005-NLR-NLR-V-52-ABEYKOON-HAMINE-Appellant-and-APPUHAMY-Respondent.pdf
1950Present : Jayetileke G.J. and Dias S.P.J,ABEYKOON H AMINE, Appellant, and APPUHAMY, Respondent
422—D. G. Colombo, 3,619
Crown grant—No presumption that Crown Itas title—Actio rei vindicatio—-Plaintiffmust establish title or action fails—Onus placed■ on wrong party—Court of: Appeal cannot re-write judgment of trial Court.
In the maritime Provinces a Crown .grant, does not raise a presumption thatthe grantee is vested with dominium. The plaintiff in an action rei viijdicatiocannot, therefore, rely on a Crown grant alone to discharge the initial burden ofproof that rests on him to establish that he has dominium, to the land in. dispute.
Where the trial Judge has made a cardinal error ab initio by placing theonus on the wrong party, it would not be proper for the Court of Appeal . totry and ascertain whether, had the trial Judge placed the onus on the properparty, the result might have been different. In such a case it would not beproper for the Court of Appeal to re-write the judgment of the trial Judge. "
PPEAL from a judgment of the District Court, Colombo.
One Yahonis Appu, in the year 1887, obtained a Crown grant to artowita land. Plaintiff, asserting that Yahonis Appu’s title had devolvedon him, brought an action rei vindicatio against the defendant, who wasin possession of the land. The trial Judge, holding that the Crown grantvested ‘ ‘ paper title ” in Y and his successors, placed the burden, of provingtitle by prescription- on the defendant..
V. Perera, K.C., with H. A. Koattegoda. and J. TV. Subasinghe, fordefendant appellant.
N. E. Weerasooriya, K.C., with H. TV. Jayeivardene and G. T. Samara-wichreme, for plaintiff respondent.
Cvnr. ado). wait.
September 4, 1950. Dias S.P.J.
This is an aetion for- declaration of title to a paddy field called Kahata-gaha-owita valued at Rs. 450. The plaintiff respondent says that bya Crown Grant dated 1887 one Yahonis Appu became the owner of theland. His title the plaintiff asserts has devolved on him. Except forfour mortgage bonds P9, P10, PIT and P12 executed in 1894, 1896,1897 and 1901 respectively, he has no deeds or documents for this landuntil March, 1944, when the present dispute had arisen. The plaintiffalleges that the defendant appellant ousted him and took forciblepossession of the land in March, 1944.
The case for the appellant is that the land in dispute forms part of hisfields on the west, and that he and his predecessors in title have been inexclusive possession for over 40 years.-
This being an action rei vindicatio, and the defendant being in possession,the initial burden of proof was on the plaintiff to prove .that ha had
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■dominium to the laud in dispute. In de Silva v. Ooonetillehe 1 which, is a■decision of a Bench of four Judges, Macdonell C.J. said:“ There is
abundant authority that a party claiming a declaration of title must have•title himself. ‘ To bring the action rei vindicatio plaintiff must have
■ownership actually vested in him—1 Nathan p. 362, s. 393 ’
‘ This action arises from the right of dominium. By it we claim specificrecovery of property belonging to us, but possessed by someone else ’—Persira (1913 ed.) p. 300 quoting Voet 6.1.2. The authorities unite inholding that plaintiff must show title to .the corpus in dispute, and thatif he cannot, the action will not lie ”.
The issues were correctly framed, but the learned trial Judge hasmisdirected himself with) regard to the burden of proof. At the commence-ment of his judgment he said: “ Now it is quite clear that the field inquestion was sold by the Crown in 1887 and that this field was not part•of the field Mahakumbura (belonging to the defendant .'…. The
■paper title to the field glaimed by the plaintiff has come down to him. Thedefendant can succeed only if she proves that she and her husband and hispredecessors have prescribed to the field ”. Again the learned Judge•concludes his judgment with these words—“ The burden of proving pres-■criptive po8ses]sion is on the defendant and I do not think that she has■discharge the same”
The learned Judge has been led into error by assuming that- a Crown‘Grant raises a presumption that the grantee is vested with dominium.•So far as the Maritime Provinces of the Island are concerned, there is nosuch presumption. In Silva v. Bastian 2 it was laid down that a CrownGrant by itself creates no presumption of the title of the Crown to theland which it conveys. Wood Benton J. after reviewing all the earlierauthorities said: “ I desire only to add a word in regard to the attempt'•of the learned District Judge to resuscitate the discredited, doctrine that:a Crown Grant by itself creates any presumption of the title of the Crownto the land which it conveys. This proposition has been negativedin a series of decisions both reported and unreported, which were bindingon the District Judge as they are binding on us ”. After referring to thediscredited cases Wood Benton J. added: “ I would venture to hope that-ewe shall hear no more of them as authorities'”. In Mudalihamy' v.Kirihamy 3 Bertram C.J. cited Silva v. Bastian 2 with approval for theproposition that there is no presumption in regard to the validity of■Crown Grants.
The learned District Judge, having wrongly placed the onus on the•defendant, presumed that the plaintiff had legal title and concentratedentirely on the question whether the defendant had affirmatively provedtitle by prescription to the land in dispute. Mr. H. V. Perera for thedefendant appellant has strenuously contended that the judgment appeal-ed from cannot stand, because the plaintiff has failed to establish his title-to the land, whatever the demerits of the case for the defence may be.
I agree with Mr. PL V. Perera, but the question arises whether there areany findings of fact in the judgment of the learned District Judge from
1 (1981) 32 N. L. R. 217.2 (1912) 15 N. JO. R. 132.
3 (1922) 24 JST. L. R. at p. 9.
which a Court of Appeal, without assuming the role of a Judge of firstinstance, may ascertain whether there are findings to show that theplaintiff has established his title. That title can only be a title byprescriptive possession in the circumstances of this ease.
It seems to me that in a case where the learned Judge ab initio has madea cardinal error by placing the onus on the wrong party, it would not bejust or right for a Court of Appeal to try and ascertain whether, had thetrial Judge placed the onus on the proper party, the result might have beendifferent. In such a case it would not be proper for a Court of Appealto re-write the judgment of the trial Judge. Furthermore, in the lightof the order I propose to make, it is ^inexpedient that I should say more in.regard to the facts. The pity of it is that the parties must have alreadyspent more than what the land is worth in this litigation. They, however,have the right to demand that the case should be decided according to-correct legal principles.
would set aside the judgment and the decree appealed against andsend the case back for a trial de novo in accordance with the principleslaid down in this judgment. In the circumstance of this case I thinkthe fairest order to make is that each party should bear the costs of thisappeal. All other costs will be in the discretion of the trial Judge. It isgreatly to be desired that the parties may be able to reach some reasonablesettlement or compromise.
Jayeteceke C.J.—I agree.
Sent back for fresh trial.