Sri Lanka Law Reports
 2 Sri L.R.
v.BISHOP OF KANDY
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CALA NO. 145/2001DC KANDY NO. 18914/LNOVEMBER 21 AND 29, 2001
Rei Vindicatio Action – Title admitted – Who has the right to begin.
The plaintiff-respondent instituted action seeking a declaration of title to the landin question and also ejectment of the defendant-petitioner from the said land. Thedefendant-petitioner admitted the title of the plaintiff-respondent but claimed thatshe had succeeded to the tenancy rights of the original tenant.
The trial Judge was correct when he determined that the burden was caston the defendant-petitioner to prove that he was in lawful possession ashe has admitted the title of the plaintiff-respondent.
The defendant-petitioner should begin the case, however if the plaintiff-respondent insists on his claim for damages – he should begin.
APPLICATION for Leave to Appeal from an Order of the learned District Judge,Kandy.
Case referred to :
Gunasekare v. Latitf – 1999 – 1 Sri LR 65,
S. C. 8. Waigampaya with S. A. D. A. Suraweera for defendant-petitioner.Collin Amarasinghe for plaintiff-respondent.
cur. adv. vult.
Jayasekera v. Bishop of Kandy (Nanayakkara, J.)
January 29, 2002NANAYAKKARA, J.
The issue that has to be addressed in this case is on which partythe right to begin by leading evidence lies.
The plaintiff-respondent instituted proceedings in the District Courtseeking a declaration of title to the land and premises described inthe schedule to the plaint and also ejectment of the defendant-petitioner from the said land and premises, accrued and continuingdamages.
The defendant-petitioner admitted the title of the respondent, butclaimed she had succeeded to the tenancy rights of the original tenantin terms of the provisions of the Rent Act, No. 7 of 1977 in her answer.
After the issues were formulated the respondent moved that asthe petitioner has admitted the title of the respondent, and the rightto begin rests with the petitioner, he should be called upon to leadevidence first.
On this matter parties were directed to file their written submissionson the basis of which the learned District Judge by an order madeon 25. 04. 2001 directed the petitioner to begin the case by leadingevidence first.
Being dissatisfied with the order of the learned District Judge thepetitioner has made this application for leave to appeal praying forreliefs set out in it.
The question that has to be determined is whether the learnedJudge's order whereby he directed the petitioner to begin the caseby leading evidence first is a valid order in the light of the submissionsmade by both parties.
Sri Lanka Law Reports
 2 Sri L ft
Having given careful consideration to the submissions made by bothparties it is my considered view, that the learned Judge was correctwhen he determined that, that the burden was cast on the petitionerto prove that he was in lawful possession of the premises in suit ashe has admitted the title of the respondent. This determination is 30clearly in keeping with the reasoning adopted in the case of Gunasekerav. LatiffP Therefore, as far as the present case is concerned, I amof the view that the petitioner should begin the case, by leadingevidence first unless the respondent insists on his claim for damages,in which event the respondent should begin the case, as his evidencein regard to damages would be necessary for the purpose of evaluationof the quantum of damages.
The fact that the issue regarding the right to begin was raisedseveral dates after the formulation of issues and admissions and alsoseveral dates after the postponement of trial in this case has no *obearing on the determination reached by the learned District Judge.
In view of the foregoing reasons, I hold that the defendant-petitionershould begin subject to the qualification mentioned above, I dismissthis application of the petitioner and the petitioner is cast in cost ina sum of Rs. 5,000.
UDALAGAMA, J. – I agree.
JAYASEKERA v. BISHOP OF KANDY