COURT OF APPEAL.
C. CASE NO. 4925/ZLOCTOBER 21, 1996.
Rei Vindicate Action – Ceiling on Housing Property Law 1 of 1973, Section 15 (2)- Property vested in the Commissioner of National Housing – Appeal to Board ofReview – Finality – Title paramount.
The plaintiff-respondent instituted action as the Executrix of the Last Will of lateMrs. Crowther for a declaration of title and for a ejectment of the defendant-appellant from the premises in suit.
The defendant-appellant's position was that the property was vested in theCommissioner by operation of Law under S. 15(2) of the CHP Law, and that bytitle paramount the plaintiff-respondents title has been wiped out by statute.
The District Court held in favour of the plaintiff-respondent.
Plaint was filed on 18.3.85, and under the Civil Procedure Code, there is noprovision which permits a defendant to plead by way of defence, matter arisingsubsequent to the institution of action, the judgment must determine the rights ofthe parties as on the date of the institution of action.
At the time of the institution of the action the matter had not vested in theCommissioner.
The owner had appealed against the vesting and the appeal is pendingbefore the Board of Review, the Court Of Appeal had also restrained theCommissioner from proceeding to vest or to take further steps, Therefore there isno finality and the plaintiff-respondent's title remains unimpeached.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Silva v. Fernando (PC.) 15 NLR 499
A. C. Hettiarachchi v. Mary Nona- C. A 1329/82 with C.A.L.A. 141/82
S.MaherUhrian for defendant-appellant.
A. K. Premadasa, PC. with T. B. Dihmuni and C. E. de Silva for plaintiff-respondent.
Cur. adv. vult.
December 20, 1996.
This is an appeal from the judgment of the learned District Judgeof Colombo. The plaintiff-respondent instituted this action as theExecutrix of the Last Will of late Mrs. Pearl Elain Crowther for adeclaration of title and for ejectment of the defendant-appellant fromthe ground floor of premises No: 53/7 Gregory's Road, Colombo 7.
The learned Counsel for the appellant's only contention was thatthe property in dispute was vested in the Commissioner of NationalHousing in terms of Section 15(2) of Ceiling on Housing PropertyLaw. Section 15(2) reads as "where any house is vested in theCommissioner under the law the Commissioner shall have absolutetitle to such house and free from all encumbrances, and such vestingshall be final and conclusive for all purposes against all personswhomsoever whatever right or interest they have or claim to have toor in such house. Therefore the learned Counsel contended that by atitle paramount the respondent's title has been wiped out by statute.He relied on X1 ’ letter dated 22.04.1993 and ’X2’ the GazetteNotification.
But one must remember that an aggrieved party can appealagainst the decision of Commissioner in terms of Section 39(1) ofCeiling on Housing Property Law. Finality will arise only after theconclusion of the appeal.
The plaint was filed 18.03.85 and under our Code, there is noprovisions which permits a defendant to plead by way of defence,matter arising subsequent to the institution of action, the judgmentmust determine the rights of the parties as on the date of theinstitution of the action. This was the position as held in 2 TimesReport 192. It was also held in the case of Silva v. Fernando'".
The rights of the parties to an action have to be ascertained at thecommencement of the action. This is well settled law.
At the time the action was instituted the subject matter hadnot vested and according to the defendant-appellant’s petition andaffidavit dated 17.10.96. The said premises was vested by operationof law and the said vesting was duly gazetted on 28.05.1993 andthe owner. The Superior Regular has filed an appeal to the Board ofReview on 19.05.93 and assigned a number 2480. In C/A Applicationmarked ’X4’ The Court of Appeal had allowed the application ofthe petitioner for a writ of prohibition restraining the Commissionerfrom proceeding to vest or to take further steps in this regardunder the Ceiling on Housing Property Law in respect of premisesbearing No. 53/7, Gregory's Road, Colombo 7 until the aforesaidappeals before the Board of Review are concluded. Thereforethere is no finality and the plaintiff-respondent's title remainsunimpeached.
The learned Counsel for the appellant relied on the unreportedjudgment of the Court of Appeal AC. Hettiarachchi v. Mary Nona|2).I am of the view that the facts of that case has no application tothe instant case, The property of the plaintiff was factually takenover by the Urban Development Authority and the defendant-petitioner who was enjoying the property then applied to theUrban Development Authority and obtained permission to cultivateit and permission was granted on 24,02.81. The defendant-petitionerfiled objections to the application for writ of execution and informedCourt that the land was acquired by Government and consequentlythe plaintiff has lost title therefore the plaintiff’s title nowstands extinguished by title paramount and therefore the plaintiffcannot get possession or status to make an application for executionof writ.
In my view the application vesting the subject matter is pendingbefore the Board of Review and there is a prohibition restraining thevesting with the Commissioner of National Housing. Therefore thecontention of the learned Counsel has no merit and furthermore theauthority cited has no bearing to the instant case.
I am of the view that the learned District Judge has come to acorrect finding on facts and law. For the above mentioned reasonsand for the reasons given by the learned District Judge, I affirm thejudgment and dismiss the appeal with costs fixed at Rs. 4,200/-.
EDUSSURIYA, J. -1 agree.
Note by Ed: The Supreme Court in SC Spla refused leave to theSupreme Court.
TALAGUNE v. DE LIVERA