CPC Section 35

In terms of  Section  35  of  the  Civil Procedure Code, in an action for the recovery  of  immovable property, or  to  obtain  a  declaration  of  title  to  immovable property, no other claim, or any other  cause  of  action,  shall  be made unless with the leave of the court, except in

(a) Claims regarding mesne profits or arrears of rent in respect of the property claimed;

(b) damages for breach of any contract under which the property or any part thereof is held; or consequential on the trespass which constitutes the cause of action; and

(c) claims by a mortgagee to enforce any of his remedies under the mortgage.

The example given in the Civil Procedure Code in Section 35 may be useful and therefore is reproduced below.

A sues B to recover land upon the allegation that the land belongs to C, and that A, has bought it from C. A makes C a party defendant;  but he cannot,  without leave of the court, join with this claim an alternative claim for damages against C for non-performance of his contract of sale.

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

CA 1137/96 (F)

DC Mt. Lavinia-2185/L

Neththasinghe Parasangilige Susantha Fonseka Samarasekara, No: 459, Galle Road, Mt. Lavinia.

Presenty atNo:39,Hospital Road, Homagama.

Plaintiff

Vs.

A. Abdul Azeez, No: 122A, Galle Road, Dehiwala.

Defendant

AND/BETWEEN

Abdul Azeez, No: 122A, Galle Road, Dehiwala.

Defendant-Appellant

Vs.

Neththasinghe Parasangilige Susantha Fonseka Samarasekara, No:   459,  Galle  Road, Mt. Lavinia.

 Presently at No:39, Hospital Road, Homagama.

Plaintiff-Respondent

Before : A.W.A. Salam, J.

Counsel : Lakshman Rohan Welihinda for the Substituted Defendant-Appellant and D. Akurugoda for the Plaintiff-Respondent.

Argued on : 20.03.2012

Written Submissions tendered on: 05.04.2013 Decided on : 12.09.2013

A.W.A. Salam, 1.

The plaintiff-respondent (hereinafter referred to in this judgment as the "plaintiff') filed action against the defendant-appellant (hereinafter referred to in this judgment as the "defendant") seeking the following main reliefs...

1. That he  be  declared  the  owner  of  the  premises bearing assessment No  122A  and  the  land  described  in the 2nd schedule to the plaint.

2. A declaration that the defendant had unlawfully constructed shed with galvanize roof and plank.

3. An order directing the defendant to remove the shed and hand over the vacant possession of the  strip of land to the south of the land described  in schedule  2  to the plaint.

The defendant in his answer inter alia denied the main averments in the plaint and averred that in the year 1939 his father came as the tenant of the plaintiff s father to a premises facing Galle Road and thereafter the said  original  owner  built two   boutiques   and   handed    over    the    boutique    bearing  No     122A,     to     the     defendant.     He     further     averred that as the new boutique given to him is smaller in size than the previous boutique occupied by him the original owner separately reconstructed the shed in question  and  gave it  to  the  defendant to be used as a kitchen.

One of the main grounds urged  by the  defendant as  his defence is that he is a lawful  and protected  tenant  of  premises  bearing No 122A and the land described in the  2nd  schedule  to  the plaint. Admittedly, the said premises bearing No 122A and the land described in the and schedule to the plaint belong to the plaintiff and  the  strip of land  falls outside the  boundaries of the  a nd schedule to the plaint has no connection to  the  substantial relief prayed in prayer (a) to the plaint.

It is noteworthy to repeat the reliefs sought by the plaintiff in prayer (a) to the plaint. That is a declaration  that he is the owner of the land and premises described in the 2nd  schedule  to the plaint. However, the ejectment sought in prayer (c) is from  the land to the South of premises bearing assessment  No  122A  which is not the land described in schedule 2 to the plaint.

There was no dispute that the defendant is the tenant of the premises bearing assessment 122 A which stands on the land described in schedule 2 aforesaid. In order to eject the defendantfrom the land to the South of the land described in schedule 2 to the plaint, on the ground that the defendant has put up an unauthorized construction and to have the said construction removed, the plaintiff is under obligation to establish his title to the said land, as the proceedings he has initiated against the defendant is in the nature of a declaration of title.

The issues raised by the plaintiff at the trial need to be examined with much attention being paid to the corpus identified therein. Issue No 1 reads as follows..

Is the defendant in possession of the part of the land shown by red lines in plan  4849  produced  along  with the plaint marked as X?

It is trite law that in this suit relating to dec1aration of title to immovable property the burden of proof is on the party who asserts ownership and where, in an action for declaration of title to land, the defendant is in possession, the burden is on the plaintiff to prove that he has dominium.

In the case of Peiris Vs Sarunhamy 54 NLR  207,  it  was  laid down that the initial burden of proof in a  rei vindicntio action is  on the plaintiff to prove his title and further  established  the identity of the corpus.

In  the. case of  Wanigaratna  Vs Juwanis Appuhamy 65 NLR165, it was held that in a rei vindicatio action the plaintiff must prove and establish his title. He cannot ask for a declaration  of  title in his favour merely on  the  strength  that  the  defendant’s title is poor, unsatisfactory or not established.

Undoubtedly, the position is totally different in a case where a landlord sues his tenant who may later have turned out to be a trespasser for a declaration of title or the owner of  a  land  who sues his licensee for the similar declaration  after  the  termination of   the   licence.   They   cannot    be    strictly    categorized    as rei vindicatio actions. In such cases strict proof of ownership as contemplated in a rei vindicatio  action  may  not  be  necessary. But in this case, it has  to  be  noted  that  the  plaintiff  had  not sued the defendant on  the  basis  that  the  latter  having  entered the land and premises from which his ejectment is sought, as a tenant and later turned out to be a trespasser. Here, the position maintained by the plaintiff is  totally  different.  There  is  no dispute that the plaintiff is the owner of the allotment of land described in schedule 2 to the plaint and the  premises  bearing 122A standing thereon. To this effect there is a clear admission made by the defendant that the plaintiff is the owner of the  said land and premises, particularly by reason of the contract  of  tenancy that subsists between the parties.

The action filed by the plaintiff to have the defendant ejected from the land to the  South of premises bearing assessment  No 122A is totally a different land on the own showing of the plaintiff and he has failed to plead title to the said land in his plaint. In addition, he has failed to establish his title to the portion of the land from which he sought the ejectment of the defendant, although it is incumbent upon him.

Issue No 1 has been raised as if the defendant had admitted the ownership of the plaintiff in  respect of the land to the South of the allotment of land described in Schedule 2 to the plaint. Therefore, the admission of the defendant of the contract of tenancy relates to the land and premises which fall outside the land and the shed from which the defendant is sought to be ejected, on the footing that he is an unlawful occupier of the said land 8s shed and that he has constructed an unauthorized structure on it.

The defendant has specifically raised the question as to whether the plaint filed in the action is contrary to Section  35  ( 1)  of the Civil Procedure Code. In terms of  Section  35  of  the  Civil Procedure Code, in an action for the recovery  of  immovable property, or  to  obtain  a  declaration  of  title  to  immovable property, no other claim, or any other  cause  of  action,  shall  be made unless with the leave of the court, except in

(d) Claims regarding mesne profits or arrears of rent in respect of the property claimed;

(e) damages for breach of any contract under which the property or any part thereof is held; or consequential on the trespass which constitutes the cause of action; and

(f) claims by a mortgagee to enforce any of his remedies under the mortgage.

The example given in the Civil Procedure Code to Section 35 may be useful and therefore is reproduced below.

A sues B to recover land upon the allegation that the land belongs to C, and that A, has bought it from C. A makes C a party defendant;  but he cannot,  without leave of the court, join with this claim an alternative claim for damages against C for non-performance of his contract of sale.

As has been rightly contended by the learned Counsel for the defendant the causes of action stated in sub-paragraphs  (b),  (c), and (d) of paragraph 15 of the plaint have been joined with the cause of action set out in subparagraph  (a)  in paragraph  15. This is a clear violation of Section 35 of the  Civil  Procedure Code, and the learned trial judge has failed to properly address his mind to this issue. Even though the learned  District  Judge has answered issue No 12 which is based on the alleged violation of section 35 of the Civil Procedure Code, he has not given any reason acceptable in law for his finding arising on issue No 12.

In short, it would be seen that the prayer to the plaint refers to a declaration of title in respect of the land in Schedule  2  to the plaint. As suggested by the learned counsel for the defendant issue No 7 is referable to the 2nd  schedule to the plaint and not the 1st schedule to the plaint. Issue No 1 is in fact based on the title to the property described in the 1st schedule to the plaint.

Even if the   plaintiff establishes his title to the land described in the 1st schedule to the plaint yet he cannot get the defendant ejected from the land and premises described in  the  2nd schedule as he has not asked for the ejectment of the defendant from the land and premises described in the 2nd schedule.

In the circumstances, it is quite clear that the plaintiff  has  failed to put the correct issue before court and there is no  nexus between the prayer and the declaration of title sought.

As has been correctly submitted by the learned counsel for the defendant even if the answer to issue  1 is in the affirmative,  yet the plaintiff is entitled to have issue No 7 answered in the same manner as No 1 relates only to lot B in plan No 513. Therefore it could be seen that the  judgment of  the  learned  District  Judge has been entered on the wrong premise that the plaintiff has established his rights to the land on which  the galvanize roofed shed stands.

By reason of the learned District Judge having entered judgment for the plaintiff without clear proof of his title to the land in question, a serious injustice has occurred resulting in the travesty of justice.

No purpose would be served  by sending the case back for retrial, as the outcome of the plaintiff’s action has to be same on the present pleadings even if evidence is led once again. In the circumstances, I have no option but to set aside the judgment  of the learned District Judge and dismiss the plaintiff’s action for want of proof of title to the portion  of the land where the defendant is said to have put up a shed.

Accordingly, the appeal is allowed and  the  impugned judgment set aside subject to costs.

Judge of the Court of Appeal

NR/-