IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an application for
Leave to Appeal under Section 5C of the High Court of the Provinces (Special
Provisions) At No. 54 of 2006.
Nandasena
Wickramasekara Rajapaksha, No. 51, New Town, Kataragama.
SC
APPEAL No. 125/2010
DEFENDANT - APPELLANT - APPELLANT SC (HC)
CALA No. 350/2009
SP/HCCA/MA/198/2003F -Vs-
DC Tissamaharama Case No. L.26/1997
1. Wanniarachchi
Kankanamalage Temawathie,
2.
Wanniarachchi Kankanamalage Julie Nona, Both of No.
104, Old Buttala Road, Kataragama.
PLAINTIFFS
– RESPONDENTS - RESPONDENTS
BEFORE
: Hon.
Saleem Marsoof, P.C., J,
Hon. Sisira J. de Abrew, J, and Hon.
Sarath de Abrew, J.
COUNSEL : W.
Dayaratne, P.C. with R. Jayawardane and S.T. de Zoysa for
the Appellant - Appellant - Appellant.
Manohara
de Silva,
P.C.
with Ms. Pubuduni
Wickramarathne and H. Munasinghe
for the Plaintiff - Respondent - Respondent.
ARGUED ON
: 07.07.2014
and 02.09.2014
Written Submissions : 16.5.2012
(Appellant) 19.5.2012 (Respondents)
DECIDED
ON : 17.12.2014
SALEEM MARSOOF, P.C., J,
This is an appeal from the judgment of the High Court for
the Southern Province holden in Matara exercising civil appellate jurisdiction
(hereinafter referred to as “the Civil Appellate High Court”) dated 12th November 2009 which
affirmed the judgment of the District Court of Tissamaharama dated 17th
July 2003 granting the Plaintiffs-Respondents-Respondents (hereinafter referred
to as “the Respondents”) certain relief against the
Defendant-Appellant-Appellant (hereinafter referred to as “the Appellant”).
This Court has granted leave to appeal against the said
judgment of the Civil Appellate High Court on the following substantive
questions of law set out in paragraphs 12(b), 12(c), 12(d) and 12(h) of the
petition of appeal, which read as follows:-
(b) Did
their Lordships of the Civil Appellate High Court as well as the learned trial
judge err in law when they held that the Plaintiffs-Respondents-Respondents had
inherited the title of Wanniarachchi Kankanamlage Babun Appuhamy, when he did
not even have an annual permit to the corpus?
(c) Did
their Lordships of the Civil Appellate High Court err in law when they
seriously misdirected themselves by treating the action filed by the said
Respondents as a rei vindicatio
action and declared that the Respondents are the owners, when the learned trial
judge had held that this is not a rei
vindicatio or a declaratory action and therefore he cannot declare that
Babun Appuhamy was the owner, and would consider this only as a possessory
action?
(d) Did
their Lordships of the Civil Appellate High Court as well as learned trial
Judge err in law when they failed to consider that the Respondent’s action is
time barred in terms of Section 4 of the Prescription Ordinance?
(h) Did their Lordships of the Civil
Appellate High Court as well as the learned trial Judge err in law when they
totally disregarded the evidence of the witness who prepared js1 and also
signed as a witness, whose evidence was not contradicted and which would
clearly disprove the Respondents’ contention that they were in possession of the
corpus?
Before considering the submissions of the learned
President’s Counsel for the Appellant and the Respondents, it might be useful
to outline the material facts.
The Factual Matrix
Wanniarachchi Kankanamlage Babun Appuhamy, who was the
father of the two Respondents, Temawathie and Julie Nona, had been the owner of
lot 453 of the land described in Topographical Survey Plan No 25 pertaining to
Kataragama, which was 33.2 perches in extent, which was acquired under the Land
Acquisition Act No. 9 of 1950, as amended, for the Kataragama Sacred City
Project. In lieu of the said land, the government allotted to Babun Appuhamy,
lot 1295 of Detagamuwehena, in extent 40 perches, which is the land described
in the schedule to the plaint filed by the Respondents in the District Court of
Tissamaharama, until they were evicted on or about 27th November
1996 from the said corpus by the
fiscal. The Respondents claim that they were deprived of their possession of
the land by virtue of an order made in favour of the Appellant in terms of
Section 68 of the Primary Courts’ Procedure Act No. 44 of 1979, as amended, in
Primary Court Tissamaharama case No. 36365, which the Respondents claim was
obtained by misleading Court through a total abuse of the judicial process.
It is common ground that the said land is State Land, and
it is also evident that no permit had been granted to Babun Appuhamy, and the
Respondents claim that Babun Appuhamy was allotted and put into occupation of
the land on the basis that he will be issued in due course with a permit in
terms of the Land Development Ordinance, No 19 of 1935, as amended. Babun
Appuhamy died in 1977, and the Respondents claim that upon the death of their
father, their mother possessed the land, but she died of a bomb explosion in
1989 as a result of which the 1st Respondent, Temawathie, also was
seriously injured, but they continued to possess the land until they were
evicted on or about 27th November 1996 by an order made by the
Primary Court.
By their plaint dated 16th January 1997, the
Respondents sought the following relief from the Appellant:-
^w& fuu bvfus
uq,a usyslre iy N=la;slre jQfha jkakswdrpsps lxldkus,df.a nnqka wmamqydus njg
m%ldYhlao,
^wd& me1 orK
f,aLKh, jxpd je,elajSfus wd{dmkf;a jsOsjsOdk j,g mgyeks f,aLKhla njg ;Skaoq
m%ldYhlao,
^we& me1 orK
f,aLKh u; fuu js;a;slreg fuu bvug kS;HdklQ +, ysuslula ,enS ke;s njg m%ldYhlao,
^wE& js;a;slre iy
Tyq hgf;a ysuslus lshk ish,a,kau tlS bvfuka bj;a fldg fuu meusKs,slrejka tlS
bvfus N=la;sfha msysgqjSfus ksfhda.hlao,
^b& 1996.11.27
osk isg iEu uilgu re(1500$- ne.ska, N=la;sh Ndrfok oskh olajd w,dNo, tlS w,dNuh
jdKsc fmd,sho js;a;slref.ka whlr .ekSfus ksfhda.hlao,
^B& m%d:usl wOslrKfha wxl 36365 orK kvqjg bosrsm;a lsrSu
ksid fuu meusKs,slrejkag oerSug isoqjQ kS;s lghq;= jshous jYfhka remsg,a 25,000$-
l uqo,la yd 1996.11.27 osk isg th f.jk oskh olajd Bg jdKsc fmd<sho ,nd.ekSu
i|yd ksfhda.hlao,
^t& fuu kvqfjs
kvq .dia;= iy .re wOslrKhg iqoqiq hhs yef.k fjk;a iy wfkl=;a iykhkao fjs.
When translated into English, the prayers for relief would
read as follows:-
(a)
a declaration that Wanniarachchi Kankanamlage Babun
Appuhamy was the original owner and possessor of the subject matter;
(b)
a declaration that the documents marked me1 is contrary
to the provisions of the Prevention of Frauds Ordinance;
(c)
a declaration that the document marked me1 does not
give the Appellant any legal entitlement to the land in dispute;
(d)
a decree for an ejectment of the
Defendant-Appellant-Appellant and all those claiming title under him and to
restore the Respondents back in possession;
(e)
damages in a sum of Rs. 1500/- per month and interest
thereon from the Appellant from 27.11.1996 until the possession is handed back
to the Respondents; and
(f)
a decree to recover, legal expenses in a sum of
Rs.25,000/- incurred by the Respondents in case No. 36365 filed in the Primary
Court from 27.11.1996 until the payment in full.
The Appellant filed his answer on or about 31st
July 1997, denying the several averments contained in the plaint and praying
for (a) an order that the plaint is not in conformity with Section 46 of the
Civil Procedure Code, (b) a judgment that that the Respondents are not entitled
to maintain the action without making the State a party, (c) a judgment that
the Respondents are not entitled to any reliefs prayed for in the plaint, (d)
for judgment in the sum of Rs. 50,000/- as damages for the defamation and
injury caused to the Appellant’s social status and the mental pain suffered by
the Appellant as a result of the institution of the instant action by the
Respondent alleging fraud and dishonesty on the part of the Appellant, and (e)
for costs.
At the commencement of the trial, the parties admitted the
jurisdiction of court, and also further admitted that the said Babun Appuhamy
possessed the corpus consisting of the 40 perch land described in the schedule
to the plaint, that the said Babun Appuhamy is now dead, that the Appellant is
a Post Master and a Member of the Katharagma Pradeshiya Sabha and that the
document annexed to the plaint marked me1 was produced in Primary Court
Tissamaharama case No. 36365. Thereafter, the Respondents raised issues 1 to 8,
which are reproduced below:-
1.
tlS nnqka wmamqydusf.a cSjs; ld,fhaoS fuu kvqjg jsIh jk
bvu js;a;slre kug wkai;= fkdlrk ,oafoa o@
2.
tlS nnqka wmamqydus jsiska orK ,o nqla;sh fya;=fjka
kS;sh bosrsfha Tyq whs;slre yd $ fyda ysuslre njg kS;sfhka mQraj ks.ukh l<
hq;=o@
3.
96.11.27 osk mgka ;siaiuydrdu m%d:usl wOslrKfha wxl
36365 orK kvqfjs ksfhda.h
u.ska meusKs,slrejkaf.a
nqla;sh wysus jS weoao@
4.
tfia meusKs,slrejkaf.a nqla;sh wysus jQfha tu m%d:usl
wOslrKfha kvqfjs oS fuu js;a;slre jsiska bosrsm;a lrk ,o osjsreus m%ldY iy
f,aLK fya;=fjka o@
5.
meusKs,a, iu. f.dkqfldg we;s me.1 orK f,aLKh u;
js;a;slreg lsisu kS;Hdkql+, ysuslula fuu jvqfjs jsIh jia;=j iusnkaOfhka
fkd,efnso@
6.
me.1 orK f,aLKh jxpd je<elajSfus w{d mkf;a jsOsjsOdk
j,g mgyeks l+g iy kS;sjsfrdaOs f,aLKhla o@
7.
m%d:usl wOslrKfha wxl 36365 kvqfjs bosrsm;a lrk ,o
js;a;slref.a osjsreus m%ldY u.ska fuu bvu nnqka wmamqydusg wh;aj nqla;s js|sk
njg js;a;slre jsiska lrk ,o m%ldYhla m%;slafIam lsrSfuka js;a;slre m%;snkaOkh
jS weoao@
8.
by; i|yka m%Yak j,g Tjs hkqfjka ms<s;=re ,efns kus
meusKs,slrejkag meusKs,af,a b,a,d we;s iyk ,ensh hq;= o@
Of the issues 9 to 18 raised by the Appellant, the most
material for this appeal were issues 9, 10, 13 and 18, which are reproduced
below:-
9.
fuu jsIh jia;=fjs nqla;sfha isgs nnqka wmamqydus,
meusKs,a, bosrsm;a lsrSug jraI 20 lg muK fmr jsIh jia;=fjs idulduS nqla;sh
js;a;slreg ndroS bj;aj .sfha o@
10.
tosk isg js;a;slre jsIh jia;=j wLKavj nqla;s js|f.k
tkafka o@
13. js;a;slre jsIh
jia;=j oekg wjqreoq 20 lg fmr isg weo olajd ixjraOkh lr nqla;s js|skafka
o@
18. by; i|yka mekhkag js;a;slref.a jdishg W;a;r
,efnkafka kus W;a;rfha b,a,d we;s iyk js;a;slreg ,ensh hq;=o@
I have not reproduced the other issues of the Appellant,
which were entirely procedural in nature, such as whether the plaint discloses
a cause of action against the Appellant, whether the action can be maintained
without adding the State as a party, or whether the action was undervalued,
which should have been taken up and dealt with by way of motion before the case
was set for trial.
At the trial, the two Respondents testified, and also
called witnesses Aluthgedara Henry Dias, who was a Colonization Officer of the
Kataragama Divisional Secretariat Office, Herath Mudiyansalage Vini Lalith
Abeywickrema, who was Deputy Director of the Town and Country Planning
Department, Battaramulla, and Nawaratne Dheerasinghe Mudiyanselage Vijitha, who
was a Planning Officer of the Surveyor General’s Department. The Respondents
concluded their case by marking in evidence documents me1 to me8.
Thereafter, the Appellant testified on his behalf, followed
by the evidence of Kuda Antonige Manuel, Chandrasena Wickramarachchi, and
Palitha Devanarayana, who was a subject Clerk of Pradeshiya Sabha, Kataragama.
The Appellant concluded his case marking in evidence documents js1 to js5.
After the conclusion of the trial, both parties were directed to file written
submissions. After the filing of written submissions, the learned District
Judge pronounced judgment on 17th July 2003 in favour of the
Respondents. The reasoning of the learned District Court Judge is unclear as to
whether the Court regarded the present case to be rei vindicatio action or a possessory action. At page 9 of his
judgment, the learned District Court Judge stated:-
“meusKs,slrejka jsiska
bvfus uq,a ysuslre jYfhka ;u mshdg whs;s njg m%ldYhla lrk fuka b,a,d we;;a
meusKs,af,a i|yka lreKq iy kvq jsNd.fha oS by; bosrsm;a lrk ,o lrKq wkqj tfia ‘whs;shla’
m%ldYlrjd .ekSu meusKs,slreg ffk;sl yelshdjla fkdue;s nj meyeos,s fjs. kuq;a
meusKs,af,a wdhdpkfha bosrsm;a lr we;s mrsos Bg wvq ;;ajhla jk nqla;s js|Sug
m%ldYhla ,nd .ekSug yelshdjla we;s nj fmkS hhs.”
The District Court granted relief to the Respondent in the
following terms:-
“ta wkqj meusKs,af,a
wdhdpkfha ^w& u.ska b,a,d we;s mrsos fuu bvu N=la;s js|Sug nnqka wmamqydusg
ysuslula ;snQ njg ;SrKh lrus. wdhdpkfha ^wE& mrsos js;a;slreg tfrysj
N=la;sfha msysgSug meusKs,slrejkag ksfhda.hla ksl=;a lrus.”
The Appellant preferred an appeal against the decision of
the District Court to the Court of Appeal, but the case was subsequently
transferred to the Civil Appellate High Court of the Southern Province holden
in Matara, which enjoys concurrent jurisdiction with the Court of Appeal. The
Civil Appellate High Court, after hearing both parties, pronounced its judgment
on 12th November 2009, affirming the judgment of the learned
District Judge and dismissing the appeal. It would appear from page 11 of the
judgment of the Civil Appellate High Court which is reproduced below, that the
Court considered the case to be one of rei
vindicatio, albeit with defective pleading, which that Court was willing to
overlook or rectify on the basis of equity:-
“fuu bvfus uq,a ysuslre
yd N=la;slre jQfha jkakswdrpsps lxldkusf.a nnqka wmamqydus f,ig m%ldY lrk f,ig
meueKs,sldr j.W;a;rlrejka ish wdhdpkfha wheo ke;. tfia jqjo kvqj mjrd we;af;a
meusKs,sldr j.W;a;rlrejka nejska Tjqkag fuu foamf,a whs;shla we;s njg ;yjqre
lsrSug wdhdpkfha wheo ke;. th meusKs,af,a kS;sS{ uy;d kvqj iusnkaOfhka ksis
wjfndaOhlska f;drj l, l%shdjlska meusKs,sldr j.W;a;rlrejkag w.;shla isoqjk njhs.
meusKs,slrejka fuu foam, whs;s njg ;Skaoq m%ldYhla wheo fkd;snSu u; Tjqkag
idOdrK;aj kS;sh (law if equity) ,efnk iykh fkdoSug wOslrKh ;SrKh lrhs kus th
ksjeros fkdjkq we;.
ta wkqj fuu foam, nnqka
ydusg whs;shj ;snqKq njg ;SrKh lsrSu tu whs;sjdislus Tyqf.a orejkag fuu foam,
ysusjsh hq;= njg ;SrKh lrus. flfia jqjo ush.sh ;eke;af;l=g fuu foam, wh;a njg
;SrKh lsrSug fuu wOslrKhg fkdyels jk w;r, ush.sh ;eke;af;l=g wOslrKhla jsiska
whs;sj ;yjqre lsrSug yelshdjla ke;. ta wkqj ush.sh nnqka wmamqydusg whs;sh ;snQ
nj muKla ks.ukh l,yelsh. ta wkqj fuu kvqfjs meusKs,af,a wdhdpkfha we;=,;a
l,hq;= iykhla jk j.W;a;rlrejkag fuu foam,g ish ush.sh mshdf.a whs;sjdislus u;
fuu foam,g whs;shla we;s njg m%ldYhla b,a,d isgSug meusKs,a, f.dkqlsrSfus oS tu
wdhdpkfha i|yka l< hq;= w;r tfia fkdjSu ;=,ska j.W;a;rlrejkag tu iykh m%odkh
fkdlsrSu by; i|yka fya;= u; kqiqoqiq nejska Tjqkag tu foma,g whs;shla we;s njg
;SrKh lrus.”
Being
aggrieved by the said judgment of the Civil Appellate High Court dated 12th
November 2009, the Appellant filed an application seeking Leave to appeal to
this Court, and as previously noted, this Court granted Leave to Appeal on the
several substantive questions referred to at the commencement of this judgment.
Respondents’ Right to Succession
The first matter for consideration by this Court as set out
in question (b) on which leave to appeal has been granted is whether the Civil
Appellate High Court as well as the learned trial judge erred in law when they
held that the Respondents had inherited the title of Wanniarachchi Kankanamlage
Babun Appuhamy when he did not even have an annual permit to the corpus.
It is common ground that the subject matter of the action
was State Land, and it is also evident that Babun Appuhamy, the father of the
Respondents had been put into occupation of the land described in the schedule
to the plaint, by the State, but to date, neither Babun Appuhamy nor any of the
children of Babun Appuhamy including the Respondents had been granted any permit
for the land by the State.
When the land in dispute is State land that has been
alienated or granted under the Land Development
Ordinance, the issue of succession has to be determined
exclusively with reference to the provisions of the Land Development Ordinance.
Section 170(1) of the Land Development Ordinance No. 19 of 1935, as amended,
provides that:-
“No written law (other than this Ordinance) which provides
for succession to land upon an intestacy and no other law relating to succession to land upon an intestacy shall have any application in respect of
any land alienated under this Ordinance.” (emphasis
added)
Section 48 of the Land Development Ordinance defines “succession”
as follows:-
“In this Chapter "successor", when used with
reference to any land alienated on a permit or a holding, means a person who is
entitled under this Chapter to succeed to that land or holding upon the death
of the permit-holder or owner thereof, if that permit-holder or owner died
without leaving behind his or her spouse, or, if that permit-holder or owner
died leaving behind his or her spouse, upon the failure of that spouse to
succeed to that land or holding or upon the death of that spouse.”
The Appellant has argued that is only a nominated successor
who can succeed to land granted under the Land Development Ordinance. However,
this is an incorrect proposition in law. Section 72 of the Land Development
Ordinance states that:-
“If no successor has been nominated, or if the nominated
successor fails to succeed, or if the nomination of a successor contravenes the
provisions of this Ordinance, the title to the land alienated on a permit to a
permit-holder who at the time of his or her death was paying an annual
installment by virtue of the provisions of section 19 or to the holding of an
owner shall, upon the death of such permit-holder or owner without leaving
behind his or her spouse, or, where such permit-holder or owner died leaving behind
his or her spouse, upon the failure of such spouse to succeed to that land or
holding, or upon the death of such spouse, devolve as prescribed in rule 1 of
the Third Schedule.”
The Third Schedule to the Land Development Ordinance is
reproduced below:-
THIRD SCHEDULE
RULES
1. (a) The groups of relatives from which a successor may
be nominated for the purposes of section 51 shall be as set out in the
subjoined table.
(b)
Title to a holding for the purposes of section 72 shall devolve on one only
of the relatives of the permit-holder or owner in the order of priority in which they are respectively mentioned in
the subjoined table, the older being preferred to the younger where there
are more relatives than one in any group.
Table
|
(i)
Sons. (ii)
Daughters. (iii)
Grandsons. (iv)
Granddaughters. (v)
Father. |
(vii)
Brothers. (viii)
Sisters. (ix)
Uncles. (x)
Aunts. (xi)
Nephews. |
|
(vi) Mother. |
(xii) Nieces. |
In this rule, “relative” means a relative by blood and not
by marriage
2. Where in any group of relatives mentioned in the table
subjoined to rule 1, there are two or
more persons of the same age who are equally entitled and willing to succeed,
the Government Agent may nominate one of such persons to succeed to the
holding. Such decision of the Government Agent shall be final.
4. If any relative on whom the title to a holding devolves
under the provisions of these rules is unwilling
to succeed to such holding, the title thereto shall devolve upon the
relative who is next entitled to succeed under the provisions of rule 1.
[Rules 3 and 5 were repealed by Act No. 16 of 1969.]
In this context, it is relevant to take into consideration
the evidence of the 1st Respondent, Temawathie, who states that
after the death of her father Babun Appuhamy in 1977, her mother possessed the
land, but she died in a bomb explosion in 1989 as a result of which the witness
too was seriously injured, but the essence of her testimony was that after the
death of her mother, the siblings of Babun Appuhamy jointly possessed the said
land. The nature of the possession of this land, according to the Respondents,
was by seasonal cultivation and not by continuous residence, as the land did
not have continuous supply of water and was cultivated only in the rainy season
(udia lkakh). In the course of her testimony, she also stated that:-
“89 isg ifydaorfhda;a iu.
ta bvfus foys, fodvus, fmd,a, f.dv fnda. usrsia, uqx, ljsms j.d lrf.k nqla;s
jska|d. mshd bkak ld,fh;a f.dv fnda. j.d lr,d ;snqKd, brs.=, lcq, usrsia jf.a
fnda. j.d l<d. brs.= ;djld,sl fnda.hla. lcq ia:Sr fnda.hla. foys, fodvus,
fmd,a ;d;a;d oeusud ta bvfus. uu nqla;s js|skakg mgka .;a;g miafia uu f.dv
fnda. j.d l<d. ;djld,sl fnda. jra. lcq, usrsia, brs.= j.d lf,a uu. udi 6 ka
ta fnda. j.d lrkjd. ta udi 6 j.d lrk fldg uu tafla lgq uegs .y, f.hla yodf.k
mosxps jS isgsfh. uf.a ifydaorfhd wejs;a wvqmdvq fidhd n,,d hkjd. lgq uegs .y,
f.a yodf.k mosxps jqk ld,h ug u;l keye. 89 oS fndausn jeos,d uf.a ll=, ns|qkd.
taflka uf.a uj ke;s jqkd. ug l,amkdj keye f.a yodf.k mosxps jqfka fldhs ld,fhao
lshd. lgq uegs f.a yod ;snqKd uj isgsoaoS. uj ush .shdg miafia uu tafla mosxps
fj,d j.d l<d. wfkla ifydaorhka ug Wojs l<d.”
In terms of the rules set out in the Third Schedule to the
Land Development Ordinance, title to a holding can devolve by operation of law
in accordance with the rules of succession set out therein even if a successor
is not nominated by a permit-holder. However, Rule 1 of the Third Schedule
specifies that title can devolve upon
only one person, in the order of
priority specified therein, the older being preferred to the younger where
there is more than one relative in a given group. According to the table in
the Third Schedule, sons are given
preference in the devolution of title, and thereafter, daughters.
On the face of it, the provisions of the Third Schedule
appear to be discriminatory on the ground of sex, but was probably fashioned by
the assumption that it is the men in the family who actively participate in
cultivation, the validity of which assumption may be questioned in the context
of this case, where it appears from the evidence that the Respondents, who were
both females, had cultivated the land in dispute with the assistance of all
family members including brothers. I am of the opinion that the provision has
to be reviewed by policy makers in the light of the realities of the day and in
particular Article 12 of the Constitution. Further, it may be desirable to
recognize a concept of “joint permit-holders”, to apply in situations where the
family of a permit-holder had collectively helped to develop the land even
during the lifetime of the permit-holder, as the recognition of such a concept
would help maintain the family cordiality after the death of the permit holder.
But in this case, we are bound to give effect to the provisions of rule 1 of
the Third Schedule, under which the Respondents cannot claim any right of
succession to title, given that it is clear from the evidence that Babun
Appuhamy had at least one son. The evidence of the 1st
Plaintiff-Respondent-Respondent, Temawathie, at page 98 of the brief was as
follows:-
“js;a;slre le;s fmd,q wdhqO wrf.k flda,yd,
lrkak .shd. ta wjia:dfjs uf.a u,a,s ysgshd. Tjqka iu. rKavqjla jqkd. nyskania
jSula jqkd.”
It is in these circumstances that the Appellant contends
that if the present action was considered to be a rei vindicatio action, the Learned Judges of the Civil Appellate
High Court erred in law by granting title to the Respondents, as by operation
of law, the sons of Babun Appuhamy would be preferred in the order of
devolution specified in the Third Schedule of the Land Development Ordinance.
On the broader definition of “permit-holder” in Section 2
of the Land Development Ordinance, Babun Appuhamy may no doubt be regarded as
the permit-holder of the land in dispute, and it may also be presumed that upon
his death, his widow, succeeded to the holding in terms of Section 48A(1) of the
Ordinance. In my opinion, such succession would take place by operation of law
even without a nomination made in terms of the Ordinance. It is also clear
that, upon the death of Babun Appuhamy’s spouse in 1989, as provided in Section
72 of the Ordinance, succession would be in accordance with rule 1 of the Third
Schedule to the Ordinance, wherein male relatives are preferred over female
relatives, and the older relation is preferred to the younger in the order of
succession. It is in evidence that Babun Appuhamy had at least one son, and
probably more. The evidence of the Respondents reveal, that the Respondent’s
brothers helped them in the cultivation and even rallied around when their
possession was threatened by the Appellant. However, in the absence of any
evidence to establish that the 1st or the 2nd Respondent is the eldest daughter
of Babun Appuhamy, the mere fact that by the letter marked me4 the 1st
Respondent took steps to regularise possession, is insufficient to show that
they are entitled to the rights of Babun Appuhamy. Hence, I am of the opinions
that the Learned Judges of the Civil Appellate High Court erred in law when
they held that the Respondents have succeeded to the title of Babun Appuhamy,
but the fact remains that they had in prayer (w) of their plaint sought only a
declaration with respect to the rights of Babun Appuhamy, which declaration,
they are no doubt entitled to, along with the relief prayed for by them in
prayers (wd), (we) and (wE) of the plaint.
The True Nature of the Respondents’ Action -
Rei vindicatio or Possessory Remedy?
The second issue for consideration as set out in question
(c) on which leave to appeal was granted by this Court is whether the present
action should be properly regarded as a rei
vindicatio action or a possessory action.
In the plaint, the Respondents have prayed for inter alia a declaration that
Wanniarachchi Kankanamlage
Babun Appu was the original owner and possessor of the
subject matter (prayer ‘a’) and a decree for an ejectment of the
Appellant-Appellant-Appellant and all those claiming title under him and to
restore the Respondents back in possession (prayer ‘d’). By the said prayers
for relief, the Respondents sought a declaration of title in respect of Babun
Appuhamy, their father, and a restoration of their possession.
Learned President’s Counsel for the Appellant, relying on
the judgment in Palisena v Perera 56
NLR 407, have argued that to maintain an action for rei vindicatio pertaining to State land, there should be a valid
permit or deed of disposition, and that in the present case, the Plaintiff’s
father did not have a permit for the land in dispute. The said Appellant also
relies on the fact that there is no prayer in the Plaint seeking for a
declaration of title in the Respondents’ favour. Instead, the Respondents have
prayed for in prayer (w) as follows:-
“fuu bvfus uq,a ysuslre
N=la;slre jQfha jkakswdrpsps lxldkus,df.a nnqka wmamqydus njg m%ldYhlao…”
Learned President’s Counsel has submitted that the said finding
of the Civil Appellate High Court is ex
facie bad in law as the Court cannot grant relief which had not been prayed
for by a party in the prayers of the plaint or an answer, and has referred to
the decisions in Weragama v Bandara 77
NLR 289, Vangadasalem v Chettiyar 29
NLR 446 and Danapala v Babynona 77
NLR 95.
I am not in a position to entirely agree with these
submissions, as this Court has noted in Latheef
and Another v Mansoor and Another, (2011) B.L.R. 189 at 196, that although
the action for declaration of title is the modern manifestation of the ancient
vindicatory action (vindicatio rei) having its origins in Roman
Law and is essentially an action in rem
for the recovery of property, as opposed to a mere action in personam, Withers J
in Allis Appu v Edris Hamy (1894) 3
SCR 87 at page 93, has recognized “actions of an analogous nature” to a rei vindicatio action for declaration of
title combined with ejectment of some person from land or premises. In such
cases, the defendant is related to the plaintiff by some legal obligation (obligatio) arising from contract or
otherwise, such as an over-holding tenant (Pathirana
v Jayasundara (1955) 58 NLR 169) or an individual who had ousted the
plaintiff from possession (Mudalihamy v
Appuhamy (1891) CLRep 67 and Rawter v
Ross (1880) 3 SCC 145), proof of which circumstances would give rise to a
presumption of title in favour of the plaintiff obviating the need for him to
establish title against the whole world (in
rem) in such special contexts. These are cases which give effect to special
evidentiary principles, such as the rule that the tenant is precluded from
contesting the title of his landlord or a person who is unlawfully ousted from possession is entitled to a rebuttable
presumption of title in his favour.
Burnside CJ, has explained the latter principle in Mudalihamy v Appuhamy (1891) CL Rep 67
in the following manner:-
“Now, prima facie,
the plaintiff having been in possession, he was entitled to keep the property
against the whole world but the rightful owner, and if the defendant claimed to
be that owner, the burden of proving his title rested on him, and the plaintiff
might have contented himself with proving his de facto possession at the time of the ouster.”
It is evident that in certain defined circumstances, a
presumption of title may arise in favour of persons who have been unlawfully dispossessed from the land
which forms the subject matter of a case. Although such a presumption would not
arise in a rei vindicatio action stricto sensu, such a presumption may
arise in actions of an analogous nature. Thus two questions warrant further
analysis; firstly, if the circumstances of the present case warrants such a
presumption of title; and secondly, if the Respondents have been unlawfully dispossessed.
In the present case, while the lower Courts have held that
there was no contractual relationship between the Respondent’s father Babun
Appuhamy, or the Respondents and the Appellant, and did not regard me1 and js1
to transfer any rights in relation to the land in relation in view of section 2
of the Prevention of Frauds Ordinance No 7 of 1840, as amended, the land in
dispute is State land, and accordingly, there exists a nexus between the State
and the Respondents since their father was put into possession of the land by
the State, on the basis that he would be issued with a permit, in terms of the
Land Development Ordinance. Although eventually, Babun Appuhamy was not granted
a permit, he may be considered to be a permit-holder, in terms of section 2 of
the Land Development Ordinance which defines the term “permit-holder” as “any
person to whom a permit has been issued and includes a person who is in
occupation of any land alienated to him on a permit although no permit had
actually been issued to him”. Even though it cannot be conclusively said that
the Respondents are entitled to succeed to the title of Babun Appuhamy, it is
abundantly clear to this Court that title to the land in dispute has devolved
on one of the children of Babun Appuhamy, on the basis of the Third Schedule to
the Land Development Ordinance, and that the Respondents’ possession of the
land is founded upon this entitlement. There is no dispute between the children
of Babun Appuhamy as to who the rightful heir of the land in dispute is; in
fact, it is in evidence that the other children of Babun Appuhamy are in
constant communication with the Respondents regarding the land and the
harvesting thereon. Thus, it can be construed that the Respondents possession
is with the leave and licence of the rightful successor to the holding in terms
of the Land Development Ordinance. Within a factual matrix such as this, I am
of the opinion that the circumstances of the case warrant a presumption of
title in favour of the Respondents.
I now turn to the
question of ‘unlawful dispossession’. The Respondents state that they were
dispossessed by order of the Tissamaharama Primary Court in case No. 36365 on
the 27th of November 1997. Ordinarily, this would not amount to an
‘unlawful dispossession’. However, the order of the Primary Court has been
obtained by fraud, and in highly suspicious circumstances. The learned
Magistrate exercising the powers of the Primary Court has been misled, and it
is evident that the process of law has been abused. It is perplexing, indeed,
it is revealing, that a document relied upon in the Primary Court proceeding by
the Appellant, which was a Grama Niladhari report, has not been adduced as
evidence in the District Court.
The Appellant has relied upon documents marked me1 and js1
to prove his contention that Babun Appuhamy transferred his legal entitlement
to the land in dispute to the Appellant in 1974. The document marked as me1 is
dated 21st August 1974 which is purportedly signed by Babun
Appuhamy, allegedly transferring his entitlement to the land in dispute to the
Appellant, for the purpose of building a house on the said land. It is not
signed by any witness. This document was produced by the Appellants in
Tissamaharama Primary Court case No. 36365. A similar document marked js1 is
dated 8th April 1974, which is purportedly signed by Babun Appuhamy,
also allegedly transferring his entitlement to the land in dispute to the
Appellant. There is no reference to the purpose of building a house. It has
been signed by a witness, one Chandrasena Wickremaarachchi. This document,
which is dated prior to me1, was not produced in the Primary Court. Both
documents pertain to the same land, and both documents purport to transfer
Babun Appuhamy’s legal entitlement to the land in dispute to the Appellant.
Both documents refer to the Appellant as a relative of Babun Appuhamy, although
it clearly transpires in evidence that this is not so. Thus it is clear that
the circumstances surrounding these two documents are highly mysterious, and
reeks of fraud. Furthermore, and most importantly, the documents marked me1 and
js1 have absolutely no force or avail in law as they contravene section 2 of
the Prevention of Frauds Ordinance which states as follows:-
“No sale, purchase, transfer, assignment, or mortgage of
land or other immovable property, and no promise, bargain, contract, or
agreement for effecting any such object, or for establishing any security,
interest, or incumbrance affecting land or other immovable property (other than
a lease at will, or for any period not exceeding one month), nor any contract
or agreement for the future sale or purchase of any land or other immovable
property, and no notice, given under the provisions of the Thesawalamai
Pre-emption Ordinance, of an intention or proposal to sell any undivided share
or interest in land held in joint or common ownership, shall be of force or
avail in law unless the same shall be in writing and signed by the party making
the same, or by some person lawfully authorized by him or her in the presence
of a licensed notary public and two or more witnesses present at the same time,
and unless the execution of such writing, deed, or instrument be duly attested
by such notary and witnesses.”
None of the documents have been signed in the presence of a
licensed notary public, nor in the presence of two or more witnesses, and has
not been attested by such notary and attesting witnesses. Thus documents marked
me1 and js1 contravene the Prevention of Frauds Ordinance. Thus, the Appellant
cannot rely on the documents to establish his title to the land in dispute. Nor
would section 17 of the Prevention of Frauds Ordinance apply in this situation
where the Government is not a party to any transaction coming within section 2
of the said Ordinance. The Appellant cannot rely on any prescriptive rights as
he has not adduced evidence of long possession that is necessary to prescribe
against the State by longisimi temporis
praescriptio, wherein the Appellant would have to prove that he was in adverse
possession of the land in dispute for one third of a century. Thus, wisely, the
Appellant has not relied on the ground of prescription.
In Roman-Dutch law, as in Roman Law, the remedy restitutio in integrum is a remedy which
empowers a court to set aside a contract or an obligation (including a judgment
in either a civil or criminal case) on grounds inter alia of force or duress, fraud, minority, inexcusable mistake
or where some other judicially acceptable equitable cause existed, and to
restore the status quo ante. The
order of the Tissamaharama Primary Court in case No. 36365 has been obtained inter alia on the basis of fraudulent
documents and amounts to an abuse of the process of law. This would be a
fitting case to set aside the order of the Primary Court Judge and to restore
the status quo ante in exercise of
the powers of the Supreme Court, to grant in appropriate cases relief by way of
restitutio in integrum.
In these circumstances, I hold that this is a case in which
a presumption of title arises in favour of the
Respondents, and the Appellant has not succeeded in
rebutting the presumption of title in favour of the
Respondents, wherein they possess the land in reliance of
their rights of succession to the title of Babun Appuhamy, which has devolved
on his heirs in terms of the Third Schedule to the Land Development
Ordinance.
The Question of Prescription of the Right of
Action
The third issue for consideration as set out in question
(d) on which leave to appeal was granted by this Court is whether the
Respondents’ action in the District Court was prescribed in terms of section 4
of the Prescription Ordinance No. 22 of 1871, as amended.
The Appellant has submitted that as the learned District
Judge has considered this case to be a possessory action, section 4 of the
Prescription Ordinance would apply and that in terms of section 4 of the
Prescription Ordinance a possessory action has to be instituted within one year
of dispossession. However, as stated
previously in this judgment, the present action is not a possessory action, and
thus section 4 of the Prescription Ordinance does not have any application.
The Evidence of the Witness who Prepared js1
The fourth issue for consideration in terms of question (h)
on which leave to appeal was granted by this Court, was whether the Civil
Appellate High Court as well as the learned trial Judge err in law when they
totally disregarded the evidence of the witness who prepared js1 and also
signed as a witness. The Appellant’s position is that the learned District
Court Judge and the learned Judges of the Civil Appellate High Court have not
considered the evidence of Chandrasena Wickramaarachchi, who was the attesting
witness to the document marked as js1. The evidence of the said witness inter alia was as follows:-
“js1 orK ,shqu ,sjsfjs uu.
tys ;sfnk w;a wlre uf.a. fus ,smsh fus jsoshg ,shkak lsh,d nnqka wmamqydus ug
lsjsjd. tys i|yka lreKq lsjsfjs Tyq. ta wkqj uu ,sjsjd uu biafldaf,a hk ldf,a,
fus kvqjg wod, bvu nqla;s js|skafka js;a;slre. fus ,shqug miafia Tyq nqla;s
js|skafka. js1 f,aLKh ,sjsjg miqj fus bvu nqla;s js|skafka js;a;slre. wo jk;=re
Tyq th nqla;s js|skjd.” (vide page 174 of
the brief)
I have perused the evidence of Chandrasena
Wickramaarachchi, who was the attesting witness to the document marked js1. The
Appellant’s contention is based on the erroneous premise that the factum of possession is material to the
determination of the present case. The onus of proof was on the Appellant to
sufficiently displace the presumption of title that has arisen in favour of the
Respondents, and the evidence of Chandrasena Wickremaarachchi falls far short
of what is required to rebut such a presumption. The document marked js1
contravenes the provisions of the Prevention of Frauds Ordinance, and the
evidence of this witness, who fared miserably under cross-examination by
learned
Counsel for the Respondents, and admitted that he did not
know who possessed the disputed land since 1974, was considered most unreliable
by the learned District Judge.
Accordingly, I hold that the learned District Court Judge
and the learned Judges of the Civil Appellate High Court have not disregarded
the evidence of Chandrasena Wickremaarachchi and in any event, his evidence was
irrelevant to displace the presumption of title that had arisen in favour of
the Respondents.
Conclusion
In these circumstances, I am of the opinion that the
Respondents should be restored to possession on the basis that the action filed
by them was an action for declaration of title analogous to a rei vindicatio action, wherein the
burden on the Respondents was to show that they held the land in dispute as the
heirs of Babun Appuhamy who was a permit-holder in terms of the Land
Development Ordinance, and to which they hoped to succeed. I hold that the
Appellant has failed to rebut this presumption of title that arises in these
circumstances. I hold that judgment should be entered in favour of the
Respondents as prayed for in prayers (w), (wd), (we) and (wE) of the plaint
dated 16th January 1997. The impugned judgment of the Civil
Appellate High Court dated 12th November 2009, which affirmed the
judgment of the District Court dated 17th July 2003, by which the
Respondents were granted relief in terms of prayer (w) and (wE), is accordingly
varied.
In all the circumstances of this case, the Respondents
shall be entitled to costs in a sum of Rs. 50,000.
JUDGE OF THE SUPREME
COURT
SISIRA J. DE ABREW, J, I agree.
JUDGE
OF THE SUPREME COURT
SARATH DE
ABREW, J,
I
agree.
JUDGE
OF THE SUPREME COURT
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