Land related lawsuits in Sri Lanka are many in number. They take a long time as well. As a result, too many people are trying to kill each other over land issues. Land could mean a lot to a family- it could be their whole life. If they are going to lose the land which they consider to be their whole life, incidents that lead to murder are likely to happen. Sections 66 to 78 of the Primary Courts Procedure Act clearly provides for such breaches of peace in relation to the possession of a land.
These cases also belong in the category of preventive lawsuits that I mentioned earlier. There is no punitive action here. Punishment is meted out only if the order is violated. Punishments given when an order is violated are stipulated in Section 73 of the Act.
The Act describes clearly the functions of the police in this regard. However, the police rarely files cases under the Act at present. In most situations, the case will have to be filed privately. Section 136(1)b of the Criminal Procedure can be availed for this purpose. Under these provisions, the case takes the form of a summary civil case. Although these cases are viewed as cases pertaining to the possession of land, they are a remedy to prevent breach of peace. In these cases, no party will be punished and the possession of the land will be given to whichever party that the courts are satisfied as rightful possessors. If a party is not satisfied with the determination of the court, they may file a civil case in an appropriate court of law to seek a determination. Due to this reason, action taken under this Section could be a temperory measure, similar to action taken under Section 81. In other words, it is applicable only until a specific action is taken.
Before the Act was in effect, this matter was covered under Section 62 of the Administration of Justice Act. Provisions in this Act were mostly similar to that of Section 145 of the Indian Criminal Procedure, and in my opinion, the Indian Act was much broader than ours. Although the Sri Lankan Act was not very broad, the law in this regard had grown extensively with a large number of judgments. In India, the law extends to cover water, agricultural land and markets. See the link below for more details: https://indiankanoon.org/doc/1405190/
Let us now go through the Act. If parties engage in acts that breach the peace due to an issue regarding the possession of a land, the matter can be brought before the Magistrate Court of the respective area under the provisions of the Act. The police will have to report the matter to the courts. Accordingly, the relevant parties to the report are presented to the court by the police and, if necessary, remanded. Both parties are given no more than 3 weeks to submit their claims through affidavits and documents. In many cases, it is customary to go to the higher courts for non-compliance with the time and procedure of this Act. This is where the cases take a unique form.
In such affidavits, the parties have to present to the court in writing how they are in possession of this land and after that, there is another two weeks time for cross affidavits. The inquiry will then start in no more than 3 weeks. The inquiry takes place through oral and written submissions. However as a rule, oral submissions are not allowed and only written submissions are made. In some cases, site inspections are carried out only on urgent requests, unless absolutely necessary.
There is a provision in this Act that if possible, a settlement should be made. If it was not done, it could be claimed that it was the fault of the Magistrate. Also, a notification in this regard should be affixed on the property in question with the signature of the Registrar of Courts. This is essential. Further, the law states that a decision must be made within a week of the end of the inquiry. According to the Act, the case should be completed within 3 months. In some occasions, these provisions are not followed to the letter. Once an order is made, it is executed via the fiscal officer with the assistance of the police.
If a party to the case does not appear or the affidavit is not filed or not given, that party will be treated as the defaulter and the other party will be given possession of the land. Most importantly, the claimant must prove that they have been in possession of the land for 2 months prior to the complaint. Often, the case can be pursued on the grounds that it is a breach of the peace or a breach of the peace is imminent. However, it must be proven that there was a breach of peace. Otherwise the case will end with no order being issued as there was no breach of peace.
The breach of peace must be established through police complaints, Grama Niladhari complaints and other evidence. I mentioned that in a case like this, it could be amended only on specific legal grounds. In view of the apparent violation of the provisions of the above Act and the intentions of the legislature in that Act, there are instances where the case is often dismissed on grounds that there is no breach of peace. In such scenarios, case law indicates that imminent breach of peace could also be important in cases coming under Section 66. Such dismissal would then be amended through revision. The case will then be sent back to the Magistrate’s Court where it will have to be reconsidered. It does not matter who owns the title. In this situation, only possession matters.
In matters related to land, interim injunctions Section 68 (3) too can be obtained. There are no appeals for this. This has no appeals – only amendments. There would be nothing during the revision period. Interim orders are often taken. Or one party may be prejudiced. The law has progressed tremendously as there are many judgments in this regard under the Act. Article 69 deals largely with matters such as non-land roads or other rights.
It has been stated in the judgments that the guardians, pastors or custodians of places of worship could not sue or sue for possession of the property as it belongs to God – and the Act cannot be applied to paddy lands either. In such instances, the Agrarian Services Act applies.
I think there are still ambiguities. Further development is necessary through court determinations. Matters such as whether it is a semi-criminal case, whether the presumptive possession is valid and many other very interesting matters have been established through judgments. The edited version will be released on Tuesday or Wednesday. Ask questions – give feedback – share your knowledge with me. Then I will be able to make this even more interesting.
By: Lakshan Dias, Attorney at Law