WIJESURIYA v. SENARATNE

033-SLLR-SLLR-1997-2-WIJESURIYA-v.-SENARATNE.pdf


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Wijesuriya v. Senaratne
323
WIJESURIYA
V.
SENARATNE
COURT OF APPEAL.
F. N. D. JAYASURIYA, J.
C.A. 27/91.
A.T. KURUNEGALA 1 C401.
JANUARY 28. FEBRUARY 3 AND 20. 1997.
Agrarian Services Act, No. 58 of 1979 – Tenant cultivator – Eviction by order ofCourt – Custodia Legis – Eviction – Prevention of Frauds Ordinance, section 2 -Civil Procedure Code, section 154 – improper admission of evidence – EvidenceOrdinance, section 3 – Question of law.
The complaint of the applicant-respondent was to the effect that his. father wasthe original tenant and subsequently the applicant’s uncle, and the applicant werethe Ande cultivators, and that the respondent-appellant after purchasing theinterests in the field by two conditional transfers wrongfully evicted him.
. It was contended in appeal that the transaction embodied was a money lendingtransaction or a Moratuwa Mortgage or creating merely a relationship of creditorand debtor and in any event there was no eviction as contemplated under theAct, as the District Court had prohibited both parties from cultivating the field andhad handed over the field to an official of the Agricultural Committee.
Held:
Any contract relating to land or creating an interest in land ought to beNotarially executed and oral and parol evidence cannot be led to alter and varythe terms of the transaction so recorded in the Notarially executed document.Thus in the absence of a plea of fraud or trust the transaction embodied in thetwo deeds (V2 and V3) is an absolute transfer subject to an agreement to re-convey within a specified and fixed period of time.
Thus it is not open to the respondent-appellant to construe and interpret thetransaction embodied in V2 and V3 as a money lending transaction or as aMoratuwa Mortgage or creating a creditor-debtor relationship.
On perusing the part of the record tendered it is seen that the learned DistrictJudge did not have jurisdiction to grant the plaintiff in that action reliefs whichwere not prayed for in the prayer to the plaint. The record discloses that the
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action that was filed is not an action for declaration of title or an order ofejectment of the defendants and for an order of delivery of possession, but anaction for declaration to be quieted in possession.
The respondent appellant did not obtain possession in terms of the judgmentafter he obtained judgment, the respondent-appellant had used his own devicesand contrivances to obtain possession from the Waga Niladari.
APPEAL from the order of the Assistant Commissioner of Agrarian Services,Kurunegala.
Cases referred to:
W. N. William Fernando v. W. D. Saranelis- 59 NLR 169.
H. W. H. Siriwardena v. W. D. Saranelis-59 NLR 182.
Elderick de Silva v. Chandradasa-70 NLR 168 at 170.
Tillekaratne Banda v. Kalu Banda- [1993] 1 SLR 95.
D. M. Ariyaratne v. S. Edwin – 68 NLR 470 at 471.
Babanis v. Jemma – [1981] 2 SLR 344.
Karawita v. Abeyratne – [1983] 2 SLR 306.
Manatunga v. Baronchihamy – [1995] 1 SLR 45.
Silva v. Kideerslay- 18 NLR 85.
Adaikappa Chettlar v. Thomas Cook & Sons – 31 NLR 385.
Perera v. Seyed Mohamed- 58 NLR 246.
Mahinda Ralapanawa with S. Balasuriya for respondent-appellant.
K. C. deAlwis for appellant-respondent…
Cur. adv. vult.
March 10,1997.
F. N. D. JAYASURIYA, J.
The paddy field, which is the subject matter of this applicationnamed Wewekumbura alias Weweliyadde, is situated at the extremityof the two adjacent villages of Mabopitiye and Humbuluwa in theDistrict of Alawwa, Dambadeniya. As the paddy field is situated atsuch extremity, it is described by some as being situated in
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Humbuluwa and by others as situated at Mabopitiya. Concertedissues have been raised at the inquiry in regard to the name of thepaddy field but it is common knowledge in the villages that a paddyfield is described sometimes as “kumbura" and sometimes as“Liyadde”. I agree with the Inquiring Officer that on the totality of theevidence placed before him, the reference to Weweliyadde andWewekumbura are references to one and the same paddy field.Witness Yalabamunu Kasthurusinghe who had officiated as the WagaNiladhari has clearly stated that although he had earlier inserted tworegistration entries in the Agricultural Lands Register in respect ofWewekumbura and Weweliyadde on the mere representations of theparty litigants, yet subsequently, in 1979, he was convinced andsatisfied on investigation that both these names related to one andsame paddy field and that this particular paddy field was cultivatedas ande cultivators by Adikari Mudiyanselage Dingiri Banda and laterby A. M. Senaratne, the applicant. It is in evidence that there was nodefinite boundary separating the villages of Humbuluwa andMabopitiye. I am in complete agreement with the findings of factreached by the Assistant Commissioner of Agrarian Services thatthough different names and different villages were used in thedescription, that the disputes between the parties related to onepaddy field which was identified in relation to metes and bounds andas the respective party litigants used the different names ofWewekumbura and Weweliyadde that different entries with differentnames were inserted in the Agricultural Lands Register without anyinvestigation [on the mere representation of the parties concerned]by officials in regard to the identity of the paddy field. In fact, theofficial witness Kasthurusinghe summoned to give evidence at theinquiry, who was the Waga Niladhari, accepted the fact that in view ofthe representations of either party litigant naming this paddy fielddifferently, on their representation, without further investigation,entries have been made and registrations effected as if there weretwo fields named Wewekumbura and Weweliyadde in existence inthe particular district. But, in actual fact, both these descriptionsrelated to one particular paddy field identified by clear metes andbounds and that the respondent-appellant Jamis AppuhamyWijesuriya was the owner of that solitary paddy field. The witness
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named Gamaralalage Kalinga Senadheera Appuhamy who was theDistrict Agrarian Services Officer, has confirmed this fact.
The complaint of the applicant-respondent to the AssistantCommissioner of Agrarian Services (Inquiries), Kurunegala was to theeffect that his father A. M. Tikiri Banda was the original andecultivator of the paddy field named Wewekumbura aliasWeweliyadde, in extent 3 roods of paddy sowing which was situatedin the village of Humbuluwa in Alawwa, in the District ofDambadeniya and thereafter that the applicant’s uncle A. M. DingiriBanda Adhikari and subsequently the applicant were the andecultivators of the paddy field and that the respondent-appellant afterpurchasing interests in the said paddy field from the previous owner,had wrongfully and unlawfully evicted him from the paddy field on the20th of January 1981.
•The respondent-appellant has purchased interests in this paddyfield on two conditional transfers in his favour on the execution of thetransfer deed No. 3726 dated 14th September, 1968, attested bySarath Kumar Alawwa, Notary Public marked V2 at the inquiry and onthe execution of transfer deed No. 4285 dated 11.7.69 attested bySarath Kumar Alawwa, Notary Public, which has been marked as V3at the inquiry. These two transfer deeds are absolute transfers of thefpaddy field in question with an agreement to reconvey on the part ofthe vendee within a stated and specified period of time. Learnedcounsel for the appellant at the argument of this appeal attempted tocontend that this transfer, coupled with the agreement to reconvey,created the relationship of creditor and debtor and a loan transactionbetween the parties and after the execution of the said transfers, theRespondent-appellant received a share of the produce by way ofinterest only and not as rent. I hold that no responsible andprudent counsel is entitled to put forward a legal submission to thateffect in view of the two full Court decisions of the Supreme Court inW. N. William Fernando v. W. D. Saranelisw and H. W. H. Siriwardenav. W. D. Saranelis<2>. (Five Bench judgments) In these two authoritativejudgments the Supreme Court held that a notarially executed transferwith an agreement to re-transfer the property within a specified
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period, can never be construed as a "(Moratuwa) Mortgage" or amoney lending transaction for the establishment of a relationship ofcreditor and debtor only.
The Supreme Court laid down the principle that any contractrelating to land or creating an interest in land ought to be notariallyexecuted in terms of the provisions of section 2 of the Prevention ofFrauds Ordinance and oral and parol evidence cannot be led to alterand vary the terms of the transaction as recorded in the notariallyexecuted document. Thus, in the absence of a plea of fraud or trust,the transaction embodied in the documents marked V2 and V3 is anabsolute transfer and conveyance of a property subject to anagreement to re-convey the property within a specified and fixedperiod of time. On the notarial execution of such document, theproperty in the paddy field passed to the vendee and transferee andhe became owner of the paddy field in question. Thus, it is not opento the respondent-appellant to construe and interpret the transactionembodied in documents V2 and V3 as a money lending transactionor as a "Moratuwa Mortgage” or as creating merely a relationship ofcreditor and debtor between himself and the vendors of the paddyfield. Thus, the construction and interpretation sought to be put onthis transaction and on the acceptance of a part of the produce fromthe paddy field as a payment and acceptance of interest, is whollyunsustainable and untenable, having regard to the jDrinciples laiddown by the Full Bench in the two judgments referred to above. Therespondent-appellant was the owner of the paddy field till such timeas the reconveyance was effected and the payment to andacceptance by him of a portion of the produce of the paddy field hasto be given the normal construction and interpretation as wascontended for on behalf of the applicant-respondent, as a paymenttowards and acceptance of rent by the land-owner and as thelandlord's share of the produce from the paddy field. It is in this lightand adopting this interpretation that the rights and duties and thelegal relationship between the parties have to be ascertained anddetermined by the Inquiring Officer and by the Court of Appeal. TheSupreme Court stressed and emphasized that where the terms ofsuch a transaction are embodied in a notarially executed document,
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no party litigant is entitled to lead oral or parol evidence to contradict,vary or alter the terms of the transaction as embodied in the formaldocument.
According to the testimony of the applicant, originally the paddyfield in question had been handed over to his father to cultivate it asan ande cultivator. Thereafter, both his father Tikiri Banda and hisuncle Dingiri Banda had jointly cultivated the paddy field till the year1968-69 when his father Tikiri Banda fell sick and was bed-riddenand thereafter Dingiri Banda cultivated the paddy field as an andecultivator with the assistance of the applicant and thereafter theowners of the paddy field accepted and acknowledged the applicantas the ande cultivator of the paddy field in question because he was,right throughout, assisting his uncle Dingiri Banda in the cultivation ofthe paddy field. This oral evidence of the applicant is supported bythe certified copies of the Agricultural Lands Register which havebeen produced at the inquiry. In the document P15, which is one ofsuch copies of the Agricultural Lands Register for the years 1971-72,in relation to the paddy field Wewekumbura, A. M. Dingiri Banda’sname (the applicant’s uncle’s name) is entered and registered as theande cultivator and the name of James Appuhamy Wijesuriya, that isthe respondent-appellant’s name, is entered as the owner-landlord.The evidence of the applicant is supported by the contents of P15and is substantiated by the evidence given by the aforesaid witness,Dingiri Banda at the inquiry. According to the version of the applicant,in the Maha Season of 1972, the aforesaid A. M. Dingiri Banda, hisuncle, had handed over the cultivation of the paddy field in questionto the applicant as the applicant had been previously assisting thesaid Dingiri Banda in the cultivation of the paddy field and thisarrangement was acquiesced in, accepted and approved by theowner of the paddy field and thereby the relationship of landlord andtenant arose between the applicant-respondent and the respondent-appellant.
The witnesses called on behalf of the applicant, including theapplicant, Adikari Mudiyanselage Dingiri Banda, an uncle of theapplicant, Yala-Bamunu Kasthurusinghe, Kumba Liyaddalage Simon,
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have given clear evidence that originally the applicant’s father (TikiriBanda) was the ande cultivator of the paddy field and that when hefell ill, he handed over the paddy field to Adikari MudiyanselageDingiri Banda who was his assistant in the cultivation of the paddyfield and that the aforesaid Dingiri Banda continued to cultivate thepaddy field as an ande cultivator and paid the rent to the owner andto the respondent Wijesuriya continuously. There has been evidenceled that Wijesuriya and his agents were present at the division of thethreshed paddy and the land-owner’s share of the paddy wasremoved from the threshing floor. This evidence adduced by theaforesaid witnesses was unchallenged and unimpugned in cross-examination. Further, the respondent has not led cogent andconvincing evidence at the inquiry to rebut such evidence. In thecircumstances, as was observed by Justice H. N. G. Fernando inEldrick de Silva v. Chandradasa(3>, where one party leds prima facieevidence and the opponent fails to lead rebutting and contradictingevidence when he has the means to do so, that is a special matterand feature which the deciding authority must take into account as a"matter" falling within the definition of the word “proved” in section 3of the Evidence Ordinance. Thus, the finding of the AssistantCommissioner is substantiated and strengthened by this principle oflaw. Further, in the petition of Appeal filed before the Court of Appealin the abortive Agrarian Services Inquiry No. C.A. 502/82 A. S.Dambadeniya P401 in paragraph 3(i), the respondent-appellantWijesuriya himself has stated that the applicant's uncle, the aforesaidDingiri Banda, was the ande cultivator of the paddy field in questionand that the respondent-appellant was the owner landlord. There wasno necessity to formally mark this petition of appeal as a document atthe subsequent de novo inquiry held before the AssistantCommissioner as the Petition of Appeal in C.A. 502/82 formed anintegral part of the record when the de novo inquiry was commencedby the Assistant Commissioner. Thus, there is no doubt whatsoever,in view of this admission on the part of the respondent-appellant inthe aforesaid petition of appeal and in view of the overwhelming andcogent evidence to which I have already alluded that the applicant-respondent’s uncle, the aforesaid Dingiri Banda, was the andecultivator and thereafter, the ande cultivator of the paddy field wasthe applicant-respondent.
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In the course of the argument, learned counsel for the respondent-appellant strenuously argued that there was no cogent evidenceplaced before the Inquiring Officer that the applicant was evicted on
as asserted by him in his application and in the course of hisoral testimony at the inquiry. It was submitted by learned counsel forthe respondent-applicant that the applicant was evicted on 20.1.81 Inpursuance of a judgment and decree for his ejectment entered bythe District Judge of Kurunegala in D. C. Kurunegala Case No. 673/Land, in these circumstances, it is fallacious and wholly untenable toallege and assert that the applicant was wrongfully and illegallyevicted by the respondent and his agents from the paddy field on
In considering this contention, it must be stressed andemphasized that both parties have not produced a copy of theproceedings or the judgment or the relevant journal entries in D. C.Kurunegala Case No. 673/L, before the Assistant Commissioner ofAgrarian Services as a marked document. The only evidence ledbefore the Inquiring Officer was the oral evidence of the aforesaidwitness Yalabamunu Kasthurusinghe. He has attempted orally to giveevidence in regard to the effect of the order of the learned DistrictJudge of Kurunegala in D. C. Kurunegala Case No. 673/L. Thiswitness has stated in his oral evidence as follows:
“The District Court prohibited both parties from cultivating thepaddy field and handed over the paddy field to me as an official ofthe Agricultural Committee. I employed cultivators and worked thepaddy field with the assistance and help of their services up to theyear 1983. It should be 1961 and not 1983 as asserted earlier. TheDistrict Judge held that the dispute ought to be adjudicated upon bythe Agricultural Tribunal and the District Judge dismissed the action.Since I was given possession of the paddy field as a temporarymeasure till the disposal of the District Court action, the respondenttook over possession of the said paddy field from me. I handed overthe possession of the paddy field to the respondent as the DistrictCourt action had terminated. I cannot remember whether there wasany order to hand over possession to the respondent in the DistrictCourt order."
By that interim order pronounced by the District Judge ofKurunegala, this paddy field came into CUSTODIA LEGIS till the finaldetermination of that civil action.
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Thus, the oral evidence which has been led on this point withoutany challenge or objection is in the teeth of the factual basis on whichlearned counsel for the appellant has put forward his contentionbefore this Court. The oral evidence of witness YalabamunuKasthurusinghe in regard to the orders and judgment of the DistrictJudge in D. C. Kurunegala Case No. 673/L would be inadmissibleand irrelevant in terms of section 91 of the Evidence Ordinance, hadobjection been taken to the adduction of such oral evidence at theinquiry. But, unfortunately, no such objection or any challenge orimpugnment was made when such oral evidence was led. In thecircumstances, the Assistant Commissioner was entitled to base hisfindings on such oral evidence.
In the course of the second day of argument in appeal, learnedcounsel for the appellant tendered to me a certified copy of part ofthe record in D. C. Kurunegala 673/L and invited me to act on thecontents of such certified copy. It is not permissible in the attendantcircumstances of this appeal to admit fresh evidence in appeal, assuggested by learned counsel for the appellant. Without admittingfresh evidence in this manner, I have perused the certified copy ofpart of the record that was tendered to me. There is no copy of thejudgment which was alleged to have been entered in favour of theplaintiff in that case on 20.1.81 in the certified copy of the record thatwas tendered to me. It is only a certified copy of a part of the record.Although the journal entry produced only related to the date 20.1.81,the journal entry reads thus:
“Vide proceedings, judgment was entered in favour of the plaintiff."
The alleged proceedings are not available in the part of thecertified copy that has been tendered to the Court of Appeal. Aperusal of this part of the record which was tendered by learnedcounsel for the appellant, discloses that the action that was filed bythe plaintiff in D. C. Kurunegala Case No. 673/L is not an action fordeclaration of title, for an order of ejectment of the defendants fromthe land and for an order for delivery of possession of the land to theplaintiff. The plaint pre-supposes and assumes that the plaintiffs arealready in possession of the land and there is an allegation that there
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is a threat to the plaintiff’s possession of the land in question. Theprayer to the plaint contains a prayer for a declaration that theplaintiff is entitled to peaceful possession of the land in question arida prayer for the issue of an interim injunction and a permanentinjunction restraining the defendants and the members of thedefendant’s family and agents and servants from entering the paddyfield, cultivating the paddy field and interfering with the possession ofthe plaintiff. In the circumstances the learned District JudgeKurunegala did not have jurisdiction to grant the plaintiff in that actionreliefs which were not prayed for in the prayer to the plaint. Videjudgment pronounced by Justice Sansoni in Sirinivasa Thero v.Suddassi Thero, 63 N.L.R. 31. Hence it can be safely presumed thatjudgment entered on 21.1.81 did not contain a declaration of title, anorder of ejectment of the defendants and an order for delivery ofpossession of the land to the plaintiffs. The defendants filed answeralleging that the second defendant was an ande cultivator of thepaddy field in question entitled to the statutory protection of theAgrarian Services Act and that the second defendant was at all timesin possession of the paddy field and engaged in the cultivation ofthe paddy field and that the true facts had been suppressed andconcealed from the Court by the Plaintiff and the plaintiff’s action wasa device and a contrivance to dishonestly and fraudulently defeatand jeopardise the rights of ande cultivatorship of the seconddefendant. Thus, it is manifestly clearly that this action is not anaction for declaration of title for an order of ejectment of thedefendant and for an order of delivery of possession in favour of theplaintiff. The learned counsel for the appellant misconstrued thecharacter and basis of the aforesaid action and contendederroneously that this was an action for declaration of title andejectment and when judgment was entered in favour of the plaintiff,(according to the journal entry dated 21.1.81), that the District Courtof Kurunegala had, in fact, pronounced that the defendants weretrespassers, in unlawful occupation of the paddy field in question.Learned counsel for the appellant having entertained the aforesaidmisconception in regard to the character and basis of the said action,relied on the judgment pronounced by Chief Justice G. P. S. de Silvain Tillekaratne Banda v. Kalu Bandaw and contended on the basis of
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the aforesaid journal entry that the defendants in that action hadbeen evicted from the paddy field in execution of the order of theDistrict Court of Kurunegala and in the circumstances, they were notentitled to claim relief in terms of section 5(3) of the Agrarian ServicesAct. I hold that this contention of learned counsel for the appellant iswholly misconceived and the decision in Tillekaratne Banda v. KaluBanda (supra) has no application to the facts of the presentapplication. In any event, as the judgment in D. C. Kurunegala CaseNo. 673/L is not a judgment pronounced in an action for declarationof title, ejectment and for order of possession, but an action fordeclaration to be quieted in peaceful possession and for an interimand a permanent injunction, it is not open to the respondent-appellant to urge that the applicant-respondent was ever evictedfrom possession of the said paddy by the judgment entered in D. C.Kurunegala 673/L in favour of the plaintiff as evidenced by the journalentry dated 20.1.81. The implication of the plaint in that aforesaidaction is that the plaintiffs were in possession of the paddy field at thetime of the filing of the action on 12.2.78 and at the delivery of thejudgment on 20.1.81. The position asserted by the applicant-respondent is that the respondent-appellant, having obtained anineffective and inconsequential judgment on 20.1.81, which did notentitle him to an order to be restored to possession or an order for theejectment of the defendants, that the respondent-appellant hadwrongfully by his own devices obtained possession of the paddy fieldwith the assistance of his agents and thereby evicted the applicant-respondent. Thus, even if this Court of Appeal were to admit freshevidence in the unauthorised manner prayed for and bereft of therequisite relevant circumstances, the part of the certified copy reliedupon by learned counsel for the appellant does not enable him tocome within the ratio decidendi in Tillekaratne Banda v. Kalu Banda(supra) and to successfully contend that there was a declaration bythe District Court of Kurunegala that the defendants in that actionwere unlawful trespassers and that they were evicted from the paddyfield by reason of the order of the District Court. The civilised rules ofmodern jurisprudence are not devoid of an adequate reply to theunconscionable contentions and claims of this nature advanced bythe respondent-appellant.
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Learned counsel for the applicant-respondent has relied on andreferred this Court to a pronouncement made by Justice H. N. G.Fernando in the Divisional Bench judgment in D. M. Ariyaratne v. S.Edwin™ in relation to the interpretation of the expression “evict” in theprovisions of the Paddy Lands Act. Justice H. N. G. Fernando, whenhe was senior Puisne Judge remarked: “The ordinary meaning ofevict in our opinion means to dispossess by due process of law orby force”. Learned counsel for the applicant-respondent hasconsequently submitted that even if the defendants in D. C.Kurunegala Case No. 673/L were evicted from the paddy field inexecution of the judgment of the District Judge, still, even if thedispossession was by due process of law, it is an eviction in terms ofthe provisions of the Agrarian Services Act. I hold there isconsiderable force in that contention but I am of the considered viewthat the ratio decidendi in Tillekaratne Banda v. Kalu Banda (supra)has no application whatsoever to the judgment delivered in D. C.Kurunegala Case No. 673/L having particular regard to the differentcharacter and nature of that action and having regard to theparticular relief prayed for in the prayer to that action.
The learned counsel for the appellant referred me to page 179 ofthe order of the Assistant Commissioner dated 26.12.90 and bitterlycomplained and submitted that there were serious misdirections andunjustified findings and inferences without any foundation in evidencein the aforesaid order. The Assistant Commissioner in his order hasstated that the respondent-appellant attempted to obtain apermanent injunction against the applicant-respondent in D. C.Kurunegala Case No. 673/L. He has further stated that the applicant-respondent failed to obtain any relief from the District Court and theDistrict Judge had referred the parties to obtain an adjudication anddetermination from the Agricultural Tribunal. Thereafter, he has heldthat the respondent-appellant obtained possession of the paddy fieldin question in 1981 which was handed over earlier by the defendantsto the Waga Niladhari pending the disposal of action, and by soobtaining possession in 1981, the respondent-appellant had in effectdispossessed and evicted the applicant-respondent. Theseobservations and findings on the part of the inquiring officerwere impugned as misdirections and as findings reached without
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supporting evidence. I hold that this contention is unsustainable anduntenable as the Assistant Commissioner had before him only theoral evidence of Waga Niladhari Yalabamunu Kasthurusinghe whichwas adduced before him without any objection, impugnment orchallenge. No certified copy of even part of the record was everplaced before the Inquiring Officer by the respective parties. In thecircumstances, the Inquiring Officer was justified in acting on theunimpugned oral evidence of the aforesaid witness. I havereproduced earlier the oral evidence given by this witness. Thiswitness has stated that the District Court rejected and dismissed theaction in D. C. Kurunegala Case No. 673/L. This witness has alsostated after the action was dismissed and the plaint had beenrejected, he handed over possession and the respondent-appellanttook over possession from him in 1981 as the witness was onlyrequired to retain possession and cultivate the paddy field till the finaldetermination of the action. By that interim order of the District Judgeof Kurunegala, this paddy field came into custodia legis till the finaldetermination of that action. In view of the oral evidence of thewitness, there is no misdirection on the facts as relied upon and theinferences drawn by the Inquiring Officer and his findings on theaforesaid points are based entirely on the unchallenged oralevidence given by that witness. It is true that the certified copy of partof the record produced for the first time at the argument of theappeal discloses that the plaintiff obtained some relief from theDistrict Court in terms of the judgment entered in his favour, but therewas never a declaration of title order for ejectment of the defendantsor an order for delivery of possession to the respondent-appellant inthe judgment of the District Court. Equally, there is no record of apronouncement referring the parties to obtain an adjudication fromthe Agricultural Tribunal but clearly the respondent-appellant did notobtain possession of the land in terms of that judgment. After heobtained judgment, the respondent-appellant had used his owndevices and contrivances to obtain possession of the land from theWaga Niladhari. In the circumstances, I hold that the AssistantCommissioner of Agrarian Services (Inquiries) has not misdirectedhimself on any questions of fact nor has he arrived at any findingswhich are not supported by evidence but his conclusions and hisfindings are entirely based on the unimpugned oral evidence of the
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aforesaid witness. In the circumstances, the decisions in Babanis v.Jemmam and Karawita v. Abeyratnem are not at all helpful to thelearned counsel for the appellant in the advancement of hissubmission. Both in Babanis v. Jemma (supra) and Karawita v.Abeyratne {supra) the principle was laid down that a question of lawarises where the facts relied upon by the Tribunal are unsupported byevidence and if there are wrong inferences drawn from them, but inthe instant appeal, it is manifestly clear that the AssistantCommissioner arrived at certain factual findings and drew certaininferences which were entirely based on the unimpugned andunchallenged oral evidence of the aforesaid witness YalabamunuKasthurusinghe. Justice Kulatunge in Manatunga v. Baronchihamy(8),laid down the principle that failure to raise objections at the inquiryconducted by the Assistant Commissioner either in regard to theevidence adduced or to the complaint made amounts to waiver andacquiescence. (CF) Also note the provisions of section 154 of theCivil Procedure Code and the explanation to the section. Vide thedecision in Silva v. Kideerslay<9), Adaikappa Chettiar v. Thomas Cook& Sonsm, Perera v. Seyed Mohamedu) in regard to the improperadmission of a document without objection as opposed to oralevidence. In the result, I hold that the question of law raised bylearned counsel for the respondent-appellant are devoid of merit andsubstance and his contentions are unsustainable and untenable inlaw. The civilised rules of modern jurisprudence are not devoid of anadequate reply to unconscionable contentions and claims of thisnature, advanced by the respondent-appellant. I hold that there is noerror of law which arises upon this appeal. There is no misdirection inpoint of fact or law, there is no failure to take into account the effectof relevant evidence led at the inquiry. There is no improperevaluation of evidence on a careful consideration of the totality of theevidence placed before the Assistant Commissioner at the inquiryand on a consideration of his order. In the result, I proceed to dismissthe second appeal of the respondent-appellant with costs in a sum ofRs. 4,200/- payable by the respondent-appellant to the applicant-respondent.