Sri Lanka Law Reports
 2 Sri LR.
JOTHIYA AND ANOTHER
WIMALARATNE. A. C. J., PARINDA RANASINGHE, J. AND H. D. TAMBIAH, J.
S. C. APPEAL No. 61/84. – D. C. KEGALLE No; 414/L.
1st AUGUST, 1985.
Buddhist Ecclesiastical Law – S, 34 of the Buddhist Temporalities Ordinance – Actionfor declaration of title..
Where title by prescription to Buddhist temple land had not been acquired prior to1931, section 34 of the Buddhist Temporalities Ordinance bars the acquisition ofprescriptive title to temple land.
APPEAL from judgment of the Court of Appeal.
C. R Gunaratne. P. C. with A. A. de Silva for plaintiff-appellant.
Defendant absent and unrepresented.
Cur. adv. vult.
August 26, 1985.
WIMALARATNE, A. C. J.
The plaintiff, as Viharadhipathi of the Degalagiriya PuranaViharasthanaya in Undugoda, claimed title to a portion of land calledGalaudadeniya, described in the schedule of the plaint as a land of 3roods, 12 perches, depicted in crown plan 124728 dated 4.9.1882,which is the plan marked P2 at the trial. The plaintiff's case was thatthis land belonged to Deraniyagata Sonnuthara Thero, the thenViharadhipathi of this temple; who gifted the same on deed No. 3284of 1881 to his pupil Siddhartha and Mullanadu, of whom the latterdied leaving no pupils. Siddhartha was succeeded by MabodaGunaratne, who was succeeded by Moragoda Sumangala. Theplaintiff has succeeded Moragoda Sumangala. The plaintiffcomplained that the defendants, who are the owners of the landimmediately to the west, had since 1974 encroached upon a portionof Galaudadeniya, which encroachment is shown as lot 3 in plan 666dated 9.6.1975, prepared for this case and marked P3. The saidencroachment is in extent 05 perches.
The defendants claimed the said lot 3 as a portion of their landUrulindawatte%o which, they had title and to which they hadprescribed.
Piyaratana Thero v. Jothiya fWimalaratne. A.C.J.)
Among the issues raised on behalf of the plaintiff were these
Was Deraniyagala Sonnuthara Thero, Viharadhipathi ofDegatagiriya Purana Viharasthanaya entitled to and did hepossess the land called Galaudadeniya described in theschedule to the plaint and depicted in title plan No. 124728?
(2 if so, is the plaintiff as Viharadhipathi of the said temple entitledto the said land on the pedigree pleaded in the plaint ?
Is the said land depicted as lots 1 & 3 in plan No. 666 made forthe purpose of this case ?
If so are the defendants in wrongful and unlawful possession ofthe said lot 3 ?
The following, among other issues were raised on behalf of thedefendants.
Has the plaintiff in this case ever possessed the land indispute ?
If not, can the plaintiff maintain this action ?
have the defendants acquired a prescriptive title by adversepossession for a period of over 10 years ?
To this the plaintiff raised the following further issue
(12) If the land in dispute is declared to be a portion of the landbelonging to the Degalagiriya Puranaviharasthanaya, can thedefendants claim title by prescription ?
The learned Judge has answered these issues as follows
No.13.Does not arise.
The plaintiff's action was accordingly dismissed. The Court ofAppeal has affirmed the judgment of the lower court. It had beenargued on behalf of the plaintiff that in view of the provision of section34 of the Buddhist Temporalities Ordinance (Cap. 318) the claim forrecovery of possession of immovable property belonging to anytemple shall not be prejudiced by any provision of the PrescriptionOrdinance, provided that the section shall not affect rights acquiredprior to the commencement of that Ordinance, that is. rights acquiredprior to 1931. The Court of Appeal has taken the view that thisprinciple applies only where the temple had a title which someone elseis trying to prescribe to. The temple should have*at some tfme had
Sri Lanka Law Reports
(1985] 2 Sri LR.
paper title to this land or should have acquired a presciptive title to itat some time prior to the dispute. The Court of Appeal was notsatisfied that deed No. 3284 of 1881 fulfilled the requirement as totitle because the deed itself does not describe by metes and boundsthe land so described.
It is significant that the gift on deed No. 3284 had been made on6.9.1881 which was the year in which the land depicted in P2 wassurveyed by the Surveyor General's Department. By the year 1881 thetemple would have been in possession of the land depicted in P2. Butthe learned trial judge has answered Issue (3) against the Plaintiff-onthe ground that tjie Surveyor, who had prepared Plan 666 (P3) for thepurposes of this case – in which the disputed portion is depicted asLot 3 – and also superimposed it upon the Title Plan 124782, P2,had said that such superimposition has not been duly done(Aod <ptax5eosS cpedidts30). Careful consideration
of the surveyor's evidence, however, shows that the surveyor wasquite definite that, according to his superimposition. Lot 3 falls withinthe Title Plan P2. The surveyor has nowhere conceded that hissuperimposition has not been as it should have been done. Thelearned trial judge has, in my opinion, misdirected himself upon theevidence on this point. Had the surveyor's evidence been evaluated asit should have been done, then the only answer to Issue (3) shouldhave been in favour of the Plaintiff.
Logically, therefore, an answer to issue 12 did arise. The answer toissue 12 is that section 34 of the Buddhist Temporalities Ordinancedebarred the defendants from acquiring title by prescription to lot 3
Admittedly they had not acquired title by prescription prior to 1931
I would set aside the judgments of the Court of Appeal and of theMagistrate, and enter judgment for the plaintiff as prayed for, togetherwith costs of this appeal.
RANASINGHE, J. – I agreeTAM8IAH, J. – I agree.
-PIYARATNA THERO v. JOTHIYA AND ANOTHER