Sri Lanka Law Reports
1199611 Sri L.R.
R.N.M. DHEERARATNE, J.
A.S WIJETUNGE, J. AND
S.N. SILVA. J.
S.C. APPEAL 43/95.
S.C. SPL. UA NO. 299/94.
A. NO. 52/89(F).
C. COLOMBO 5302 / ZL.
13 AND 28 NOVEMBER, 1995.
Declaration of title- Title to undivided share- Claim to title to entirety-Burdenof proof.
Plaintiff produced title deeds to undivided shares in the land but her actionbeing one for declaration of title to the entirety she cannot stop at adducingevidence of paper title to an undivided share. It was her burden to adduceevidence of exclusive possession and acquisition of prescriptive title byouster.
Our law recognises the right of a co-owner to sue a trespasser to have histitle to an undivided share declared and for ejectment of the trespasser fromthe whole land because the owner of the undivided share has an interest inevery part and portion of the entire land. But such was not the case formulatedby Plaintiff.
Hariette v. Pathmasiri (Silva, J.)
Cases referred to:
Rockland Distilleries v. Azeez 52 NLR 430.
Hevawitharana v. Dangan Rubber Co.Ltd., 17 NLR 49, 55.
APPEAL from judgment of the Court of Appeal.
T.B. Dillimuni with Mr. A. Jayawardena for Appellant.
P.A.D. Samarasekera, P.C. with Daya Guruge for Respondent.
Cur .adv. vult.
January 19, 1996.
S.N. SILVA, J.
This appeal is from the judgment dated 22.8.1994 of the Court ofAppeal. By that judgment the Court of Appeal reversed the judgmentdated 7-3-1989 of the Additional District Judge and dismissed the ac-tion of the Plaintiff without costs.
The Plaintiff filed the above action for declaration of title to and forejectment of the Defendant from, the land described in schedule 2 tothe plaint. It is to be noted that the Plaintiff has pleaded title to anundivided share of the land described in schedule 1 to the plaint called'Galpottawatta' alias 'Galabodawatta' in extent about 20 bushels paddysowing area. Schedule 2 is a description of a portion of this land whichis said to be in extent about 2 acres. There is no plan depicting eitherof the lands described in Schedule 1 or 2. According to the plaint theDefendant entered the land with leave and licence of the Plaintiff on anunspecified date and continued to be in illegal possession after thelicence was terminated in 1983. The Defendant denied the title of thePlaintiff and claimed that he was in possession from 1963 and ac-quired prescriptive title to the land described in the schedule to theanswer which is identical with schedule 2 of the plaint. Issues wereraised by the parties on the foregoing dispute.
The Court of Appeal upheld the submission of learned President'sCounsel for the Defendant that the Plaintiff, at best adduced evidenceof paper title to only an undivided share of the land described in sched-ule 1 and that she cannot maintain an action for declaration of title on
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 1 Sri L.R.
the basis of the evidence thus adduced. The Court observed that theproper course would have been to institute a partition action in respectof the entire land without seeking a declaration of title to an undefinedportion. The Court of Appeal also held that the Defendant's evidenceof prescriptive possession which is supported by the evidence of theGrama Sevaka has been rejected without any basis by the learnedAdditional District Judge.
Learned counsel for the Appellant submitted that the Court of Ap-peal misdirected itself when it took the view that the Plaintiff could notmaintain the action for declaration of title and possession upon proofof title to only a share of the land. Further, it was submitted that theCourt of Appeal erred when it failed to appreciate that the learned Ad-ditional District Judge answered Issues 3 and 4 in favour of the Plain-tiff. Issue 3 is that the Defendant came into possession with the leaveand licence of the Plaintiff and Issue 4 is that the said licence wasterminated in 1983. His submission is that the action could have beendecided solely on the basis of the answers to these two issues andpossessory relief granted to the Plaintiff as prayed for in prayers (<p) .and (<k) of the prayers to the plaint. On the other hand learned Presi-dent's Counsel for the Defendant submitted that the Plaintiff has fileda rei vindicatio action with a plea of title and for possessory relief asowner. That title has been denied by the Defendant who claimed pre-scriptive title to the land in question. Therefore, he submitted that thePlaintiff's action should be dismissed if he failed to establish title tothe corpus.
The Plaintiff did not give evidence in the case. A person by thename of Celius Appuhamy claiming to be a relative of the Plaintiffgave evidence as to title. It is to be noted, that this witness informedthat he did not have a proper recollection of the matters on which hewas testifying (vide note made by the trial judge at page 40 of therecord). He stated in evidence that the original owner of the land de-scribed in schedule 1 to the plaint was one Alexander Appuhamy whoseinterests devolved on seven children namely, Carolis, Herath, Baron,Haramanis, Sedonona, Velonona and Sudunona. He produced certifiedcopies of two deeds marked P1 and P2 . According to his evidencethe Plaintiff inherited 1/56 shares from her mother and purchased 12/56 shares on the two deeds. There is no evidence whatsoever as to
Marietta v. Pathmasiri (Silva, J.)
the devolution of title of the shares that were inherited by the otherchildren of Alexander Appuhamy. This witness has not stated that theland described in schedule 2 to the plaint was possessed as a dividedentity by the Plaintiff for and in lieu of her interests in the land de-scribed in schedule 1. On the other hand, it is clear from his evidencethat as far as he was .aware the Defendant was residing on the landdescribed in schedule 2 for several years.
Learned counsel for the Appellant has stated in his written sub-missions that "the Defendant did not contest seriously the Plaintiff'stitle to the undivided shares". This is not a correct statement of theproceedings in the District Court. It is clear from a perusal of therecord that the evidence of Celius Appuhamy as to title of the Plaintiffhas been seriously challenged by the Defendant. It is in the context ofthis challenge that Celius Appuhamy informed Court that he had noproper recollection of the matters on which he was giving evidence.
As correctly submitted by learned President’s Counsel for the De-fendant the action being one for declaration of title and possession,the burden was on the Plaintiff to establish his title to the land whichwas in dispute. The action cannot be decided only on answers to is-sues 3 and 4 which relate only to aspects of possession, as submittedby counsel for the Appellant. The character and scope of a rei vindicatioaction which involves the question of title and rights pertaining to own-ership is distinct from that of a possessory action. The Plaintiff's ac-tion as presently constituted should therefore be dismissed if shefails to establish title and the right to possess the corpus pursuant tosuch ownership. The Plaintiff has set out title to an undivided 13/56share of the land described in schedule 1 to the plaint. Both deedsproduced by her relate to the land described in schedule 1 which issaid to be an extent of about 20 bushels paddy sowing area. The Plain-tiff has not indicated anywhere in evidence the devolution of title to thebalance 43/56 share of the said land. She has also not adduced evi-dence that she possessed the land described in schedule 2 exclu-sively for and in lieu of her rights in the land described in schedule 1.On the contrary the Defendant adduced uncontradicted evidence thathe was residing on the land described in schedule 2 from 1963. Heproduced marked 'V2' to 'V4' the extracts from the Register of Elec-tors from the year 1967 in which he has been registered as a voter on
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11996] 1 Sri L.R.
the basis of residence on the land described in schedule 2. Further-more, he also adduced evidence of proceedings instituted by the Plaintiffagainst him in 1975 before the Conciliation Board complaining of un-lawful possession of the land. Thus it is seen that the evidence of thePlaintiff's witness as to the termination of the licence in 1983 cannotbe acted upon.
Learned counsel for the Plaintiff relied on the judgment in the caseof Rockland Distilleries v. Azeez™ to support the proposition that thePlaintiff should be granted remedies of declaration of title and posses-sion upon proof of her rights to an undivided share of the co-ownedproperty. It is to be noted that the Rockland Distilleries case was not arei vindicatio action. It was an action for damages filed by a co-ownerto recover the loss caused to his property by the discharge of spentwash from the distillery of the Defendant Company. An objection wasraised that the action was bad on account of the non joinder of theother co-owners of the property to which damage was caused. TheSupreme Court held that one co-owner can institute an action for dam-ages caused to the common property without joining the other co-own-ers either as plaintiffs or Defendants. The questions of title and pos-session were not at issue in that case. However, it has to be borne inmind that our law recognizes the right of a co-owner to sue a tres-passer to have his title to an undivided share declared and for ejectmentof the trespasser from the whole land. In the case of Hevawitarana vDangan Rubber Co. Ltd(2) Pereira, J. stated as follows :-
"I have always understood the law, both before and after the com-ing into operation of the Civil Procedure Code, to be that the owner ofan undivided share of land might sue a trespasser to have his title tothe undivided share declared and for ejectment of the trespasser fromthe whole land, the reason for this latter right being that the owner ofthe undivided share has an interest in every part and portion of theentire land".
In this case the Plaintiff is not seeking a declaration of title to herundivided share in the land described in schedule 1 and for the ejectmentof the Defendant from that land. She has pleaded that she possessedthe land described in schedule 2 for and in lieu of her undivided shareand seeks the ejectment of the Defendant from that land. Therefore
Hariette v. Pathmasiri (Silva, J.)
the case for the Plaintiff cannot stop at adducing evidence of papertitle to an undivided share. It was her burden to adduce evidence ofexclusive possession and the acquisition of prescriptive title by ousterin respect of the smaller land described in schedule 2.
The Plaintiff has not given evidence and her witness does not claimthat the Plaintiff acquired prescriptive title to the land described inschedule 2. On the contrary the complaint of the Plaintiff made to theConciliation Board in 1975 clearly shows that the Plaintiff, having ac-quired paper title to certain undivided shares was attempting to dis-possess the Defendant who had been in occupation from about 1963.For these reasons I hold that the Appellant has not established anyground on the basis of which the judgment of the Court of Appealdismissing the Plaintiff's action could be reversed. The appeal is ac-cordingly dismissed. The Plaintiff-Appellant will pay a sum of Rs 2500/• as costs of this appeal to the Defendant- Respondent.
DHEERARATNE, J. -1 agree.
WIJETUNGA, J. -1 agree.
HARIETTE V. PATHMASIRI