Alwis v. Piyasena Fernando
G. P. S. DE SILVA, C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
SC NO. 30/92.
CA NO. 49/84 (F).
DC PANADURA 15326/L.
20 MARCH, 1993.
Revindicatory suit-Encroachment upon land-Defendant's claim of prescription- Assessment of evidence as regard prescription.
The plaintiff sued the defendants for a declaration of title and ejectment in respectof a portion of a land, .78 perches in extent. The defendants claimed the saidportion by prescription, the evidence to support their claim being the use of lorriesover the prescriptive period. This evidence was rejected by the District Judge.
The burden of proving prescription is on the defendant.
The Court of Appeal should not have disturbed the findings of primaryfacts made by the District Judge, based on credibility of witnesses.
Sri Lanka Law Reports
(1993) 1 SriLR.
Per G. P. S. de Silva, C.J. :
"It is well established that findings of primary facts by a trial Judge who hearsand sees witnesses are not to be lightly disturbed on appeal".
APPEAL from judgment of the Court of Appeal.
N. R. M. Daluwatte, P.C. with C. N. Ladduwahetty for the appellant.
K. Batapatabendi for respondent.
Cur. adv. vult.
April 02, 1993.
G. P. S. DE SILVA, C. J.
The plaintiff instituted these proceedings in December 1977against the 1st and 2nd defendants seeking a declaration of title toa portion of land shown as a shaded triangle in plan 357 of 24.9.77made by Licensed Surveyor Fernando (P3), for ejectment, anddamages. The 1 st defendant who was the father of the 2nd defendant,died pending trial. The alleged encroachment was in extent, .78of a perch. The plaintiff purchased lot D in plan No. 756 of 1903(P2) on 9.10.73 from Dr. S. Fernando. The deed of transfer wasmarked P1. On P5 of 1948, Dr. S. Fernando became the owner ofthe said lot D. Plan P3 is the superimposition of P2 made by SurveyorFernando. To the west of the plaintiff's land is the defendant's land.
After trial, the District Court entered judgment for the plaintiff. The2nd defendant preferred an appeal to the Court of Appeal whichset aside the judgment of the District Court. The plaintiff has nowappealed to this court.
The case for the 2nd defendant was that he and prior to him hisfather had possessed the disputed portion of land for well over the •prescriptive period and had thus acquired a prescriptive title thereto.The burden was clearly on the 2nd defendant to prove his prescriptivetitle. The disputed portion of land-was at the entrance to the 2nddefendant's land. It was his- claim that his father owned lorries endthe lorries were parked on the land ; that these lorries could not havebeen taken into the land except by, using the disputed portion, sincethe width of the entrance to the land was not sufficient to take alorry. The 2nd defendant- relied-, on. the certificate of registration of
Alwis v. Piyasena Fernando (G. P. S. de Silva, C.J.)
a lorry which belonged to his father (1D1) in proof of his assertionthat lorries were taken into the land. 1D1 however proves that hisfather owned the lorry only for a period of about 6 months from July1964 to January 1965. There is no documentary evidence in the formof certificates of registration to show that either the 2nd defendantor his father owned lorries from January 1965 till 1972. The pointto be noted is that there is no proof that the disputed portion of landwas used to bring lorries into the defendant's land from 1965 to1972, a period of no less than 7 years. This is an important factwhich considerably weakens the 2nd defendant's claim of adversepossession, for he relied strongly on his assertion that lorries weretaken into his land over the disputed portion. The. Court of Appealin its judgment adverted to this weakness in the defendant's case,but unfortunately failed to draw the proper inference in relation tothe plea of prescriptive possession.
In reversing the findings of the District Court, the Court of Appealhas also misread the evidence of Surveyor Fernando, who preparedthe plan P3. According to P3 and the evidence of the Surveyor, theencroachment which is the subject matter of the;action is on thenorth-west of the plaintiff's land. The Surveyor has also shownanother small encroachment which is further to the south of theencroachment in question. The Court of Appeal has mistakenlyconsidered the evidence in respect of the small encroachment whichis not the subject matter of the action as evidence relating to thedisputed portion of the land and thereby wrongly concluded that theencroachment in question was "an old one, as old as the huge treesmentioned by the Surveyor in his evidence". This was a seriousmisdirection on the evidence which vitiates the finding of the Courtof Appeal.
This apart, there was another serious flaw in the judgment of theCourt of Appeal, namely, the total failure to consider the evidenceof two witnesses called by the plaintiff in support of his case. Thetwo witnesses were Premawathie Fernando and Dr. S. Fernando andtheir testimony was accepted by the trial Judge. Premawathie Fernandowho was 35 years of age said that she was born on the land ofthe plaintiff and lived there till 1972. Until she left in 1972 no vehicleswere brought on to the land and that the 2nd defendant's father hadonly a bicycle and a hand-cart; that there was an old fence separatingthe land of the plaintiff and the defendant but the position of that
Sri Lanka Law Reports
(1993) 1 Sri L.R.
fence was altered later encroaching upon the plaintiffs land ; thatno lorries were brought to the land prior to 1972. The plaintiffs vendor,Dr. S. Fernando too in his evidence said that the 2nd defendant'sfather had a bicycle and a cart.
The substantial basis of the 2nd defendant's plea of prescriptivepossession was that from 1964 his father owned lorries and thoselorries were brought into his land (which adjoined the plaintiff's land)over the disputed portion. The trial Judge however preferred to acceptthe evidence of both Premawathie Fernando and Dr. S. Fernando.Their testimony clearly was that the 2nd defendant's father had acart and a bicycle, and that no lorries were brought to the land until1972. In concluding that the 2nd defendant has prescribed to thedisputed portion of land, the Court of Appeal was in grave error, asthe Court failed to consider the evidence of two important witnessesaccepted by the trial Judge.
It is well established that findings of primary facts by a trial Judgewho hears and sees witnesses are not to be lightly disturbed onappeal. The findings in this case are based largely on credibility ofwitnesses. I am therefore of the view that there was no reasonablebasis upon which the Court of Appeal could have reversed the findingsof the trial Judge.
The appeal is accordingly allowed, the judgment of the Court ofAppeal is set aside, and the judgment of the District Court is restored.The 2nd defendant-respondent must pay the plaintiff-appellant costsof appeal in both courts fixed at Rs. 2,500.
KULATUNGA, J. – I agree.
RAMANATHAN, J. – I agree.