[62 VS 66] ASCERTAINMENT OF THE BREACH OF THE PEACE OR ITS LIKELYHOOD BY COURT IS A WASTE OF TIME IN TRMS OF SECTION 66 OF THE P.C.P.ACT AS OPPOSED SECTION 62 OF THE A.J.L
Editors Note (GalleBlogger)
Breach of the peace does not mean fisticuffs, grievous hurt or attempted murder. It is sufficient if there is a present fear that there will be a breach of the peace stemming from the dispute unless the Court takes control of the matter.
ASCERTAINMENT OF THE BREACH OF THE PEACE OR ITS LIKELIHOOD BY COURT IS A WASTE OF TIME IN TERMS OF SECTION 66 OF THE P.C.P.ACT AS OPPOSED TO SECTION 62 OF THE A.J.L IS A WASTE OF TIME.
A salient difference
exists between the exercise of jurisdiction under section 62 of
the Administration of Justice Law and section 66 of the Primary Code
Procedure Act. In terms of section 62 of the Administration of Justice
Law when a report filed by police setting out a land
dispute, the magistrate has to satisfy himself that dispute leading to a
breach of peace or likelihood of the same had occurred, as a
condition precedent to the exercise of the special jurisdiction. Under
section 66 there is no such duty cast on the magistrate to
ascertain the existence of the breach of the peace as section 66
(2) confers jurisdiction upon a report being file by police.
CLICK GAMARALALAGE JAYASINGHE Vs MAHARA MUDIYANSELAGE LOKU BANDARA
Decided on : 20.12.2019
Before: A.L. Shiran Gooneratne, J.
Mahinda
Samayawardhena, J.
Decided on: 20.12.2019
Mahinda Samayawardhena, J.
This is an application
initially filed before the Magistrate’s Court of Kegalle, under section
66(1)(b) of the Primary Courts’ Procedure Act, No.44 of 1979, by the
petitioner-respondent-respondent (hereinafter “the respondent”) against the
respondent-petitioner-appellant (hereinafter “the appellant”), seeking
restoration of possession to the land in dispute, on the basis that the respondent
was forcibly dispossessed by the appellant within a period of two months
immediately before the filing of the application. The appellant took up the
position that there was no forcible dispossession. After inquiry, the
Magistrate’s Court, by order dated 13.03.2015, held with the respondent. This
decision was affirmed by the High Court of Kegalle by the Judgment dated
26.04.2018. This appeal by the appellant is against the Judgment of the High
Court.
The facts leading to this appeal are briefly as
follows: Karunaratne Liyanage was the
original owner of the land in dispute. He sold it to the respondent. The
respondent sold it to
Milton
Silva but retained possession as Milton Silva was abroad.
In the meantime, Karunaratna
Liyanage filed a case in the District Court (7732/L) against the respondent, on
the basis that he was the owner of the land and the respondent was holding it
in trust for him. Pending determination of the case, Karunaratne Liyanage
obtained an interim injunction whereby the respondent was dispossessed from the
land. After Karunaratne Liyanage obtained possession of the land by way of the
said interim injunction, he withdrew the case.
The respondent filed a
revision application in the High Court of Civil Appeal of Kegalle
(28/2010/Rev), seeking to restore him to possession of the land after the
withdrawal of the District Court action by Karunaratne Liyanage. This was
allowed by the High Court of Civil Appeal. The application of the appellant to
intervene in that revision application was refused.
The Supreme Court by
Judgment dated 12.11.2013 (in case No. SC Appeal 98/2011) affirmed the Judgment
of the High Court of Civil Appeal.
Thereafter, as seen from the
Fiscal Report (at pages 275-279 in the Brief), on 16.07.2014, in the execution
of the writ, the Fiscal of the District Court of Kegalle removed the agents of
Karunaratne Liyanage from the land and handed over possession to the
respondent.
According to the respondent,
the appellant (as the agent of Milton Silva) forcibly dispossessed the
respondent the next day, i.e. 17.07.2014.
The respondent made a
lengthy complaint to the police on 18.07.2014 setting out the history of the
case.
It is the position of the
appellant that there was no forcible dispossession, but the respondent
voluntarily handed over possession to the appellant as the Power of Attorney
holder of Milton Silva.
This position of the
appellant has been rightly rejected both by the Magistrate’s Court and the High
Court. There is no evidence to prove
that the respondent peacefully handed over possession to the appellant except
the ipse dixit of the respondent
himself.
If possession was
voluntarily handed over by the respondent to the appellant on 17.07.2014, there
was no reason for the former to make a complaint to the police on 18.07.2014
alleging forceful dispossession.
It is significant to note
the appellant unsuccessfully attempted to intervene in the revision application
filed by the respondent in the High Court seeking restoration of possession.
The intervention was sought by the appellant in order to have possession
delivered to him as the Power of Attorney holder of Milton Silva.
In the facts and
circumstances of this case, it is difficult to believe that having obtained
possession through a protracted legal battle, the respondent voluntarily handed
it over to the appellant.
The learned counsel for the
appellant has challenged the order of the Magistrate’s Court and the Judgment
of the High Court on three grounds. Let me now consider them one by one.
The first submission of the
learned counsel for the appellant is that the learned Magistrate did not have
jurisdiction to make the impugned order, as there was no threat or apprehension
to a breach of the peace.
The learned counsel, drawing
attention to the Judgment of this Court in Velupillai v. Sivanathan [1993] 1
Sri LR 123, states that when the information is filed by a party to the dispute
such as in this case, as opposed to it being filed by the police, the
Magistrate shall exercise a higher degree of caution in deciding to proceed
with the matter. In this case, when the appellant appeared before the
Magistrate’s Court in response to summons, the appellant took up a preliminary
objection that the Court had no jurisdiction to proceed with the matter as
there was no likelihood of the breach of the peace. After inquiry, by order dated 13.11.2014, the
learned Magistrate overruled this objection by giving reasons.
Breach of the peace does not
mean fisticuffs, grievous hurt or attempted murder. It is sufficient, if there is a present fear
that there will be a breach of the peace stemming from the dispute unless the
Court takes control of the matter.
I have no doubt, in the
facts and circumstances of this case, there was a real likelihood of a breach
of the peace when the Magistrate issued summons on the appellant upon the first
information filed by the respondent.
In any event, it is my
considered view that the Judgment of this Court in Velupillai v. Sivanathan
(supra) does not correctly represent the law in this regard. In that case,
Ismail J. sitting alone stated as follows:
In Kanagasabai v. Mylvaganam
(1976) 78 NLR 280, 283, Sharvananda, J. observed “Section 62 of the
Administration of Justice Law confers special jurisdiction on a Magistrate to
make orders to prevent a dispute affecting land escalating and causing a breach
of the peace…The section requires that the Magistrate should be satisfied,
before initiating the proceedings, that a dispute affecting land exists and
that such a dispute is likely to cause a breach of the peace”.
Under section 66(1)(a) of
the Primary Courts Procedure Act, the formation of the opinion as to whether a
breach of the peace is threatened or likely is left to the police officer
inquiring into the dispute. The police officer is empowered to file the
information if there is a dispute affecting land and a breach of the peace is
threatened or likely. The Magistrate is not put on inquiry as to whether a
breach of the peace is threatened or likely. In terms of section 66(2) the
Court is vested with jurisdiction to inquire into and make a determination on
the dispute regarding which information is filed either under section 66(1)(a)
or 66(1)(b).
However, when an information
is filed under section 66(1)(b) the only material that the Magistrate would
have before him is the affidavit information of an interested person and in
such a situation without the benefit of further assistance from a police
report, the Magistrate should proceed cautiously and ascertain for himself
whether there is a dispute affecting land and whether a breach of the peace is
threatened or likely.
The same sentiments were echoed by Ismail J. in Punchi Nona v.Padumasena [1994] 2 Sri LR 117 as well.
This view of Ismail J. has
been followed in later decisions. In the above dicta, “In terms of section 66(2) the Court is vested with jurisdiction to
inquire into and make a determination on the dispute regarding which
information is filed either under section
66(1)(a) or 66(1)(b)” is
correct, but what follows thereafter is not, i.e. "However, when an information is filed under section 66(1)(b)…the
Magistrate should proceed cautiously and ascertain for himself whether there is
a dispute affecting land and whether a breach of the peace is threatened or
likely.”
Let me explain why I say so.
Under the Administration of
Justice Law, No. 44 of 1973, by sections 62-65, a special procedure was
introduced for Magistrates’ Courts to deal with disputes affecting lands where
a breach of the peace is threatened or likely.
These provisions were
repealed by the Code of Criminal Procedure Act, No. 15 of 1979, and replaced by
sections 66-76 of the Primary Courts’ Procedure Act, No. 44 of 1979.
There is a significant difference between the provisions of the Administration of Justice Law and the Primary Courts’ Procedure Act on conferment of jurisdiction to the Magistrates’ Courts in this regard.
Section 62(1) of the
Administration of Justice Law provides as follows:
Whenever a Magistrate, on
information furnished by any police officer or otherwise, has reason to believe
that the existence of a dispute affecting any land situated within his
jurisdiction is likely to cause a breach of the peace, he may issue a notice
(a) fixing a date for the holding of an inquiry into the dispute; and (b)
requiring every person concerned in the dispute to attend at such inquiry and
to furnish to the court, on or before the date so fixed, a written statement
setting out his claim in respect of actual possession of the land or the part
in dispute and in respect of any right which is the subject of the dispute. It
is noteworthy that section 62 of the Administration of Justice Law conferred
jurisdiction on the Magistrate only after the Magistrate formed an opinion that
the dispute relating to the land is likely to cause a breach of the peace. According to this section, the Magistrate
shall have “reason to believe that the existence of a dispute affecting any
land situated within his jurisdiction is likely
to cause a breach of the peace”. This is a prerequisite for the Magistrate
to assume jurisdiction to proceed with the application. In other words,
jurisdiction on the Magistrate was not automatic upon the filing of the first
information. There was a legal requirement on the part of the Magistrate to
properly invoke jurisdiction.
This was applicable, as seen
from section 62, irrespective of whether the “information [was] furnished by any police officer or otherwise”. Here, “otherwise”
includes a party to the dispute.
Section 145 of the Indian Code of Criminal Procedure,
1973, corresponds to section 62 of our Administrative Justice Law.
Section 145 of the Indian Code reads as
follows:
Whenever
an Executive Magistrate is satisfied from a report of a police officer or upon
other information that a dispute likely to cause a breach of the peace exists
concerning any land or water or the boundaries thereof, within his local
jurisdiction, he shall make an order in writing, stating the grounds of his
being so satisfied, and requiring the parties concerned in such dispute to
attend his Court in person or by pleader, on a specified date and time, and to
put in written statements of their respective claims as respects the fact of
actual possession of the subject of dispute.
Even under section 145 of the Code of
Criminal Procedure in India, an essential condition for the assumption of
jurisdiction by the Magistrate is that he shall be “satisfied from a report of
a police officer or upon other information that a dispute likely to cause a
breach of the peace exists”. If he does
not do so, the proceedings shall be void in terms of section 461 of the Code of
Criminal Procedure in India. Section 461 deals with fatal irregularities that
vitiate proceedings before the Magistrate. Vide The Queen-Empress v. Gobind
Chandra Das (1893) ILR 20 Cal 520.
Kanagasabai v. Mylwaganam (1976) 78 NLR
280 is undoubtedly the leading local authority on section 62 of the
Administration of Justice Law. Sharvananda J. (later C.J.), who delivered the
Judgment in that case, at pages 286 and 287, had this to say on invocation of
jurisdiction under section 62 of the Administration of Justice Law:
It is essential for the assumption of
jurisdiction under section 62 that the Magistrate should have reason to believe
from a Police report or other information that a dispute relating to land,
which is likely to cause a breach of the peace, exists. The report or other
information should contain sufficient material to enable the Magistrate to form
the belief that the dispute is likely to cause a breach of the peace. The
jurisdiction conferred on a Magistrate to institute an inquiry under this
section can be exercised only when the dispute is such that it is likely to
cause a breach of the peace. It is the apprehension of a breach of the peace,
and not any infringement of private rights or dispossession of any of the
parties, which determines the jurisdiction of the Magistrate. It is sufficient
for a Magistrate to exercise the powers under this section if he is satisfied
on the material on record that there is a present fear that there will be a
breach of the peace stemming from the dispute unless proceedings are taken under
the section. Power is conferred by section 62 in subjective terms―the
Magistrate, being the competent authority, is entitled to act when he has
reason to believe that the existence of a dispute affecting land is likely to
cause a breach of the peace. The
condition precedent to the exercise of the power is the formation of such
opinion, the
factual basis of the opinion being the information furnished by any Police officer
or otherwise. A Magistrate is not bound to take action on a Police report or
upon an expression of opinion by the Police. But, before he takes action, he
should have a statement of facts before him so that he may exercise his own
judgment in arriving at a conclusion as to the necessity of taking action under
this section. The question whether, upon the material placed before him,
proceedings should be instituted under this section is one entirely within the
Magistrate’s discretion. He may form his opinion on any information received.
In my view, he can base his action on a complaint filed by any of the parties,
or on a Police report. The Magistrate should,
however proceed with great caution where there
is no Police report and the only material
before him are statements of interested
persons. (emphasis mine)
It is against this backdrop
that Ismail J. in Velupillai v.
Sivanathan (supra) stated that when the first information is filed by a
party to the dispute and not by the police, “the Magistrate should proceed cautiously and ascertain for himself
whether there is a dispute affecting land and whether a breach of the peace is
threatened or likely”, little realizing that the law in relation to
jurisdiction has been completely changed with the enactment of the new Primary
Courts’ Procedure Act.
What was stated by
Sharvananda J. in Kanagasabai v. Mylvaganam (supra) under section 62 of the
Administration of Justice Law on invocation of jurisdiction is inapplicable
under section 66 of the Primary Courts’ Procedure Act.
Under section 62 of the
Administration of Justice Law, a lot of judicial time was wasted on the
question of jurisdiction, in that the Magistrate had to first embark upon an
inquiry to ascertain whether a breach of the peace was imminent before he
issued process. Also, under the Administration of Justice Law, there was
reluctance on the part of the parties to the dispute to initiate action under
section 62 in instances where police officers were loath to report facts to the
Court within the stipulated period of two months from the date of dispossession
due to various reasons. The legislature addressed these two issues when
enacting the Primary Courts’ Procedure Act, which is a homegrown Act. Section
66 of the Primary Courts’ Procedure Act, which replaced section 62 of the
Administration of Justice Law, reads as follows:
66(1)
Whenever owing to a dispute affecting land a breach of the peace is threatened
or likely-
(a) the police officer inquiring into the
dispute-
(i) shall with the least possible delay file
an information regarding the dispute in the Primary Court within whose
jurisdiction the land is situate and require each of the parties to the dispute
to enter into a bond for his appearance before the Primary Court on the day
immediately succeeding the date of filing the information on which sittings of
such court are held; or
(ii)
shall,
if necessary in the interests of preserving the peace, arrest the parties to the
dispute and produce them forthwith before the Primary Court within whose
jurisdiction the land is situate to be dealt with according to law and shall
also at the same time file in that court the information regarding the dispute;
or
(iii)
(b) any party to such dispute may file an
information by affidavit in such Primary Court setting out the facts and the
relief sought and specifying as respondents the names and addresses of the
other parties to the dispute and then such court shall by its usual process or
by registered post notice the parties named to appear in court on the day
specified in the notice―such day being not later than two weeks from the day on
which the information was filed. Thus, under section 66(1) of
the Primary Courts’ Procedure Act, the legislature has made it abundantly clear
that the first information can be filed either by the police officer inquiring
into the dispute under section 66(1)(a) or by any party to such dispute under
section 66(1)(b).
Then,
under section 66(2), it has been enacted that when the first information is
filed under section 66(1), irrespective of whether it is filed by the police or
a party to the dispute, the Magistrate is automatically vested with
jurisdiction to inquire into and determine the matter, without further ado.
Section
66(2) of the Primary Courts’ Procedure Act runs as follows:
Where
an information is filed in a Primary Court under subsection (1), the Primary
Court shall have and is hereby vested with jurisdiction to inquire into, and
make a determination or order on, in the manner provided for in this Part, the
dispute regarding which the information is filed. (emphasis mine)
Hence,
with all due respect, the dictum of Ismail J. in Velupillai v. Sivananthan (supra) that, “when an information is filed under section 66(1)(b)…the Magistrate
should proceed cautiously and ascertain for himself whether there is a dispute
affecting land and whether a breach of the peace is threatened or likely”
does not represent the correct position of law, and therefore, need not be
followed.
Under section 66(1), the
formation of opinion as to whether a breach of the peace is threatened or
likely is left to the police officer inquiring into the dispute or to any party
to the dispute. Both are on equal
footing. Who files the information is beside the point.
This is in consonance with
the literal rule of interpretation, which is the primary rule of interpretation
of statutes. The intention of the legislature is best achieved by giving the
words of the Act their natural literal meaning unless it creates
absurdity.
The first argument of the learned counsel
for the appellant fails.
Let me now consider the
second argument advanced by the learned counsel for the appellant.
The learned counsel for the
appellant contends that the forcible dispossession took place outside the
period of two months before the filing of the case.
Let me briefly state the
orders the Magistrate is required to make when the dispute is in relation to possession
of land.
The substantive orders the
Magistrate’s Court is required to make when a dispute relating to land is
reported to Court are contained in section 68 of the Primary Courts Procedure
Act. Under section 68(1), the Court
shall confirm possession of the party who was in possession of the land on the
date of the filing of the first information in Court. This general rule is
subject to an exception, as provided for in section 68(3). That exception is,
if a party can prove that he was forcibly dispossessed within two months
immediately before the filing of the first information by the party now in
possession of the land, the former shall be restored to possession.
In this case, the respondent
filed the first information in the Magistrate’s Court by way of an affidavit on
12.09.2014. On this date, admittedly, the appellant was in possession of the
land. The respondent sought relief under
section 68(3) on the basis that he was forcibly dispossessed by the appellant
on
17.07.2014,
which is within two months immediately prior to his coming to Court.
The submission of the
learned counsel for the appellant is that after the first affidavit dated
12.09.2014, the respondent filed a further affidavit dated 05.12.2014, which
seems to be an amendment of the original affidavit, and, therefore, the two-month period should be calculated not from
12.09.2014 but from 05.12.2014. Hence
the learned counsel argues that the respondent has not come before the Court
within a period of two months to seek relief under section 68(3).
I am afraid I am unable to agree with
this argument.
As I stated earlier, the
first information can be filed by the police or a party to the dispute. If the
first information is filed by the police, in terms of section 66(1)(a), it can
be filed by way of a Report. However, if the first information is filed by a
party, in terms of section 66(1)(b), the information shall be filed by way of
an affidavit. Either way, according to section 66(3), the Court shall, as the
next step, give a date to the parties to file affidavits with supporting
documents if any to establish their respective cases. The affidavit mentioned in section 66(3)
applies both to cases filed by the police and by a party. It is not confined to cases filed by the
police. Therefore, the second affidavit
spoken about by the learned counsel for the appellant is not an amended
affidavit. It is the affidavit required
under section 66(3) of the of the Act.
The first affidavit filed by the respondent is the first information
filed by way of an affidavit, as required by section 66(1)(b) of the Act. According
to section 68(3), the two month period shall be counted not from the date of the
affidavit, but from “the date on which
the information was filed under section 66”. There is no dispute that the first
information was filed on 12.09.2014, and, therefore, the respondent was within
the stipulated period when he came to Court.
Therefore, the second argument is not
entitled to succeed.
This leads me to consider
the final argument of the learned counsel for the appellant.
The final argument of the
learned counsel relates to the character of possession of the respondent in
relation to the land in dispute.
The learned counsel,
referring to the pleadings filed by the respondent in the District Court Case
No. 7756/L and Revision Application No. 28/2010 filed in the High Court of
Civil Appeal, submits that the respondent in those pleadings accepted that he
was a licensee of Milton Silva and had taken care of the land on his behalf,
and therefore, Milton Silva, being the owner, had constructive possession of
the land through the respondent and the appellant who is the Power of Attorney
Holder of Milton Silva. The learned counsel cites the Judgment of Gunawardana
J. in Iqbal v. Majedudeen [1999] 3 Sri LR
213 in support.
In the first place, Milton Silva is not a party to this case to claim constructive possession. The respondent does not seem to me to be now accepting that he is a licensee of Milton Silva.
Even if he is an overholding
licensee, he can only be ejected from the land through due process of law. Vide
Reginald Fernando v. Pabilinahamy [2005]
1 Sri LR 31, Edirisuriya v. Edirisuriya (1975) 78 NLR 388. Milton Silva cannot forcibly eject the
respondent.
In section 66 proceedings,
it is not the task of the Magistrate to decide the case on merits. That is the task of the District Court in a
properly constituted civil case. In section
66 proceedings, what shall be looked at is possession and not title. Title is
foreign in section 66 applications. Possession here means not the right to
possession but actual possession.
Sharvananda
J. in Ramalingam v. Thangarajah [1982] 2
Sri LR 693 at 699 stated:
Evidence
bearing on title can be considered only when the evidence as to possession is
clearly balanced and the presumption of possession which flows from title may
tilt the balance in favour of the owner and help in deciding the question of
possession.
Such cases are indeed rare.
In section 66 proceedings, the character of possession does not play a pivotal role. The object of these proceedings is to make a provisional order to prevent a breach of the peace stemming from the dispute, until a contrary order, as seen from sections 68(2), 68(3) and 69(2), is made by “a competent court”; or, as seen from section 74, until the substantive rights of the parties are established in a “civil suit”. In Podisingho v. Chandradsa [1978/79] 2 Sri LR 93 at 96, Atukorala J. gave an extended meaning to the term “competent court” to encompass “Tribunal of competent jurisdiction”.
In Kanagasabai v. Mylvaganam (supra),
decided under the Administration of Justice Law, Sharvananda J. at page 285
emphasised “actual possession”.
The
inquiry under section 62 is directed to the determination as to who was in
actual possession of the land or part, in dispute on the date of the issue of
the notice under section 62(1), irrespective of the rights of the parties or
their title to the said land or part. The Magistrate, acting under section 62,
is not deciding the rights of parties. The proviso to section 63(7) postulates
the determination being made without reference to the merits of the claims of
the persons to the possession of the land or part in dispute. The Magistrate is
concerned only with finding who was in actual possession on that date and with
maintaining the status quo.
Ramalingam
v. Thangarajah (supra)
is a case filed under section 66 of the Primary Courts’ Procedure Act. In the
said case, Sharvananda J., at page 698-699, heavily underlined the term “actual
possession” in section 66 proceedings.
In an inquiry into a dispute as
to the possession of any land, where a breach of peace is threatened or is
likely under Part VII of the Primary Courts Procedure Act, the main point for
decision is the actual possession of the land on the date of the filing of the
information under section 66; but, where forcible dispossession took place
within two months before the date on which the said information was filed the main
point is actual possession prior to that alleged date of dispossession. Section
68 is only concerned with the determination as to who was in possession of the
land or the part on the date of the filing of the information under section 66.
It directs the Judge to declare that the person who was in such possession was
entitled to possession of the land or part thereof. Section 68(3) becomes
applicable only if the Judge can come to a definite finding that some other
party had been forcibly dispossessed within a period of two months next
proceeding the date on which the information was filed under section 66. The
effect of this sub-section is that it enables a party to be treated to be in
possession on the date of the filing of the information, though actually he may
be found to have been dispossessed before that date provided such dispossession
took place within the period of two months next proceeding the date of the
filing of the information. It is only if such a party can be treated or deemed
to be in possession on the date of the filing of the information that the
person actually in possession can be said not to have been in possession on the
date of the filling of the information. Thus, the duty of the Judge in
proceedings under section 68 is to ascertain which party was or deemed to have
been in possession on the relevant date, namely, on the date of the filing of
the information under section 66. Under section 68 the Judge is bound to
maintain the possession of such person even if he be a rank trespasser as
against any interference even by the rightful owner. This section entities even
a squatter to the protection of the law, unless his possession was acquired
within two months of the filing of the information. That person is entitled to
possession until he is evicted by due process of law. A Judge should therefore
in an inquiry under Part VII of the aforesaid Act, confine himself to the
question of actual possession on the date of filing of the information except
in a case where a person who had been in possession of the land had been
dispossessed within a period of two months immediately before the date of the
information. He is not to decide any question of title or right to possession
of the parties to the land. (emphasis added)
In fact, the term “actual
possession” was used in section 62(1) of the Administration of Justice Law as
well as in the corresponding section 145 of the Indian Code of Criminal
Procedure.
In Sohoni’s The Code of
Criminal Procedure, 1973, Vol.2, 18th edition (1985), at page 1128, the learned
author states:
The
object of the section (145 of the Indian Code of Criminal Procedure) is to
bring to an end by a summary process disputes relating to property, which are
essentially of a civil nature, with a view to prevent breach of peace. Orders under the section are mere police
orders which do not concern question of title.
The section is primarily meant for the prevention of breach of peace
where the dispute relates to the possession of immovable property, and to
provide a speedy remedy by bringing the parties before the Court and
ascertaining who of them was in actual possession and to maintain status quo
until their rights are determined by a competent Court. Inquiry under this section is limited to the
question as to who was in actual possession on the date of the preliminary
order irrespective of the rights of the parties, and not determine the right
and title of the parties.
Ratanlal & Dhirajlal in the Code of Criminal
Procedure, 21st edition (2013), equate actual possession to physical
possession.
At page 217 they say:
Rights are determined by a
competent Court. Inquiry under this
section is limited to the question as to who was in actual possession on the
date of the preliminary order irrespective of the rights of the parties, and
not determine the right and title of the parties.
Ratanlal & Dhirajlal in the
Code of Criminal Procedure, 21st edition (2013), equate actual possession to
physical possession.
At page 217 they say:
“Actual possession” means actual
physical possession, that is, the possession of the person who has his feet on
the land, who is ploughing it, sowing it or growing crops on it, entirely
irrespective of whether he has title or right to possess it. It is not the same as a right to possession
nor does it mean lawful or legal possession.
It may be that of a trespasser without any title whatever. The aim and object of the section is the
maintenance and preservation of the public peace. “Actual
possession” means actual physical possession, that is, the possession of the
person who has his feet on the land, who is ploughing it, sowing it or growing
crops on it, entirely irrespective of whether he has title or right to possess
it. It is not the same as a right to
possession nor does it mean lawful or legal possession. It may be that of a trespasser without any
title whatever. The aim and object of
the section is the maintenance and preservation of the public peace.
It is significant to note
that, unlike under section 62 of the Administration of Justice Law, under
section 68 of the Primary Courts’ Procedure Act, the word “possession” has not
been qualified by the word “actual”, suggesting that possession need not
necessarily be actual.
In any event, actual
possession does not mean actual physical possession at all times. Actual physical possession will vary with the
subject matter. The owner of unworked minerals was held in Ranchi Zamindari Co. Ltd. v. Pratab Udainath Sahi Deo (AIR 1939 Patna
209) to be in actual possession of the same if he is in a position, at any
moment, to work them or to permit others to do so. Sarker on Criminal Procedure, 6th edition
(1992), (citing Nabin, 25 WR 18, Mahesh,
26 CRLJ 398), states, at page 311, “Receiving
rents of tenants is actual possession”.
Whilst the right to
possession resides in the owner, another can of course be in actual possession.
Servant, manager, agent are a few examples of the latter. In such cases, the
former can claim actual possession of the latter against third parties in
section 66 proceedings. This can be termed actual possession through
subordinates, or else, constructive possession.
In Iqbal v. Majedudeen (supra), the case cited by the learned counsel
for the appellant, upon the death of her husband, the respondent went to live
with her mother, locking up and leaving the premises in question where she was
living earlier. The appellant, after returning to Sri Lanka, broke open the
door of the premises and entered into possession. This happened within two
months of filing the first information in Court. All three Courts―the
Magistrate’s Court, the High Court and the Court of Appeal―correctly held with
the respondent.
In my view, the respondent
in that case was in actual possession of the premises because actual possession
does not, as I stated earlier, mean uninterrupted physical presence throughout
the day.
In the course of the
Judgment, Gunawardena J., at pages 215216, observed:
The
test for determining whether a person is in possession of any corporeal thing,
such as a house, is to ascertain whether he is in general control of it.
Salmond observes that a person could be said to be in possession of, say, a
house, even though that person is miles away and able to exercise very little
control, if any. It is also significant to note that in her statement to the
Police, the 2nd respondent-appellant had admitted that the 1st respondent lived
in the relevant premises during the life-time of the latter’s husband. It is
interesting to notice that the 1st respondent’s position that she was in
possession and was ousted by 2nd respondentpetitioner-appellant is largely
proved, as explained above, on the statement that the 2nd respondent-petitionerappellant
herself has made to the Police.
The
law recognizes two kinds of possession:
(i) when a person has direct physical
control over a thing at a given time, he is said to have actual possession of
it;
(ii) a person has constructive possession
when he, though not in actual possession, has both the power and the intention
at a given time to exercise dominion or control over a thing either directly or
through another person.
In this case in hand, perhaps, it cannot
be said that the 1st respondent has actual physical possession because she was
not in physical occupation of the house in question; but she clearly had, at
least, constructive possession because she, by keeping the premises locked,
clearly exercised not only dominium or control over the property in question
but also excluded others from the possession thereof. By keeping the premises
locked, she, i.e. the 1st respondent, had not only continued to retain her
rights in respect of the property in question but also was exercising a claim
to the exclusive control thereof, and her affidavit evidence is that she had
not terminated her intention to revert to the physical occupation of the
relevant premises.
In Salmond on Jurisprudence,
12th edition (2004) by P.J. Fitzgerald, at page 266, the learned author says
that the concept of possession is difficult to define as it is an abstract
notion and not purely a legal concept.
He opines:
Whether
a person has ownership depends on rules of law; whether he has possession is a
question that could be answered as a matter of fact and without reference to
law at all.
Salmond at page 282 states:
In
law one person may possess a thing for and on account of someone else. In such a case the latter is in possession by
the agency of him who so holds the thing on his behalf. The possession thus held by one man through
another may be termed mediate, while that which is acquired or retained
directly or personally may be distinguished as immediate or direct.
At pages 285-286, he further says:
In
all cases of mediate possession two persons are in possession
of the same thing at the same time.
Every mediate possessor stands in relation to a direct possessor through
whom he holds. If I deposit goods with
an agent, he is in possession of them as well as I. He possesses for me, and I possess through
him. A similar duplicate possession
exists in the case of master and servant, landlord and tenant, bailor and
bailee, pledgor and pledgee. There is, however, an important distinction to be
noticed.
For some purposes mediate possession exists as against third persons only, and not as against the immediate possessor. Immediate possession, on the other hand, is
valid as against all the world, including the mediate possessor himself. Thus if I deposit goods with a warehouse man,
I retain possession as against all other persons; because as against them I
have the benefit of the warehouseman’s custody.
But as between warehouseman and myself, he is in possession and not
I. So in the case of a pledge, the
debtor continuous to possess quoad the world at large; but as between debtor
and creditor, possession is in the latter.
The debtor’s possession is mediate and relative; the creditor’s is
immediate and absolute. So also with
landlord and tenant, bailor and bailee, master and servant, principal and
agent, and all other case of mediate possession. (emphasis mine)
Sharker on Criminal
Procedure, 6th edition (1992), at page 311, (citing Venugopal, A 1945 M 255, Karnadhar, 1948 1 Cal 150), states:
As
between rival landlords or between a landlord and the tenants of another
landlord, the possession of the tenant is the possession of the landlord.
In Jaikrit Singh v. Sohan Raj (AIR (46) 1959
Punjab 63 at 69) it was held that:
It is true that the possession of a
servant of his master’s property on his behalf is the master’s possession with
regard to third persons. But, if there
is a dispute between the master and the servant, themselves, about the
possession of the property, the word possession will have to be interpreted in
the sense of actual physical possession.
The term ‘possession’ connotes an intricate and subtle legal conception,
which changes with circumstances.
Sohoni
(op. cit., page 1184) (citing Shaikh
Munshi v. Balabhadra Prasad Das, 1961 Cut. L.T. 10, Dasrathi v. State of
Orissa, 1971 Cut. L.T. 270), states:
Even
where a servant is in possession over property belonging to his master on his
behalf, the possession will become his own when he continuous to remain in possession
after leaving the service of his master, or even otherwise. His possession,
therefore, even though wrongful, will be maintained if it has continued for
over two months prior to the institution of the proceedings.
The master, principal, licensor, lessor, landlord and the
like, in my view, are not without immediate
remedy. They can appropriately file a civil suit in the District Court to eject
the unlawful occupier, and, pending determination of the action, can obtain an
interim injunction preventing the delinquent from taking advantage of his
wrongdoing on the Roman-Dutch Law principle spoliatus
ante omnia restituendus est, which is for convenience known as the
wrongdoer principle: A wrongdoer shall
not be allowed to benefit out of his own wrongdoing. Vide Seelawathie
Mallawa v. Millie Keerthiratne [1982] 1 Sri LR 384, Subramanium v. Shabdeen
[1984] 1 Sri LR 48, Kariyawasam v.
Sujatha Janaki [2013] BLR 77.
In Seelawathie Mallawa v. Millie Keerthiratne
(supra), Victor Perera J., at page 391, stated:
[I]f a person in unlawful possession
could not be ejected pending trial, he could still be restrained from taking
any benefits arising out of such wrongful possession, otherwise the Court would
be a party to the preserving for the defendant-appellant a position of
advantage brought about by her own unlawful or wrongful conduct.
In The Public Trustee v. Cader (1963) 66 CLW 109
it was held:
Where
an employee willfully continuous to remain in control of a place of business,
the administrator of the deceased owner’s estate has a right to an interim
injunction under section 86 of the Courts Ordinance restraining that employee
from continuing in control.
Let me now epitomise the
requirement of possession expected in section 66 proceedings.
In section 66 proceedings:
(a) What
is required is actual possession. Actual possession means actual physical
possession. That is direct or immediate
possession.
(b) Possession
of persons who entered into possession in a subordinate character such as
tenant, lessee, licensee, agent, servant, can be relied upon by landlord,
lessor, licensor, principal, master, respectively. That is constructive or
mediate possession.
(c) Nevertheless,
if the dispute regarding possession is between the two categories mentioned in
(b) above, possession of the former shall prevail over the latter.
Constructive possession, as
discussed in Iqbal v. Majedudeen (supra),
shall be understood subject to (c) above.
Then, it is clear that even
if the respondent is considered an agent of Milton Silva, the latter cannot
claim possession through the former, as the dispute to possession is not
between Milton Silva and a third party but between Milton Silva and his agent.
Therefore, I regret my
inability to agree with the final argument of the learned counsel for the
appellant as well.
During the course of
argument, it was revealed that Milton Silva later filed a civil case in the
District Court against the respondent in order to vindicate his rights to this
land and eject the respondent therefrom. The parties shall have their
substantive rights decided in the said civil case.
For the aforesaid reasons, I affirm the Judgment of the High Court, which affirmed the order of the Magistrate’s Court, and dismiss the appeal, but without costs.
A. L. Shiran Gunaratne, J
I
agree.
HON MAHINDA SAMAYAWARDHENA, J
PHC KEGALLE NO: 4884/2015/REV
MC KEGALLE NO: 26699/2014
1. Gamaralalage Jayasinghe,
2. Danasekara Gedara Kusumalatha Kanthi Menike,
3. Gamaralalage Yasada Menike, No.115,
Aranayake Road, Mawanella.
Respondent-Petitioner-Appellants
Vs.
Mahara Mudiyanselage Loku Bandara,
No. 862/03,
Robert Gunawardena Road, Malabe.
Petitioner-Respondent-Respondent
Before : A.L. Shiran Gooneratne, J.
Mahinda Samayawardhena, J.
Counsel : Chula Bandara with Udara Tilakawardena for the Appellant.
S.A.D.S. Suraweera with Adeesha Senadheera for the Respondent.
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