L.T.B. Dehideniya J. section 66

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MOHOMAD HANIFFA SUBAYAR VS. HAMEEDU ABDUL MUHUTHAR

 

HON. L.T.B. DEHIDENIYA, J

Court of Appeal case no. CA/PHC/168/97

H.C. Chilaw case No. H.C.A/50/97
M.C. Puttalam case No. 9729/96/P

In the matter of an appeal in terms of Article 138 read together with Article 154P of the Constitution of the Democratic Socialist Republic of Sri Lanka

1. Hameedu Abdul Muhuthar,
Principal, Muslim Vidyalaya,
Kadayamotte, Madurankuliya.

2. Seinul Abdeen Abddul Hassan,
Marikkar Chanal, Madurankuliya.

3. Sahul Hameed Mohamed Rafick,
Kadiyamottal, Madurankuliya.

Party of the First Part
Vs.

1.Mohomad Haniffa Subayar,
Marikkr Chanal, Madurankuliya.

2.Mohamed Haniffa Abdul Wahid,
Kadaiamottai, Madurankuliya.

Party of the Second Part
AND NOW

1. Mohomad Haniffa Subayar,
Marikkr Chanal, Madurankuliya.

2. Mohamed Haniffa Abdul Wahid,
Kadaiamottai, Madurankuliya.

Party of the Second Part Petitioner Appellants
Vs

1. Hameedu Abdul Muhuthar,
Principal, Muslim Vidyalaya,
Kadayamotte, Madurankuliya.

2. Seinul Abdeen Abddul Hassan,

Party of the First Part Respondent Respondents

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

Counsel :  N .R.M.Daluwatta PC for the Party of the Second Part Petitioner Appellants
                 H.G.Hussain for the Party of the First Part Respondent Respondents

Argued on : 03.11.2016

Decided on : 20.02.2017

 

L.T.B. Dehideniya J.

This is an appeal from the High Court of Chilaw.

The First Respondent of the First Party Respondent Respondents (the Respondents) is the Principal of the Muslim Vidyalaya of Kadayamotte, Madurankuliya, and the 2nd and 3rd Respondents of the First Party Respondent Respondents are members of the school development society. The Respondents made a complaint to the police stating that the Second Party Respondent Petitioners Appellants (the Appellants) have started to construct a barbed wire fence across the school playground and the school development society intervened and prevented the construction of the fence. The Appellants made a statement to the police in response to the said complaint that they owned the land in dispute and they started the construction of the fence on the strength of their ownership. The police filed an information in the Magistrate Court of Puttalam under section 66 of the Primary Court Procedure Act. The learned Magistrate after considering the affidavits and documents determined that the Respondents were in possession within the two months prior to filing the information in Court. Being dissatisfied, the Appellants moved in revision in the High Court of Chilaw. The learned High Court Judge affirmed the order of the learned Magistrate. This appeal is from the said order of the High Court.

The Respondents stated that the land in dispute was donated to the school by a former Minister Mr. Naina Marikkar and since then the land was used by the students of the school as a playground. The State has spent money on several occasions to develop the school playground and all the time the playground was in the possession of the school and the students used it as a playground. During the civil war that prevailed in the country, some of the displaced persons from Jaffna temporarily occupied a portion of the school playground. The Appellants on or about 15.06.1995 tried to take over a part of the playground forcibly. They produced the letters issued by the authorities in relation to the amounts of money spent to the development of the playground in support. The Appellant's contention is that the son of Mr. Naina Marikkar has transferred the land in dispute to the second part of the Appellant and another by a deed and the said land is depicted in the plan No. 75 marked 2 Pa 2. Their stand is that they possessed the land in dispute on the strength of the deed and they wanted to fence out the land.

In a case of a land dispute threatening a breach of the peace in the Primary Court under Primary Court Procedure Act section 66, the ownership of the land is not material but the possession of the land within two months prior to the filing of the information is the most relevant fact.

Ramalingam v. Thangarajah [1982] 2 Sri L R 693

That a Judge should in an inquiry under Section 66 confine himself to the question of actual possession on the date of filing 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 preceding filing of information.

The Respondents clearly established that the land was m the possession of the school. From time to time the playground has been developed by the authorities concerned. It further strengthens the fact that the playground was in the possession of the school.

The Appellants are relying on a plan made by them to show the possession. The southern boundary of lot 2 depicted in plan 2Pa 2 is the school playground. All boundaries in the said plan are marked as undefined. The boundary separating the playground and lot 2 in the plan is marked by the surveyor by positioning stakes on the ground. This fact establishes that there was no boundary there to separate the play ground and the Appellants were trying to construct/create a new boundary.

Under these circumstances I hold that the learned Magistrate and the learned High Court Judge have come to the correct finding that the Respondents were in possession of the land in dispute.

At this stage I like to point out another defect in the petition of appeal. In the prayer to the petition of appeal dated 25th November 1997 the main relief prayed for is to "set aside the order of the learned High Court Judge dated 13.11.1997." There is no prayer to set aside the order of the learned Magistrate or to grant relief as prayed for in the petition filed in the High Court. Even if this Court set aside the order of the learned High Court Judge, the order of the learned Magistrate will remain in force. This Court cannot grant any relief which is not prayed for. Therefore granting relief prayed for in this petition of appeal will not serve any purpose.

Under these circumstances, I see no reason to interfere with the findings of the learned High Court Judge.

Accordingly, I dismiss the appeal subject to cost fifed at Rs. 10,000/=

Judge of the Court of Appeal

H.C.J.Madawala J.

I agree.

Judge of the Court of Appeal

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