HON. H.C.J. MADAWALA, J section 66

 

VITHILINGAM RAJA RAJESWARI VS K. SOUNDARAJAN

 

HON. H.C.J. MADAWALA, J 

CA(PHC)APN 23/16
Primary Court Case No.
Gampola(Helboda) 24799
HC Kandy case No-HC RA 49/2010

In the matter of an application for Revision in terms of Article 138 and 154 (P) of the Constitution of the Democratic Socialist Republic of Sri Lanka read with Provisions of the High Court of the Province (Special Provisions) Act No. 19 of 1990.

Officer in Charge,
Police Station,
Kothmale.

Complainant

VS

01. K. Soundarajan,No.263,
Sea Street, Colombo 11.

02. W. Dayalan

03. S. Pushparasa (S. Pushparaja)

04.A.L. Gurusinghe

05. R. Wimaladasa

06. S. Wickramasinghe

07. M.Mussammil

08. Ramboda Tea Estate (Pvt) Ltd.
No.164/04/01,
Sri Rathnajothy Sarawanamuttu
Mawatha, Colombo 13.

Respondents

And

K. Soundarajan,
No.263, Sea Street,
Colombo 11.

The 1st Party Respondent­
Petitioner

Vs.

02. W. Dayalan A.K.A. Prabhu
Dayalan
Wellasamy Dayalan Vaithilingam
Vellasamy, No.28 A, 5th
Lane, Colombo 03.
And also Ramboda Estate,
Ramboda.

The 2nd
Party Respondent­ Respondent (Deceased)

Vithilingam Raja Rajeswari
No. 28A, 5th
Lane, Colombo 03

And also

Karunathanpathy
Manmanoor (post)
Sivatamagai,
Taluk:
P.M. District,
India.

Substituted 2A Party
Respondent-Respondent

02. Sathasivam Pushparajah

No. 164/04/01,
Sri Rathanajothy Sarawanamuttu
Mawatha, Colombo 13.

And also at No.
15, Rajasinghe Mawatha,
Wellawatte, Colombo 6.

03. A.Lalith. Gurusinghe lewke
No.78 B,
Sir William Gopallawa
Mawatha, Kandy.

04. Basnayake Rankothge
Wimaladasa,
"Thuruliya",
Nuwara Eliya Road,
Ramboda.

The 5th Party Respondent­
Respondent

05. Mudalige Shamalie
Wickramasinghe,
Kudaoya, Labukele

And also at Ramboda Estate,
Ramboda.

The 6th Party Respondent-Respondent

06. M.Mussammil,
"Greenfield Division"
Ramboda Estae,
Ramboda.

The 7th Party Respondent-Respondent

07.Ramboda Tea Estate (pvt) Ltd.
Appearing through S. Pushparajah,

No. 164/04/01,
Sri Rathnajothy Sarawanamuttu
Mawatha, Colombo 13.

The 8th Party Respondent­
Respondent

08. Officer in Charge,
Police Station,
Kothmale.

The Complainant-Respondent

09. Hon. Attorney General
Attorney General's Department
Colombo 12.

9th Respondent

And Now between

01. Vithilingam Raja Rajeswari
No. 28A, 5th Lane, Colombo 03.

And also

Karunathanpathy
Manmanoor (post)
Sivatamagai, Taluk
P.M. District,
India.

02. M.Mussammil,
"Greenfield Division"
Ramboda Estate,
Ramboda.

Substituted 2A Party Respondent­
Respondent-Petitioner and the
7th Party Respondent-Respondent­
Petitioner

Vs.

01. K. Soundarajan,
No. 263, Sea Street,
Colombo 11.

The 1st Party Respondent­
Petitioner-Respondent

02. Sathasivam Pushparajah
No.164/04/01,
Sri Rathanajothy Sarawanamuttu
Mawatha, Colombo13.

And also at
No. 15, Rajasinghe Mawatha,
Wellawatte, Colombo 6.

The 3rd Party Respondent­
Respondent-Respondent

03. A.Lalith. Gurusinghe lewke
No.78 B, Sir William Gopallawa
Mawatha, Kandy.

Also at Ramboda Estate, Ramboda.

The 4th Party Respondent­
Respondent-Respondent

04. Basnayake Rankothge
Wimaladasa,

"Thuruliya", Nuwara Eliya Road,
Ramboda.

The 5th Party Respondent­
Respondent-Respondent

05. Mudalige Shamalie
Wickramasinghe,
Kudaoya, Labukele

And also at Ramboda Estate,
Ramboda.

The 6th Party Respondent­
Respondent-Respondent

06. Ramboda Tea Estate (Pvt) Ltd.
Appearing through S.
Pushparajah,
No.164/04/01,
Sri Rathnajothy Sarawanamuttu
Mawatha, Colombo 13.

The 8th Party Respondent­
Respondent-Respondent

07. The Officer in Charge
Sri Lanka Police,
Kothmale.

The Complainant-Respondent­
Respondent

Before : H.C.J. Madawala, J & L. T.B. Dehideniya, J

Counsel : M. U. M. Ali Sabri PC with Shamitha Fernando for the 8th Respondent-Respondent -Petitioner
                 S.B.Dissanayake for the 7th Respondent-Respondent­ Respondent
                 Faiz Musthapha PC with S. Amarasekara for the 1st Respondent­ Petitioner-Respondent

Argued On : 10 /01 /2017

Written Submissions on : 21 /02 /2017

Decided On : 02 /06 /2017

 

Order

H. C. J. Madawala , J

This Revision Application dated 26th February 2016 has been filed by the Substituted 2A Party Respondent-Respondent-Petitioner and 7th Party Respondent-Respondent-Petitioner to set aside the order of the Provincial High Court of Central Province holden in Kandy delivered on 03/02/2016  and uphold the order dated 03/02/2010 made by the Learned Magistrate of  Gampola (Helboda) in case No. 24799 on 03/02/2010 and/or to dismiss the  said action No. 24799.

The position of the Substituted 2A Respondent-Respondent-Petitioner and - Respondent-Respondent-Petitioners were that the Officer in Charge of the Police Station of Kothmale, the Complainant-Respondent-Respondent above

named filed information under section 66(1) of the Primary Court Procedure Act on 19/11/2008 in the Primary Court of Gampola (Helboda) in case No.  24799 citing the 1st Party Respondent-Petitioner-Respondent, the deceased  2nd  Party Respondent-Respondent in whose place the Substituted 2A Party  Respondent-Respondent-Petitioner was Substituted and  the 3rd Party Respondent-Respondent-Respondent.  

It was submitted that the 4th, 5th, 6th, 7th and 8th Respondents intervened in this case and that except the 1st Party Respondent-Petitioner­Respondent the aforesaid parties were in possession of separate lots of the estate called "Ramboda Estate" which is in extent about 837 acres for many years as owners thereof. The 1st  Party Respondent-Petitioner-Respondent  claimed title to the said estate and! or part thereof. Thereafter all parties filed  their respective counter affidavits and documents and their respective written  submissions. The Learned Magistrate of Helboda having considered same  delivered his order on 03/02/2010 holding that the following parties are entitle to possession of the following extents of the said estate. Namely,

a. The 1st Party Respondent-Petitioner-Respondent to an extent of 52 acres which possession had been handed over to him in  the Gampola Court in case No. 24871L. 

b. 4th Party Respondent-Respondent-Respondent to an extant of  15 acres.

c. 5th Party Respondent-Respondent-Respondent to an extent of  25 acres

d. 6th  Party Respondent-Respondent-Respondent to an extent of  58 acres and 9 perches 

e. 7th  Party Respondent-Respondent-Petitioner to an extent of 65  acres

f. 2nd  Party Respondent balance portion of the entire land.

Thereafter lapse of 8 months or so the 1st Party Respondent-Petitioner­ Respondent sought to revise the said order by petition dated 30/8/2010  producing numerous documents, which were not a part of the Primary Court  proceedings. The Respondents filed their objections praying that the said  application be dismissed for the reasons set out therein. The 1st Party  Respondent-Petitioner-Respondent filed his counter objections and all  parties filed their respective written submissions.

The Learned Judge of the High Court delivered in his order on 03/02/2016 allowing the said revision application and has granted possession of the entire estate to the 1st Party Respondent-Petitioner-Respondent contrary to  the facts established by evidence.

The Petitioners pleaded that the order of the Learned High Court Judge is wrong in law and should be set aside inter-alia for the following reasons

a. The Learned High Court Judge's order is against the law, and the weight of evidence, 

b. The Learned High Court Judge has failed to consider the preliminary objections raised by the Appellant in his objection  specially in respect of violation of Rule 3(1) (b) of the Supreme  Court Rules,

c. The Learned High Court Judge has erred and misconceived the law applicable to section 66 under the Primary Court Procedure  Act namely to the concept of possession,

d. The Learned High Court Judge has not considered at all, the objections, documents and the written submissions tendered by  these Petitioners specially with regard to the civil cases pending  in the District Court of Gampola and has stated that those cases  are finally adjudicated,

e. The Learned High Court Judge has totally failed to consider the long and continued possession throughout by these Petitioners and  the other Respondent's in delivering the said judgment,  

f. The Learned High Court Judge has not given reasons for the decision specially on what ground that the 1st Respondents­ Petitioner-Respondent had been awarded  possession of the entirety of the estate whereas 2nd  to 8th  Respondents documents  per se proves possession of their portions of the corpus,

g. The Learned High Court Judge has not given reasons to set aside the order of the Learned Primary Court Judge and on what grounds that it should be set aside it is not clear,

h. The Learned Judge of the High Court has failed to consider and/or ascertain the portion, if any from which the 1st Party Respondent- Petitioner-Respondent claims to and/ or have in fact been  dispossessed from in delivering the said judgment.

i. The Learned High Court Judge has made the said order under the  erroneous belief that decisions made by the District Court has a  bearing on the Primary Court Proceedings.

j. It is respectfully submitted that the said order is contrary to the Provisions of the Primary Court Procedure Act as the 1st Party- Respondent-Petitioner-Respondent was never in possession of the  entirety of the said estate,

k. The Learned High Court Judge seriously misdirected herself when  she took into consideration certain documents pertaining to civil  cases and even found fault with the Learned Primary Court Judge  for not considering them when they were totally irrelevant for the  purpose of the determining the right of possession in terms of  section 68 of the Primary Court Procedure Act.

l. It is respectfully submitted that the said judgment of the Learned High Court Judge is erroneous and! or is perverse and therefore is  liable to be set aside.

These Petitioners further stated that they have appealed against the order of the High Court exercising their right of appeal in terms of Article 154 P  (6) of the Constitution of the Republic of Sri Lanka.

The 1st Party Respondent-Petitioner-Respondent has by way of motion  filed in the Magistrates Court of Gampola and Nawalapitiya moved for the  issuance of writ of execution of the said order of the said High Court despite  the appeal made by the those Petitioners as well as by the other Respondents  to the revision application.

The Petitioners further pleaded that the said order of the Learned High  Court Judge allowing the said revision application and setting aside order  made by the Learned Magistrate and directing the Registrar in the court is  wrong in law and will result in a grave miscarriage of justice to these  Petitioners.

It was contended that the circumstances set out above constitute exceptional circumstances to invoke the revisionary jurisdiction of this court and that the said order would be executed pending the appeal lodged by these Petitioners in the exercise of their right of appeal provided for by article 154P  (6) of the Constitution of the Republic of Sri Lanka. The Petitioners had  pleaded for interim order staying all execution of the said order of the High  Court and the Magistrate Court pending the hearing and determination of this  application and / or the appeal made by the Petitioners, grave and irreparable  loss and damage would be caused to the Petitioners and! or miscarriage of  justice would be caused to them and! or their right of appeal would be  rendered nugatory.

The Petitioners tendered a true copy of the statement of objections filed  on behalf of the 7th Party Respondent-Respondent-Petitioner and the Substituted 2A and 7th Respondent-Respondent-Petitioners prayed for the relief in their petition. The 1st Party Respondent-Petitioner-Respondent took up the following preliminary objections and moved that the Petitioners  application should be dismissed in limine for the following reasons,

a. The Petitioners do not have the locus standi to have and maintain  this application;

b. The Petitioners have suppressed from, and/ or misrepresented to the court, material facts which were within their knowledge; and

c. The Petitioners have failed to give notice of this application to the 1st Party Respondent in terms of Rule 2 (1) and 2(2) of the Court  of Appeal (Appellate Procedure) Rules of 1990.

The objections of the 6th  Party Respondent-Respondent-Respondent was  that the order of the Learned High Court Judge should be set aside the inter  alia for the following reasons,

a. The Learned Judge of the High Court has erred in holding that the Civil cases pending in the District Court of Gampola has been  finally adjudicated and has wrongly concluded that in the said cases  the entirety of the estate has been handed over to the 1st Party  Respondent-Petitioner-Respondent (hereinafter referred to as the 1st Party Respondent)

b. The Learned Judge of the High Court has erred in law in failing to consider the affidavit tendered to the Primary Court by the 2nd Party 1st Respondent admitting the possession of the Respondent in  respect of the subject property.

c. The Learned Judge of the High Court has misdirected herself in law in failing to consider the documentary evidence in support of the  Respondent's possession of the subject property. 

d. The Learned Judge of the High Court has erred in law in taking into  consideration fresh material which were not available before the  Magistrate's Court, in making the said order.

e. The Learned Judge of the High Court has erred in law and fact in concluding that exceptional circumstances existed in the matter  warranting the exercise of the revisionary jurisdiction of the court.

f. The Learned Judge of the High Court has erred in law and fact in failing to take the delay and laches on the part of the Petitioner in  her court in the exercise of the revisionary jurisdiction of the court.

The Respondent whilst admitting the averments contained in paragraph 15 of the petition, the Respondent further states that -

a. The order by the Learned Judge of the High Court dated  03/02/2016 merely allows the revision application of the  Petitioners and set aside the order of the Learned Magistrate of  the Primary Court of Helboda.

b. In effect the order of the Learned Judge of the High Court only set aside the scheme of allocating the estate amongst the 1st Party Respondent, 4th Party Respondent, 5th Party Respondent, 6th Party Respondent, 7th Party Respondent and 2nd Party Respondent made by the Learned Magistrate of the Primary Court of Helboda, without any reference to the possession of the  property.

On considering the objections taken up by the parties one of the main  objections was that the Petitioner has no locus standi to institute and maintain  this application and that the Petitioner has suppressed and / or misrepresented  material facts which were within his knowledge.

On a perusal of the record we find that the 2nd  Party Respondent- Respondent Dayalan who was a director of Ramboda Tea Estate (Pvt) Ltd   ceased to be a director on 19June 2008. It was a contention of Ramboda Tea Estate (Pvt) Ltd that the 2nd  Party Respondent-Respondent was holding  possession of the said property on behalf of the Ramboda Tea Estate (Pvt)  Ltd since he was a Director of the company and not in his personal capacity. However after the death of the 2nd Party Respondent-Respondent Dayalan  his wife was substituted in her personal capacity. The said wife is not a director of company and it was the contention of the 7th Party Respondent- Respondent that the 2nd Party Respondent-Respondent's wife is now trying to get hold of the remaining of the estate by using the order made by the  Learned Magistrate.

It was the position of the Substituted 2A Party Respondent-Respondent­ Petitioner and that the 7th  Party Respondent-Respondent-Petitioner Ramboda  Tea Estate (Pvt) Ltd for the first time in the High Court took up the position  that Dayalan possession is same as possession of Ramboda Tea Estate (Pvt)  Ltd as he was a Director of the Ramboda Tea Estate (Pvt) Ltd. 

On a perusal of the documents produced in this case in the Magistrate Court namely the affidavit of the 2nd Party Respondent-Respondent Dayalan  has claimed the property in his personal capacity. He has stated that the said  property in accordance to the Company Act No. 17 of 1987 Nirmala  Wellasami, Waithyalingam Wellasami, Dayalan Waithyalingam Wellasmi,  Niranjan Waithyalingam Wellasami and Jayalakshmi Nagarathnam was  under the management and control of the said board of directors. 

premises in her personal capacity. As such in we reject the view that the 2nd Respondent has no locus standi to maintain this application. The application  of the Plaintiff for interim relief being supported ex-parte in the District  Court of Gampola made order issuing an Enjoining Order, Notice of Interim Injunction and Summons to be served on the 2nd  Defendant. The 2nd Defendant had stated as he is aware no summons have been served on the 5th Defendant. The 2nd  Defendant Petitioner defendant by petition dated  23/02/2008 made under in terms of section 664(3) moved to have the enjoining order set aside on the basis that the Plaintiff is wrongfully seeking  to dispossessed the 2nd Defendant from the land describe in 1st to 11th schedule to the plaint. After supporting this application the court made a bench order suspending the enjoining order issued forthwith and direct the  2nd  Defendant to file objections. It was also submitted that the Plaintiff has  suppressed from court the judgment and decree entered in DC Gampola case No 2487/2 the purported deed no. 927 dated 24/03/1992 marked as A20 upon which the Plaintiff purportedly claims rights to the land describe aforesaid  has been declared null and void and no affect or force in law. The Plaintiff  suppressed from court that in terms of the judgment and decree entered in  DC Gampola case no 2487/L, the purported power of Attorney dated  07/02/1992 based on which the purported power of Attorney holder of the  owners of the land described in the 1st to 11th schedules to the plaint executed  the purported deed of transfer no. 927 has been declared null and void.

It was also submitted that the Plaintiff has suppressed to the court that at the time of the execution of the purported agreement to sell no. 852 dated  12/12/2007 marked A24 with the plaint Mrs. Nirmala Wellasami was in  prison. Hence it was submitted that purported agreement to sell is null and  void and no force or no avail in law and no right or claim whatsoever flows  from the said purported agreement to sell. The 2nd  Defendant contended that  the Plaintiff is not in possession of the land describe as aforesaid.

The 2nd  Party Respondent-Respondent-Appellant has taken up the position  that the Respondent has filed this revision application causing inordinate  delay and guilty of laches. On a perusal of the record we find that the Primary Court Judge has given his order dated 03/02/2010.

The Officer in Charge of the Police Station of Kothmale had filed information with the Magistrate of Helboda on 19/11/2008. The Learned  Magistrate has delivered his order on 03/02/2010 the 1st Party Respondent- Petitioner-Respondent thereafter on or about 30/08/2010 has filed a revision  application in the High Court of Kandy and the Learned High Court Judge  has delivered her order on 03/02/2016. Thereafter the present application for  revision has been filed in the Court of Appeal on 26/02/2016. We find that  there is no inordinate delay in filing action in the Magistrate as well as in the Appeal Court. Hence we reject this argument that there is an inordinate delay by the Appellant to take steps in filing the present revision application has been filed on 15th  February 2016. The 1st Party Respondent-Petitioner has taken about 5 months to file the revision application in the High Court.  Therefore we find that there is no inordinate delay and the Respondent is not  guilty of laches.

Further it has been contended by the Appellant Respondent that number of new documents which are not tendered to court has been filed of record that  there by application cannot be maintained. The Primary Court has given a  temporary order and this dispute should be referred to a competent  jurisdiction. When perusing the order dated 03/02/2016 the Learned High  Court Judge had stated that new material has been filed and by order of the  Primary Court Judge not having considered the decisions in the Civil cases  cited by the Petitioner and the statements andthe police observations filed  before him in the interest of justice, that the High Court is of the view that  even if new material cited by the Petitioner, the Respondent had ample time  to challenge the said material before the High Court and that the Respondents  have failed to do so. However the Learned High Court Judge has not  indicated what the new material placed before court.

Further it was contended that there are exceptional grounds to invoke the extraordinary jurisdiction of the High Court. On a perusal of the revision

application we find that there are exceptional circumstances which has been pleaded by the Respondents-Petitioners.

We are of the view that the Respondent revision application has been filed causing without inordinate delay and that there are exceptional grounds to  invoke the extraordinary jurisdiction has been pleaded in the petition of  appeal.

Further the 2nd Party Respondent-Respondent-Appellant has possessed this  land the courpus in his private capacity and not in the capacity as a director  of the company of Ramboda Tea Estate (Pvt) Ltd. 

In the case of Oliver Millous of France V. M.H.A Haleem and others  reported in the Bar Association Law Journal 2001 Vol IX part 1 in the  Bar Association Law Report page 8 it was held that; 

a) it is not the function of a Primary Court to go into the question of  legal title of the parties to the land in dispute in an application under  section 66 of the Primary Court's Procedure;

b) the central matter to be decided by the Primary Court is whether the  parties had possession of the land and had been forcibly  dispossessed within a period of two months immediately before the  date on which information was filed under the section 66; 

c) it is the apprehension of a breach of the peace and not infringement of a private right or dispossession of any of the parties which  determines the jurisdiction of the Primary Court. 

In this application the Petitioner among other relief is seeking to set aside the order of the High Court of Kandy dated 03/02/2016 and to uphold the  order dated 03/02/2010.

The central matters to be decided by the Primary Court is whether the Respondents had possession of the land and had been forcibly dispossessed  within a period of two months. Immediately before the date on which  information was filed under section 66. Besides it has been held that even a  squatter or a trespasser is entitled to possession if he had two months possession prior to the date of filing information.

Vide the decision of Sharvananda ,J in Ramalingam Vs. Thangarajah  (1982) 2 SLR 694 at page 698 where he observed that 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  entitles even a squatter to the protection of law, unless his possession was  acquired within two months of the filing of the information. 

Further in the case of Velupillai and others Vs. Sivanathan (1993) 1 SLR 123 it has been held that the scope of the inquiry under the special  jurisdiction (Primary Courts Procedure Act) is of a purely preventive and  provincial nature pending the final adjudication of the rights of the parties in  a Civil Court. The Magistrate is not involved in the investigation into title or right to possession which is the function of a Civil Court.

Further the Learned High Court Judge has failed to consider the preliminary issue that there was an absence of circumstances to warrant the  conclusion that there was a likelihood of a breach of the peace. In this case  the police had filed an information informing the Magistrate that there  is a  dispute affecting land and a breach of the peace is threatened or likely then  the Primary Court will have jurisdiction to inquire into the matter. The Court   has to consider whether the dispute is such that it is likely to cause of breach  of the peace which the Primary  Court Judge of Helboda has most correctly  looked into. It is the apprehension of a breach of the peace not any   infringement of a private right or dispossession of any of the parties which  determines the jurisdiction  of the Primary Court Judge. It is sufficient for a  Primary Court Judge to exercise the powers under the 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. Primary Court Judge should however proceed with great cautionwhere there is no police report and the only material before him are the statements of interested parties.

The Officer in Charge of the Police Station of Kothmale, the Complainant­ Respondent-Respondent filed information under section 66(1) of the Primary  Court Procedure Act on 19/11/2008 in the Primary Court of Gampola  (Helboda) in case No. 24799 citing the 1st Respondent, the deceased 2nd   Party Respondent-Petitioner­ Party Respondent-Respondent in whose place  the Substituted 2A Party Respondent-Respondent-Petitioner was Substituted and the 3rd Party Respondent-Respondent-Respondent. Thereafter the 4th, 5th, 6th, 7th, and 8th Party Respondents intervened in the said case. The said Parties except the 1st Party Respondent-Petitioner-Respondent were in possession of  separate lots of the Ramboda Estate which is in extent about 837 acres for many years as owners thereof. The 1st Party Respondent-Petitioner­ Respondent claimed title to the said estate and! or part thereof. Thereafter all  parties filed their respective counter affidavits with documents and their  respective written submissions. The Learned Magistrate of Helboda  delivered her order on 03/02/2010 holding that the parties aforesaid are entitle to possession of the aforesaid extents of the said estate.

Thereafter lapse of 8 months or so the 1st Party Respondent-Petitioner­Respondent sought to revise the said order dated 30/08/2010 by producing

numerous documents, which were not a part of the Primary Court proceedings. The Parties filed their respective objections to the said  application praying that the application be dismissed for the reasons set out  therein. The 1st Party Respondent-Petitioner-Respondent filed his counter  objections and all parties filed their respective written submissions.

The Learned Judge of the High Court delivered her order on 03/02/2016  allowing the said revision application and has granted possession of the entire estate to the 1st Party Respondent- Petitioner-Respondent contrary to  the facts established by evidence.

In the order of the Learned High Court Judge she has not given any reasons whether there is a breach of peace or likelihood of breach of peace. As  regards possession the Learned High Court Judge had only indicated that it  is observed that the possession had been prior to the institution of the  66 application.

However, she has stated that the Primary Court Judge had failed to consider  the long and continued possession through out of the Substituted 2A  Respondent-Respondent-Petitioner and the other Respondents in delivering  the said judgment.

According to law fresh evidence could be brought before the High Court by a party. However the High Court Judge has not indicated the new material

that was before her. The Respondents-Respondent-Petitioners had been in possession of the said estate. The Learned High Court Judge has not considered whether there is a breach of peace or likelihood of breach of  peace. When she had granted the possession of the entire estate amounting  the 837 acres to the 1st Party Respondent-Petitioner which in law a person is  not entitle to possess.

Accordingly we are of the view that the order of the Learned High Court Judge is erroneous and cannot stand. Hence we set aside the order of the  Learned High Court Judge dated 03/02/2016 and uphold the order of the Learned Magistrate as there is breach of peace and likelihood of breach of peace and the Substituted 2A Respondent-Respondent-Petitioner and 7th Respondent-Respondent-Petitioner had been in possession of the portion of  the estate.

Accordingly appeal is allowed with costs of Rs.25,000/- each.

Judge of the Court of Appeal

L.T.B.Dehideniya, J

I agree.

Judge of the Court of Appeal