049-NLR-NLR-V-72-D.-ROBOSINGHO-MUDALALI-Applicant-and-L.-D.-P.-JAYAWARDENE-and-others-Responde.pdf
LORD WILBER FORCE—Robosinglio Mudalali v. Ja^W^dHV 199*[Privy Council]
Present: Viscount Dilhorne, Lord Morton of Henryton,Lord Guect, Lord Upjohn, Lord Wilberforce
D. ROBOSIXGHO MUDALALI, Appellant, and L. D. P.JAYAWARDENS and others, Respondents
Privv Council Appeal No. 50 of 1962
S.C. 194I195S (F)—D. G. Kuruncgala, lOSGSjL
Rei vindientio action—Plaintiffs' claim based on prescriptive title—Quantum ofevidence.
The plnintifTs (1st and 2nd respondents) instituted action for declaration oftitlo to a land. Their claim -was based' upon prescription. Tho issue wasessentially ono of fact’, namely, whether tho plaintiffs proved possession,adequate in continuity, publicity and extent, over JO yenrs or more, to establisha prescriptive titlo to tho land. Judgment was given in plaintiffs’ favour bytho trial Court and, on appeal, by tho Supreme Court.
Held, that, in tho absence of any error in law, tho findings of both courtsin Ceylon should not be disturbed.
Appeal from a judgment of the Supreme Court.
E. F. N. Gratiaen, Q.C., with Dick Taverne, for the 2nd defendant-appellant.
Sir Derek Walker-Smith, Q.C., with JR. K. Handoo, f»*r the 4threspondent.
Cur. adv. vult.
February 4, 1965. [Delivered by Lord Wilberforce]—
These proceedings relate to the title to certain land, about 50 acres inextent, in the District of Kurunegala in Ceylon. The action was started on23rd April 1954 by the first and second respondents as plaintiffs againsttho appellant and the third and fourth respondents as defendants for adeclaration of the plaintiffs’ title to the land, ejectment of the appellantand the third respondent from the land and for damages. The plaintiffs’claim was based first upon certain deeds of convc)-ance and secondlyupon prescription. The fourth respondent was made a defendant to theaction by reason of the fact that he had, in a conveyance dated 5th May1953 to the plaintiffs warranted his (the fourth respondent’s) title to theland, and in order to enable him to appear &nd defend the title,
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“ 1*—J 765fl (10/69)
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LORD AVILBERFORCE—Hobos higho Mudalali v. Jayawardene
At the trial before the District Court of Kurunegala, the plaintiffs weresuccessful and on 16th May 1958 the Court- granted the relief pra3red for.The second defendant appealed against the decree of the District Courtto the Supremo Court of Ceylon which on 26th January 1961 dismissedthe appeal. The present appeal is brought by leave of the SupremeCourt, by the second defendant as appellant : the onty respondent wholias appeared is the third defendant- in the action, the 4th respondenton the record. Dr. M. G. Perera.
Their Lordships will examine first the claim based on prescription.In the plaint, the land to which claim was made was identified by adescription set out in the schedule, which description corresponded tothat which was contained in the schedule to a deed of transfer dated 11thSeptember 1941 between one Singappulige Rana Fernando as vendorof the one part and Dr. M. G. Perera (the 4th respondent) as vendee ofthe other part. It is sufficient to state that it consisted of two contiguousallotments called Elabodnhen}^^ and Mcdakumburahen3'a3ra markedL114A and 0114 situated at Chandarayagama in the District of Kuru-negala containing in extent 50 acres and 27 perches. The claim was thatthe said Singappulige Rana Fernando was the lawful owner of the landby long and prescriptive possession ; that she sold and transferred it toDr. M. G- Perera b3r the said deed of 11th September 1941 and thatDr. M. G. Perera entered into possession ; that Dr. M. G. Perera by deeddated 5th May 1953 sold and transferred the land to the plaintiffs, andthat the plaintiffs and their predecessors in title had been in undisturbedand uninterrupted possession by a title adverse to and independent to allothers and had acquired a prescriptive title. It was then alleged thatthe first and second defendants had wrongly entered upon the land on22nd November 1953.
The defence (on this issue) of the second defendant (the appellant)consisted of a denial of the plaintiffs' allegations : in addition there was apositive allegation that the second defendant and his predecessors intitle had been in possession of the land for a period of over ten 37ears.The third defendant (the fourth respondent) admitted the relevantaverments in the plaint. The issues framed and accepted includedexplicitly.an issue as to the prescriptive rights of the parties.
At the trial before the District Court a number of witnesses were calledto testif3' as to possession of the land. For the Plaintiffs there werecalled (a) the first Plaintiff L. D. P. Jayawardene and (b) C. B. Wickrema-singhe the Assistant Superintendent of Dr. 3f. G. Perera, the fourthrespondent. For the second defendant (the appellant) there were called
Claude Stanle3r Fernando, whose evidence was not material on theprescriptive issue ; (6) K. M. D. B. Kulalunga, who claimed to havecultivated the land for a period, (c) A. M. Rambanda headman of thevillage of Chandrayagama.
The defendants did not themselves give evidence, nor did the secondplaintiff. The learned judge did not accept the evidence of Kulatunga
LORD WILBERFORCE—Pobositigho Mudalali r. Jayaicardene
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as true, and held that Rnmbanda was a witness partial to the defence.He rejected Rambnnda's evidence on the only point which was materialon the issue as to prescription, namely as to the age of certain trees onthe land. Their Lordships must accept the trial judge’s findings as to thecredibility of these witnesses and must therefore deal with this issue onthe evidence of the plaintiffs’ witnesses.'
The evidence of the plaintiff Jajawardene did little more than toestablish that he and his co-plaintiff had possession of the land from5th May 1953 to 22nd November 1953—a period of 6-J months and thatwhen they took possession there were a few trees on the land. He saidthat when he took possession there was no house there. In order toestablish the period of ten years which is required for a prescriptive titleit was necessary to rely on possession bj' Dr. M. G. Perera. Dr. Perer"did not himself give evidence and it was only Mr. YVickrcmasinghe,his Assistant Superintendent, who was called as to the period from 1041to 1953. In his evidence in chief he referred to the "purchase byDr. Perera in 1941 and the sale in 1953 and said “ I was in possessionfor the entirety of that period In the rest of his evidence and in hiscross-examination he gave evidence as to “ opening up the land ”, plantingwith coconuts and other crops, the erection of a small house on the landwhere the witness stayed from time to time, efforts to improve the landby expenditure and labour, visits to the land and the absence of anydisturbance of possession. As to the planting, he agreed that the landwas jungle when purchased and that the area planted was “within ten tofifteen acres” on which 60 to 70 trees per acre were put : planting wasgiven up during the war years and the plantation became neglected.The learned judge said that “ he saw no reason not to accept the evidenceof Wickremasinghe ” and held that. Dr. Perera was in possession since1941 and obtained a prescriptive title.
On his appeal to the Supreme Court, the second defendant (theappellant) challenged those findings of the learned judge. As appearsfrom the petition of appeal, the grounds were that the evidence ofprescriptive possession was inadequate and insufficient—Dr. Pereraand his Watcher not having been called ; that the evidence ofMr. Wickremasinghe ought not to have been accepted on account ofinconsistency between his evidence and that of the plaintiffs and theevidence of Kulatunga and the Village Headman ; that the evidence ofthe latter ought to have been accepted. The Supreme Court howeverdismissed the appeal without giving any reasons for their judgment.
Their Lordships have carefully considered whether there are anygrounds which would entitle them to interfere with the decision on thisissue of the District Judge affirmed by the Supreme Court. The issue isessentially one of fact, namely whether the plaintiffs proved possession,adequate in continuity, publicity' and extent, over 10 years or more, toestablish a prescriptive title to the land in question. Certainly theevidence, in effect that of Wickremasinghe supplemented to a minor
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Wilbert de Silva v. Town Council, Dodanduwd
extent by that of the Plaintiff Jayawardene, was slender even whenaccount is taken of the character and location of the land. But theirLordships consider that Mr. lYickremasinghe when he referred to “‘theland” was clearty referring to that which was bought in 1941 and sold in1953, i.e. the 50 acres 27 perches, and this being established, they cannotaccept that there was no evidence on which a finding of 10 yearsuninterrupted iiosscssion of that land—regard being had to its nature,i.e., mainly jungle land—could properly be made. Moreover there doesnot appear to their Lordships to be any ground for holding that thelearned trial judge in any way misdirected himself, or applied the wrongstandard or test in order .to decide whether the necessary possession wasproved. Admittedly the passage in his judgment on this issue is some-what brief but that may be because of the absence of any full argumenton a point of law, and does not show that the correct legal considerationswere not present to his mind. Equally their Lordships are unwillingto assume that the Supreme Court, on the appeal, did not apply the righttest in reviewing the learned judge’s findings and deciding whet-her":itwas justified on the evidence. In the absence of any error in law, whichin the opinion of their Lordships, the appellant has failed to demonstrate,the case becomes one in which an issue of fact has been concurrently -determined against the appellant by both courts in Ceylon. TheirLordships would not be justified in disturbing those findings.
Their Lordships are of the opinion that the fourth respondent succeedson the issue of a prescriptive title and therefore do not consider itnecessary to deal with the other issue in the appeal namely whether theplaintiffs could succeed on any other basis. They will humbly adviseHer Majesty that the appeal should be dismissed. The appellant mustpay the costs of the appeal.
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Appeal dismissed. :