Justice Dehideniya on Section 66
K.D.
WIJETHUNGA vs S. M. PABILIS SINGHO
HON. L.T.B. DEHIDENIYA,
J Court of Appeal case no. CA/PHC/30/2009 H.C.
Kegalla case no. RA 2561 Senarath
Mudalige Pabilis Singho Petitioner K.D. Wijethunga Respondent. K.D. Wijethunga Respondent Petitioner Senarath
Mudalige Pabilis Singho Petitioner Respondent K.D.
Wijethunga Respondent Petitioner Appellant Senarath
Mudalige Pabilis Singho Petitioner Respondent Respondent Before : H.C.J.
Madawala J. Counsel : Kumari
Dunusinghe for the Respondent Petitioner Appellant. Argued on : 06.09.2016 Written submissions filed on : 04.11.2016 Decided on : 29.03.201 L. T .B. Dehideniya J. This is an appeal from the High Court of Kegalla. The Petitioner Respondent Respondent (hereinafter
sometimes called and referred to as the Respondent) filed information under section
66(1)(b) of the Primary Court Procedure Act, as a private plaint in the
Magistrate Court of Mawanella, informing Court that a land dispute has arisen
and the breach of the peace is threatened or likely. The Respondent stated to
Court that he was in possession of the land described in the schedule to the
plaint from 1992 on the strength of the ownership obtained by the deed marked
as Pe 1. The Respondent Petitioner Appellant (hereinafter sometimes called
and referred to as the Appellant) has filed an action in the District Court
to partition the land described in the schedule to the plaint, was dismissed.
On the date that the judgment was pronounced in the said partition action,
the Appellant disturbed the possession of the Respondent by plucking coconut
and destroying the vegetation cultivated by the Respondent. The Respondent
and his daughter have made two complaints to the police. The Respondent
instituted this action seeking an order preventing the Appellant from disturbing
his possession. The Appellant admitted the partition action and
denied the rest. He claimed the ownership to the land on a different pedigree
and described the land in dispute differently. His contention is that though
the partition action was dismissed, the land was identified by the learned
District Judge as the land described by the Appellant. He further stated that
he has not disturbed the Respondent possessing any land owned by the
Respondent and moved to dismiss the application. The learned Primary Court Judge, after completing
the pleading and the written submissions, delivered the determination holding
that the breach of the peace is threatened due to this land dispute and
determined that the possession of the Respondent shall not be disturbed by
the Appellant until the rights of the parties are determined by a competent
civil court. Being aggrieved, the Appellant moved in revision
in the High Court of Kegalla without success. This appeal is from the said
order of the High Court. In an action filed under section 66(1)(b) of the
Primary Court Procedure Act, the Primary Court Judge has to be satisfied that
the breach of the peace is threatened or likely. In the present case the
learned Magistrate has considered the two complaints made by the Respondent
and the daughter regarding the incident. The Appellant contest the
truthfulness of the contents of the statements on the basis that the
Respondent has failed to tender any inquiry notes or details of charges filed
against the Appellant by the police on this statements. I believe that the
Court has to be mindful of the fact that the Respondent was not charged for
making a false statement to the police too. The application
before the High Court being a revision application and not being an appeal,
the learned High Court Judge need not consider the correctness of the
conclusions of the Magistrate based on facts. Revision is not to correct the
errors committed by the lower courts. The learned Magistrate has identified the land
described in the schedule to the information as the disputed land. The
learned District Judge in the partition action has decided that the land
which was to be partitioned was the land described by the Appellant and not
the land described by the Respondent. In the present case the Respondent
is claiming that he is in possession of the land described by him and
not the land described by the Appellant. The Respondent's contention is that
the Appellant disturbed his possession of the land described by him. The
Appellant admits that he has no claim whatsoever to the Respondent's land. In
these circumstances, it is clear that the Appellant did not possess the land
of the Respondent. The learned Primary Court Judge has correctly decided that
the land in dispute is in the possession of the Respondent. I do not see any reason to interfere with the
findings of the learned Magistrate or the learned High Court Judge. Accordingly, I dismiss the appeal subject to costs
fixed at Rs. 10,000/- Judge of the Court of Appeal H.C.J.Madawala J. Judge of the Court of Appeal |
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