PaKeena v. Perera
1954Present: Gratiaen J. and Fernando A.J.D. P. PALISENA, Appellant, and K. K. D. PERERA,Respondent
S. C. 58—D. C. Ratnapura, 0,081
Land Development Ordinance (Cap. 320)—Permit-holder—His right to maintain actiorei vindicatio.
A permit-holder under the Laud Development Ordinance enjoys a sufficienttitle to enable'him to maintain a vindicatory action against a trespasser.
XjlPPEAL from a judgment of the District Court, Rutnapura.
/ -//. V.Perera, Q.C., with E. A. D. Alukorale, for the plaintiff appellant.
H. IF. Jayewardene, with G. P. J. Kurukulasuriya and P. Ranusinghe,for tho defendant respondent.
Car. utlv. vull.
GRATIAEN J.—Palisena v. Per era
July 16, 1954. Gratiaen J.—'
On 24th January 1947 tho Government Agent of the SabaragamuwaProvince issued in favour of the plaintiff a permit under the provisions oftho Land Development Ordinance (Cap. 320), in respect of certain allot-ments of Crown land. The plaintiff haB sued tho defendant, whom hoalleges to bo a trespasser on tho land, for ejeotmont and for consequentialrelief. Tho defendant raised a number of defences to this claim, includinga ploa that in any event a " permit-holdor ” under the Ordinance was notentitled, as against a third party, to relief of the kind asked for.
Tho case went to trial on a number of issues but, after a considerablevolume of evidence had been led, the learned District Judge decided theaction against the plaintiff on the ground that the plaint did not, in hisopinion, discloso a remedy against the defendant. The basis of thodecision was that “ a permit-holder is only a licensee who is entitledto possess tho land with tho leave and licence of the Crown and at thowill and pleasure of the Crown ”, and was therefore “ not entitled to askfor a possessory decree or to ask that a (third party in possession) boojoctod from the land ”.
The learned judge has misunderstood the scope of tho romody asked forby tho plaintiff and failed to appreciate the nature of a permit-holder’srights under tho Land Development Ordinance. This was not a posses-sory action in which a person complaining of dispossession can in certaincircumstances, without proof of his title, obtain a decroo for tho ejectmentof a person who has dispossessed him otherwise than by duo process oflaw. This is a vindicatory action in which a person claims to be entitledto exclusive enjoyment of the land in dispute, and asks that, on proof ofthat title, he be placed in possession against an alleged trespasser.
It is very clear from the language of the Ordinance and of the particularpermit PI issuod to the plaintiff that a permit-holder who has compliedwith tho conditions of his permit enjoys, during the period for which thepermit is valid, a sufficient title which he can vindicate against a tres-passer in civil proceedings. The fact that the alleged trespasser hasprevented him from evon entering upon the land does not afford a defenceto 1ho action ; it servos only to increase the necessity for early judicialintervention.•
1 w ould sot aside the judgment under appeal. If the averments in theplaint be established, the plaintiff is entitled in law to a decree of the kindasked for. It is indeed regrettable that, at the conclusion of tho trial,tho learned judge did not record his findings upon all the issues. t Hadthat been done, it might well have.been possible for us to give a finaldecision in an action wliioh was instituted nearly 5 years ago. As thingsnow stand, tho record must be returned to the lower Court with a directionthat tho case bo tried de novo before another judge. The appellant isontitlod to the coBts of this appeal and of the abortive trial in tho Courtbelow.
Fernando A.J.—I agroo.
D. P. PALISENA, Appellant , and K. K. D. PERERA, Respondent
PaKeena v. Perera