011-SLLR-1984-V1-HEENBANDA-AND-ANOTHER-v.-TIIKIRI-BANDA.pdf
CA
Heenbanda v. Tikin Banda
69
HEENBANDA AND ANOTHER
v.TIKIRI BANDA
COURT OF APPEAL
SENEVIRATNE. J and G P. S. DE SILVA. J.
C.A (S C) 137/77-M.C (CIVIL) TELDENIYA 8803DECEMBER 7, 1983
Declaration of Title – Tenant-cultivator – Mixed question of fact and law raised forfirst lime in appeal
The plaintiff instituted action against the first and second defendants for declarationof title m respect of certain lands and for ejectment and damages. The plaintiffproduced the original of the deed by which he claimed title to the land whereas thedefendants were unable to produce the original of the deed on which they relied noreven a certified copy of it and the Trial Judge held in favour of the plaintiff. At thehearing in appeal it vvas argued that the substituted 1st defendant cannot beelected because there was evidence that he was the tenant cultivator.
70
Sri Lanka Law Reports
[1984] 1 SLR
Held-
That the evidence called on behalf of the plaintiff was ' more reliable " than theevidence called on behalf of the defendants since the plaintiff was able to producethe original deed on which he claimed the lands in question and also one of theattesting witnesses to prove the due execution of the deed whereas the defendantswere unable to produce the original or a certified copy of th^fr deed.
Although the 1st defendant claimed to be a ' tenant cultivator" of the fieldsand protection from eviction the question of his being a tenant cultivator is a mixedquestion of fact and law. It was neither pleaded nor raised in issue at the trial.Hence it cannot be raised for the first time in appeal.
Cases referred to
(1) Setha v. Weerakoon (1948) 49 N.L.R. 225.
APPEAL from Magistrate's Court, Teldemya.
N.R.M. Daluwatta with Mrs. A. Hegoda for defendants-appellanrsNo appearance for the plaintiff-respondent.
Cur. adv. vult.
January 31,1984.
P. S. DE SILVA, J.
The plaintiff instituted this action against the 1st and 2nddefendants for a declaration of title in respect of the landsdescribed in schedules A', '8' and C' to the plaint, for ejectmentand damages. The 1st and 2nd defendants are the brother andsister respectively of the plaintiff. The 1st defendant died while theaction was pending and his son was substituted in the room of thedeceased-defendant.
At the trial, it was admitted that the original owner of the lands insuit, was K. M. Appuhamy who on deed No. 3418, dated 12/7/20,conveyed the same to R. M. W. Dingirila who died leaving as hissole heir, his son R. M. W.- Appuhamy. The principal issue uponwhich the case proceeded to trial was whether the said R. M. W.Appuhamy conveyed these lands on deed No. 11070, dated18/7/65 (P 1), to the plaintiff or whether the said Appuhamyconveyed these lands to the 1st defendant on deed No. 25726,dated 24/7/65 (D 3). The Trial Judge answered this issue in favourof the plaintiff and the defendants have now appealed.
CA
Heenbanda v. Tiktn Banda (G. P. S. de Silva.- J )
71
The plaintifLproduced the original of the deed P 1 and called oneof the attesting witnesses, named A. M. Aththanayake, to prove thedue execution of the deed. On the other hand, the defendants wereunable to produce the original of the deed D 3 but merely called theAdditional Registrar of Lands who stated in evidence, that he is' producing * a certified copy of the deed. Although the certifiedcopy was marked as D 3 in the course of the evidence, thisdocument was never tendered to Court. The Trial Judge specificallyrefers to the fact that the defendants failed to tender D 3 to Court.In these circumstances, I am of the view that the finding of the TrialJudge, that the evidence called on behalf of the plaintiff was ' morereliable ' than that of the defendants is entirely justified.
Mr. Daluwatte, Counsel for the defendants-appellants, submittedthat it was not open to the Court to order the ejectment of thesubstituted 1st defendant as there was evidence that the 1stdefendant was the tenant-cultivator of the fields described inschedules 'A' and 'B' to the plaint. It seems to me that thissubmission is not well-founded for the reason that it was notpleaded in the answer, nor was it put in issue at the trial. Thequestion whether a party was a tenant-cultivator of a paddy field isa mixed question of fact and law which cannot be raised for the firsttime in appeal – Vide Setha v. Weerakoon {1). Moreover, theevidence on record is far from satisfactory. The best evidence ofwhether the 1 st defendant was a tenant-cultivator is an "extract"from the "paddy lands register". No such document was producednor was an independent witness called to speak to that fact.
Mr. Daluwatte, finally, submitted that there was no evidence tosupport the following statement made by the Trial Judge in thecourse of his judgment
* It has become clear that the field described in Schedule 'A' to
the plaint is the land which is claimed by the 2nd defendant."
I have perused the evidence of the 2nd defendant and I find thatunder cross-examination, she has specifically stated that the fielddescribed in schedule 'A' to the plaint, is owned by her and ispossessed by her and that the plaintiff is disputing her title.
For these reasons, the appeal fails, and is dismissed withoutcosts.
SENEVIRATNE, J. – I agreeAppeal dismissed.