Sri Lanka Law Reports
(2003] 2 Sri L.R
SIGERA AND OTHERS
COURT OF APPEALDISSANAYAKA, J. ANDSOMAWANSA, J.
CA 854/95 (F)
D.C. ANURADHAPURA 14801/LJUNE 5, ANDAUGUST 21, 2002
State land – Declaration of rightful heir to land – No permit granted – Actiondismissed – Issues not answered – Court deciding best course of action.
The plaintiff-appellant instituted action seeking a declaration that she is therightful heir to the land (State) and ejectment of the 1 st defendant-respondent.Preliminary Issues were raised regarding jurisdiction.
The trial judge did not refer to the preliminary issues nor did he answer anyissue, on the basis that the proper course of action to obtain a declaratorydecree was by way of a writ from a superior court. The action was dismissed.
The finding is erroneous; the trial judge court not have rejected the action.
Per Somawansa, J.,
“I am unaware of the existence of any provision in law which wouldenable the learned District Judge to reject an action in view of a bettercause of action one would take in order to obtain the relief one is seek-ing and it is the duty cast by law on the learned District Judge to decidewhether he could grant such relief sought."
Per Somawansa, J.,
'There is no provision of law which requires him to decide what is thebest course of action the plaintiff-appellant should take and advise himon such matters.
APPEAL from the judgment of the District Court of Anuradhapura.
Jayatilaka v Sigera and Others (Somawansa, J.)
Mahinda Ralapanawa with A.L.L. Jayantha for plaintiff-appellant.
Kuvera de Soysa for 1st defendant-respondent
Eva Wanasundera, Deputy Solicitor General for 2nd and 3rd respondents.
October 11, 2002SOMAWANSA, J.
The plaintiff-appellant institued the instant action in theDistrict Court of Anuradhapura seeking a declaration that she is therightful heir to the land in suit morefully described in the scheduleto the plaint, that granting of a licence to the 1st defendant-repon-dent by the 2nd defendant-respondent would be illegal, for eject-ment of the 1st defendant-respondent and all under her from thesaid land and the plaintiff-appellant be placed in possession there-of and an interim injuction preventing the 1st defendant-respondentfrom obtaining a licence in respect of the said land from the 2nddefendant-respondent.
The 1st defenant-respondent’s position was that as the landin suit belonged to the State the plaintiff-appellant could not main-tain this action.
She also averred that after her father’s death her husbandapplied for a licence and on his death the 2nd defendant-respon-dent was taking steps to issue a licence in her name. The 2nddefendant-respondent the Divisional Secretary and the 3rd defen-dant-respondent the Hon. Attorney General also filed answer deny-ing the several averments in the plaint.
At the trial several admissions were recorded among which itwas admitted by the 2nd and 3rd defendants-respondents that theplaintiff-appellant’s application for a permit was refused by the 2nddefendant-respondent. 30 issues were raised by the parties ofwhich issue nos. 26 and 27 were raised by the 1st defendant-respondent. On an examination of the record it appears that objec-tion on the qustion' of jurisidction of the Court to hear the case wastaken up by the 1st defendant-respondent and the parties were
Sri Lanka Law Reports
 2 Sri L.R
directed to file their writtten submissions on the said objection. Onlythe plaintiff-appellant and the 1st defendant-respondent filed theirwritten submissions and the learned District Judge by his orderdated 16.10.1995 held with the 1st defendant-respondent andrejected the action of the plaintiff-appellant.
It should be noted here that on an examination of the recordit appears that there is no indication as to what the preliminaryissue of law that was taken up for hearing. It appears that even the1 st defendant-respondent does not refer to any specific issue in herwirtten submissions. However the plantiff-appellant has filed herwritten submissions in relation to issues 26 and 27. They are as fol-lows:
issue No. 26. Can the reliefs sought by the plantiff be granted bythis Court?
Issue No. 27. If not can the plaintiff maintain this action?
At the hearing of this appeal it was contended by the coun-self for the plaintiff-appellant that the learned District Judge hasfailed to answer the relevant issues 26 and 27 which were the onlyissues in reference to jurisdiction.
It must be noted here that having recorded the admissionsand the issues it was incumbent on the learned District Judge toidentify and record the issues that were to be tried as preliminaryissues of law. However this was not done in the instant case; nei-ther did he refer to any preliminary issues in his order nor did heanswer any issue but the learned District Judge rejected the actionof the plaintiff-appellant mainly on the basis that the proper courseof action to obtain a declaratory decree was by way of a writobtained from a Superior Court. This I think is an erroneous findingon which the learned District Judge could not have rejected theaction of the plaintiff-appellant. The position is aggravated by thefact that the learned District Judge himself in his reasoning admitsthat where a party could maintain an action for a declaratory decreeas well as a right to obtain a writ the fact that such a party havingthe right to obtain a writ does not prevent such party from main-taining an action for a declaratory decree. If as the learned DistrictJudge admits that an action for a declaratory decree as well as awrit was available to the plaintiff-appellant then he should have
CAJayatHaka v Sigera and Others (Somawansa, J.)117
proceeded to decide whether the plaintiff-appellant is entitled to adeclaratory decree and not consider the question of writ, for in anyevent, the learned District Judge had no writ jurisdiction.
I must also say that I am unaware of the existence of anyprovision of law which would enable the learned District Judge toreject an action in view of a better cause of action one would take 70in order to obtain the relief one is seeking and it is the duty cast bylaw on the learned District Judge to decide whether he could grantsuch relief sought. There is no provision of law which requires himto decide what is the best course of action the plaintiff-appellantshould take and advise him on such matters. In fact the objectionswere raised by the 1st defendant-respondent on the question ofjurisdiction and not on what was the best course of action for theplaintiff-appellant.
While conceding that the plaintiff-appellant would not be enti-tled to some of the reliefs prayed for in her prayer to the plaint the sofirst relief that she has prayed for is in respect of a declaratorydecree. Therefore it was incumbent on the learned Distsrict Judgeto decide whether he had judicial authority to entertain and grantthis relief which the District Judge had failed to do. In the circum-stances it appears to me that there is a failure of justice.
In view of the above reasoning, I am of the view that the orderof the learned District Judge cannot stand. Accordinlgy I set asidethe order of the learned District Judge and send the case back tothe District Court for a re-trial. The appeal is allowed with costs. TheRegistrar is directed to send the case record back to the District 90Court, Anuradhapura forthwith.
DISSANAYAKE, J. – I agree.Appeal allowed; retrial ordered.
JAYATILAKA v. SIGERA AND OTHERS