030-SLLR-SLLR-1997-V3-DHARMADASA-v.-JAYASENA.pdf
sc
Dharmadasa v. Jayasena
327
DHARMADASA
v.
JAYASENA
SUPREME COURT.
G.P.S. DE SILVA, C.J.,
PERERA, J. AND
SHI RAN I A. BANDARANAYAKE. J.
S.C. APPEAL NO. 52/94
A. NO. 213/85 (F)
C. ANURADHAPURA NO. 11075SEPTEMBER 15, 1997.
Vindicatory action – Claim of title – Burden of establishing plaintiff^ title.
The plaintiff sued the defendant for a declaration of title and ejectment. Theplaintiff based his claim on a grant from the Urban Council, Anuradhapura.
Held:
In a rei vindicate action the burden is on the plaintiff to establish the title pleadedand relied on by him. The defendant need not prove anything. The grant reliedupon by the plaintiff was invalid. Hence the plaintiff has failed to establish his title.
Cases referred to:
De Silva v. Goonetr/a#re(1931) 32 N.L.R. 217,219.
Wanigaratne v. Juwanis Appuhamy{1964) 65 N.L.R. 167.
APPEAL from the Judgment of the Court of Appeal.
P. A. D. Samarasekera, P.C. with Ran Banda Seveviratne for Plaintiff-Appellant.
D. R. P. Gunatillake for defendant-respondent.
Cur. adv. vult.
October 1, 1997.
P.S.DE SILVA, C.J.,
The plaintiff instituted these proceedings against the defendantseeking a declaration of title to the premises in suit, ejectment of the
328
Sri Lanka Law Reports
(1997} 3 Sri LR.
defendant, and damages. At the conclusion of the trial, the DistrictCourt dismissed the plaintiff's action. His appeal to the Court of Appealtoo was unsuccessful. Hence the present appeal to this court.
The plaintiff's claim of title was based upon a grant from the UrbanCouncil of Anuradhapura. The grant is dated 21st February 1983 andwas marked as P1 at the trial. The defendant in his answer pleadedthat P1 was fraudulently obtained by the plaintiff and that the plaintifffailed to disclose the fact that the defendant's father had filed caseNo. 9886 in the District Court of Anuradhapura against the plaintifffor ejectment from the premises in suit. It is in evidencethat the decision in the said case No. 9886 was in favour ofthe defendant’s father; the District Court expressly held in that casethat the plaintiff in the present case “had no right whatever” to remainin occupation of the premises in suit and ordered that he be ejected.The judgment of the District Court was delivered on 1.8.74. The Courtof Appeal on 7.3.83 affirmed the judgment of the District Court. It is tobe noted that the Court of Appeal held that “the defendant (i.e. theplaintiff in the present case) had no right whatever to enter intooccupation of the premises on 1.1.68”. Pursuant to the decree in theaforesaid case No. 9886 the defendant was placed in possession ofthe premises by the Fiscal on 10.2.84. The defendant is not in unlawfuloccupation of the premises from 10.2.84 as averred in paragraph 3 ofthe plaint.
As rightly submitted by Mr. Samarasekera for the plaintiff-appellant, the short point that arises for decision in this case “is onerelating to title”. Admittedly, the Urban Council of Anuradhapura wasthe previous owner of the premises. The contention advanced onbehalf of the appellant is that the grant P1 was made in terms ofsection 5A(2) of the Local Authorities Housing (Amendment) ActNo. 63 of 1979 which reads thus:-
*5A(2) where prior to the date of coming into force of thissection, a house to which this Act applies has been let to anyperson otherwise than under the provisions of section 3(1) and themonthly rental of that house does not exceed twenty-five rupees,the local authority within the administrative limits of which that
sc
Dharmadasa v. Jayasena (G. P. S. de Silva, C. J.)
329
house is situated shall, by an instrument of disposition, transfer,
free of charge, that house –
to the tenant of that house who is in occupation thereof on thedate of coming into force of this section; or
to the person in occupation of that house on the date ofcoming into force of this section, where the tenant of thathouse is not in occupation thereof on that date,
if, and only if, the Advisory Board constituted for that local authority
is satisfied that –
such tenant or person in occupation, as the case may be, isin need of housing accommodation,
such tenant or person in occupation, as the case may be, isa citizen of Sri Lanka, and
the name of such tenant or person in occupation, as the casemay be, appears in the electoral list prepared for the generalelection of members of that local authority.”
There is no evidence to show that the plaintiff was the tenant of thepremises. Could it be said that he was a person "in occupation of thehouse" within the meaning of section 5A(2) (b)? I think not. Thefinding of the District Court in case No. 9886 referred to above wasthat he was a trespasser, a finding which was affirmed in appeal. Itseems to me that a trespasser does not fall within the meaning of theexpression “a person in occupation.”
What is more, it is a condition precedent to the issue of the grantthat the.Advisory Board should be satisfied in regard to the threematters set out in the section. The relevant decision of the AdvisoryBoard was marked in evidence as D4 by the Revenue Inspector ofthe Urban Council. There can be no doubt that D4 is dated 16.3.83.The District Court has so held upon the oral and documentaryevidence on record. On the other hand, the grant P1 is dated
330
Sri Lanka Law Reports
[1997) 3 Sri L.R.
21.2.83. It is thus manifest that the grant P1 was issued prior to thedecision of the Advisory Board. P1 therefore is of no force or avail inlaw as it was issued in contravention of the express provisions ofsection 5A(2) of the Act. The defendant had raised a specific issueon this point and the District Court had rightly answered the issue inthe defendant's favour.
The next submission of Mr. Samarasekera was, that in any event,the defendant has no legal right whatever to these premises for he is"not the owner, not the tenant, not even a licencee.” But the point isthat this is a rei vindicatio action and the burden is clearly on theplaintiff to establish the title pleaded and relied on by him. “Theauthorities unite in holding that the plaintiff must show title to thecorpus in dispute and that if he cannot, the action will not lie" perMacdonall C.J., De Silva v. Goonetilake™at 219. The principle waslucidly stated by Herat J., in Wanigaratne v. Juwanis Appuhamy™ inthe following terms “The defendant in a rei vindicatio action need notprove anything, still less his own title. The plaintiff cannot ask for adeclaration of title in his favour merely on the strength that thedefendant’s title is poor or not established. The plaintiff must proveand establish his title.” This the plaintiff has failed to do, and hisaction must therefore fail.
For these reasons the appeal is dismissed with costs fixed atRs. 500/-.
PERERA, J. -1 agree.BANDARANAYAKE, J. -1 agree.
Appeal dismissed.