Sri Lanka Law Reports
 3 Sri L.R.
COURT OF APPEAL.
WEERASEKERA, J. ANDJAYASINGHE, J.
C. AVISSAWELLA 16621/REJULY 28 & AUGUST 19. 1997.
Land Development Ordinance – Permit – Recovery of Possession – PossessoryAction – Rei Vindicatio Action – Ingredients – Dispossession section 4 ofPrescriptive Ordinance 22 of 1877.
The plaintiff-appellant instituted this action for recovery of possession of a certainfield, on the basis of it being granted to him on a yearly permit under the LandDevelopment Ordinance; and that the defendant-respondent forcibly entered thefield and commenced to cultivate. The learned District Judge dismisses theplaintiff's action, on the basis that where there was no declaratory relief asked theplaintiff must establish possession, for a year and a day and further the plaintiff inorder to claim the relief should have established his rights to possess and soughta declaration of his rights to possess as a permit holder or as a lessee.
The action is clearly not a possessory action. There is no averment ofdispossession as required by section 4 of the Prescriptive Ordinance 22 of1877. The averments indicate non-possession by plaintiff-appellant for threeyears and the consequent dispossession.
It is clear that the action is also not a Rei vindicatio action. The plaintiff-appellant pleads no title to be declared entitled to the land but to be only ayearly permit holder.
The plaintiff-appellant only states that he came to possess on the permit butdid not seek a declaration that he was entitled to possess the land on thealleged yearly permit. The consequential relief of the ejectment of the allegedtrespasser cannot therefore arise.
APPEAL from the Judgment of the District Court of Avissawella.
Case referred to:
1. Palisena v. Per a – 56 NLR 467 at 408.
L J. N. de Jacolyn Seneviratne with Damayanthi Silva for plaintiff-appellant.
P. A. D. Samarasekera, PC, with G L. Geethananda for defendant-respondent.
Cur. adv. vult.
Attanayake v, Aladin (Weerasekera, J.)
October 2, 1997.
The plaintiff-appellant instituted this action by his plaint dated27.02.82 for the recovery of possession of field calledMessankedeniya and described in the schedule to the plaint on thebasis of it granted to him on a yearly permit under the LandDevelopment Ordinance from 1941 and from that date that hecultivated the said field. By reason of his ill health he stated that hecould not cultivate the field for 3 to 4 years and that the defendant-respondent forcibly entered the field and commenced to cultivate.The plaintiff-appellant sought the ejectment of the defendant-respondent and for restoration of possession.
The defendant-respondent whilst, taking up the position that hewas unaware of the plaintiff-appellant’s right to possess under apermit claimed that the field was asveddumised by his father in 1941and claimed a prescriptive right to the field and in the alternative forbona fide improvements.
At the trial 12 issues were adopted for adjudication. Of consentissues 5 and 6 were taken as preliminary issues. They are;
Issue 5- can the plaintiff maintain this action as presentlyconstituted?
Issue 6 – If issue 5 is answered in favour of the defendant, shouldthe plaintiff's action be dismissed subject to the reliefclaimed by the defendant in this answer?
The learned District Judge of Avissawella by his order dated18.09.84 answered issue 5 in the negative and dismissed theplaintiff's action with costs. This appeal is from that order.
Both Counsel filed written submissions at the appeal.
I have given my best consideration to the pleadings, issues, andthe submissions of both Counsel in the District Court and beforeCourt of Appeal and the reasoning of the learned District Judge.
Sri Lanka Law Reports
(1997j 3 Sri LR.
The reasoning of the learned District Judge was based on twoprepositions namely that where there was no declaratory relief askedfor in the plaint the plaintiff must establish possession for a year anda day as conceived by section 4 of the Prescriptive Ordinance andthe plaintiff in order to claim the relief by way of ejectment shouldhave established his right to possess and sought a declaration of hisright to possess as a permit holder or as a lessee.
Learned Counsel on behalf of the appellant strongly urged that asdecided by Gratien, J. in the case Palisena v. Pereraat 408 that thelearned District Judge has misunderstood the scope of the remedysought by the plaintiff-appellant to be relief rei vindicatio and hadfailed to appreciate the nature of the permit holder’s right to possessunder the Land Development Ordinance.
Our law conceives of two types of remedies that a dispossessedindividual could seek. An action rei vindicatio and a possessoryaction. To what category does this action fall?
This action is clearly on a reading of the plaint not a possessoryaction. There is no averment of dispossession as required by section 4of the Prescriptive Ordinance No. 22 of 1877 after possession of ayear and a day and is mandatorily required. On the contrary theaverments of the plaint indicate non possession by the plaintiff-appellant for 3 years and the consequent dispossession. In such anevent the action not being a possessory action the plaintiff-appellantwould not in any event have been entitled to the relief sought in theprayer to the plaint.
It is clear from a reading of the plaint that the action is not basedon the Roman Dutch Law relief of rei vindicatio. The plaintiff-appellantpleads no title to be declared entitled to the land but to be only ayearly permit holder under the Land Development Ordinance.
If so this action a vindicatory action and from which can theplaintiff-appellant seek the relief sought in the plaint.
Gratien, J. in the same judgment at 408 states –
Attanayaka v. Aladin (Weerasekera, J.)
“This was not a Possessory Action in which a person complainingot dispossession can in certain circumstances, without proof of histitle, obtain a decree for ejectment of a person who hasdispossessed him otherwise then by a due process of Law. This isa vindicatory Action in which a person claims to be entitled toexclusive enjoyment of the land in dispute, and asks on proof thattitle, he places in possession against an alleged trespasser”.
Clearly therefore what was decided by Gratien, J. was that in avindicatory action the relief of ejectment would only be theconsequent to a declaration or vindication of the right to possess.In this case the plaintiff-appellant whilst only stating that he came topossess on the permit under the Land Development Ordinance didnot seek a declaration from Court that he was entitled to possess theland in dispute on the alleged yearly permit issued under the LandDevelopment Ordinance. The consequential relief of the ejectment ofthe alleged trespasser cannot therefore arise.
I am of the considered opinion that the learned District Judge hadnot misunderstood the scope of the remedy sought by the plaintiff norfailed to appreciate the yearly permit holder's right under the LandDevelopment Ordinance.
For these reasons I do not propose to interfere with the judgmentof the learned District Judge of Avissawella dated 18.09.84.
The appeal of the plaintiff-appellant is dismissed with taxed costs.
JAYASINGHE, J. -1 agree.
ATTANAYAKE v. ALADIN