099-NLR-NLR-V-75-PETER-FERNANDO-and-another-Appellants-and-WIMALASENA-PERERA-Respondent.pdf
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Fernando v. Perera
1972Present: Deheragoda, J.
PETER FERNANDO -and another, Appellants, andW1MALASENA PERERA, RespondentS.C. 41/70—C. R. Colombo, 98091/R. E.
Jurisdiction—Action to eject defendant from a land—Plaintiff's claim within jurisdictionof Court of Bequests—Answer of defendant stating that the value of the landwas worth over Bs. 12,000—No claim in reconvention for declaration of title—Jurisdiction of Court of Bequests prevails then—Courts Ordinance, s. 75.
Plaintiff instituted action in the Court of Requests to eject the 1st and 2nddefendants from a land on the ground that the defendants who had been placedin possession of the land as licensees by the plaintiff’s predecessor in title werewrongfully refusing to quit. The 2nd defendant filed answer claiming titleto the land by virtue of prescriptive possession and stated that the
DEHERAGODA, J.—Fernando v. Perera
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subjeot-matter of the action was worth ovor Rs. 12,000 and therefore beyondthe monetary jurisdiction of the Court of Requests. But the defendants didnot make a claim in reconvention that they be declared entitled to the land onthe basis of prescription ; they merely asked for a dismissal of theplaintiff’s action.
Held, that the monetary jurisdiction of the Court of Requests was not oustedin the absence of a counter-claim by the defendants for a declaration of title tothe land.
-AlPPEAL from a judgment of the Court of Requests, Colombo.
E. P. Goonetilleke, for the defendants-appellants.
K. Shanmugalingam, with N. Abeynayake, for the plaintiff-respondent.
July 26, 1972. Deheragoda, J.—
The plaintiff-respondent [instituted this action, inter alia, to 'ejectthe 1st and 2nd defendants-appellants from Lot 6 in Plan No. 2148.The plaintiff’s case is that the defendants had been placed in possessionof the land concerned by his predecessor in title as licensees and that thedefendants are estopped from denying and disputing the title of theplaintiff to the premises, that they had been requested to vacate anddeliver vacant possession, and that they are in wrongful and unlawfuloccupation.
The 2nd defendant in her amended answer clnims title by virtue ofprescriptive possession and states that the subject matter of the actionis worth over Rs. 12,000 and is beyond the jurisdiction of the Courtof Requests. She prays that the plaintiff’s action be dismissed.
The only substantial ground urged by the learned counsel for the 1stand 2nd defendants-appellants is that in view of the answer of the 2nddefendant claiming title by prescription, the value of the action shouldbe based on the value of the land which exceeds the monetary jurisdictionof the Court of Requests. His contention is that the learned Commissionerof Requests has wrongfully entered judgment in favour- of the plaintiffoh a mistaken view of the law that the monetary jurisdiction of theCourt depends only on the plaintiff’s right to possession and not uponthe plaintiff’s claim taken with the defendants’ answer. I
I agree with the learned counsel for the appellants that the jurisdictionof the Court will have to be determined after an examination of boththe plaintiff’s claim and the defendants’ answer. But one has to havein mind that the jurisdiction of the Court depends on the relief prayedfor by the parties and what section 75 of the Courts Ordinance precludesa Court from doing is to entertain an action praying for relief which isin excess of the jurisdiction of that Court. While in the plaint the plaintiffprays for the ejectment of the defendants from the premises concerned
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DEHERAGODA, J.—Fernando v. Perera
as they were licensees, the defendants in their answer did not make aclaim in reconvention that they be declared entitled to the land on thebasis of prescription, but merely asked for a dismissal of the plaintiff’saction.
Learned counsel for the defendants-appellants contends that upon amere averment by the defendants in the answer claiming title to theland by prescription, the monetary jurisdiction of the Court of Requestsis ousted even though relief in the form of a declaration of title is notcounter claimed. He cited in support the case of Bastian Appuhamy v.Haramanis Appuhamy1 {46 N. L. R. 505) and in particular the followingpassage at page 508 :—
“ In order, therefore, to ascertain whether an action is within orbeyond the precuniary jurisdiction of a Court, the nature and extentof the subject-matter in dispute has to be ascertained, and, for thatpurpose, it would be necessary to examine not only the plaintiff’sclaim but also the defendant’s answer to it. ”
Learned counsel for the plaintiff-respondent argues that the answerof the defendants includes a prayer which is merely for a dismissalof the action of the plaintiff and not for a declaration of title to the landfrom which the plaintiff seeks to eject them. Prescriptive possession hasbeen set up merely as a defence to the plaintiff’s action in ejectment andan adjudication of the defendants’ claim to title has not been prayed for.He cited in support of this argument, along with other cases, the PullBench case of Heen Banda v. Aluvihare2 (31 N.L.R. 152). In that casethe plaintiff, after setting out his title to the land, which admittedly wasover the value of Rs. 300, claimed a sum of Rs. 150 as damages againstthe defendant for having forcibly cut and removed jak trees. Thedefendant in his answer had denied the plaintiff’s title to the land, buthad made no claim in reconvention on that basis. While holding that theCourt of Requests had jurisdiction to entertain that action, Fisher, C. J.said at page 156 as follows:—
“ There was no claim in reconvention in the present case and we aretherefore concerned only with what was stated by the defendant inhis answer as a defence. Such a defence, in my opinion, does notbring into operation the proviso in section 77 (present section 75 ofthe Courts Ordinance) which I have set out above. The meaning ofthe first part of section 81 (present section 79 of the Courts Ordinance)is, in my opinion, that where a defence is raised which involvesconsideration of a question which could not be made the direct subject-matter of a prayer for relief by the Court, the Court can deal with anddecide the question for the purpose of deciding whether the plaintiffis entitled to the relief he claims. That is the situation in this case,and it is a situation with which in my view the section directly andexpressly deals. ”
(1945) 45 N. L. R. 505.
* (1929) 31 N. L. R. 152.
RAJARATNAM, J.—■Sirieena v. Silva
MO
Having regard to the faot that the defendants in the instant case haveraised the question of prescriptive, title merely as a defence to the plaintiff’saction, and prayed only for a dismissal of the plaintiff’s action on thatground, I am of the view that the principle set out in the Full Benchcase reported in 31 N.L.B. page 152 (supra) is in point. I am boundby that decision. The defendants-appellants’ appeal is accordinglydismissed with costs.
Appeal dismissed.