Ranchagoda v. Viola
SUPREME COURTG. P. S. DE SILVA, CJ.,
WIJETUNGA, J. ANDGUNASEKERA, J.
S.C. APPEAL NO. 133/96
A. NO. 129/88 (F)
C. BALAPITIYA NO. 2076/LDECEMBER 07, 1998
Rei vindicatio action – Misdirection by the District Court on the primary facts -Order for retrial.
In an action for declaration of title to lots 1 and 2 of the Survey Plan filed ofrecord, it was the case for the plaintiff that her father Pelis Appuhamy"asweddumized" and cultivated the said lots for a continuous period of 40 yearsand acquired a prescriptive title thereto. Those lots which constituted the subject-matter of the action were cultivated with cinnamon and vegetable. Lot 3 in thesame plan was a paddy field cultivated by Pelis Appuhamy as a tenant cultivator.The District Judge who dismissed the action stated "the petitioner's father wasa tenant cultivator. A tenant cultivator cannot acquire title by prescription*.
The District Judge had failed to appreciate that according to the plaintiff,lots 1 and 2 which formed the subject-matter of the action were not paddylands. This was a serious misdirection on the primary facts which vitiatesthe judgment of the District Court. The interests of justice demand a freshtrial.
APPEAL from the judgment of the Court of Appeal.
Rohan Sahabandu for the 1st defendant-appellant.R. K. S. Sureshchandra for the plaintiff-respondent.
Cur. adv. vult.
Sri Lanka Law Reports
(1999] 2 Sri LR.
January 18, 1999.
G. P. S. DE SILVA, CJ.
The plaintiff instituted these proceedings against the original defendantfor a declaration of title to the land described in the schedule to theplaint, ejectment therefrom, and damages. According to the plaintiff,the subject-matter of the action is shown as lots 1 and 2 planNo. 200 made by D. G. Mendis, Licensed Surveyor and filed ofrecord marked "X". It is important to note that lot 3 in plan “X"does not form a part of the subject-matter of the action.
It is the case for the plaintiff that her father Pelis Appuhamycultivated lots 1 and 2 in plan "X" for a continuous period of over40 years in his own right, and had thus acquired a prescriptive titlethereto. Lots 1 and 2 were unoccupied and uncultivated land whichPelis Appuhamy "asweddumized" and cultivated with cinnamon andvegetables. On the other hand, lot 3 in plan “X" was a paddy fieldand was cultivated by Pelis Appuhamy as the tenant cultivator of oneSamaranayake and his predcessors in title.
The original defendant denied the plaintiff's claim of prescriptivepossession and sought to claim title, inter alia, on two deeds markedV7 and V8. I do not wish to make any comments on the merits ofthe case of either the plaintiff or the defendant in view of the orderI propose to make.
After trial, the District Court dismissed the plaintiff's action. Theplaintiff preferred an appeal to the Court of Appeal against thejudgment of the District Court. The Court of Appeal held that theDistrict Court had failed to analyse the oral evidence on prescriptivepossession and sent the case back for a trial de novo. The presentappeal to this court is by the defendant against the judgment of theCourt of Appeal.
On a reading of the judgment of the District Court I find that besidesthe failure to adequately consider the oral evidence in regard to theclaim of prescriptive possession, the District Judge has misunderstood
Ranchagoda v. Viola (G. P. S. De Silva, CJ.)
the case for the plaintiff as presented at the trial. In the course ofhis judgment he states that the extracts of the Paddy Lands Registerfor the period 1966 to 1971 do not show that the plaintiff's fatherwas the "owner cultivator" of any part of the subject-matter of theaction. He further states that "the plaintiff's father was a tenantcultivator. A tenant cultivator cannot acquire title by prescription". TheDistrict Judge has failed to appreciate that according to the plaintifflots 1 and 2 which form the subject-matter of the action were notpaddy lands. These two lots were cultivated with cinnamon andvegetables. The entries in the Paddy Lands Register therefore haveno relevance at all to lots 1 and 2. There is here a serious misdirectionon the primary facts.
This alone, in my view, vitiates the judgment of the District Court.
In the facts and circumstances of this case, the interests of justicedemand that the case be remitted to the District Court for a freshtrial. The judgment of the Court of Appeal is accordingly affirmed andthe appeal is dismissed, but without costs.
direct the District Court to give priority to the hearing of this caseand to ensure that the trial is speedily concluded.
WIJETUNGA, J. – I agree.
GUNASEKERA, J. – I agree.
Case remitted to the District Court for a fresh trial.
RANCHAGODA v. VIOLA