concept of breach of peace- waste of time to embark on breach of peace
An exhaustive discussion on Section 66 proceedings and a rare guideline to the legal fraternity.
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GAMARALALAGE
JAYASINGHE Vs MAHARA MUDIYANSELAGE LOKU BANDARA
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.
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.
A salient difference
exists as 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 peace as section 66 (2) confers jurisdiction upon a report being file by police.
The observation of Sharvananda, J in Kanagasabai v. Mylvaganam (1976) 78 NLR 280 at 283 to the effect that “The section requires that the
Magistrate should be satisfied,
before initiating the
proceedings, that a
dispute affecting land exists and
that such dispute is likely to cause a breach of the peace. But, once he is
satisfied of these two conditions, the section requires him
to proceed to
inquiry and make
order under section 63 has no
binding effect, since section 66 (1) has been couched in a different manner
than Section 62 of the AJL and 145 of the Indian Crim. Procedure. Section 145 of the Indian Code of
Criminal Procedure, 1973, corresponds to section 62 of our Administrative
Justice Law.
Aagainst 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
realising 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 home-grown Act.
Argued on : 03.12.2019
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
ofCriminal 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 realising 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 home-grown
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-
(1)
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
(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 twonmonths 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. Enquiry 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.
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 215- 216, 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 respondent- petitioner-appellant is largely proved, as explained
above, on the statement that the 2nd respondent-petitioner- appellant herself
has made to the Police.
The law recognizes two kinds of possession:
(1) 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.
Judge of the Court of Appeal
A.L. Shiran Gooneratne, J.
I agree.
Judge of the Court of Appeal
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