053-SLLR-SLLR-2003-V-3-BANDARANAYAKE-v.-KARUNAWATHIE.pdf
CA
Bandaranayake v Karunawathie
:(Somawansa, J.)
295
BANDARANAYAKEv
KARUNAWATHIECOURT OF APPEALDISSANAYAKE, J.
SOMAWANSA, J.
CA 137/96(F)
D.C. ANURADHAPURA 14287/LMAY 13 AND 31,2002
Vindicatory action – Declaration that she is the Permit-holder – LandDevelopment Ordinance, No. 16 of 1969 amended by Act, No. 27 of 1981 -Successor – Nomination – Cancellation by Last will – Sections 87, 63 and48(A)(2), – Proper procedure not followed – Prevention of Frauds Ordinance- Section 4 – Permit a forgery.
The plaintiff-respondent sought a declaration that she is the lawful permit-holder and the ejectment of the defendant-appellant. The position taken upwas that the original permit-holder was her mother and on her death shebecame the permit-holder.
The defendant-appellant averred that the original permit-holder was the hus-band of “L” who by his lastwill, left to him 1/2 share and he and his sister “P"were nominated as successors and that the permit held by the plaintiff-respon-dent was a forgery.
The trial Court held with the plaintiff-respondent.
Held:
Permit-holder under the L.D.O. enjoys sufficient title to enable himto maintain a vindicatory action against a trespasser.
The original permit-holder “S” had nominated his spouse to be hissuccessor on 11.12.1957, and he had died on 24.11.1981. Hencethe spouse will not be subjected to the restrictions placed by sec-tion 48(A) 2 as it would be the proviso to section 48(A)(2) that wouldbe applicable.
As the original owner had nominated his spouse as his successor,it would give her authority to nominate a successor.
The alleged last will of the original permit-holder “S” could never begiven effect to in view of section 4 of the Prevention of FraudsOrdinance – the last will is not a valid last will. There is no evidence
296
Sri Lanka Law Reports
[2003] 3 Sri L.R
in any event to establish that provisions in section 63 L.D.O dealingwith nomination/cancellation by last will have been complied with.
Provisions contained in section 87, has been complied with, whathad. taken place was only an amendment to the number of nomi-nated successors to include 3 people – defendant-appellant, his sis-ter, and plaintiff-respondent.
Section 58(1), section 60 which deal with registration of nominationor cancellation of nomination do not apply.
There is no evidence to establish that the permit is a forgery.
APPEAL from the District Court of Anuradhapura.
Cases referred to:
D.P.Palisena v K.K.D. Perera – 56 NLR 407
A.G.K.Tillekeratne v N.Jayanathan – CA Application No.669/87
C.Sooriyarachchi, for defendant-appellants
Bimal Rajapakse for plaintiff-respondent.
Cur.adv.vult
August 2, 2002SOMAWANSA, J.
This is a vindicatory action instituted by the plaintiff-respondentin the District Court of Anuradhapura seeking a declaration that sheis the lawful permit-holder to the land described in the schedule tothe plaint; ejectment of the defendant-appellant and all under himfrom the said land and restoration of possession thereof and dam-ages. The position taken by the plaintiff-respondent is that on thedeath of her mother by virtue of permit No. LB/KO/105 A dated16.10.1991 marked P2 issued under the Land DevelopmentOrdinance, she became the permit-holder to the land described inthe schedule to the plaint and that the defendant-appellant withoutany manner of title is obstructing to her possession of the said landand has caused damages to the house standing thereon estimatedat Rs.35,000/-.
The defendant-appellant on the other hand averred that the orig-inal permit-holder was one H.M.B.L. Seneviratne who by his lastwill executed before a Justice of the Peace left to him 1/2 share of
01
10
CA
Bandaranayake v Karunawathie
(Somawansa. J.)
297
the property in suit and that he and his sister H.A.M. Indrawathiwere nominated as successors to the property in suit by the saidSeneviratne, that he was occupying the said property in suit at thebequest of the said Seneviratne and Lasanda Manike and that thepermit held by the plaintiff-respondent was a forgery. In the circum-stances he prayed that the action of the plaintiff-respondent be dis-missed and that he be declared the lawful possessor of the land insuit.
At the commencement of the trial parties admitted the identity ofthe corpus and its location. 9 issues were raised on behalf of theplaintiff-respondent while 8 issues were raised on behalf of thedefendant-appellant. At the conclusion of the trial the learnedDistrict Judge by his judgment dated 25.01.1996 held in favour ofthe plaintiff-respondent. The defendant-appellant has lodged thisappeal from the said judgment.
One of the matters raised by the counsel for the defendant-appel-lant in his written submissions is that this action being a possessoryaction provisions of section 4 of the Prescription Ordinance wouldapply and accordingly as the plaintiff-respondent has failed to insti-tute this action within one year from the date of dispossession she isprecluded from maintaining this action. This legal objection wastaken by the defendant-appellant for the first time in his written sub-missions. It was not taken up in the original Court, no issue raised onthis basis and not taken up in the petition of appeal, nor was it takenup at the hearing of this appeal. Therefore it would appear that it istoo late in the day to raise this objection as to the applicability of theprovisions contained in section 4 of the Prescription Ordinance to theinstant case. In any event it is very clear from the pleadings thatplaintiff-respondent’s claim is that she by virtue of the permitNo.LB/KO 105 A dated 16.10.1991 marked P2 became the permit-holder to the property in suit on 16.10.1991. The action has beeninstituted on 30.11.1991. Nowhere does she plead that she was oust-ed before 16.10.1991 and certainly not in 1988 as stated in the wribten submissions of the defendant-appellant. Further it should benoted that this action is a vindicatory action. In D.P.Palisena v
K.K.D.Perera^'i it was held – a permit-holder under the LandDevelopment Ordinance enjoys a sufficient title to enable him tomaintain a vindicatory action against a trespasser. It was also
20
30
40
50
298
Sri Lanka Law Reports
[2003] 3 Sri L.R
observed by Gratiaen, J. in the said case at page 408 –
“The learned Judge has misunderstood the scope of the rem-edy asked for by the plaintiff and failed to appreciate thenature of a permit-holder’s rights under the Land DevelopmentOrdinance. This was not a possessory action in which a per-son complaining of dispossession can in certain circum-stances, without proof of his title, obtain a decree for the eject-ment of a person who has dispossessed him otherwise thanby due process of law. This is a vindicatory action in which aperson claims to be entitled to exclusive enjoyment of the landin dispute, and asks that, on proof of that title, he be placed inpossession against an alleged trespasser.
It is very clear from the language of the Ordinance and of theparticular permit P1 issued to the plaintiff that a permit-holderwho has complied with the conditions of his permit enjoys, dur-ing the period for which the permit is valid, a sufficient titlewhich he can vindicate against a trespasser in civil proceed-ings. The fact that the alleged trespasser has prevented himfrom even entering upon the land does not afford a defence tothe action; it serves only to increase the necessity for earlyjudicial intervention.”
It is also contended by the defendant-appellant that in view of pro-vision contained in section 48(C) of the Land DevelopmentOrdinance, No.16 of 1969 as amended by amendment Act, No.27 of1981, Lasanda Menike the spouse of the Original permit-holderH.M.B.L.Seneviratne had no power or authority to nominate a suc-cessor to the land in suit and as such her nomination of plaintiff-respondent to succeed her to a portion of the land is invalid. Howeveron an examination of permit No. 105 issued to the original permit-hold-er marked P1 by the plaintiff-respondent and V2 by the defendant-appellant it appears that the original permit-holder had nominated hisspouse Lasanda Menike to be his successor on 11.12.1957 and ittranspired in evidence that the original permit-holder the saidSeneviratne died on 24 November 1981. Hence Lasanda Menike willnot be subjected to the restrictions placed by section 48(A)(2) of theLand Development Ordinance as it would be the proviso to the saidsection 48(A)(2) that would be applicable to her right. The relevantsection in the Land Development Ordinance applicable to the instantaction is as follows:
60
70
80
90
CA
Bandaranayake v Karunawathie
(Somawansa, J.)
299
48(A)(1) “Upon the death of a permit-holder who at the time of hisor her death was required to pay any annual installments byvirtue of the provisions of subsection (2) of section 19,notwithstanding default in the payment of such instaljments,the spouse of that permit-holder, whether he or she has orhas not been nominated as successor by that permit-holder,shall be entitled to succeed to the land alienated to that per- 100mit-holder on the permit and the terms and conditions of thatpermit shall be applicable to that spouse.”
(2) “If, during the lifetime of the spouse of a deceased permit-holder who has succeeded under subsection (1) to the landalienated on the permit, the terms and conditions of the per-mit are complied with by such spouse, such spouse shall beentitled to a grant of that land subject to the following condi-tions:-
such spouse shall have no power to dispose of the land
alienated by the grant:no
such spouse shall have no power to nominate a successorto that land;
upon the death of such spouse, or upon his or her mar-riage, the person, who was nominated as successor by thedeceased permit-holder or who would have been entitledto succeed as his successor, shall succeed to that land.
Provided that the aforesaid conditions shall not apply to agrant of any land to be made to a spouse who has beennominated by the deceased permit-holder to succeed tothe land alienated on the permit.”120
On a consideration of the provisions provided by the proviso tosection 48(A)(2) of the Land Development Ordinance and the factthat the said Lasanda Menike the spouse of the original owner wasnominated as successor to the original permit-holder himself wouldgive the said Lasanda Menike the authority to nominate a succes-sor. Hence the argument of the counsel for the defendant-appellantis without merit. It may also be noted that nomination of the defen-dant-appellant and his sister Indrawathi on 12.01.1987 as well asnomination of the plaintiff-respondent on 02.03.1989 has been
300
Sri Lanka Law Reports
12003] 3 Sri L.R
done after the death of the original permit-holder in 1981 and it i30appears that the said nomination of both the defendant-appellantand his sister as well as that of the plaintiff-respondent has beeneffected by Lasanda Menike before her death.
It is also contended by the counsel for the defendant-appellantthat by last will of the original permit-holder the said Seneviratne,marked V3 executed before a Justice of the Peace the high landcontaining an extent of 1 Rood was bequeathed to the defendant-appellant and thus he became entitled to the the land in suit.However the alleged last will marked V3 could never be given effectto, in view of the fact that section 4 of the Prevention of Frauds 140Ordinance would shut out the validity of the said last will marked V3signed by the testator and two witnesses before a Justice of thePeace. Further there is no evidence forthcoming to establish thatprovisions contained in section 63 onwards in the LandDevelopment Ordinance dealing with nomination and cancellationby last will of the permit-holder has been complied with.
Another matter that was raised by the counsel for the defendant-appellant was that.proper procedure as laid down in the LandDevelopment Ordinance has not been followed in issuing permit No.LB/KO/105 A marked P2. One such section in the said Ordinance 150referred to by counsel was section 87 of the Land DevelopmentOrdinance. Section 87 of the said Ordinance is as follows:
“A person to whom a Government Agent has agreed to alien-ate land may nominate as his successor any person who isentitled under this Ordinance to be so nominated, and thename of such successor may be endorsed on the permitbefore it is issued to the first-mentioned person, and theGovernment Agent may upon being requested so to do by thepermit-holder cancel the name of such successor by anendorsement on the permit and endorse on the permit the 160name of any other person suggested by the permit-holder ashis successor.”
It appears in the instant case, provision contained in the saidsection 87 has been complied with in as much as the subsequentnomination of plaintiff-respondent was for the high land containingan extent of 01 Rood only and the balance consisting of the paddy
CA
Bandaranayake v Karunawathie
(Somawansa, J.)
301
field containing an extent of 4A. 3R. and 27 P. was left to the defen-dant-appellant and his sister. In effect what took place was only anamendment to the number of nominated successors so to include3 people, that is in addition to the defendant-appellant and his sis-ter to include the plaintiff-respondent as a nominated successor atthe request of the permit-holder Lasanda Menike.
It was also contended by the counsel for the defendant-appel-lant that no inquiry was held before issuing permit marked P2, thatprovisions contained in Regulation No. 157 made under the LandDevelopment Ordinance as well as provision contained in section58 (1) and 60 of the said Ordinance have not been complied with.However these are matters not taken up in the original Court, noissues framed and the learned District Judge was not called uponto address his mind to these matters. Therefore these are matterscoming up for consideration for the first time at the appeal stage. Imight say that these are matters not raised when oral argumentswere made by the counsel for the defendant-appellant. Be that asit may official witnesses called by the plaintiff-respondent SarathWijesinghe, Assistant Divisional Secretary, Epalogama as well asofficial witnesses called by the defendant-appellant Premarathna,Administrative Officer, Divisional Secretariat, Epalogama, S.Dharmadasa, Land Officer, who it appears to have given evidenceon two occasions and Piyadasa, Colonisation Officer have all con-ceded that P2 is a valid permit which has been issued in terms ofthe Land Development Ordinance. Therefore provision contained inRule 157 made under the provisions of the Land DevelopmentOrdinance as well as provisions contained in section 58(1), section60 which deals with registration of nomination or cancellation ofnomination has no application to the permit marked P2.Accordingly the case cited by the counsel for the defendant-appel-lant A.G.K. Tilakaratne v N. Jayanathad2) will have no application tothe instant case as in the said case matters considered were sec-tion 56, section 58 and section 60 which deal with nomination ofsuccessor and the validity thereof which has no bearing on permitmarked P2 issued to the plaintiff-respondent. In view of the evi-dence ascribed to above the contention of the defendant-appellantthat the permit marked P2 is a forged document also has to fail. Inany event except for the bare statements of some of the witnesses
170
180
190
200
302
Sri Lanka Law Reports
[2003] 3 Sri L.R
called by defendant-appellant, there is no evidence to establish thatthe permit issued to plaintiff-respondent marked P2 is a forgery.
The counsel for the defendant-appellant also referred to certaincontradictions in the evidence of the plaintiff-respondent. Howeveron a balance of probability the learned District Judge has acceptedthe evidence of the plaintiff-respondent and I am inclined to agree 210with the conclusion reached by the learned District Judge.
For the above reasons I see no reason to disturb the judgmentof the learned District Judge. Accordingly the appeal of the appel-lant is dismissed with costs.
DISSANAYAKE, J. – I agree.
Appeal dismissed.