REV KOSGODA MANGALA AND OTHERS
COURT OF APPEALWE ERASURIYA, J.
D.C. BALAPITIYA 237/LMARCH 16. 2000JUNE 7. 2000
Buddhist Temporalities Ordinance S.3, S.4(l). S.20 – Action Institutedby Viharadhipathy – locus standi ■ Declaration oj title and ejectment -Dedication – Sanglka property? – Property purchased by Ttustee ofVlharaya.
The original Plaintiff Instituted action on seeking a declaration of title tothe land the basis that he was the Viharadhipathi and the property wasSanglka and was purchased by the Trustee on behalf of the Vlharaya. TheDistrict Court held with the Plaintiff.
As the property was purchased by Haramanis Soysa as trustee, onbehalf of the temple, the legal title to the property was with HaramanisSoysa and only the beneficial interest was vested with the temple. Asthe legal title is with Haramanis Soysa, it is he who as trustee haslocus standii to institute action.
The terms of the Fiscals conveyance does not reveal in any mannerthat the property was purchased using temple funds indicating that itwas sangika property.
S.20 of the Buddhist Temporalities Ordinance which vest all propertiesbelonging to a temple in the Trustee or Controlling Viharadhipathyapplies only to sangika property which has been dedicated to thepriesthood as a whole with all the ceremonies and terms necessary toeffect dedication.
Any property given to the Sangha must be dedicated in the mannerprescribed in the Vinaya, then and then only it become sangikaproperty.
APPEAL from the Judgment of the District Court of Balapitiya.
Thabrew v. Rev Kosgoda Mangala an others
Cases referred to :
Ratanapala Therunnanse v. Dias – 40 NLR 41
Morawaka v. Dhammaratne Thero – 1978 – 79 – 2 SLR 153
Wljewardena v. Buddharakkita – 59 NLR 121
Oluwawatte Dhammaklrti Thero v. Kevtttyagoda Jlnastrl – 79 NLR2 – 86
Dr. Jayantha de Almeida Guneratne with P. Wanigaratne for 1 “ Defen-dant Appellant.
W. Dayaratne for Substituted Plaintiff Respondent.
Mangala Wljesinghe for 2nd Defendant Respondent.
Cur. adv. vult.
September 15, 2000.
WEERASURTYA, J.The deceased plaintiff-respondent (hereinafter referred toas the original plaintiff), by his plaint dated 08.05.1979 andamended subsequently, instituted action against the 1stdefendant -appellant and two others, seeking a declaration oftitle to the land morefully described in the schedule to the plaint,ejectment of the 1st defendant-appellant and others thereformand damages.
The Is* defendant -appellant and others in their jointanswer, whilst denying averments in the plaint prayed fordismissal of the action. This case proceeded to trial on 11 issuesand at the conclusion of the case, learned District Judge by hisjudgment delivered on 22.06.1989, entered judgment for theplaintiff-respondent. It is from the aforesaid judgment that thisappeal has been lodged.
At the hearing of this appeal, learned Counsel appearingfor the Is' defendant-appellant submitted that the learnedDistrict Judge had misdirected himself in holding that theoriginal plaintiff – respondent was the owner of the land in suit.
Sri Lanka Law Reports
120011 3 Sri L.R.
It is to be noted that the original plaintiff instituted thisaction on the basis that he was the Viharadhipathy of KosgodaGanegodella Rajamaha Viharaya. It was averred that theproperty in question was Sangika property and the saidproperty was purchased by Agampody Harmanis Soyza astrustee on behalf of the Ganegodella Rajamaha Viharaya.Therefore, on the issues raised at the trial following mattersarise for consideration.
Whether the plaintiff -respondent as Viharadhipathy is theowner of the property in suit.
Whether the said property was purchased by AgampodyHarmanis Soyza as trustee on behalf of the temple.
Whether the property in question was Sangika property.
In Ratanapala Therunnanse u. Diasit was held that-
"The incumbent of a Buddhist temple who is not atrustee cannot maintain an action for declaration oftitle in respect thereof in the absence of proof thatthe temple in question has been exempted from theoperation of Section 4(1) of the Buddhist TemporcditiesOrdinance No. 19 of 1931”
In the light of this, the original plaintiff had no locus standito have and maintain this action unless it is establised that thetemple has been exempted from the operation of Section 4(1} ofthe Buddhist Temporalities Ordinance and that the property inquestion was a Sangika property.
The original plaintiff in his evidence disclosed that thetemple was exempted from the operation of Section 4(1) of theBuddhist Temporalities Ordinance. Nevertheless, learnedDistrict Judge had failed to come to a finding that the temple inquestion had been exempted from the operation of Section 4( 1)of the Buddhist Temporalities Ordinance and that the originalplaintiff was the controlling Viharadhipathy.
Thabrew v. Rev Kosgoda Mangala an others
The averment that temple in question had been exemptedfrom the operation of Section 4(1) of the Buddhist TemporalitiesOrdinance had been denied by the 1st defendant-appellant inthe answer. Nevertheless there was no issue settled on thisimportant question despite parties were at variance relating tothe exemption of the operation of Section 4( 1) of the BuddhistTemporalities Ordinance. The 1st defendant-appellant and otherdefendants had failed to counter the assertion of the originalplaintiff that the temple was exempted from the operation ofSection 4(1) of the said Ordinance.
It is to be noted that Section 3 of the Buddhist TemporalitiesOrdinance stipulates that the provisions of the Ordinance shallapply to every temple in Sri Lanka. However, the provisostipulates that an exemption can be made use of only by anorder made by the Minister and published in the gazette. Therewas no material placed in the District Court that this exemptionwas gazetted. In the absence of a definite finding by the DistrictJudge that the temple was exempted from the operation ofSection 4(1) of the Buddhist Temporalities Ordinance thequestion would be whether one could rely only on the bareassertion of the original plaintiff that the temple was in factexempted from the operation of Section 4(1).
The significance of a reference to any exemption by an ordermade by the Minister published in the gazette has to beemphasised as it entails serious legal implications.
It is to be noted that the original plaintiff did not claim thatpurported exemption was by an order by the Minister publishedin the Gazette. Therefore, the bare assertion of the originalplaintiff that temple was exempted from the operation of Section4(1) of the Buddhist Temporalities Ordinance appear to beunconvincing.
The position of the original plaintiff was that the propertyin suit was purchased by Agampody Harmanis Soyza as trusteeon behalf the temple. If that was the true position the legal title
Sri Lanka Law Reports
120011 3 Sri L.R.
to the property was with Agampody Harmanis Soyza andonly the beneficial interest was vested with the temple. In thecircumstances, as the legal title to the property was vested withAgampody Harmanis Soyza it is he who as trustee has locusstandi to institute action for declaration of title to the land insuit and to recover possession thereof.
The other question to be examined is whether the propertyin suit was Sangika property. It is noteworthy that thedefendant-appellant and other defendant-respondents in theiranswer denied this was Sangika property and put the plaintiffto strict proof thereof. However, there had been a failure to settlea specific issue on this crucial matter where the parties were atvariance. The original plaintiff in his testimony in the DistrictCourt made no attempt to state that the property in suit wasSangika Property. The evidence of the original plaintiff was tothe effect that the property in suit was purchased at the fiscal'ssale by the trustee of the temple as evidenced by fiscal'sconveyance marked PI.
The original plaintiff failed to produce any evidence toestablish that the property was purchased with temple funds.The statement made by him (original plaintiff) that the propertywas purchased by the trustee of the temple by a fiscal'sconveyance does not necessarily mean that the property hadbeen purchased with temple funds. The terms of the fiscal'sconveyance marked P3 do not reveal in any manner that theproperty was purchased using temple funds indicating that itwas Sangika property.
In Morawaka v. Dhammaratna Thero,2> it was held thatproperty obtained in such circumstances would not becomeSangika property.
Section 20 of the Buddhist Temporalities Ordinance whichvest all properties belonging to a temple in the trustee orcontrolling Viharadhipathy of the temple applies only to Sangikaproperty which has been dedicated to the priesthood as a wholewith all the ceremonies and forms necessary to effect dedication.
Thabrew v. Rev Kasgoda Mangala an others
In Wljewardena v. Buddharakkita Thero'31 it was held thatany property given to the Sangha must be dedicated in themanner prescribed in the Vinaya. Then and then only it becomeSangika property. The requirement of a formal act of dedicationhas also been reiterated in Oluwawatte Dhammakerthl Therov. Kevltiyagala Jlnasiri Thero141
In the instant case, there was no assertion by the originalplaintiff that it was Sangika property purchased with templefunds or that there was an act of formal dedication as prescribedin Vinaya.
In the absence of proof of locus standi of the original plaintiffto have and maintain this action, one need not examine theclaim of the 1st defendant-appellant to the property in suit.
For the aforesaid reasons, it seems to me that originalplaintiff had failed to establish that he could maintain this action.Therefore, I proceed to set aside the judgment of the DistrictJudge delivered on 22.06.1989. Subject to the above condition,this appeal is allowed with costs.
DISSANAYAKE, J. – I agree.
THABREW v. REV KOSGODA MANGALA AND OTHERS