ENTITLEMENT OR RIGHT UNDER SECTION 69
In the Court of Appeal of the Democratic Socialist Republic of Sri Lanka......summary prepared by the blogger: On 12.12.2018, the Officer in Charge of the Police
Station, Kandy filed an information under Section 66(1) of the Primary Courts’
Procedure Act No. 44 of 1979. This was due to a potential breach of peace
between the 1st Party Respondents and the 2nd Party Respondents over a disputed
footpath used by the 1st Party Respondent to access her house. After the 2nd
Party Intervenient Respondents intervened, all parties submitted affidavits and
counter affidavits, and they agreed to resolve the issue through written
submissions. On 24.06.2019, the learned Magistrate, acting as a Primary Court
Judge, issued an order in favor of the 1st Party Respondents. The 2nd Party
Respondent-Petitioner then invoked the revisionary powers of the Provincial
High Court of the Central Province in Kandy to set aside or revise the
Magistrate's order. The Provincial High Court Judge upheld the Magistrate's order
and dismissed the application for revision with costs. Dissatisfied with the
Provincial High Court Judge's decision, the 2nd Party
Respondent-Petitioner-Appellant filed an appeal in the Court of Appeal.
It is established that to exercise
revisionary powers against a challenged order, the order must be manifestly
erroneous, going beyond ordinary errors. Chapter VII of the Primary Courts’ Procedure
Act does not provide for a right of appeal against an order. The Appellant
invoked the revisionary jurisdiction of the High Court against the Magistrate's
order under Section 69(1) of the Primary Courts’ Procedure Act No. 44 of 1979.
The Court of Appeal has a limited scope when
considering appeals against orders made by the Provincial High Court in its
revisionary jurisdiction. It cannot re-hear or re-evaluate the evidence
presented in the primary case. The
dispute concerned a footpath, falling under the purview of Section 69 of the
Primary Courts’ Procedure Act. Section 69 of the Act allows the Judge of the
Primary Court to determine who is entitled to the disputed right when the
dispute relates to a right to land other than possession. The Appellant argued
that the Respondents failed to establish their entitlement to the right of way
or the use of the footpath as required by Section 69(2) of the Primary Courts’
Procedure Act.
The learned Primary Court Judge ruled that the
Respondents had not proven their entitlement or the use of the disputed roadway
for more than 10 years. The police
observation report indicated that the Respondents had been using the disputed
roadway extensively. Section 75 of the Primary Courts’ Procedure Act defines
disputes affecting land and mandates that the Primary Court can deal with
disputes in the nature of servitude.
The case law suggests that a servitude, such as a
right of way, must be established by cogent evidence, affecting the landowner's
right to a free and unfettered use of land. The interpretation of the word
"entitlement" in Section 69(1) implies a user's right rather than
proving ownership, as required in a Civil Court. The learned High Court Judge
correctly analyzed the evidence and affirmed the Magistrate's order, finding no
exceptional circumstances to warrant intervention. Consequently, there is no
reason to interfere with the High Court Judge's decision or the Magistrate's
order.
JUDGMENT: It appears that the Officer in Charge of the Police Station, Kandy being the complainant, had filed an information on 12.12.2018 in terms of Section 66(1)
of the Primary Courts’ Procedure Act No. 44 of 1979, due to a breach
of the peace threatened or likely to be threatened between the 1st Party Respondents and the 2nd
Party Respondents over obstructing a footpath used by the 1st Party Respondent to access
her house.
After the intervention of the 2nd Party Intervenient Respondents, all
parties filed their respective
affidavits and counter affidavits and parties agreed to dispose the inquiry by way of written submissions.
Subsequently, the parties had filed their written submissions and the learned
Magistrate acting as a Primary
Court Judge had delivered the order on 24.06.2019 in favour of the 1st Party Respondents.
Being aggrieved by the said order, the 2nd Party Respondent-Petitioner had invoked the revisionary jurisdiction of the
Provincial High Court of the Central Province
holden in Kandy seeking to set aside or revise the said order made by
the learned Magistrate.
However, it is seen that the learned
High Court Judge held the order of the learned
Magistrate is well founded and that there is no necessity to intervene
in the impugned order. Hence, the
application for revision was dismissed with cost. Being aggrieved by the determination of the learned High Court Judge,
the 2nd Party Respondent-Petitioner-Appellant had preferred this appeal to this Court.
It appears that the Appellant
had taken up the position
in this appeal that jurisdiction of the Magistrate’s Court is
not invoked properly. In this respect, it was
submitted that jurisdictional objection has to be taken up at the
earliest possible opportunity and that the Appellant is precluded from taking up such an objection at
this stage. However,
the Appellant had preferred this appeal against
the order made by the learned High Court Judge exercising revisionary jurisdiction.
It is settled law that to exercise revisionary powers against the order
challenged, the impugned order must
be manifestly erroneous, which goes beyond an error, defect or irregularity that occasions to a miscarriage of justice which tends to shock the conscience of Court.
As per Chapter VII of the Primary Courts’ Procedure Act, there is no
right of appeal given against an
order. It appears that the Appellant had invoked the revisionary jurisdiction of the High Court against the order of the learned Magistrate
acting as a Primary Court Judge in terms of Section
69(1) of the Primary Courts’ Procedure Act No. 44 of 1979.
It was held in the case of Nandawathi
and another Vs. Mahindasena [2009]
2 SLR 218,
“When an order of a Primary Court Judge is challenged by way of revision
in the High Court, the High Court can exercise
only the legality
of that order and not the
correction of that order”.
It was emphasized by Ranjith Silva J. in the following manner;
“I am of the opinion that this particular right of appeal in the
circumstances should not be taken as
an appeal in the true sense, but in fact as an
application to examine
the correctness, legality
or the propriety of the order made by the High Court Judge in the exercise of revisionary powers.
The Court of Appeal should not under the guise of
an appeal attempt to re-hear or re- evaluate the evidence led in the main case”.
It was highlighted in the case of Bandulasena and others Vs. Galla Kankanamge Chaminda Kushantha and others CA (PHC) 147/2005
[CA minutes 27.09.2017];
“It would be relevant to bear in mind that the appeal before this Court
is an appeal against a judgment
pronounced by the Provincial High Court in exercising
its revisionary jurisdiction. Thus, the task before this Court is not to consider an appeal against
the Primary Court order but to consider
an
appeal in which an order pronounced by the Provincial High Court in the exercise of its revisionary jurisdiction is sought be impugned.”
Thus, it is apparent that under the guise of this appeal,
the Appellant is not entitled
to have the value of evidence placed before court re-heard or re-valued,
which entirely falls within the domain of the jurisdiction of the Primary
Court.
Since this appeal is preferred against the order made by the learned High
Court Judge exercising revisionary
jurisdiction, the Court of Appeal is empowered to evaluate the correctness of the order made by the High Court exercising revisionary jurisdiction.
The Provincial High Court should have been mindful when exercising
revisionary jurisdiction in respect of the application made against the orders of the Magistrate’s Court that this application
is a revision application and not an appeal.
It is observable that the Appellant in his written submissions had taken
up an objection in respect of the
jurisdiction of the Primary Court [Magistrate’s Court of Kandy] at the appeal stage and also proposed as to why the
learned Primary Court Judge should
have declared the entitlement of the impugned right of way in his favour.
In Nandawathi and another Vs. Mahindasena [supra], which stated that the right
given to an aggrieved party to right of appeal in terms of Article 154
(3) b of the Constitution against
an order of the High Court in a revision
applications, should not be considered as an appeal
in the true sense. The Court of Appeal is restricted in its scope
and really have the power only to examine the propriety or the legality
of the order made by the learned High Court Judge in the exercising of
its revisionary jurisdiction.
It is to be noted that, it was the contention of the 1st Party Respondents that they are entitled to use the disputed foot
path, which is described in the 3rd Schedule
of their affidavits dated 23.01.2019.
Since the dispute was relating to a foot path, it is clear that the
dispute between the parties
comes within the purview of Section 69 of the Primary Courts’
Procedure Act.
Section 69 stipulates that;
“(1) Where the dispute relates to any right to any land or any part of a
land, other than the right to
possession of such land or part thereof, the Judge of the Primary Court shall determine as to who is entitled to the
right which is the subject
of the dispute and make an order
under subsection (2).
(2) An order under this subsection may declare that any person specified therein shall be entitled to any such
right in or respecting the land or in any part of the land as may be specified in the order until such person is deprived of such right by virtue of an order or
decree of a competent court, and prohibit
all disturbance or interference with the exercise
of such right by such party other than under
the authority of an order or decree
as aforesaid.”
On behalf
of the Appellants, the case Ramalingam Vs. Thanagarajah [1982]
2 SLR 693 was cited;
“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 contradistinction to Section 68, Section 69 requires the Court to determine the question which party is entitled to the disputed
right preliminary to making an order under
Section 69(2).”
Furthermore,
the attention of Court was drawn to the case of Ananda Sarath Paranagama Vs. Dhamadinna Sarath
Paranagama CA (PHC) 117/2013 [C.A.M. 12.12.2013],
which observed that there are two ways in which the existence of such a road way can be
proved in the Primary
Court, They are;
1. By adducing proof of the entitlement as is done in a Civil Court,
2. By offering proof that he is entitled to the right for the time being.
It was further held that, “if you described a party as being entitled to
enjoy a right but for the time
being, it means that it will be like that for a period of time, but may change
in the future” (emphasis added).”
It was submitted on behalf of the Appellants that, in the circumstances
it is clear that the Respondents were required to establish that they had an ownership/entitlement to the said right of way or right to use the said foot path.
However, it was the contention of the Appellant that the Respondents had failed to establish
any entitlement to the purported right of way to use the foot path which is necessary to obtain an order in terms
of Section 69(2) of the Primary Courts’ Procedure
Act. As such, the learned Magistrate and the learned High Court Judge have erred in law by failing to identify
the fundamental purpose of the Legislature in
enacting Section 66 of the Primary Courts’ Procedure Act, which is to preserve the peace.
The learned High Court Judge has observed that since no party disputed
the pathway described in the 3rd Schedule
of the affidavit of the Respondents, the learned Magistrate had properly identified the disputed pathway and
correctly decided the matter in terms of Section 69 of the Primary Courts’
Procedure Act.
It is worthy to note that the learned
High Court Judge had stated
in the order that;
“එහිදී විෂයගත මාර්ගය අවහිර කිරීම සම්බන්ධයයන් 01.12.2018 වන දින උපාලි වීරසිංහ නමැති වගඋත්තරකරු
විසන් මහනුවර යපොලීසයේ විවිධ පැමිණිලි අිංශයට කරන ලද පැමිණිල්ලක් සම්බන්ධයයන් කරන ලද විමර්ශනයට අනුව යපත්සම්කාරිය යේ ස්වාමි
පුරුෂයා වන ගාමිණී ද සල්වා යන අය 02.12.2018 වන දින මහනුවර යපොලීසයේ විවිධ පැමිණිලි අිංශය යවත ප්රකාශයක් ලබා යදමින් විෂයගත මාර්ගය
සම්බන්ධයයන් තමාට විරුද්ධව පැමිණිලි කර ඇත්යත් උපාලි යන අය බවත් එම අය නිවසට යන්න තමායේ ඉඩයම් අයියනන් අඩිපාරක් පාවිච්චි කළ
බවත් මෑතක සට...........................................................................................................................................
.............................ඒ අනුව තමා නගර සභාවට
දැනුම් දී තමායේ වැට අයියන් තිබූ අඩි පාර වසා දැමූ බවත්, ඔවුනට යාම සඳහා යවනත් මාර්ගයන් ඇති බවත් පවසා ඇත.
එයට අමතරව විෂයගත ප්රාථමිමික අAකරන න යේ, වසයම් ග්රාම යසේවා නිලධාරීන් විසන් යපොලීසය යවත ලබාදී ඇති කටඋත්තරය ප්රකාරව 27.11.2018 වන දින යතක් යමම විෂයගත මාර්ගය පළමු
පාර්ශවයේ වගඋත්තරකරු විසන් සහ ගම්වාසීන් විසන් භාවිතා
කර ඇති බවට සහ විෂය මාර්ගය යදවන පාර්ශවයේ තුන්වන වගඋත්තර කාරිය විසන් යහෝ නියයෝජිතයන් විසන් අවහිර කිරීමක් කර ඇති බව ඉදිරිපත් වී ඇති කරුණු වලට අනුව සනාථමි යේ.”
It clearly manifests that the complaint made by the Respondents to the
Police Station, Kandy falls within the purview
of Section 69 of the Primary Courts’
Procedure Act which read as follows;
“(1) Where the dispute relates to any right to any land or any part of a
land, other than the right to
possession of such land or part thereof, the Judge of the Primary Court shall determine as to who is entitled to the
right which is the subject
of the dispute and make an order under subsection (2).”
In view of Section 75 of the Primary Courts’ Procedure Act, it defines a
dispute affecting a land as follows;
“dispute affecting land” includes any dispute as to the right to the possession of any land or part of a land and the buildings thereon or the
boundaries thereof or as to the right
to cultivate any land or part of a land, or as to the right to the crops or produce of any land, or part of a land, or as to any right in the nature of a servitude
affecting the land and any reference to “land” in this part includes a reference to any
building standing thereon.”
The
case of Tudor Vs. Anulawathi and another [1993] 3 SLR 235 at 245, explained
the scope of an order that could
be made in terms of Section 69 of the Act.
According to Section 69 (1) and 69 (2), after an inquiry,
a) the learned
Primary Court Judge has to determine as to who is entitled
to the right.
b) make an order that the person specified therein
shall be entitled
to such right until such person is deprived of that right by virtue
of an order or decree of a competent court.
c) prohibit
all interferences with or disturbances of that right other than under the authority of an
order or decree.
The Respondents had to establish that they are entitled to the use of the
impugned foot path as a servitudanal right as opposed
to the mere use of that servitude.
It was discussed in the case of Ramalingam Vs. Thanagarajah [supra], 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.
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. Thanagarajah [supra]
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 the 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 [supra], 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 1st 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 පමන දිගට කාලයක් පාවිච්චි
කරන ලද පාරක් තිබූ බවට සලකුණු ඇත.”
“දැනට දින කිහිපයකට පමන යපර යමම පායර් තැනින් තැන
වලවල් කපා ඉඩමට සුද්ධ කරන ලද ලකුණු දමා අවහිර කර පාර වසා ඇත.”
“වැයේ යමම දිනවලම ඉනි සටුවා කටු කම්බි ගසා අමු යපොල් 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 4th 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.
The attention of Court was drawn to the case of Ananda Sarath Paranagama Vs. Dhamadinna Sarath Paranagama [supra] which
dealt with the interpretation of the
word “entitlement”. It appears that a party does not need to establish a servitudanal right by cogent evidence as
is usually considered in a Civil Court. The required proof of the user’s right in terms of Section
69 (1) of the Act, is to consider a right in the nature of a servitude or
long term use. Thus, proving the enjoyment of the right at the time of the dispute arose is sufficient.
Therefore, it is clear that the learned
High Court judge had analyzed
and evaluated the evidence placed before the Primary Court and also applied the relevant law, and had affirmed the order of the learned
Magistrate who was acting as the Primary Court Judge.
Thus the Order
of the learned High Court judge is well founded.
In view of the findings of the learned High Court Judge, the Appellants
had not disclosed exceptional
circumstances, which would warrant the intervention of the Provincial High Court by way of an application
for revision.
Thus, it clearly manifests that the learned High Court Judge had
correctly affirmed the Order of the
learned Magistrate and had dismissed the Appellant’s application for revision. As such, we see no reason
for us to interfere with the Order dated 08.01.2020 by the learned
High Court Judge and the Order dated 24.06.2019 by the learned
Magistrate.
Hence, we dismiss the appeal with cost fixed at Rs. 50,000/-.
JUDGE OF THE COURT OF APPEAL
K.K.A.V. Swarnadhipathi, J.
I agree.
JUDGE OF THE COURT OF APPEAL
In the matter of an application for revision made in terms of Article 138 read with Article 154P (6) of the Constitution of the Democratic Socialist Republic of Sri Lanka of the order dated 8th January 2020 made by the Provincial High Court of the Central Province holden in Kandy.
Officer in Charge, Police Station, Kandy.
Vs.
Complainant
Court of Appeal Case No:
CA (PHC) 01/2020
High Court Kandy Case No: CP/HC/REV/77/19
Magistrate’s Court Kandy Case No. 17095/17
1. Hewakaduge Hansika Padmangani Keerthi,
No. 246, Ogastawatta, Kandy.
2. Upali Weerasinghe, No. 254, Ogastawatta, Kandy.
1st Party Respondents
3. Ranawana Hewa Vitharanalage Anoma Geethanjali Samarasena,
No. 253,
Ogastawatta, Kandy.
2nd Party Respondent
4. Badra Ilangakoon, No. 254/1, Ogastawatta, Kandy.
5. Pinwatte Kankanamalage Gnanawathi, No. 244,
Ogastawatta, Kandy.
6. Chandra Alwis, No. 247/1, Ogastawatta, Kandy.
7. Pushpa Tharanga Weerasinghe, No. 254 A,
Ogastawatta, Kandy.
8. Musuppaththulage Kotuwe Gedara Shriyani Priyanka,
No. 248,
Ogastawatta, Kandy.
9. Uduwage Shamika Anuradha, No. 254/1,
Ogastawatta, Kandy.
10. M.B. Samson Fernando.
11. Kamala Ilangakoon.
2nd Party Intervenient Respondents AND THEN BETWEEN
Ranawana Hewa Vitharanalage Anoma Geethanjali Samarasena,
No. 253,
Ogastawatta, Kandy.
2nd Party Respondent-Petitioner
Vs.
Officer in Charge, Police Station, Kandy.
Complainant-Respondent
1. Hewakaduge Hansika Padmangani Keerthi,
No. 246, Ogastawatta, Kandy.
2. Upali Weerasinghe, No. 254, Ogastawatta, Kandy.
1st Party Respondent-Respondents
4. Badra Ilangakoon, No. 254/1, Ogastawatta, Kandy.
5. Pinwatte Kankanamalage Gnanawathi,
No. 244,
Ogastawatta, Kandy.
6. Chandra Alwis, No. 247/1, Ogastawatta, Kandy.
7. Pushpa Tharanga Weerasinghe, No. 254 A,
Ogastawatta, Kandy.
8. Musuppaththulage Kotuwe Gedara Shriyani Priyanka,
No. 248,
Ogastawatta, Kandy.
9. Uduwage Shamika Anuradha, No. 254/1,
Ogastawatta, Kandy.
10. M.B. Samson Fernando.
11. Kamala Ilangakoon.
2nd Party Intervenient Respondent-
Respondents
AND NOW BETWEEN
Ranawana Hewa Vitharanalage Anoma Geethanjali Samarasena,
No. 253,
Ogastawatta, Kandy.
Vs.
2nd Party Respondent-Petitioner-
Appellant
Officer in Charge, Police Station, Kandy.
Complainant-Respondent-Respondent
1. Hewakaduge Hansika Padmangani Keerthi,
No. 246, Ogastawatta, Kandy.
2. Upali Weerasinghe, No. 254,
Ogastawatta, Kandy.
1st Party Respondent-Respondent-
Respondents
4. Badra Ilangakoon, No. 254/1, Ogastawatta, Kandy.
5. Pinwatte Kankanamalage Gnanawathi, No. 244,
Ogastawatta, Kandy.
6. Chandra Alwis, No. 247/1, Ogastawatta, Kandy.
7. Pushpa Tharanga Weerasinghe, No. 254 A,
Ogastawatta, Kandy.
8. Musuppaththulage Kotuwe Gedara Shriyani Priyanka,
No. 248,
Ogastawatta, Kandy.
9. Uduwage Shamika Anuradha, No. 254/1,
Ogastawatta, Kandy.
10. M.B. Samson Fernando.
11. Kamala Ilangakoon.
2nd Party Intervenient Respondent- Respondent-Respondents
Before: Prasantha De Silva, J.
K.K.A.V. Swarnadhipathi, J.
Counsel: Priyantha Alagiyawanna with Isuru Weerasooriya and Heshani Gunawatne for the 2nd Party Respondent- Petitioner-Appellant instructed by Purnima Gnanasekara. Anura Maddegoda PC with Nadeesha Kannangara for the 1st Party Respondent-Respondent-Respondent.
Written Submissions 11.01.2021 by the 2nd Party Respondent-Petitioner- tendered on: Appellant.
Argued on: 23.02.2022
Decided on: 13.10.2022
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