A. M. KARUNADASA, Appellant, and ABDUL HAMEED, Respondent

088-NLR-NLR-V-60-A.-M.-KARUNADASA-Appellant-and-ABDUL-HAMEED-Respondent.pdf


352
Karunadasa v. Abdul Harmed
1958Pres&nt: Weerasooriya, J., and Sansoni, J.A. M. KARUNADASA, Appellant, and ABDUL HAMEED, RespondentS. 0. 810—D. C. Matah, 519,'L
Rei vindicatio action—Plea of prescription—Court should examine documentarytitle first.
Land Settlement Ordinance {Gap. 310)—Settlement order obtained thereunder—Effecton plea of exceptio rei venditao et traditae—Section S.
In a rei vindicatio action it is highly dangerous to adjudicate on an issue ofprescription without first going into and examining the documentary title of theparties.
The plea of exceptio rei venditae et traditae is net available to a purchaseras against a vendor who obtains a settlement order under the Land Settlement
Ordinance after the date of the purchase.
1 {1918) 20 N. L. B. 3S5 at page 396.2
3 (1935) 57 N. L. B. 469.
(1921) 22 N. L. B. 236.
SANSONI, J.—Karunadasa v. Abdul Harmed
35S
Appeal from, a judgment of the District Court, Matale.
8. B. Tatawara, for the plaintiff-appellant.
T. B. Dissanayake, for the 1st defendant-respondent.
Cur. adv. vuU. .
February 10, 1958. San^oni, J.—
The land in dispute in this action is 2 roods in extent. It was thesubject of a settlement order dated 11th November, 1939, made underthe Land Settlement Ordinance (Cap. 319). That order was publishedin the Government Gazette of 19th July 1940, and by virtue of section8 of the Ordinance it became conclusive proof of the title of the personsin whose favour it was made.
By the order four persons named Ausadanaide, Tikirihamy, Ukkuammaand Dingiriamma, were declared entitled to the land in the proportion of1/3,1/6,1/6 and 1/3 respectively. Ausadanaide transferred his | share tothe plaintiff in 1954, and the other three persons transferred their sharesalso to the plaintiff in 1953. The plaintiff brought this action in September.1954 for declaration of title, ejectment and damages, pleading that thedefendants were in unlawful possession of the land.
The case for the defendants was that Ausadanaide had transferred thisland to one Udupihilla in 1938, and Udupihilla in 1949 had transferredit to the 2nd and 3rd defendants, who in turn transferred it to the 1stdefendant and Hussain Kandu. In the answer of the 1st defendant itwas pointed out that Hussain Kandu had transferred his share to the 1stdefendant’s children and that they were necessary parties to the action:they have not, however, been noticed or added as parties to this action.
The issues framed at the trial raised questions regarding the effect ofthe settlement order, due registration of the deeds, and prescription..After trial, the learned District Judge held that the 1st defendant hadacquired prescriptive title to the land. He also held that the settlementorder in favour of Ausadanaide to the extent of J share enured to thebenefit of the 1st defendant. On the evidence, the question of dueregistration of the deeds relied on by the plaintiff does not arise forconsideration.
With great respect to the learned Judge I think his approach to thematters in dispute between the parties was erroneous. It has been saidbefore, and I think it will bear repetition, that in a rei vindicate actionit is highly dangerous to adjudicate on an issue of prescription withoutfirst going into and examining the documentary title of the parties Yet in this case the learned Judge has paid no heed to the conclusiveeffect of the settlement order, and has instead considered only the questionof possession. If he had directed himself correctly he would have seenthat on 19th July 1940 all rights which any other persons had in thisland were wiped out by the settlement order, including any rights whichUdupihilla may have had upon his purchase from Ausadanaide. And
1 (1935) 17 O. L. Bee. S3.
354
SANSONI, J.—-Kanmadasa v. Abdul Hameed
since the rights of the 4 persons in whose favour the settlement orderhad been made were purchased by the plaintiff before September 1954,when this action was brought, the burden lay upon the defendants toprove that they had acquired prescriptive title to this land. It was notnecessary for the plaintiff to rely on possession because his title, apartfrom prescription, was unimpeachable.
If the learned Judge had approached the case in this way, I thinkhe would have scrutinized more closely the evidence of possession whichwas led on behalf of the defendants. One fact which stands out quite•clearly on that evidence is that the soil of this land is very infertile, andit is also water-logged. Possession of such a land would therefore not beeasy, and the evidence led by the defendants to show that efforts weremade to grow paddy, coconuts and plantains on it, also shows that thoseefforts were not successful.
Now according to the first defendant, the purchase by Udupihilla in1938 was really on behalf of one Unambuwa, who planted the land withplantains and possessed it in that way. Since Udupihilla did not partwith the land till 1949 it was essential to examine whether there was anytruth in the suggestion that dining those eleven years plantains weregrown on the land. The second defendant who bought the land fromUdupihilla claimed to speak to Udupihilla’s possession, but in cross-examination he admitted that he had never been to the land until hewent there shortly before his purchase. He was forced to admit thatwhen he said that Udupihilla possessed the land he was only going by thedeeds and by what he had heard.. Another witness called by the defen-dants was the Village Headman who first said that Udupihilla possessedthe land but immediately afterwards added that when Udupihilla ownedit no work was done on it. He left no doubt as to what he meant, whenhe added that no one made any attempts to plant plantains on this land,and he therefore contradicted the first defendant. In this state of theevidence it is apparent that there was no possession by Udupihilla, andthe learned Judge was in error when he held the contrary.
Even as regards the second defendant’s possession, which the learnedJudge has also found as a fact, there is some doubt, because while thesecond defendant said that he planted plantains and coconuts, theVillage Headman’s evidence contradicted that, and the first defendanthas also said that no coconuts were planted on this land. All that thesecond defendant seems to have done was to grow paddy on one occasion.Hut whether the second defendant possessed the land or not does not really-affect the case, because even if he did (and that is a matter which hasbeen far from proved) his possession could only have begun in 1949.
I am unable to agree with the learned Judge when he says that thebenefit of the settlement order in favour of Ausadanaide to the extent ofJ can be claimed by the first defendant, for it has been held that the pleaof exceptio rei vendUae et traditae is not available to a purchaser as againsta vendor who obtained a settlement order after the purchase was made—see Pericaruppan Ohettiar v. Messrs. Proprietors and Agents Ltd.1. Thefirst defendant therefore has no title whatever to the land in dispute.
1 (1946) 47 N. L. R. 121.
H. N. G. FERNANDO, J'.—Somasena v. Kusumawathie355
For these reasons I would set aside the judgment appealed against and-enter judgment for the plaintiff as prayed for with costs in both Courts,rsave that damages will he as agreed upon at the trial.
Wkerasoobiya, J.—I agree.'