SOMAWARDENA v. SARANELIS SINGHO

012-SLLR-SLLR-1997-2-SOMAWARDENA-v.-SARANELIS-SINGHO.pdf


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SOMAWARDENA
v.
SARANELIS SINGHO
COURT OF APPEAL.
F. N. D. JAYASURIYA, J.
C. A.87/80.
A. T. KU/AGS. DAMBADENIYA/(1).
241 AT. KURUNEGALA.
JANUARY 15, 1997.
Agricultural Tribunal – Findings of Assistant Commissioner – Agricultural LandsRegister-Entries only prima facie proof but rebuttable by contrary evidence atAgricultural Services Inquiry – Evaluation of evidence – Tests of consistency andinconsistency inter se, – Means of knowledge. Testimonial trustworthiness andcredibility, interest and disinterestedness, – Probability and Improbability -Evidence Ordinance, section 3 – Agrarian Services Act, sections 45, 68 -Definition of ande cultivation.
Where the Assistant Commissioner holding an Agricultural Services Inquiryapplying the tests of consistency and inconsistency inter se, means ofknowledge, testimonial trustworthiness and credibility, interest anddisinterestedness, probability and improbability (though without expressly
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referring to them) found that the prima facie proof afforded by entries in thePaddy Lands Register or Agricultural Lands Register had been effectivelyrebutted, the Court has no jurisdiction and power to interfere with the correctfindings of fact reached by him.
If a cultivator occupying a paddy field on a tenancy cultivates the paddy fieldjointly with a hired agricultural labourer, he does not contravene any prohibition inthe law and his joint employment of hired agricultural labourers does not result inany forfeiture of his rights as an ande cultivator as defined in section 68 of theAgricultural Services Act.
Cases referred to:
Velupillai v. Sidambaran 31 N.L.R. 87, 99.
Undugodage Jinawansa Thero v. Yatawara Piyaratna Thero S.C. ApplicationNo. 46/81 – S.C. Minutes, of 5.4.1982.
Herath v. Peter (1989) 2 Sri L.R. 325, 326 (with copy of Dolawatte v. Gamage)
Dolawatte v. Gamage S.C. 45 of 1983.
Viswanathan v. Thurairajah 70 N.L.R. 83, 84.
Babanis v. Jamis (1984) 2 Sri L.R. 344.
APPEAL from Order of Agricultural Tribunal of Kurunegala.
Senaka Walgampaya with Nimal Jayanath and Sumeda Suraweera forrespondent-appellant.
Ghazzaly Hussain for substituted Applicant-Respondent.
Cur. adv. vult.
January 15. 1997.
N. D. JAYASURIYA, J.
On the joint oral motion of Mr. S. C. B. Walgampaya andMr. Ghazzaly Hussain, Attorneys-at-Law and for the reasons adducedby them jointly, this Court vacates and sets aside the order ofdismissal of this appeal pronounced on the 4th of September, 1996. I
I have heard both learned counsel for the appellant and therespondent. The principal point urged by the learned counsel for theappellant was to the effect that the Applicant had failed to producedocumentary evidence in support of his case, whereas, therespondent had produced documents V1 to V7 before the InquiringOfficer in support of his position and assertions made at the inquiry.Even a certified copy if produced from the Paddy Lands Register or
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Agricultural Lands Register, such entry is merely prima facie proof ofthe matters set out in such a document. Justice Drieberg in Velupillaiv. Sidambarart,n) gave his mind particularly to the effect of the term“prima facie proof". His Lordship observed, this expression in effectmeans nothing more than sufficient proof, which should be acceptedif there is nothing established to the contrary but it must be whatthe law recognizes as proof. That is to say, it must be somethingwhich a prudent man in the circumstances of the particular caseought to act upon, vide Section 3 of the Evidence Ordinance. ChiefJustice Samarakoon in the decision in Undugodage Jinawansa Therov. Yatawara Piyaratne Thero™ cited with approval the dictum ofJustice Drieberg and applied it to certain documents which wereproduced in the course of the Agrarian Services inquiry. His Lordshipafter making certain valuable observations held that cogent oralevidence has always the effect of rebutting the presumption arising inregard to prima facie proof. “It is only a starting point and by nomeans an end to the matter. Its evidentiary value can be lost bycontrary evidence in rebuttal… If after contrary evidence has beenled, the scales are evenly balanced or tilted in favour of the opposingevidence, that which initially stood as prima facie evidence isrebutted and is no longer of any value … Evidence in rebuttal may beeither oral or documentary or both … The Register is not the onlyevidence”. Justice S. B. Gunawardena in Herath v. Peter,™ refers tothe judgment of Chief Justice Samarakoon and the judgment ofJustice Parinda Ranasinghe in the unreported case of Dolawatte v.Gamage,™ a copy of that unreported decision is attached as anannex to the judgment in Herath v. Peter.™ Thus on a consideration ofthese authorities and the principle laid down therein, it is anestablished and trite law that cogent and convincing oral evidenceled at an Agrarian Services inquiry has the effect of completelyrebutting the presumption arising in regard to prima facie proof asspelt out in section 45 of the Agrarian Services Act and in regard toother documents which are produced at such an inquiry such as theFarmers' Identity Book entries. The other documentary evidenceadduced on behalf of the respondent-appellant marked as D2, D3,D5 are receipts for the payment of acreage tax. These documentsare receipts for payments made on 18.10.78; 16.5.79, and 5.8.81 andrecord payments made long after this controversy had arisen – PostLitem Motam and not Ante Litem Motam – and are of no evidentiary
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weight and value. On the contrary, document marked as P2substantiates the applicant's version and rebuts the false assertionthat applicant Saranelis Singho had no connection or interest in thepaddy field in question. By document P2 the respondent's witnessand the respondent's predecessor in title Meepalage Clarency Pereraoffers this paddy field to the applicant first, at a reduced price andstates that if he does not wish to purchase it that she would be sellingthis paddy field to an outsider at a higher price. Document producedmarked as D6 ceases to have any efficacy or validity after the 24th ofOctober 1973, whereas, the illegal eviction is proved to have takenplace on 22.5.1979.
Thus, a correct adjudication and decision upon this applicationwould depend on a critical analysis and evaluation of the oralevidence led before the Assistant Commissioner of Agrarian Servicesby all parties to that inquiry. In view of the submission advanced bylearned counsel for the appellant, I proceed to peruse the evaluationof the evidence indulged in by the Inquiring Officer, with particularreference to the relevant tests of credibility which are usuallyemployed to arrive at a correct finding on evaluation of evidence.
The applicant Saranelis Singho, his son T. K. Pragnakeerti, R. A.Kiri Mudiyanse and W. M. Raphael Appuhamy have given evidencein support of the position and assertions advanced on behalf of theapplicant, in regard to the crucial facts in issue upon this inquiry. Allthese witnesses have testified to the effect that M. A. JamisAppuhamy, the husband of witness Meepalage Clarency Perera, hadlet the paddy field named Velikumbura which is situated in theEpakande Grama Sevaka Division in Polgahawela and which is inextent 5 lahas of paddy sowing to Saranelis Singho as far back as1942 and that he had been cultivating the said paddy field as anande cultivator till the date of his wrongful eviction from the paddyfield on 22.5.79. These witnesses have testified to the effect thatSaranelis Singho regularly paid the land-owner’s share of the producefrom the paddy field (rent) to M. A. Jamis Appuhamy’s wife, theaforesaid Clarency Perera, her son Kalu Mahattaya alias RanjithNarangoda and to Santiago Appuhamy who was an agent forcollection of the rent of the aforesaid M. A. Jamis Appuhamy, thelandlord. Thus, where the letting of the paddy field by Jamis
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Appuhamy on a contract of a tenancy to the Applicant and thepayment of rent without default to the aforesaid persons on behalf ofthe landlord by Saranelis has been established by their evidence.Thus, the test of consistency and inconsistency inter se is applied tothe evidence of these witnesses, these witnesses have corroboratedeach other to the hilt and established these facts by cogent,convincing and overwhelming evidence. W. M. Raphael Appuhamy,who has stated the aforesaid facts in his evidence, happens to be abrother of the former landlord, M. A. Jamis Appuhamy, and hasspecifically referred to the fact of letting of this paddy field in questionby Jamis Appuhamy to Saranelis Singho and he has stated that hehas been present at the threshing floor when out of the proceeds ofthe harvest half share was handed over by Saranelis Singho to thelandlord's representatives as rent. Raphael Appuhamy is a brother ofJamis Appuhamy and, therefore, when the test of Interest andDisinterestedness of a witness is applied to his testimony, no reasonshave been elicited at all as to why he should give untrue evidenceagainst his own brother’s interests.These witnesses specially RaphaelAppuhamy, Kiri Mudiyanse, Pragnakeerti (at a later point of time) hadbeen present when the relevant processes of cultivation of the paddyfield was undertaken and when the harvest was threshed and theproduce divided at the threshing floor. Therefore, these witnesses arepersons having special Means of Knowledge and when that test isapplied in regard to the tenor and effect of their evidence adduced,the Assistant Commissioner has arrived at a favourable finding inregard to their testimonial trustworthiness and credibility. It is true thatthe Assistant Commissioner who is not a trained lawyer has notexpressly used and referred to these tests of credibility, but on areview of his order, it is apparent that the germ of these tests wereoperating in his mind when he arrived at a favourable finding inregard to their testimonial trustworthiness and credibility.
In regard to the issue whether the applicant, Saranelis Singho,himself carried out the relevant processes of cultivation which arespelt out in the definition of an ande cultivator in section 68 of theAgrarian Services Act, certain issues arise, having regard to thecourse of cross-examination of Saranelis Singho, Pragnakeerthi andthe evidence volunteered by them under cross-examination.Saranelis Singho has stated that before he obtained an appointment
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with the government, he indulged in most of these operations ofcultivation, but after he received such appointment, that he didindulge in these processes of cultivation only on Saturdays andSundays and that he got the services and assistance of two of hissons to indulge in these operations and at times he employedpersons on hire and obtained their assistance too in carrying outcertain processes of cultivation. Witness Pragnakeerthi, applicant’sson, has not corroborated Saranelis Sigho to the hilt on the processesof cultivation of the paddy field and the person who helped andassisted in the said process. The law has undergone an amendmentand a change and the law as it stands today is not the law thatobtained under the Paddy Lands Act and the Agricultural Lands Law.Under the Paddy Lands Act enlistment of hired labour in any formresulted in a violation of a prohibition laid down by the law and such acontravention attracted a forfeiture of the ande cultivator's rights. Infact, Justice H. N. G. Fernando, delivering the Judgment inViswanathan v. Thurairajah,(5) was engaged in interpreting thedefinition of a tenant cultivator under the Paddy Lands Act. HisLordship remarked in that context the definition contemplates threedifferent kinds of work (ploughing, sowing, reaping) for which actuallabour is necessary and if hired labour is, in fact, employed for two ofthese kinds of work, then the cultivator is not a tenant cultivator. Thepresent law has now undergone a material change.
The definition of a cultivator in section 68 of the Agrarian ServicesAct is illuminating and expressive. A cultivator is defined in relation toa paddy land as "any person who by himself or by any member of hisfamily or jointly with any other person carries out on such extent (a)two or more of the operations of ploughing, sowing and reaping; and(b) the operation of tending or watching the crop in each seasonduring which paddy is cultivated on such extent”. Thus, if a cultivatoroccupying the paddy field on a tenancy cultivates the paddy fieldjointly with a hired agricultural labourer, he does not contravene anyprohibition in the law and his joint employment of hired agriculturallabourers does not result in any forfeiture of his ande cultivator rights.
The evidence led on behalf of the applicant nowhere disclosesthat he handed over the cultivation processes in respect of the paddyfield in question entirely to hired agricultural labourers. The
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applicant’s evidence at its worst merely establishes that he, togetherwith his two sons and hired agricultural labourers, took part in certainpart operations of cultivation carried out on this paddy field. Jointemployment of hired labour on a part-time assignment of that naturedoes not incur forfeiture of the ande cultivator’s rights in terms of thedefinition contained in section 68 of the Agrarian Services Act. Thus,it is evident that the Assistant Commissioner has indulged in a verycareful, detailed and analytical evaluation of the evidence led onbehalf of the applicant, applying the Tests of Consistency andInconsistency inter se, Test of Interest and Disinterestedness of thewitness, Test of Means of Knowledge of the witness and the Test ofProbability and Improbability of the evidence of the witness. Thoughhe had not referred in express terms to these tests and processes notbeing a trained lawyer, he has held, having applied these testsimpliedly, that these witnesses have given evidence which is credibleand which is entitled to testimonial trustworthiness. His finding hasbeen that the oral evidence led on behalf of the applicant is bothcogent, convincing and overwhelming. Such evidence is sufficient inthe words of Justice Samarakoon to rebut the presumption in regardto prima facie evidence arising by reason of the adduction ofdocumentary evidence. Both the Inquiring Officer and the Court ofAppeal are entitled to act upon such cogent, convincing andoverwhelming oral evidence even in the face of such documentaryevidence.
Now I turn to the Inquiring Officer’s evaluation, analysis andassessment of the evidence led on behalf of the respondent-appellant. Somawardena, the aforesaid Meepalage Clarency Pereraand her son, Ranjith Narangoda, have given evidence in support ofthe respondent’s case. It is in evidence that the respondent obtaineda transfer of the paddy field in question from the witness, MeepalageClarency Perera, on the execution of the transfer deed bearingNo. 3469 on 15.7.79. The respondent in his evidence has stated thatbefore obtaining such transfer in his favour, he has been working thispaddy field on behalf of Clarency Perera even at the time of thealleged eviction which is alleged to have taken place on 22.5.79.Thus, the respondent, on his own admission and confession, hadbeen involved and engaged in processes of cultivation of this paddyfield prior to the date of acquisition of title by him and he had
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obtained a transfer deed in respect of the paddy field in his favour on15.7.79. (Vide document marked D1.)
It is interesting to ascertain the position of Clarency Perera inregard to the person who cultivated the paddy field in question. Shehas categorically stated in her evidence that the applicant SaranelisSingho, was never employed as a watcher on the coconut estatewhich was adjacent to this paddy field and also she has categoricallyasserted that neither her husband Jamis Appuhamy, nor herself hadever permitted the applicant to enter the paddy field and cultivate itin any capacity whatsoever. She stoutly denied that the applicantever cultivated this paddy field as an ande cultivator and that he everpaid a part of the produce derived from the field as the land-owner'sshare to Jamis Appuhamy, to herself, to her son or to any agent ofJamis Appuhamy. Her position is as follows: She has stated at onepoint that the said paddy field was cultivated by one Nimal and thatbefore it was sold to the respondent Somawardena, that the paddyfield was cultivated by herself through the agency of Nimal and thatNimal handed over the produce from the paddy field to her. However,Somawardena, referring to the cultivation of the paddy field longbefore he took over the paddy field and long before he purchasedthe paddy field, has stated that Clarency Perera cultivated the paddyfield by employing several hired agricultural labourers. He hasspecifically stated thus: “Before I purchased this paddy field in extent5 lahas, Clarency Perera employed several agricultural labourers andworked the paddy field herself through their services. Theseagricultural labourers were Alwis, Rajapakse, Piyadasa, Suwaris.”Thus, the evidence of the respondent Somawardena is whollyinconsistent and contradictory to the evidence of Clarency Perera inregard to the identity of the persons who cultivated the said paddyfield. Besides, the evidence on this point of Clarency Perera and herson, Ranjith Narangoda is also equally contradictory andinconsistent. The Assistant Commissioner has referred to these gravediscrepancies, contradictions and inconsistencies in his order and hehas in effect applied the Test of Consistency and Inconsistency interse and has arrived at an adverse finding in regard to their testimonialtrustworthiness and credibility. He has referred to the fact that witnessRanjith Narangoda, although he claimed to know much informationabout the paddy field in question was constrained under cross-
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examination to admit that he had never been to the paddy field whenthe paddy harvest was threshed and the paddy was divided betweenthe respective claimants to the produce. Thus, applying the Test ofMeans of Knowledge, the Assistant Commissioner has arrived at anadverse finding in regard to his testimonial trustworthiness. TheAssistant Commissioner has applied the Test of Probability andImprobability in regard to the testimony of Clarency Perera when sheimprudently stated that she brought labourers from Yakkala andproceeded to cultivate the paddy field with hired labour from Yakkalawhen the paddy field was situated at Polgahawela. She has statedthus:
In regard to the presence of the applicant at times on the paddyfield, she has given equally highly improbable evidence. She hasstated that when on occasions that she went to the paddy field,Saranelis Singho also, by some coincidence came to the paddy field;and on those occasions only that she requested him (SaranelisSingho) to look after the paddy field, but that she never entrusted thepaddy field to Saranelis Singho for cultivation. She has stated thus:
The Assistant Commissioner has spotlighted this evidence and hisobject in doing so, has been to apply the Tests of Probability andImprobability; thereafter he has completely rejected her evidence aspalpably false. I agree with his evaluation and finding without anyhesitation. Thus, on a proper and minute and analytical evaluation ofthe evidence, the Assistant Commissioner has arrived at an adversefinding in regard to the testimonial trustworthiness and credibility and

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rejected as false the respondent’s position and the testimonyadduced on his behalf, I hold that there has been a very judicious,analytic, critical and correct evaluation of the totality of the evidenceled in this case.
There is no misdirection in point of fact of law, there is no failure onthe part of the Assistant Commissioner to take into account andconsider the effect of relevant evidence led at the inquiry, there is noimproper evaluation of evidence and there is no defect of procedure,on a consideration of the totality of the evidence led and on aconsideration of his order. In the result, I hold that there is no error oflaw arising upon this appeal. The Assistant Commissioner has arrivedat strong findings of fact with which this Court is in completeagreement. Thus, applying the ratio decidendi in Babanis v. Jamis(6).I hold that this Court has no jurisdiction or power to interfere with thecorrect finding of fact reached by the Assistant Commissioner. In theresults, I proceed to dismiss this appeal with costs in a sum ofRs. 3,150/- payable by the respondent-appellant to the substitutedapplicant-respondent. The appeal is dismissed with costs.
Appeal dismissed.