078-NLR-NLR-V-72-A.-PUNCHIRALA-Appellant-and-M-GNANESWARA-Respondent.pdf
H. X. G. FERNANDO, C.J.—PunchiraUi v. Gnaneswara
367
1969 Present: H. N. G. Fernando, C.J., and Samerawiekrame, J.
A. PUNCHIR.ALA, Appellant, and M. GNANESWARA, RespondentS.C. 199 f07 {F)—D. C. Kandy, 6936{L
Buddhist Temporalities Ordinance {Cap. 31S)—Section 23—“For his exclusive
personal use "—Improvements effected on pudgalika properly—Claim for
compensation—Maintainability.
Section 23 of the Buddhist Temporalities Ordinanco is ns follows :—
“All pudgalika property that is acquired by any individual bhikkhu for hisexclusive personal use, shall, if not alienated by such bhikkhu during his life-time, be deemed to bo the property of tho temple to which such bhikkhu belongedunless such property had been inherited by such bhikkhu. ”
Held, that the words “ acquired for his exclusive personal use ” relate to thekind of titlo obtained by tho bhikkhu in tho property, namely, a titlo for his ownbenefit and not for the benefit of any other person. They have no referonco tothe purposo for which the property is acquired, or to the manner in which theproperty is to be enjoyed, by tho bhikkhu acquiring it.
Dhammadara Thero v. Scderahamy (41 N. i». R. 236) followed.
Hanwelle Piyaratana Thera v.Jinananda Thera (68 N. L.R. 178) not followed.
Held further, that a person is entitled to claim compensation for improvementseffected by him on pudgalika property in good faith and with the consent of theowner.
.A.PPEAL from a judgment of tho District Court, Kandy.
C. R. Gunaratne, for the defendant-appellant.
N.E. Weerassoria, Q.C., with W. S. Weerasooria, for the plaintiff-respondent.
Cur. adv. vult.
November 20, 1969. H. N. G. Fernando, C.J.—
This was an action by the Viharadhipathy of a temple for a declarationof title to a land which had been purchased in 1912 by one SumangalaUnnanse who had belonged to that temple. The claim of the plaintiffwas that Sumangala Unnanse died possessed of this land and it becamethe property of the temple by virtue of s. 23 of the Buddhist TemporalitiesOrdinance, Cap. 318.
The learned trial Judge upheld the claim of the plaintiff despite thojudgment in the case of Hanwelle Piyaratana Thera v. Jinananda Thera1.In that case Basnayake C.J. held that a party cannot call 8. 23 in aid** unless he can establish that the property was acquired by the deceased
‘ (1963) 68 N. L. R. 178.
36 S
H. N. Q. FERNANDO, C.J.—Punchirala v. Gnaneswara
for kis exclusive personal use ”, Tho trial Judge has distinguished theinstant case on the ground that, in the English translation of thehabendum clause in the deed of 1912, the words " for his use ”occur. I do not think the mere occurrence of these words in thedeed satisfies the test which Basnayake C.J. thought to be applicable.According to that test, the section will not apply unless it is provedthat the property was acquired for the sole use of a Bhikku and not foruse by any other person whomsoever.
.
The judgment in the cited caso does not refer to the earlier case ofDb'xmmadara Thero v. Sederanhamy1, in which a similar construction ofs. 20 was rejected after full and careful consideration. In this caseKeuneman J. pointed out that the words “ for his exclusive personal use ”were probably intended only to exphasise that the section applies solely to“ pudgalika ” property. He further explained that—
“it is only a small step for us to hold that, where the Ordinance
omploys the phrase * acquired for this exclusive personal use * inrelationship to property, these words merely relate to the kind of titleobtained by the person in the property, namely, a title for-his ownbenefit and not for the benefit of any other person, and have noreference to the purpose for which the property is acquired, or to themanner in which the property is to be enjoyed, by the personacquiring it
With much respect I am in entire agreement with the opinion ofKeuneman J., and much prefer it to that expressed in the more recentjudgment, which latter contains no discussion of tho point involved. Theconclusion of the learned trial Judge in the instant case has therefore to beaffirmed..‘
The decree under appeal has allowed to the plaintiff damages for thedefendant’s wrongful possession of the land, but the learned Judgedisallowed the defendant’s claim for compensation for a house which hehad erected thereon.
The defendant is the brother of tho deceased Sumangala Unnanse, andit appears that he built this house on the land in 1930. • This erection ofa house on his brother’s land, particularly because tho brother was amonk, must in the absence of any evidence to the contrary be presumed
to have been in'good faith and with the consent of the monk.
!
The defendant in his evidence claimed that the house is worth aboutRs. 16,000/-, but his witness Punchi Banda who has been a Vel Vidane anda member of the Cultivation Committee stated that the house is worthabout Rs. 4,000/-.. Wo think that a sum approximate to this amount canfairly be taken as the amount of tho compensation for the house. Thereis however’to be set off in favour of the plaintiff damages payable bythe defendant for his wrongful occupation of tho land after he was called
1 (1939) 41 N. L. H. 236.
SIRIMANE, J.—Rubaainghe v. Welgama
369
upon to deliver up possession. Allowing for this set off, and allowing alsofor costs in both Courts to which the plaintiff is entitled, we fix tho amountduo as compensation for the house at Rs. 1,000/-.
The decree under appeal is affirmed subject to the deletion of the ordersfor tho payment of damages and costs, and to the insertion in the decree ofthe following orders :—
“ It is hereby further ordered and decreed that the plaintiff do pa}' totho defendant a sum of Rs. 1,000/- in respect of compensation for thehouse.
And it is heroby further ordered and decreed that tho defendantdo pay to the plaintiff damages at tho rato of Rs. 15/- per month from1st January 1970 until peaceful possession of tho premises is yielded tothe plaintiff.
And it is heroby further ordered and decreed that writ of ejectmentshall not issue until the sum due as compensation for the defendant isduly paid or adjusted. ”
Samerawickrame, J.—I agree.
Appeal mainly dismissed.