030-SLLR-SLLR-1998-1-BANDA-v.-SOYSA.pdf
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Banda v. Soysa
255
BANDA
v.SOYSA
SUPREME COURTG. P. S. OE SILVA, CJ.,
WIJETUNGA, J. ANDGUNASEKERA, J.
S.C. APPEAL NO. 68/96
A. APEEAL NO. 157/84 (F)
C. KURUNEGALA NO. 2603/L24TH, 25TH NOVEMBER 1997
13TH, JANUARY 1998, 24TH, FEBRUARY 1998.
Declaratory action – Temple lands – Praveni and Bandara lands – Right of trusteeto claim Bandara lands – Service tenure register – Service Tenures Ordinance.
Plaintiff as the trustee of Ginikarawa Vihara sued the defendant for a declarationof title to 17A. 2R.31P. of land depicted in Plan P2 and for ejectment and damages.The plaintiffs claim was based on a Royal Grant or Sannasa P1 registered underthe Temple Lands Registration Ordinance, 1856. As per the title plan P4 preparedby the Surveyor-General the total land covered by the Sannasa is 414 acres inextent. According to the Register prepared under the Service Tenures OrdinanceP3 approximately 126 acres of this land consisted of Praveni lands. Such landvested in the Praveni Nilakarayas whilst Bandara or Maruwena lands vested inthe trustee of the temple.
Held:
When a temple land is not entered in the list of Praveni lands of the templethe necessary inference, at any rate unless some adequate explanationis given for foe omission, is that foe Commissioner had determined thatthe tenure of such lands was not Praveni but Maruwena Accordingly foebalance 288 acres of foe entire extent of 414 acres shown in P4 wereBandara lands.
The land in dispute depicted in Plan P2 fell within an extent of 300 acresmore or less which had been leased to one Herat on a notarially executedlease bond in 1906 by the trustees of foe Vihara at that time. There wasthus sufficient evidence led on behalf of foe plaintiff to prove foe title andidentity of foe land in dispute.
256
Sri Lanka Law Reports
(1998) 1 Sri L.R.
Per G. P. S. de Silva, CJ.
"In a case such as this the true question that a court has to consideron the question of title is, who has the superior title?"
Cases referred to:
Hewavitarana v. Dangan Rubber Co., Ltd., 17 NLR 49 at 52.
Tikiri Banda v. Ranasinghe Mudalige Appuhamy (1912) S.C. Minutes of
5th March, 1912.
APPEAL from the judgment of the Court of Appeal.
P. A. D. Samarasekera, PC with S. C. B. Walgampaya for substituted plaintiff-appellant.
R. K. W. Goonesekera with Rohan Sahabandu for defendants-respondents.
Cur. adv. vult.
March 5, 1998.
G. P. S. DE SILVA, CJ.
The plaintiff as the trustee of the Ginikarawa Vihara instituted theseproceedings against the defendants for a declaration of title to lots1 to 4 and 7 to 11 in plan No. 895 dated 6/15th July, 1968 (P2)made by Perimpanayagam, Licensed Surveyor, for ejectment of thedefendants and for damages. The extent of the lots 1 to 4 and 7to 11 in the said plan P2 is 17A. 2R. 31P. The plaintiff's claim wasbased on a Royal Grant or a Sannasa (P1) which was registeredunder the Temple Lands Registration Ordinance of 1856. The landcovered by the Sannasa (P1) is shown in title plan No. 92451 of1867 prepared by the Surveyor-General in terms of the Temple LandsRegistration Ordinance and is in extent 414 acres. The title plan 92451was produced marked P4. At the conclusion of the trial before theDistrict Court, judgment was entered in favour of the plaintiff as prayedfor. The defendants preferred an appeal to the Court of Appeal andthe judgment of the District Court was set aside and the plaintiff'saction was dismissed. The plaintiff has now preferred an appeal tothis court.
The ground upon which the Court of Appeal dismissed the plaintiffsaction is that the plaintiff failed to establish title to the subject matterof the action, or even to identify the land in suit. In the absence of
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'Banda v. Soysa (G. P. S. de Silva, CJ.)
257
proof of title, the Court of Appeal stated that the question of examiningthe title of the defendants did not arise.
Upon a consideration of the entirety of the evidence it is clear thatthere is no dispute in regard to the following foots :
that the land covered by the Sannasa (P1) is the property ofthe Ginikarawa Vihara ;
that the land gifted on the Sannasa (P1) is shown in the titleplan P4:
that the lots in dispute, namely, 1 to 4 and 7 to 11 shown inplan P2 fall within the title plan P4 and are situated in the North-West boundary of the land shown in P4.
The crux of the case of the plaintiff on the crucial issue of titleis that the lots in dispute are the absolute property of the Vihara. Suchproperty is known as the Bandara lands of the temple. Admittedly,the 414 acres shown in the title plan P4 consisted of both Pravenilands and Bandara lands. In the case of Praveni lands, the land isvested in the Praveni Nilakarayas who are obliged to render specificservices to the temple or to pay commuted dues. On the other hand,if the land is Bandara land (also called as Maruvena pangu or muttetu)it is vested in the trustee of the temple. The case for the plaintiff isthat out of the 414 acres of temple land shown in P4, about 126 acresare Praveni lands and that the balance 288 acres are Bandara landsand that the lots in dispute fall within the 288 acres of Bandara lands.
Praveni pangu lands are set out in the Service Tenures Registerprepared under the provisions of the Service Tenures Ordinance. Theregister relating to Praveni Pangu was produced marked P3 (alsomarked as 1D3). According to P3, there are 10 Praveni Nila Pangucomprising fields and gardens and in terms of the computation adoptedby the Land Settlement Department the total extent of Praveni NilaPangu is approximately 126 acres. "The entry of any land in the registerprepared under the Service Tenures Ordinance 1870 as a praveni landbelonging to a specific tenant is conclusive evidence as to the natureof the tenure (section 11) and relevant. . ." Hewavitarana v. DanganRubber Co., UdS'> at 52.
When a temple land is not entered in the list of praveni lands ofthe temple, the necessary inference, at any rate unless some adequateexplanation is given for the omission, is that the Commissioners had
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Sri Lanka Law Reports
(1998) 1 Sri LR.
determined that the tenure of the lands was not praveni, but maruwenaa.per Lasclles, CJ. and Grenier, J. in Tikiri Banda v. RanasingheMudalige Appuhamy<z> cited with approval in Hewavitarana v. DanganRubber Co., Ltd (supra). Thus the District Court concluded that since126 acres were praveni lands having regard to the contents of P3that the balance 288 acres (out of the entire extent of 414 acres shownin P4) were Bandara lands. It seems to me that this conclusion isnot unreasonable on the facts and circumstances of this case.
The next question that arises for consideration is where this extentof 288 acres of Bandara lands is situated. On this point the plaintiffrelied very strongly on the lease bond P6. P6 is a notarially executeddocument dated 23.11.1906 whereby the trustee of the Vihara at thattime had given a lease of 300 acres more or less to one Herat fora period of 50 years. Mr. R. K. W. Goonesekera for the defendants-respondents stressed the fact that there was no evidence whatsoeverto show that P6 was acted upon and that possession followed uponP6. While it is true that there is no such evidence, yet P6 is a leasebond executed as far back as the year 1906 and its execution waswith the approval of the President of the Provincial Committee ap-pointed under the Buddhist Temporalities Ordinance and, what is more,it was approved by the District Court – vide the formed applicationmade by Herat to the President BTO Kurunegala P6 (a) and theapproval of the District Court P6 (b). In regard to the location of theland which was the subject matter of the lease, the schedule in P6is relevant and is in the following terms : "An allotment of high landin extent 300 acres towards the Northern and Western direction ofthe temple land belonging to Ginikarawa Vihara containing in extent414 acres on the whole according to the figure of survey No. 92451dated at Survey-General's Office, Colombo, on 25th September 1873".It is to be noted further that the schedule gives Kiribath Ela as aboundary on the North-West and North. The superimposed plan P2which was prepared for the purpose of this case on a Commissionissued by Court shows Kiribath Ela as the North-Western boundaryof the lots in dispute. It is therefore reasonable to infer that the disputedlots fell within the 300 acres more or less which was the subject matterof the lease. The 300 acres could have been leased, as rightlysubmitted by Mr. Samarasekera for the plaintiff-appellant, only on thebasis that the land was in the possession of the trustee of the temple,for if it was praveni land it would have been in the possession ofthe Praveni Nilakarayas.
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Banda v. Soysa (G. P. S. de Silva, CJ.)
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On a consideration of the above facts I am of the view that theDistrict Court correctly concluded that lots 1 to 4 and 7 to 11 shownin P2 fell within the 300 acres leased to Herat in 1906.1 hold thereforethat there was sufficient evidence led on behalf of the plaintiff to provethe title and the identity of the lots in dispute.
In a case such as this, the true question that a court has to consideron the question of title is, who has the superior title? The answerhas to be reached upon a consideration of the totality of the evidenceled in the case.
The defendants claim title from one Menikdurayalage Poola. Butthe name of the original Praveni Nilakaraya as described in the servicetenure register P3 (1D3) is Dangolla Durayalage Poola. The defend-ants do not claim any rights from Dangolla Durayalage Poola. Thedefendants therefore do not derive title from a Praveni NilakarayaIn short, the paper title of the defendants is not linked to any PraveniNila Pangu. Although the defendants trace their paper title to a fiscal'sconveyance, the fiscal's plan was not produced. The identity of theland is thus not established. The District Judge has further held thatthe deeds of the defendants do not apply to the lots in dispute. Iam therefore of the view that the defendants claim of title was rightlyrejected by the District Court.
The Court of Appeal in its judgment did not consider P6 upon whichthe plaintiff relied heavily in support of his title. Indeed, not even abare reference was made to P6. Consequently the Court of Appealwas in grave error in its evaluation of the evidence placed beforethe District Court.
For these reasons the appeal is allowed, the judgment of the Courtof Appeal is set aside and the judgment of the District Court is restored.The plaintiff (substituted plaintiff-appellant) is entitled to costs fixedat Rs. 1,000 from the defendants.
WIJETUNGA, J – I agree.
GUNASEKERA, J – I agree.
Appeal allowed.