Identity of the land in respect of which the dispute has arisen in the context of section 66
JAYASEELI
GUNAWEERA VS. PUWANES GUNAWEERA
Identity of
Corpus - Section 66
In an application of this
nature it is incumbent on the Magistrate to ascertain the identity of the
corpus as section 66(1) of the Act becomes applicable only if there is a
dispute between parties affecting land. A Magistrate should evaluate the
evidence if there is a dispute regarding identity of the land . [David Apuhamy
v. Yassassi Thera (1987) 1 Sri.L.R. 253] .
Janak De Silva J
This is an appeal against the order of the
learned High Court Judge of the Southern Province holden in Matara dated
02.09.2014.
The Petitioner- Petitioner-Appellant
(Appellant) filed information in the Magistrates Court of Matara under
section 66(1) (b) of the Primary Courts Procedure Act (Act) on 04.03.2014 stating
that there is a dispute over the possession of the land morefully set out
therein between the Appellant and Respondent-Respondent-Respondent (Respondent)
which is likely to cause a breach of peace between parties.
As the information disclosed a dispute
between the Appellant and the Respondent that threatened or was likely to lead
to a breach of peace, the learned Magistrate directed that a notice be affixed
to the disputed corpus inviting any parties interested to appear in court on
the date mentioned in the notice and file affidavits setting out their claims.
As the Appellant failed to file affidavit the learned Magistrate made order
under section 66(8)(b) of the Act that the Appellant is a defaulting party. The
application made by the Appellant to purge her default was rejected.
The learned Magistrate having perused the
affidavits and documents submitted with them and the written submissions of the
parties came to the conclusion that the Respondent was in possession of the
land in dispute on the date the information was filed and that the Appellant
had failed to establish dispossession within a period of two months prior to
information being filed . Accordingly, he made order holding that the
Respondent was entitled to the possession of the subject matter. The Appellant
made a revision application to the High Court of the Southern Province holden
in Matara which was dismissed without issuing notice. Hence this appeal
The Appellant submitted that the judgment
of the learned High Court Judge was liable to be set aside on the following two
grounds:
Identity
of Corpus
In an application of this nature it is
incumbent on the Magistrate to ascertain the identity of the corpus as section
66(1) of the Act becomes applicable only if there is a dispute between parties
affecting land. A Magistrate should evaluate the evidence if there is a dispute
regarding identity of the land . [David Apuhamy v. Yassassi Thera (1987) 1
Sri.L.R. 253] .
The Appellant at paragraphs 2 and 8 of her
affidavit dated 04.03 .2014 identified the land in dispute as the land described
therein which is 30 perches in extent. The learned Magistrate accordingly held
that this was the land in dispute. The Appellant submits that the learned
Magistrate erred in making this finding as the Appellant had, at paragraph 7 of
her affidavit, pleaded that the subject matter is one room of the house
possessed by the Appellant. I reject this position as the Appellant had
taken contradictory positions in her affidavit and the learned Magistrate
cannot be faulted for concluding that the subject matter of the dispute was a
land in extent of 30 perches and not a room in the house situated on the said
land.
Possession
Sharvananda J. (as he was then) in
Ramalingam v. Thongarajah [(1982) 2 Sri.L.R. 693 at 698] held:
"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."
The learned Magistrate concluded that the
Appellant had in the information filed stated that the Respondent was in
possession of the land in dispute on the date information was filed i.e. 04.03.2014
and therefore it was incumbent on her to establish forcible dispossession
within two months preceding the date on which information was filed. He held
that the Appellant had failed to do so.
In
this case both parties have submitted evidence to establish possession of the
land in dispute. The learned Magistrate held that the Respondent had
established that she was in possession of the said on the date information was
filed. I cannot fault the learned Magistrate for arriving at this conclusion. It
is further to be noted that the Respondent produced the deed of transfer No.381
dated 25.05.1993 as evidence which establishes that the land in dispute was
owned by the Respondent. Sharvananda J. (as he was then) in Ramalingam v.
Thangarajah (supra at page 699) held that 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.
As the
evidence established that the Respondent was in possession of the land in
dispute on the date information filed, the learned Magistrate correctly
examined the question whether the Appellant had established forcible
dispossession within two months prior to the filing of information. He has
correctly concluded that the Appellant failed to do so.
Existence
of exceptional circumstances is the process by which the court selects the
cases in respect of which the extraordinary method of rectification should be
adopted, if such a selection process is not there revisionary jurisdiction of
this court will become a gateway of every litigant to make a second appeal in
the garb of a Revision Application or to make an appeal in situations
where the legislature has not given a right of appeal. [Amaratunga J. in
Dharmaratne and another v. Palm Paradise Cabanas Ltd. And others (2003) 3 Sri
L.R. 24 at 30]. The Appellant failed to adduce any exceptional
circumstances warranting the intervention of the High Court.
For the foregoing reasons, I see no reason
to interfere with the order of the High Cour Judge of the Southern Province
holden in Matara dated 02.09.2014
Appeal
is dismissed with costs.
Judge
of the Court of Appeal
K.K.
Wickremasinghe J.
I agree. Judge of
the Court of Appeal
HON JANAK DE SILVA, J.
Case No. CA(PHC) : 147/2014
P.H.C. Matara Case No. 91/2014 (Rev), M.C. Matara Case No. 10482
Jayaseeli Gunaweera, "Rasanjanee Niwasa", Mahena, Kanda Pahala, Devinuwara. Petitioner-Petitioner-Appellant
Puwanes Gunaweera, "Rasanjanee Niwasa" Mahena, Kanda Pahala, Devinuwara. Respondent-Respondent-Respondent
Before: K.K. Wickremasinghe J.
Janak De Silva J.
Counsel: Parakrama Agalawatta with H. Walpita and S.Watagala for Petitioner-Petitioner-Appellant
D.P. Liyanage with V. Dissanayake and Ravinatha Watakepotha for Respondent
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