025-SLLR-SLLR-1997-2-TALAWATUGODA-SIRI-RATNA-THERO-AND-ANOTHER-v.-ATHUKORALE.pdf
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TALAWATUGODA SIRI RATNA THEROAND ANOTHERv.
ATHUKORALE
COURT OF APPEAL.
F. N. D. JAYASURIYA, J.
CA. 316/83.
A. T. KALUTARA 13/K/51.
JUNE 26, 1996 AND AUGUST 21, 1996.
Tenant Cultivator – Eviction – Indenture of Lease with the Lease rent fixed – Is thata valid contract of letting and hiring in terms of the Agrarian Services Act, No. 58of 1979 – Section 17(5) (b).
The former Viharadhipathi of the temple had entered into an indenture of Lease(Notarial), whereby the paddy field was leased to the applicant respondent and toone Perera for a period of five years. The lease rent for this period and the yearlyrent were paid in advance.
It was contended in appeal (1) that in as much as the rent was fixed at theinception there was no valid contract of letting and hiring in terms of the AgrarianServices Act, (2) that the field was Devalagama land managed by the PublicTrustee and therefore not subject to the Paddy Lands Act, (3) that the lease wasin favour of two leases and when one abandons his rights those rights devolve onhis successors.
Held:
Whether there is a contract of letting and hiring must be viewed in thebackground of the common law, the Roman Dutch Law as well.
The Roman Dutch Law sets out that the rent must be certain and fixed, it may beascertained or be readily ascertainable, but where the rent is certain there is avalid contract of letting and hiring.
The interpretation clause in the Agrarian Services Act in defining the expressionletting has adopted the Roman Dutch Law principles.
If the rent is fixed in advance for a paddy field for five years without reference tothe gazette which would specify the particular rent for different seasons and
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difficult areas, still there would be a valid contract of letting and hiring in terms ofthe Act.
If the original amount is excessive when the tenant is prosecuted under section18 read with section 28, he could set off the excess rent paid. If there is a shortfallthe landlord is entitled to recover the shortfall in terms of section 17(1) – section17(5).
Even under the provisions of the Paddy Lands Act, Agricultural Lands Law -all paddy fields are subject to the provisions of the aforesaid Acts.
When there are joint ande cultivators one ande cultivator is entitled to transferhis right to the other. Even in the event of death, the line of devolution andsuccession is that the joint ande cultivator's rights devolve upon the other andnot on his heirs.
APPEAL under the Agrarian Services Act.
Cases referred to:
Commissioner of Agrarian Services v. Kumarasamy 62 NLR 574.
Babanis v. Jamis – [1989] 2 Sri LR 344.
N.R. M. Daluwatte, RC., with Manohara R. de Silva, Samantha Abeyjeewa,Gamini de Silva for respondent-appellant.
Hemasiri Withanachchi for applicant-respondent.
Cur. adv. vuit.
September 27,1996.
F. N. D. JAYASURIYA, J.
The applicant, A. M. Atukorale, has preferred this complaint to theAssistant Commissioner of Agrarian Services (Inquiries), Kalutaraalleging that the respondent's predecessor in title, KaradenaSirisumana Thero of Raja Maha Vihare, Pokunuwita, through theagency of Weligampitiya Meegaha Jayasena, wrongfully andunlawfully evicted him from the paddy field, Hataren Andadena,Ambalawela, in extent two bushels of. paddy sowing on 20.9.80 and
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has claimed a declaration that he was the ande cultivator of theaforesaid paddy field and that he be restored to occupation of thepaddy field. This paddy field is owned by the Viharadhipathi of theRaja Maha Vihare, Pokunuwita and its affairs are administered interms of the provisions of the Buddhist Maha Vihare and DevalagamAct by the Public Trustee. The former Viharadhipathi of the saidtemple, Sirisumana Thero, had entered into an indenture of leasebearing No. 17634 attested by K. Sirisoma Tillekaratne, NotaryPublic, whereby the aforesaid paddy field was leased by the saidViharadhipathi to A. M. Atukorale, the applicant, and to K. JolishiPerera for a period of five years. This document has been markedand produced in evidence as P1. The currency of the lease was for aperiod of five years commencing from the Maha season of 1975-76and the lease would have terminated in the Yala season of 1980. Thelease rent for the period of five years was paid in advance by thelessees to the aforesaid lessor, Karadena Sirisumana Thero prior tothe execution of the lease and the yearly rent was Rs. 500 and theaggregate rent paid in advance for the period of five years wasRs. 2500. The Public Trustee had approved the execution of theaforesaid lease bond. Having entered into the lease and havingindulged in the cultivation processes, K. Dionis Perera hastransferred his leasehold rights and his co-ande rights to his co-cultivator, the applicant.
In this matter, the only question of law raised on behalf of theappellant was to the effect that there was an Indenture of Leasewhereby the lease rent was fixed at Rs. 2500 for a period of fiveyears. It was sought to be argued on behalf of the appellant that. inasmuch as the rent was fixed at the inception, there was no validcontract of letting and hiring in terms of the Agrarian Services Act.That was the sole question of law that was argued. I venture to take adifferent view of the law. The Interpretation Clause defines “letting” forpurposes of the Agrarian Services Act and the definition of thephrase "let" with reference to any extent of paddy field means topermit any person under an oral or written agreement to occupy anduse such extent in consideration of the payment of rent consisting ofa sum of money… As far as the expression “let” as used in the
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Agrarian Services Act is concerned, there would be a valid contractof letting and hiring provided the rent is fixed, even in advance, in adefinite sum of money for a specified period of time. Whether there isa contract of letting and hiring must be viewed in the background ofthe common law, the Roman-Dutch Law as well. The Roman-DutchLaw sets out that the rent must be certain and fixed; it may beascertained or be readily ascertainable but where the rent is certainthere is a valid contract of letting and hiring. Vide – Lee and Honore -Sections 379, 377 and 494. The Interpretation Clause in defining theexpressions "letting” has adopted the Roman-Dutch Law principle. Ifthe rent is fixed in advance for a paddy field for five years withoutreference to the gazette which would specify the particular rent fordifferent seasons and different areas, still there would be a validcontract of letting and hiring in terms of the provisions of the AgrarianServices Act.
In this case the rent was evidenced by the contents of P1, that isthe Indenture of Lease which fixed it in advance at Rs. 2500 i.e.Rs. 500 per year for a period of five years. It was certain andascertained. Therefore, there was a valid contract of letting and hiringand there was a valid letting in terms of the expression “let” in theInterpretation Clause. Hence, there was a valid contract of letting inpursuance of the Indenture of Lease. The evidence in the case is thatthe lessee took possession of the paddy field and personallyindulged in the processes of cultivation which are defined in section68 of the Agrarian Services Act. The moment he performed thoseacts of cultivation he becomes a tenant cultivator. Thus he satisfiedthe criterion of a tenant cultivator in terms of section 68 and thus thestatutory protection of the Act attached to him. If the rent so fixed inthe Indenture of Lease is excessive then in the event of the filing ofan application with the Commissioner, the Assistant Commissionerwill determine the rent payable under the Act and he would beguided by the provisions of section 17 of the said Act and if there isan excess, then at such inquiry the tenant would get credit for theexcess rent. The fact that the rent is fixed in advance in a certain sumof money is not a legal impediment for the relationship of landlordand ande cultivator to arise in law. The argument of learned Counsel
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for the appellant was founded on the provisions of section 17(5) (b).Section 17 states: “The Commissioner shall by Notification publishedin the Gazette determine from time to time in accordance with theprovisions of this section the rent to be paid by the tenant cultivator ofany extent of paddy land.” According to this provision thedetermination could change from time to time. Section 17(5) (b) onwhich much stress was placed by learned President’s Counselappearing for the appellant sets out that “where the landlord desiresto have the rent in money and the tenant cultivator agrees to pay therent in money, the equivalent in money of the rent payable inpaddy under paragraph (a) of this sub-section, computed at theprice fixed for the time being for paddy”, shall be the rent payableand this provision, shall hold good.”
Now, if the original amount fixed is excessive, when the tenant isprosecuted upon an application filed under section 18 read withsection 26 of the said Act, he is in a position to set off the excess rentpaid. If there is a shortfall upon such an inquiry the landlord isentitled to recover the shortfall in rents in terms of the provisions ofsection 17(1) and section 17(5) of the said Act. These provisions donot postulate that the rent so determined under section 17(1) ought tobe fixed in advance in the agreement for the letting to be validin law. That is not feasible and practicable. If one were to construethe law in that manner disregarding the definition of theexpression “letting” in the said Act,, it would lead to a reductioad absordum.
Reliance was placed on the judgment delivered by JusticeSansoni in Commissioner of Agrarian Services v. Kumarasamy('> andJustice Sansoni, with respect, was dealing with the issue of paymentof rent in paddy and he took the view that if you pay the rent in paddyby tendering paddy derived from some other paddy field, then sucha tender would not be payment of rent. That decision has noapplication whatsoever to the present issue before this Court. Herewe are not dealing with payment of rent in paddy, here it is aninstance of payment in money. Therefore, I hold that the submissionsbased on this decision are untenable because the decision of Justice
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Sansoni {supra) has no application whatsoever to the instant case.The learned Judge was dealing with a situation where the rent waspaid in paddy and he held that it should be paid out of paddyharvested from the particular paddy field. “If it was the latter, that ispayment of rent in paddy, it would not be letting unless that paddywas a share of the produce from that estate." (per Justice Sansoni)That decision has no application. We are here concerned withpayment of rents in money which is permissible in terms of section17(5) of the said Act.
In regard to the other points which were not stressed at theargument but which are contained in the petition of appeal, namelythat there was the original application before eviction when there wasonly a threat of eviction, that application was rightly dismissed.Thereafter, an application has been made to the Agrarian ServicesOfficer on 20.11.1980 relating to an eviction effected at a later pointof time. The earlier alleged threat was in April, 1980, but the latereviction was on 20.9.1980. That complaint and application wasmisplaced but the official books were produced at the inquiry toestablish that such a complaint had been made. Thus, thedisappearance of the complaint is not referable to any fault on thepart of the applicant and if there had been any lapse on the part ofthe Agrarian Service Office, that lapse cannot prejudice theapplicant. Therefore, I hold that the Assistant Commissioner hadjurisdiction to entertain the present application and proceed with theinquiry.
Then, it was contended that since the paddy field in question isDevalagam land, which was managed by the Public Trustee underthe provisions of the Buddhist Viharas and Devalagam TemporalitiesAct it is not subject to the provisions of the Paddy Lands Act. This isa misconceived submission. Even under the provisions of the PaddyLands Act or under the provisions of the Agricultural Lands Law, thedecisions of this Court have held that all paddy lands are subject tothe provisions of the aforesaid acts and there are no statutoryexception in respect of Devalagam lands.
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It was next argued that the lease was in favour of two lessees andboth have entered upon the paddy field and indulged in cultivationprocess and therefore when a lessee abandons his rights, thoserights devolve on his successors. But that contention would not holdgood as the Assistant Commissioner has come to a strong finding offact that these two lessees, after the execution of the lease, got intothe paddy field and for sometime both of them performed theparticular acts of cultivation specified in section 68 of the Act andlooked after the crop and tended the crop and thereby they becameco-ande cultivators. When they are joint ande cultivators, one andecultivator is entitled to transfer his rights to the other joint tenantcultivator. Vide document marked P4 at the inquiry. Even in the eventof death, the line of devolution and succession is that the joint andecultivator’s rights devolve upon the other co-cultivator and not on hisheirs. That is the line of succession prescribed by the Act.
In the circumstances, I hold that there is no merit whatsoever in theappeal. This Court has no power to interfere with the strong findingsof fact reached by the Assistant Commissioner in Babanis v. Jamism.On the contrary, this Court is in agreement with those findings of factand I have answered the only question of law raised against theappellant. I hold that where there is a lease bond providing for thepayment of rent in advance, and where the rent is paid in advance,thereafter the lessee enters the paddy field and performs theprocesses of cultivation spelt out in section 68 of the Act, then hebecomes an ande cultivator and the payment of rent in advance isnot a bar to his claim to ande rights. I hold that there is nomisdirection in point of fact or law, no failure to take into account theeffect of relevant evidence led at the inquiry, no improper evaluationof evidence and neither is there any defect of procedure, on aperusal of the totality of the evidence and a consideration of the orderpronounced. The only point of law raised is without substance and I,therefore, proceed to dismiss the appeal with costs in a sum ofRs. 1050 payable by the first and second appellant to the applicant-respondent.
Appeal dismissed.