050-NLR-NLR-V-54-PEERIS-et-al-Appellants-and-SAVUNHAMY-Respondent.pdf
Peer is v. Savunhainy
207
1951Present : Dias S.P.J. and Gratiaen J.PEERIS et at., Appellants, and SAVUNHAMY, Respondent.S. C. 121—D. C. Galle, 2,596
Aotio rei vindicatio—Burden of proof—Boundaries—Statements in deeds between thirdparties—Evidentiary value—Evidence Ordinance, s. 32—Finding of fact—Power of appellate Court to reverse it .
Where, in an action for declaration of title to land, the defendant is ir>possession of the land in dispute the burden is on the plaintiff to prove that hehas dominium.
For the purpose of identifying the land in dispute, statements of boundariesin title deeds between third parties are not admissible under section 32 of theEvidence Ordinance.
A finding of fact may be reversed on appeal if the trial Judge has demons t mb 1 ymisjudged the position.
./^LPPEALi from a judgment of the District Court, Galle.
H- V. Perera, K.C., with H. W. Ja.yewarde.ne and J. W. Subasinghe, forthe defendants appellants.
A. L. Jayasuriya, with E. A. G. de Silva, for the plaintiff respondent.
(1940) 2 .4. E. R. 592.
Our. adv. vult.
208
DIAS S.P.J.—Peeris v. Savunhamy
April 26, 1951. Dias S.P.J.—
Tn this case the plaintiff seeks to vindicate title to an undivided ^th share•of a land which she calls Godellewatta, or Godaparagahawatta, orEdogewatta, in extent about 2^ acres. She has no title deeds for her share,and her claim is based entirely on prescriptive possession. She sued the-three defendants who are brothers. The 1st defendant put the plaintiff-to proof of her title, asserting that he and his predecessors in title had beenin exclusive possession of the land in dispute for a period of over a century.He produced a deed 1D1 of 1842 and a deed 1D2 of 1945. The otherdefendants make no claim to the land.
In her plaint, dated July 8, 1946, the plaintiff asserted that she was■ousted by the three defendants “ about three months ago ”, i.e., aboutApril 8, 1946..
In the course of her evidence the plaintiff stated on oath : “ The■defendants disputed my title to this land about one and a half monthsbefore I filed plaint, but I cannot remember the exact date. Before this■dispute the defendants did not possess this land ”. It will be observed-that this evidence is in the teeth of the ouster pleaded in the plaint. It is•clear that the ousters pleaded by the plaintiff are fictitious. She produced-two documents P6 and P6a.
P6 is an extract from the local headman’s diary where the complaintmade by the plaintiff of this alleged ouster has been recorded. P6 showsthat on June 25, 1946, the plaintiff appeared before the headman andstated “ that the above named defendants are in forcible possession of theland Godellewatta alias Godaparagahawatta …. for a period of.about a year ”. P6a is to the effect that the headman proceeded to theland and questioned the 1st defendant who denied the alleged ouster andclaimed that he had been in possession of the land in dispute for tenyears. There are two significant points which emerge from P6. In thefirst place, the ouster pleaded by the plaintiff is proved to be false from herown document. The alleged ouster did not take place in April, 1946, butTor about one year prior to June 25, 1946, the defendants had been inforcible possession. In the second place, it will be observed that, whilethe plaintiff’s whole case at the trial was that the land originally belongedto a man called Edo and the land was therefore called Edogewatta, she■did not give that name to the headman in P6.
When these facts transpired the trial had proceeded for a considerabletime. The plaintiff moved to amend her plaint for the second timepaying costs. Accordingly, an amended plaint was filed on November 5,1948, where it is asserted that the ouster took place “ on or about the 25th■day of June, 1945 ”.
This being an action for declaration of title to land, and the defendantsbeing in possession, the burden lay on the plaintiff to prove that she had■dominium to the land in dispute—see Abeykoon Haminey Appuhamy 1.Admittedly the only title upon which the plaintiff can rely in this case is-title by prescriptive possession. She has no documentary title or deeds-
1 {1950) 52 N.L.B. 49.
DIAS S.P. J.—Peeris v. Savunhamy
209
Having regard to the false and fictitious ousters pleaded, the plaintiffhad a heavy onus to discharge. One would therefore have expected herto call some of her many co-owners to corroborate her story. Accordingto plaintiff’s pedigree, X>. Edo was the original owner. He is supposed tohave died leaving a widow Thengohamy and three children, Siyadoris,Sanchohamy and Kachohamy. It is stated that Thengohamy “ sold herhalf share ” to her son Siyadoris—but the deed is not forthcoming. Thefailure to produce that deed is unexplained. Plaintiff who is a com-paratively young woman cannot have any personal knowledge of thesefacts and many other facts which she was made to state in evidence.Siyadoris is said to have died leaving four children—Podiappu, EramanisAppu, Adanhamy and Saranappu, who is the father of the plaintiff. Onthis pedigree there must be many co-owners of the land in dispute.Plaintiff mentions two of them—Simon Appu, the son of her paternaluncle Podiappu, and Jadinhamy, the child of her paternal uncle EramanisAppu. Neither of these two persons has been called. If plaintiff’s storyis true, they also are each entitled to an undivided £th of the land. Theyhave not joined the plaintiff in this action, and have not appeared to giveevidence. It is significant that plaintiff’s husband who helped to plantthe land, and whose name is on the list of witnesses, has not been calledto corroborate his wife.
Plaintiff’s explanation as to why she waited for one year until June 25,1946, to .complain to the headman of an ouster committed twelve monthspreviously carries no conviction. She says “ I delayed so long because-I tried to get all the co-owners including Baronsingho to join me in thisaction, but as the co-owners were not willing to do so, I made thiscomplaint to the Vidane Arachi one year later ”. It is incredible thateven the most ignorant village woman who has been forcibly ousted fromher land would wait for one year to go to the headman. Ear moreprobable is it that when the plaintiff realized that in the absence ofdocumentary title, her case was extremely weak, she tried to createsome sort of evidence by going to the headman and complaining of an.ouster a year previously.
In my opinion the documents PI, P3 and P4 which were admitted iruthis case are inadmissible. PI is a bond dated 1879 between strangersto this action where the northern boundary of one of the lands hypothe-cated is given as “ the land planted by D. Siyadoris ”. It is sought to-identiiy Siyadoris as the son of Edo. The name of the land is not given,and as there may be many persons bearing the name of Siyadoris in this-locality, the value of this deed as evidence, even if it is admissible,appears to be almost nil. It has been held by the Pull Bench of Patna,in iSoney Lall v. Darbdeo 1 that statements of boundaries in title deeds-between third parties are not admissible under Section 32 of the Evidence-Ordinance. There is also the deed P2 executed between strangers where-the northern boundary is stated to be Edogewatta. For the reasons-already given, the evidentiary value of such a statement in P2 is nil. Theexhibits P3, P4 and P5 relating to a Court of Requests case about the-felling of a jak tree is in my opinion inadmissible in this case, as tho1 (1935) A. I. R. Patna, 167.
210
Punchi v. Tikiri Banda
■defendants had. nothing to do with that case. Plaintiff’s witnessBaronsingho, far from corroborating the plaintiff, contradicts her on manypoints.
I am mindful of the fact that we are asked in this ease to reverse.a finding of fact by the trial Judge who saw and heard the witnesses give•evidence. The authorities on this point will be found collected inMarikhar v. Lebbe x. In Alles v. Alles 8 the Privy Council said :
“ To reverse this finding (of fact) on appeal would be a strong step,-only justified if the trial Judge had demonstrably misjudged theposition ”. In my opinion, this is such a case. The plaintiff’s case isteeming with inaccuracies and improbabilities. The learned trial Judgehas made no attempt to grapple with these difficulties. He has•overlooked the fact that whatever may be the demerits of the■defendants’ case, the onus was on the plaintiff to prove that she had titleto &th of the land. He has given the go-by to this aspect of the case andconcentrated on the weaknesses of the defendants’ case. Even assumingthat the whole of the defendants’ case is demonstrably false, the factremains that they being in possession are presumed to have title, and itwas for the plaintiff to rebut that presumption by proving her own title.‘This she has failed to do.
In my opinion the judgment appealed against cannot stand. I allow•the appeal and dismiss plaintiff’s action with costs, both here and below.
'Gbatiajen J.—I agree.
Appeal allowed.