Sectio 66
OIC, Beliatta Police Vs Jasing Bastian Arachchige Udeni
Mangalika
COURT OF APPEAL OF SRI LANKA
Officer-in-Charge,
Police Station,
Beliaththa.
Complainant
Vs.
1. Jasing Bastian Arachchige Udeni Mangalika
Nandna Srasi,
Hakmana Road,
Kambassawala,
Beliaththa.
2. Lalith Wittahachchi,
No. 220, 1st Lane,
Kambassawala East,
Beliaththa.
3. Vepitiage Saminona,
Godawana Gedara,
Kambassawala,
Beliaththa.
Respondents
AND
1. Jasing Bastian Arachchige Udeni Mangalika
Nandna Srasi,
Hakmana Road,
Kambassawala,
Beliaththa.
3. Vepitiage Saminona,
Godawana Gedara,
Kambassawala,
Beliaththa.
1st and 3rd Respondent-Petitioners
Vs.
2. Lalith Wittahachchi,
Court of Appeal Case No:
CA (PHC) 125/16
High Court Tangalle Case No:
HCRA 18/13
Magistrate’s Court Tangalle Case No:
11522
Page 2 of 7
No. 220, 1st Lane,
Kambassawala East,
Beliaththa.
2
nd Respondent-Respondent
Officer-in-Charge,
Police Station,
Beliaththa.
Complainant-Respondent
AND NOW
BETWEEN
2. Lalith Wittahachchi,
No. 220, 1
st Lane,
Kambassawala East,
Beliaththa.
2nd Respondent-Respondent-Appellant
Vs.
1. Jasing Bastian Arachchige Udeni Mangalika
Nandna Srasi,
Hakmana Road,
Kambassawala,
Beliaththa.
3. Vepitiage Saminona,
Godawana Gedara,
Kambassawala,
Beliaththa.
1st and 3rd Respondent-PetitionerRespondents
Before: Prasantha De Silva, J.
K.K.A.V.
Swarnadhipathi, J.
Counsel: Dilan Kappage AAL with Harsh De Silva AAL
for the 2nd Respondent-
Respondent-Appellant.
Ashan Nawarathne AAL and Piyumi Kumar AAL for the 1st
and 3rd Respondent- Petitioner-Respondents.
Both Parties agreed to dispose the inquiry by way
of Written Submissions.
Written Submissions 29.04.2022by the 2nd
Respondent-Respondent-Appellant.
tendered on: 08.04.2022 by the 1st and 3rd
Respondent-Petitioner-Respondents.
Decided on: 27.05.2022
Prasantha De Silva, J.
Judgment
It appears that the Complainant, being the
Officer-in-Charge of Beliaththa Police Station had filed an information in the
Primary Court of Tangalle in case bearing No. 11522, under Section 66 of the
Primary Courts’ Procedure Act regarding a dispute between the 1st Respondent-PetitionerRespondent
[hereinafter sometimes referred to as the 1st Respondent] and the 2nd RespondentRespondent-Appellant
[hereinafter sometimes referred to as the Appellant] in respect of an obstruction
of a roadway over the portion of lands marked as M and N in Plan bearing No.
226 dated 12.03.1965.
The learned Primary Court Judge thereafter made an
Order to affix notices on the subject matter and following the notices, the 3rd
Respondent-Petitioner-Respondent [hereinafter sometimes referred to as the 3rd
Respondent] had intervened in the said case. Subsequent to both parties filing respective
affidavits, the matter was fixed for inquiry, and parties were allowed to file
written submissions to dispose the inquiry. Thereafter, the learned Primary
Court Judge of Tangalle delivered the Order on 25.07.2013 determining that the
1st and the 3rd Respondents have failed to prove there was a right to use 10
feet wide roadway and hence dissolved the Interim Order made on or about
14.03.2013.
Being aggrieved by the said Order, the said
Respondents had invoked the revisionary jurisdiction of the High Court of Tangalle
to revise the Order dated 25.07.2013 made by the learned Primary Court Judge of
Tangalle.
The 2nd Respondent-Respondent-Appellant
had filed objections in respect of the revision application bearing No. HCRA
18/13 and parties had filed their respective written submissions and made oral
submissions at the inquiry. Following it, the learned High Court Judge of
Tangalle delivered the Order on 17.10.2016 setting aside the Order made by the
learned Primary Court Judge of Tangalle in case bearing No.11522 dated
25.07.2013 and had permitted the 1st and 3rd Respondents to use 10
feet wide-10 meters long roadway over the subject matter.
Being aggrieved by the said Order dated 17.10.2016,
the Appellant had preferred this appeal to revise and/or to set aside the Order
pronounced by the learned High Court Judge of the Provincial High Court of
Tangalle.
The impugned roadway is described as Lot M in Plan
No. 226 dated 12.03.1965, in schedule to the Petition dated 31.10.2016.
According to 1st and 3rd Respondents, the impugned roadway was used by them as
access to Lot L in plan No. 226. However, on or above 16.01.2013 the Appellant had
obstructed the said roadway.
It was submitted by the Appellant that there is no
roadway over lot M as access to lot L and that there is a separate road providing
access to the said lot L according to the said plan. It was the contention of
the Appellant that there was no such roadway over the said lot M and that
Appellant is in possession of all the lots namely M, N, O, P, Q, R and T.
The attention of Court was drawn to the document
marked as 3V1 and 3V2. 3V1 is the final Partition Decree in case bearing No. P
717, and it was submitted to substantiate that the 3rd Respondent’s
mother has obtained ownership to the portions of land; lot M and lot N.
However, it appears that the disputed roadway cuts across lot M according to
the said plan 226 marked as 3V2.
Therefore, the Respondents contended that the
Appellant is not the lawful owner of lot M and N in plan 3V2 and admitted the Appellant
has ownership only to the portions of land in lots O, P, Q and R. As such, it
is apparent that the Appellant had unlawfully blocked the impugned roadway over
lot M, which the 1st and 3rd Respondents had been using as access to their lot
L in plan 3V2.
When considering the affidavits and the counter
affidavits of the parties to this case, it is seen that the 1st Respondent’s
husband is an owner of a three-wheeler and has further stated that they did not
have an alternate roadway to get the three-wheeler into the 1st Respondent’s
premises.
It was stated by the Appellant that the 1st
Respondent has an alternative road way to enter their premises. However,
Primary Court may not have considered the availability of an alternative right of
way, if there was any, to deny the right of way used by the Respondents over
the disputed portion of land, when making an Order under Section 69 (2) of the
Primary Courts’ Procedure Act.
Since the dispute between the parties is relating
to a roadway, it appears that Section 69 of the Primary Courts’ Procedure Act
is applicable and according to Section 69 of the Act, there is no necessity to
consider the availability of an alternative roadway.
The learned Primary Court Judge had determined that
the 1st and 3rd Respondents had not proved the fact that the roadway was used
for more than 10 years, and thereby as not being entitled to claim their
ownership by way of prescription. The learned Primary Court Judge has further
stated that even the 3rd Petitioner had not established her rights to use the disputed
roadway. By virtue of Section 69 of the Primary Courts’ Procedure Act, there is
no need to prove rights as it is done in a civil suit. The case Ramalingam Vs.
Thangarajah [1982] 2SLR 693 held the following;
“On the other hand, if the dispute is in regard to
any right to any land other than right of possession of such land, the question
for decision, according to Section 69(1) is, who is entitled to the right which
is subject of dispute. The word entitle here connotes the ownership of the
right. The Court has to determine which of the parties has acquired that right
or is entitled for the time being to exercise that right. In contradiction to
Section 68 of the Act, Section 69 requires th e court to determine the question
as to which party is entitled to the disputed right of way prior to the making of
an order under Section 69(2).”
It was held in the aforementioned case that the
entitlement can be proved in the Primary Court by adducing proof of the
entitlement as done in a Civil Court or by offering proof that he is entitled to
the right for the time being The said contention was analyzed by Justice A.W.A.
Salam in the case titled Ananda Sarath Paranagama Vs. Dhamadinna Sarath
Paranagama CA (PHC) 117/2013 [C.A.M. 12.12.2013], in which Salam J. emphasized
of the need to understand that the proof of acquisition of the right is totally
different from proving the enjoyment/existence of the right at the time the
dispute arose.
It has been held in the case of Punchi Nona Vs.
Padumasena and Others [1994] 2 SLR 117, that the Primary Court exercising
special jurisdiction under Section 66 of the Primary Courts’ Procedure Act, is
not involved in an investigation into the title, right to possession or
entitlement, which are functions of a Civil Court. What the Primary Court is
required to do is to take a preventive action and make a provisional order
pending final adjudication of rights of the parties in a Civil Court.
The attention of Court was drawn to the police observation
report. It reveals that the 1st Respondent and her family members have used the
disputed roadway for an extensive period of time.
Furthermore, the said report states that the said
roadway in dispute has been shut off by a fence and was further blocked with the
use of coconut leaves. The report further goes on to say that the neighbours of
the 1 st Respondent has used the roadway in dispute to reach the 1st
Respondent’s house. The Appellant has also given a statement to Police
objecting to 1st Respondent’s the use of the disputed roadway.
The observation report produced by the police
contains the following, and shows that the Respondents to this case has used
this roadway.
“මීටර් 10ක් පමණ දිගට කාලයක් පාවිච්චි කරන ලද පාරක් තිබූ බවට සලකුණු ඇත.”
“දැනට දින කිහිපයකට පමණ පපර පමම පාපර් තැනින් තැන වලවල් කපා ඉඩමට සුද්ධ කරන ලද ලකුණු දමා අවහිර කර පාර වසා ඇත.”
“වැපේ පමම දිනවලම ඉනි සිටුවා කටු කම්බි ගසා අමු පපොල් අතු ඉණි අතරට දමා අවහිර කර ඇත.”
In view of the aforesaid observation notes of the
Police Officer, it amply proves that the Respondent has been using the disputed
roadway as a right by way of necessity, to lot L, to the 1st Respondent’s
house.
According to Section 75, it mandates the Primary
Court to deal with “a dispute in the nature of servitude” and need not touch upon
servitude per se. The Primary Courts (Magistrate’s Court) are precluded from
dealing with matters described in Schedule 04 of the Judicature Act No. 2 of
1978.
The excluded matters inter alia;
Any action for a declaratory decree including a
decree for the declaration of title of a land (item 12) in the 4 th Schedule.
For obstruction to or interference with the
enjoyment of any servitude or the exercise of any right over property (item 24
(i).
In civil cases, right of way can be established as
a servitudanal right by prescription or by way of necessity. It was held in
Sumangala Vs. Appuhamy 46 NLR 131 that a servitude, such as a right of foot
path must be established by cogent evidence, as it affects the land owner’s
right to a free and unfettered use of land.
In view of the aforesaid reasons, it is to be noted
that the learned Primary Court Judge in his Order dated 25.07.2013 has held
against the Respondents by not giving the right of way to the Respondents
without considering the relevant provisions of law. It is seen that the learned
Primary Court Judge had misdirected himself and had made the impugned order
against the Respondent.
As such, the learned Primary Court Judge has erred
in law when he decided that the Respondents are not entitled to use the
impugned road in dispute. In view of the aforesaid reasons, it is imperative to
note that the learned Primary Court Judge has erred in law and facts, when he
decided the matter in favour of the 2nd Party-Respondent-Appellants.
Hence, we see no reason to interfere with the
Judgment of the learned High Court Judge of Kurunegala setting aside the Order
of the learned Magistrate.
Thus, we affirm the Judgment dated 17.10.2016 by
the learned High Court Judge and dismiss the appeal with costs.
JUDGE OF THE COURT OF APPEAL
K.K.A.V. Swarnadhipathi, J.
I agree.
JUDGE OF THE COURT OF APPEAL
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