031-SLLR-SLLR-2007-V-1-DEHIWALA-MT.LAVINIA-MUNICIPAL-COUNCIL-v.-FERNANDO-AND-OTHERS.pdf
Dehiwela-Mt. Lavinia Municipal Council v
Fernando and others
293
CA
DEHIWELA-MT. LAVINIA MUNICIPAL COUNCIL
v
FERNANDO AND OTHERS
COURT OF APPEALEKANAYAKE, J.GOONERATNE, J.CA 214/97DC 1139/MMAY 23, 2007
Civil Procedure Code – section 154 – Evidence Ordinance section 74- section83- Presumption that Surveyor General's plans are duly made – RejectingSurveyor General's plan for non compliance of section 154 – Validity? Ingredientsnecessary for reception of fresh evidence or a new trial.
The plaintiff-respondent sought a declaration of title to the land in question. Thedefendant-appellant's position was that it forms a part of a crown land. TheSurveyor General's plan/report was rejected since it was not produced in theproper way. The trial Judge held with the plaintiff-respondent.
Held:
In terms of section 74 of Evidence Ordinance Surveyor General's plan isa public document and section 83 states that, there is a presumption thatSurvey General's plans are duly made and accurate.
Court cannot reject the plan and report merely because of noncompliance under section 154 of the Civil Procedure Code.
The presumption under section 83 in favour of such plans/surveys extendto everything necessary to be done in order to make the survey/plan afaithful drawing and manuscript of the land surveyed.
In a rei vindicatio action, plaintiff must prove title and establish his title, asa declaration cannot be granted merely because the defendant's title ispoor or not established. Title and identity are important matters to beestablished to succeed in a rei vindicatio action.
Per Anil Gooneratne, J.
"It is apparent that, the learned trial Judge has misdirected himself on the planand report submitted by the Surveyor General. In fact the Surveyor General's
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witness (if called) would be an essential witness not to prove title of state as suchbut to ensure the identity of the land in dispute is considered from the properperspective, to either exclude state property or include same within the disputedarea of land".
Held further
In order to justify the reception of fresh evidence or a new trial three
conditions must be fulfilled.
It must be shown that the evidence could not have been obtainedwith reasonable diligence for use at the trial.
Evidence must be such that if given it would probably have animportant influence on the result of the case, although it need not bedecisive.
The evidence must be such as is presumable to be believed or inother words it must be appropriately credible although it need not beincontrovertible.
The above conditions may not be exhaustive in a way and also notimperative, but certainly could be used to guide Court in cases wherea retrial is ordered’.
Per Anil Gooneratne, J.
"It is my view that the Surveyor General or his authorized representative'sevidence both oral and documentary would be appropriately credible and wouldhave an important influence on the result of the case."
APPEAL from the judgment of the District Court of Mt. Lavinia.
Cases referred to:
Surveyor General v Zylva – 12 NLR 53.
In Re Juwanis Appuhamy – 65 NLR 167.
Beatrice Dep v Lalani – 1997 – 3 Sri LR 379.
W. Dayaratne for 1st defendant-appellant.
Dr. Jayatissa de Costa with C. Siriwansa and T. Jayatilake for respondent.
Cur.adv.vult.
July 26, 2007
ANIL GOONERATNE, J.
This was an action instituted in the District Court of Mt. Laviniaseeking a declaration of title to the premises described in the 3rdschedule to the Amended Plaint dated October 1981, and for
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Dehiwela-Mt. Lavinia Municipal Council v
Fernando and others (Anii Gooneratne. J.)
295
ejectment of the defendants and damages in a sum of Rs. 100,000/-.The appeal arises from the judgment of the District Court dated
entered in favour of the plaintiffs.
The plaintiff-respondent supports his case for a declaration oftitle to the land shown in the 3rd schedule to the amended Plaint,according to the chain of title referred to in paragraphs 8 – 20 of theamended Plaint. Defendant-appellant's position is that' the landdescribed as above by the plaintiff form part of a crown land describedas Galkissawatta and the chain of title set out in the amended Plainthas no bearing on the said crown land (shown in the schedule to theanswer), and at the hearing of this appeal learned Counsel for theappellant inter alia contended and emphasized that title and identity ofland has not been proved and that the plaintiff was not in possessionof divided portion of land.
At the trial before the District Court 11 issues were raised. Theplaintiff-respondent contends that he is the owner of the landdescribed in the 3rd schedule to the amended plaint (assessment No.368 Galle Road, Mt. Lavinia) in extent of 0.70 perches and that the 1 stand 2nd defendants illegally dispossessed him on 14.10.1979. Theposition of the defendant-appellant is that the said premises No. 368referred to in the amended plaint is a part of lot 8 to the land describedin the schedule to the amended answer called Galkissawatta which isa plot of land acquired by the State by certificate dated 9.2.1919 forthe Sanitary Board and successor to the said Board is the 1stdefendant (as in paragraphs 11 of the amended Answer). It has beenpleaded in the amended Answer that a commission should be issuedto a Court Commissioner to ascertain the identity of the land as inparagraph 13.
Trial in this case began with the framing of issues on 21.11.90and the evidence had been led from time to time with further trial beingpostponed for several dates with the close of the plaintiffs case on9.6.94. Further trial for the defendant's case had been put off for22.9.94 on which date District Judge was on leave. The Journal Entryof 26.1.95 gives an indication that a commission had been moved onthe Survey General only on that date. The commission papers of2.6.95 had been submitted to court and the Survey General hadreceived same on 7.6.95. The Survey General had returned thecommission on 24.7.95 and the District Court seal on same is dated
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27.7.95. The Survey General's survey plan and report is filed of record(which was marked at the trial as V1 & Via). It would be necessary tolead oral evidence of the witness of the Survey General's Department.If oral evidence was placed before the Original Court parties couldhave examined the witness and elicited more details, although V1 &Via were marked in evidence.
On perusing the Petition of Appeal I find that one of the pointsurged therein is that the defendant-appellant was deprived of theopportunity of presenting his case more particularly the District Courthad not given an opportunity to the defendants to call the SurveyGeneral as a witness, (as alleged in paragraph 13 of the Petition ofAppeal). Instead compelled the defence lawyer to close the case forthe defence, as there were no other witness available for thedefendants. However the Journal Entry/proceedings of 22.7.96 doesnot record the facts alleged as above, and by looking at the record Icannot find any refusal by court, to call the witness from the SurveyGeneral's Department on a subsequent date. The learned Counsel forthe appellant repeatedly submitted to this Court the difficulty that hadto be faced by the defendants of not being able to call the SurveyGeneral's representative to give evidence.
Whatever it may be, I wish to observe that in the case in hand, itwould be important to ascertain the fact as to whether the disputedarea of land is exclusively private property or land which belongs tothe crown and by it's available procedure vested with the 1stdefendant. In these circumstances the Trial Court Judge's finding onthe above point and evidence in the case will have to be examinedvery closely.
The District Judge's finding are as follows. The learned DistrictJudge concluded that the land in dispute belongs to the plaintiff. Thedefendant has not been able to produce any document to prove thatthe land in question was acquired by the State and vested in the 1 stdefendants, other than by the Survey General's plan and reportmarked as V1 & V1 A. Court observed that according to V I (plan) theland in dispute is part of lot 8 in p.p. 16821, and that this land isclaimed by the State. According to 1D1 assessment No. 368 does notfall within the land in question. It is also observed that the defendanthad not called any witness to clarify the above position. To support thetitle of the plaintiff the learned District Judge refers to evidence of
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witnesses who testifies to deeds marked 'P4' to 'P10' and plan 'P6'with several other documents. The judgment also refer to the fact thatthe 1st defendant had been responsible for forceful occupation of theland.
To deal with the evidence very briefly witness Grero for theplaintiff states that her father took the premises on rent from B.J.Perera in 1976 and rent paid to Mr. Perera. She continued to betenant up to 1979 and the 1 st defendant took over the premises andat present continues to do business under the 1st defendant. Theother witness Munasinghe from the 1st defendant Council who wasChief Revenue Officer confirms that the 1st defendant Council tookover the premises on the direction given by the Mayor. There was nocourt order to take over the premises and entered the upstairs ofthese premises by force opening the door. The other witness Fonsekaexplained to court that his task was to settle the issue relating to thesepremises and produced marked 'P3' the recommendation to releasethe premises, but this recommendation was not put into operation.Thereafter the plaintiff gave evidence and produced 'P4' – ‘P10’.Plaintiff also produced 'P6' the plan relied upon by him. In crossexamination of the Surveyor on 'P6' he admitted 'P6' was preparedwithout carrying out a survey, without visiting the site and minus thefield notes, but relied on a building plan.
The learned Counsel for the plaintiff-respondent contended interalia that plan 'P6" was admitted in evidence without any objection andinvited this Court to accept the position of the Surveyor who gaveevidence for the plaintiff may be to prove the identity of the land. Sincethe document was led in evidence without any objection I wouldaccept the position of the learned Counsel for the respondent on thataspect only. It was also submitted that the Survey General's plan andreport should be rejected since it was not produced in the proper wayin terms of the provisions of the Civil Procedure Code moreparticularly section 154 of the Code. I wish to observe that in terms ofsection 74 of the Evidence Ordinance Survey General's plan is apublic document and section 83 of the Evidence ordinance there is apresumption that Survey General's plans are duly made and accurateIn the circumstances I would observe that Court cannot reject the planand report marked as 'D1' & D1 A' merely because of non-compliancewith section 154 of the Civil Procedure Code.
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In Surveyor General v ZylvaM the presumption under thesection in favour of such plans or surveys extends to everythingnecessary to be done in order to make the survey or plan a faithfuldrawing and measurement of the land surveyed.
In a rei vindicatioaction plaintiff must prove and establish his title,and a declaration cannot be granted merely because defendant's titleis poor or not established, Juwanis Appuhamy's case.<2> As such titleand identity are important matters to be established to succeed in arei vindicatio action.
In the circumstances having considered all the material placedbefore the Original Court it is apparent that the learned District Judgehas misdirected himself on the plan and report submitted by theSurvey General. In fact the Survey General's witness (if called) wouldbe an essential witness not to prove title of State as such but to ensurethe identity of the land in dispute is considered from the properperspective,to either exclude State property or include same withinthe disputed area of land.
It is my view that reception of fresh evidence is essential toascertain the truth of the matter. Beatrice Dep v La/anP).
In order to justify the reception of fresh evidence or a new trialthree conditions must be fulfilled:
It must be shown that the evidence could not have beenobtained with reasonable diligence for use at the trial.
Evidence must be such that if given it would probablyhave an important influence on the result of the case,although it need not be decisive.
The evidence must be such as is presumable to bebelieved or in other words it must be apparentlycredible although it need not be incontrovertible.
The above conditions may not be exhaustive in a way and alsonot imperative, but certainly could be used to guide court in caseswhere a re-trial should be ordered. In the present case it is my viewthat the Survey General or his authorized representatives evidenceboth oral and documentary would be apparently credible and wouldhave an important influence on the result of the case. In the
CA
Jayatilake v Ratnayake
299
circumstances I would set aside the Judgment of the District Courtand direct that a re-trial be held. The Registrar of this Court is directedto forward the record in Case No. 1139/M to the District Court ofMount Lavinia.
EKANAYAKE, J. – I agree.
Appeal allowed.
Trial de novo ordered.