Sri Pannaloka Thero v. J inorasa Thero
Present: Basnayake, C.J., and Pulle, J.SRI PANNALOKA THERO, Appellant, and P. JINORASATHERO, RespondentS. G. 547—D. C. Panadura, 3,094
Buddhist Temporalities Ordinance (Gap. 222)—Section 3d—Meaning of “ immovableproperty ”—Applicability to servitudes—Prescription Ordinance (Gap. 55),
ss. 2, 3.
Section 34 of the Buddhist Temporalities Ordinance reads as follows :—
“ In the case of any claim for the recovery of any property, movable orimmovable, belonging or alleged to belong to any temple, or for the assertionof title to any such property, the claim shall not be held to be barred or preju-diced by any provision of the Prescription Ordinance :
Provided that this section shall not affect rights acquired prior to thecommencement of this Ordinance. ”
Held, that the expression “ immovable property ” in the Section is usedin the sense of corporeal immovable property only. The Section, therefore, isnot a bar to a claim of right of cartway on the ground of prescriptive user. 1
1 (1922) 23 N. L. B. 362.
BASNAYAKE, C.J.—Sri Pannalokz Thero «. Jinorasa Thero
/APPEAL and cross-appeal in respect of a judgment of the DistrictCourt, Panadura.
Sir Lolita Rajapakse, Q.G., with C. R. Gunaratne and I}. G. Wickrema-sekera, for Defendant-Appellant.
W. Jayewardene, Q.G., with T. B. Dissanayake and D. R. P. Goone-tiUeke, for Plaintiff-Respondent.
July 17, 1957. Basnayake, C.J.—
This is an action by Pohaddaramulle Jinorasa Thero of the RamannaNikaya, controlling Viharadhipathi of the temple known as Mahigarjana-ramaya at Pohaddaramulla (hereinafter referred to as temple “ A ”)against Sri Pannaloka Thero of the Amarapura Nikaya, controllingViharadhipathi of the adjoining temple of the same name (hereinafterreferred to as temple “ B ”). The plaintiff asked that he be declaredentitled—
(а)to the right of cart-way shown in the sketch “ Y ” attached
to the plaint by right of uninterrupted possession for a periodof over 10 years,
(б)to the recovery of damages, and
in the alternative to a right of cart-way of necessity over thesame route.
The defendant in his answer disputed the plaintiff’s claim that he wasthe Viharadhipathi of temple “ A ” and also alleged that the plaintiffwas residing on a portion of temple “ B ”.
The learned trial Judge holds that the plaintiff had not acquired aprescriptive right prior to 1st November 1931 (the date on which theBuddhist Temporalities Ordinance came into operation) and that he isnot entitled to maintain his claim in respect of his user after that dateas the action was barred by section 34 of the Buddhist TemporalitiesOrdinance. In regard to the plaintiff’s claim for a cart-way of necessityhe declares him entitled to a cart-way along a route to be determinedin the manner indicated in his judgment.
Learned counsel for the appellant has invited our attention to the casereported in 30 N. L. R. 56 followed by Wijeyewardene, J., in 45 N. L. R.348 and also to the cases reported in 49 N. L. R. 350 and 525. We aresatisfied that according to the principles laid down in those decisionsthe evidence led by the plaintiff falls short of the standard required forthe grant of a right of cart-way of necessity. The appellant is thereforeentitled to succeed.
BASNAYAKE, CJ.—Sri Parmaloka Thero v. Jinorasa Thero
The respondent has filed cross-objections in which he canvasses thefindings of the learned trial Judge (a) that user for over the periodprescribed in section 3 of the Prescription Ordinance prior to 1stNovember 1931 has not been established, and (b) that section 34 of theBuddhist Temporalities Ordinance bars his claim to a decree in his favourfor a cart-way by virtue of user for the prescribed period. Section 34 ofthe Buddhist Temporalities Ordinance reads as follows :—
“ In the case of any claim for the recovery of any property, movableor immovable, belonging or alleged to belong to any temple, or forthe assertion of title to any such property, the claim shall not be heldto be barred or prejudiced by any provision of the PrescriptionOrdinance:
Provided that this section shall not affect rights acquired prior tothe commencement of this Ordinance. ”
In the first place we have to ascertain the meaning of “immovableproperty” in this section. Ordinarily “immovable property” meansland and whatever is permanently attached to land and does not includeincorporeal rights. There is nothing in the context of section 34 whichsuggest that the words “ immovable property ” should be given a meaningdifferent from their ordinary meaning. On the other hand the contextsuggests that the expression “ immovable property ” is used in the senseof corporeal immovable property. This Court has held that the words“ immovable property ” in section 39 of the Village Communities Ordin-ance do not include incorporeal rights1. In fact, it would appear froman examination of our legislative instruments that the expression“ immovable property ”, where its meaning is not expressly extended,is used in the sense of corporeal immovable property only. In thePrescription Ordinance “ immovable property ” is defined to includeall shares and interest in land, and all rights easements and servitudesbelonging to or appertaining to land. This action is clearly not a claimfor the recovery of immovable property in the sense in which that ex-pression is used in section 34 of the Buddhist Temporalities Ordinance.We are therefore of the opinion that that section is not applicable tothe instant case.
The question that remains for decision is whether the evidence adducedby the plaintiff establishes uninterrupted and undisturbed possessionof the path described in the sketch for a period of 10 years. The learnedtrial Judge seems to have taken the view that, but for the bar which hethought was imposed by section 34 of the Buddhist TemporalitiesOrdinance, the plaintiff was entitled to succeed on the ground ofprescriptive user. Learned counsel for the respondent has drawn ourattention to a number of passages in the evidence of the plaintiff whichleave no room for doubt that the plaintiff has acquired a right to adecree in his favour by virtue of section 3 of the PrescriptionOrdinance.
1(1957) 60 N.L.R. 30.
Arvnaealam Pittai v. Commissioner for the259
Registration of Indian and Pakistani Residents
The cross-appeal is therefore entitled to succeed and we accordinglyset aside the order of the learned trial Judge and direct him to enter adecree declaring the plaintiff entitled to a right of cart-way over theland described in paragraph 2 of the plaint. The actual cart-way will be■demarcated after a survey which should be carried out according to the•directions of the District Judge who is hereby empowered by us to issuesuch directions after hearing the parties should he think it necessary to•do so.
The plaintiff should bear the costs of such survey.
We do not propose to interfere with the order for costs of the trial.•Costs of appeal will be divided between the parties.
PuiJjE, J.—I agree.
Appeal and cross-appeal allowed.
SRI PANNALOKA THERO, Appellant, and P. JINORASA THERO, Respondent