REI VINDICATIO
Sri Lanka Law Reports
2013 - Volume 1 , Page No - 18
LUCKMANJEE VS. DIAS
ABDUS SALAM. J.
CA 606/99[F]
DC COLOMBO 17396/L
MARCH 26, 2012
Rei Vindication action - Subject matter vested in Commissioner of National Housing? - Proof of same - Admission of ownership - Relevancy- Burden of proof? - Misdirection?
The
plaintiff -appellant sought a declaration of title to the corpus and ejectment of
the defendants there from. The defendant whilst denying the matters urged,
pleaded that the subject matter was vested in the Commissioner of National
Housing [CNH] in terms of a Gazette Notification and that the CNH has
transferred the land in his favour. The trial Court held with the defendant,
holding that the plaintiff had not established his title.
Held:
(1) The trial Judge has failed
to take into consideration the 4th admission recorded which invariably should
have led to the conclusion that the plaintiff was the owner of the premises in
suit prior to 13.1.1974.
The trial Judge has totally
disregarded the admission of ownership of the plaintiff.
(2) The defendant has failed
to prove the documents on which he relied to establish that the property in
question has vested in the Commissioner.
(3) In the teeth of the
admission of ownership the plaintiff is entitled to obtain a declaration that
she sought.
Per Abdus Salam. J
"It appears to me that
the learned District Judge has misdirected himself with regard to the burden
of proof and such misdirection has ended up in a travesty of justice - since
the misapplication of the law has culminated in such a miscarriage, I consider
it a paramount duty arising from the appellate jurisdiction of this Court to
set aside the impugned judgment..."
APPEAL from a judgment
of the District Court of Colombo.
Case referred to :-
Siyaneris vs.
Jayasinghe 52 NLR 289
Romesh de Silva PC with
Geethaka Gunawartlane for plaintiff-appellant.
D.M.G. Dissanayake for
defendant-respondent.
September 11,2013
ABDUS SALAM, J.
The plaintiff-appellant
(hereinafter referred to as the "plaintiff") filed action against the
defendant-respondent (hereinafter referred to as the "defendant")
seeking inter alia a declaration of title to the property more fully described
in schedule 2 to the plaint, ejectment of the defendant therefrom and damages
as prayed for in prayer 'c' to the plaint. The defendant in his answer denied
the averments in the plaint and pleaded that the subject matter of the action
had vested ·in the Commissioner of National Housing by operation of the Ceiling
on Housing Law No 1 of 1973, in terms of the Gazette notification referred to
in the answer. He further averred that the Commissioner of National Housing by
deed No 16540dated 14 0ctober 1995 transferred the land and premises in
question in his favour. Nevertheless, the defendant did not seek a declaration
of title in the answer. At the commencement of the trial the following
admissions were recorded, to wit that. . .
1.
the defendant is in possession of the subject matter of the action more fully
described and set out in schedule 2 to the plaint.
2.
the defendant claims title to the said premises described in schedule 2 to the
plaint.
3.
the court is vested with jurisdiction to adjudicate on the dispute.
4.
the plaintiff was the owner of the subject matter of the action prior to 13
January 1974.
The plaintiff gave
evidence and closed her case producing two documents marked as Pl and P2. The
defendant also testified in presenting his case and marked three documents as
Dl, D2 and D3 subject to proof. When the case of the defendant was closed the
learned President's Counsel for the plaintiff insisted on the proof of D1 to D3
which had been allowed to be produced subject to proof. Yet, the defendant took
no steps to prove them. By judgment dated 23 July 1999 the learned Additional
District Judge dismissed the plaintiff's action. This appeal has been sought by
the plaintiff.
Noticeably, the
dismissal of the action was on the premise that the plaintiff had failed to
establish her title. One of the arguments advanced on behalf of the plaintiff
was that by reason of the admission relating to the ownership of the premises
in suit prior to 13 January 1974, had not been properly considered by the trial
Judge. The learned President's Counsel urged with much emphasis that had the
trial Judge properly adverted to the admission of ownership of the plaintiff,
he ought to have decided the case in favour of the plaintiff. Consequently, he
submitted that the trial Judge has erred in dismissing the plaintiff's action.
Further the learned
Presidents Counsel strenuously argued that the learned Additional District
Judge has misinterpreted and misapplied the ratio in the judgment of Siyaneris
vs. Jayasinghe (l) to the facts and circumstances of the present case. He
further urged that the Additional District Judge had erred in holding that the
property in question had vested with the Commissioner of National Housing for
reasons inter alia that a property according to law normally vests in the
Commissioner of National Housing by operation of the Ceiling on Housing
Property Law and not by a notification appearing in the Gazette.
The Commissioner of
National Housing was not called as a witness to prove the documents marked in
evidence by the defendant and the plaintiff's evidence as to the fact that the
property in question had not vested was not contradicted by evidence to the
contrary.
At this stage, it is
quite appropriate to refer to the unqualified admission made by the parties,
prior to the commencement of the argument of this appeal. As it appears from
the minute dated 28.11.2012, it is admitted by the parties that the Court of
Appeal has by its judgment dated 15 October 2004 quashed the determination made
by the Commissioner of National Housing vesting the property in question.
In the case of
Siyaneris vs. Jayasinghe (supra) it was held that in a declaration of title to
a property where the legal right is in the plaintiff but the property is in the
possession of the defendant, the burden of proof is on the defendant. On a
close scrutiny of the reason adopted in the judgment, it appears that the
learned District Judge has failed to take into consideration the 4th admission
recorded between the parties which invariably should have led to the conclusion
that the plaintiff was the owner of the premises in suit prior to 13.1.1974.
In the impugned
judgment at page 5 the learned District Judge has totally disregarded the
admission of ownership of the plaintiff, by his erroneous finding that the
defendant had never admitted the ownership of the plaintiff of the subject of
the action. For purpose of ready reference the said statement made by the
learned District Judge in the judgment is produced hereunder.
As a matter of law, the
plaintiff need not have proved anything by reason of the admission. Thus the
learned District Judge had erred in law when he held that the plaintiff had
failed to prove her title to the premises in suit. I am in total agreement with
the learned President's Counsel that the learned District Judge had failed to
take into consideration the admission of ownership of the plaintiff, which
admission if the District Judge had properly taken cognizance would not have
resulted in his having placed the plaintiff under a duty to establish the
title, despite the said admission.
As has been urged on
behalf of the plaintiff the learned Additional District Judge had also erred in
holding that the property in question had vested with the Commissioner of
National Housing, as a property vests in the Commissioner of National Housing
in terms of the Ceiling on Housing Property Law by operation of law and not by
virtue of the notification published in the gazette.
Another important
observation, I am bound to make at this stage is that the defendant has failed
to prove the documents on which he relied namely D1, D2 and D3 by calling the
National Housing Commissioner or a representative to establish that the
property in question had vested with the Commissioner of National Housing. As
the defendant has failed to establish this assertion, in the teeth of the
admission of ownership, the plaintiff is entitled to obtain a declaration that
she has sought.
It is to be observed
that the plaintiff as the petitioner in C.A writ application No 233/94 has
sought a writ of certiorari to quash the order dated 17 October 1979 and 31
December 1979 or any other orders that might have been made under the Land
Acquisition Act in respect of the premises bearing Assessment No 56 which is
the subject matter of this action and in the alternative a writ of mandamus
directing the Honourable Minister of Land and Land Development to direct the
premises No 56 and 60, Sri Sangaraja Mawatha, under Section 30(a) of the Land
Acquisition Act and to restore the petitioner to possession and a writ of
certiorari to quash the certificate dated 17 February 1979 issued under the
Section 49 of the National Housing Act No 37 of 1954 by the Minister of
National Housing and Construction and a writ of mandamus directing the 3rd
respondent namely the Minister of Housing and Construction to restore the
petitioner to possession of the said premises and a writ of mandamus directing
the 4th respondent the National Housing Development Authority to vacate the
said premises, remove any encumbrances, and to restore the petitioner to
possession of the said premises.
The aforesaid writ
application having been taken up for argument in which the State had been
represented by Mr Mohan Pieris, Senior State Counsel (as he then was) this
court decided that the acquisition was not bona fide in the lawful exercise of
the powers vested in the Minister. It was further held in that case that if the
land was genuinely acquired for a public purpose as stated in the order and
certificates, it should have been made use of by the State for the object or
other public purposes during the 15 years that lapsed since the acquisition. In
the circumstances, the Court of Appeal allowed the application and granted the
petitioner in that case, namely the appellant in this case the reliefs prayed
for in paragraph 1 of the prayer to the petition.
Taking into consideration
the evidence of the plaintiff the documents produced by her and the admission
No 4,the learned District Judge should have declared the plaintiff as the owner
of the subject matter of the action on the strength of the ratio in the case of
Siyaneris (supra).
As such, it appears to
me that the learned District Judge has misdirected himself with regard to the
burden of proof and such misdirection has ended up in a travesty of justice.
Since, the misapplication of the law has culminated in such a miscarriage, I
consider it a paramount duty, arising from the appellate jurisdiction of this
court to set aside the impugned judgment and grant the plaintiff the reliefs
prayed for in the amended plaint dated 11 July 1997 save and except the prayer
c to the plaint.
Consequently, I direct
that judgment be entered for the plaintiff as prayed for in paragraphs a, b and
c of the prayer to the amended plaint dated 11 July 1997. Subject to the above,
the appeal is allowed and the impugned judgment set aside.
The plaintiff is
entitled to the costs of this appeal.
Appeal Allowed
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