KULAPALA AND ANOTHER
COURT OF APPEAL
D.C. RATNAPURA 10162/L
JANUARY 21, 2000
Possesory action – Prescription Ordinance S.4 – Institution of Action –
time period – Dispossession – Primary Courts procedure Act, – S.66
It Is Incumbent upon the Plaintiff Appellants to have Instituted actionwithin one year of the alleged dispossession.
The action, by the institution of proceeding envisaged in S.4 of thePrescription Ordinance was one where the Plaintiff In such actionshall be entitled to a decree against the Defendant for the restorationof such possession without proof of title.
Dispossession is not an essential ingredient for actions institutedunder the Primary Courts Procedure Act.
APPEAL from the Judgment of the District Court of Ratnapura.
Cases referred to :
1. Perera v. Wijesooriya – 59 NLR 529
N.Malalasekera. for Plaintiff Appellant.
T. A. J. Udawatte for Defendant Respondent.
Cur. adu. uult.
March 14. 2000.
SHIRANEE TLLAKAWARDANE, J.The Plaintiff Appellants by Plaint dated 14. 12. 1990 filedthis action for a declaration of title to the land described in thesecond schedule to the said plaint with consequential relief.
Sri Lanka Law Reports
120011 3 Sri L.R.
The Defendant Respondent by her answer dated 15.09.1992denied the averments in the Plaint and prayed for dismissal ofthe Plaintiff Appellant's action with costs.
Thereafter the Plaintiff Appellants filed amended Plaintdated 07. 07. 1993 and prayed for a possessory decree andeviction of the Defendant Respondent from the land in disputeand other reliefs.
By amended Answer dated 21. 01. 1994 the DefendantRespondent, inter alia, took up the position that the PlaintiffAppellants could not convert the original action for declarationof title to one of possessory decree. In any event it was pointedout that the action for possessory decree was prescribed in lawsince the action had been filed more than one year after thealleged dispossession in 1989.
When the case came up for trial on 12. 10. 1995 threepreliminary issues were raised on behalf of the DefendantRespondent. They were:-
In accordance with the provisions of the PrescriptionOrdinance, should a possessory action be filed within a yearof the date of dispossession?
According to the averments contained in paragraph 9 ofthe Amended Plaint, was this action instituted after suchperiod of one year?
If so, can the Plaintiff obtain the reliefs claimed in theAmended Plaint?
The District Judge, Ratnapura by his Order dated
02. 1996 held in favour of the Defendant Respondent onthese preliminary issues and dismissed the Plaintiffs action withcosts. This is an Appeal from the said Order.
The question that has arisen in Appeal is whether there ismandatory statutory requirement that proceedings should beinstituted within one year of the date of dispossession. The
Kulapala and another o. Somawathte(Shtranee Tilakawardane, J.)
relevant Section 4 of the Prescription Ordinance reads asfollows:-
"It shall be lawful for any person who shall have beendispossessed of any immovable property otherwise than byprocess of law, to institute proceedings against the persondispossessing him at any time within one year of suchdispossession. And on proof of dispossession within oneyear before action is brought, the Plaintiff in such actionshall be entitled to a decree against the Defendant for therestoration, of such possession without proof of title.
Provided that nothing herein contained shall be held to affectthe other requirements of the law as respects Possessorycases."
Counsel for the Plaintiff Appellants contended that therewas no need for a possessory action to be instituted within oneyear of dispossession. He relied on the Judgement of BasnayakeC. J. in Per era v. Wyesuriya111. It appears that the learnedCounsel has misunderstood the ratio decidendi of that case.The matter resolved in that case was whether it was necessaryfor a party to have had possession of the land for a period ofone year and a day at least, to entitle such party to maintain aPossessory action. This case did not deal with the issue of thetime limit after dispossession within which a Possessory actionshould be instituted. Furthermore, the case also held that thePlaintiff could maintain an action under section 4 of thePrescription Ordinance, as long as the ousting was within oneyear. (Vide Page 536).
In the circumstances, we find that it was incumbent uponthe Plaintiff Appellants in this case to have instituted this actionwithin one year of the alleged dispossession on or about20. 07. 1989. It is to be noted that Police complaint in thisregard was made not by the Plaintiff Appellants but by theDefendant Respondent. We therefore hold that the action hadbeen filed out of time and was prescribed in terms of thePrescription Ordinance adverted to above.
Sri Lanka Law Reports
120011 3 Sri L.R.
The learned Counsel submitted further that since actionhad been instituted within one year in the Primary Court ofRatnapura, there had been substantive compliance with theprovisions of the Prescription Ordinance.
However, the action instituted in terms of section 66 of thePrimary Courts' Act was not by the Plaintiff Appellants. In fact,while the Defendant Respondent filed the first complaint in thiscase, the institution of proceedings was a result of the report toCourt lodged by the Officer in Charge of the Kiriella PoliceStation. Furthermore this section dealt with any dispute thatmay have arisen pertaining to land which led to a breach of thepeace. Dispossession is not an essential ingredient for actionsinstituted under the Primary Courts' Act. The purpose of theaction so filed was to obtain a temporary Order to maintainstatus quo ante, until a competent Court of civil jurisdictioncould make a fined Order on the dispute, based on the meritsof the case.
The action by the institution of proceedings envisaged inSection 4 of the Prescription Ordinance was one where "thePlaintiff in such action shall be entitled to a decree againstthe Defendant for the restoration of such possession withoutproof of title." In other words "the action" referred in Section 4of the aforesaid Ordinance was a Possessory action filed in theDistrict Court and not an information filed in the Primary Courtin terms of Section 66 of the Primary Courts' Act.
We therefore find the contention of the Counsel for thePlaintiff Appellants untenable in law.
We accordingly dismiss the Appeal. We Order taxed costspayable by the Plaintiff Appellants to the Defendant Respondent.
WIGNESWARAN, J. – I agree.
KULAPALA AND ANOTHER v. SOMAWATHIE