente lite " in breach of S. 67 of the Act. That lease was void.I, therefore, hold that the defendant-appellant is not entitled to theprotection under S. 3 (2) of the Agricultural Lands Law. In this viewof the matter, it would be unnecessary to decide the other questionsraised by Counsel.
CONCLUSION
Accordingly, I dismiss the appeal and affirm the judgment of the Courtof Appeal, with costs.
DE SILVA, C.J. – I agree.
RAMANATHAN, J. – I agree.
Appeal dismissed.