030-SLLR-SLLR-2002-V-2-DHARMASIRI-v.-WICKREMATUNGA.pdf
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Sri Lanka Law Reports
[2002] 2 Sri L.R.
DHARMASIRI
v.WICKREMATUNGA
COURT OF APPEAL
WEERASURIYA, J. (P/CA) AND
DISSANAYAKE, J.
CA NO. 1143/95 (F)
DC COLOMBO NO. 6061/ZL
MAY 14, 2001 AND
JUNE 27, 2001
Plaint – Prayer for ejectment – No plea for declaration of title – Maintainability
— Is it a possessory action? – Issue raised on title pleaded.
Held:
Once issues are framed and accepted, pleadings recede to the background.
Even though the plaintiff has not asked for a declaration of title it doesnot prevent him from seeking the relief for ejectment.
Absence in the prayer for a declaration of title causes no prejudice, if inthe body of the plaint, the title is pleaded and issues were framed andaccepted by Court on the title so pleaded. It cannot be overlooked thattitle pleaded in the body of the plaint formed the basis for the issues raisedat the trial and the question of title was examined by the trial Judge beforearriving at a finding that the plaintiff-respondent has obtained title.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to :
Haniffi v. Nalamma – 1998 1 SRI LR 73.
Pathirana v. Jayasundera – 58 NLR 169.
Jayasinghe v. Tikiri Banda – 1988 2 CALR 24.
D. M. G. Dasanayake for defendant-appellant.
T. B. Dillimuni with Tissa Bandara for plaintiff-respondent.
Cur. adv. vult.
CA
Dharmasiri v. Wickrematunga (Weerasuriya, J. (P/CA))
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August 24, 2001WEERASURIYA, J. (P/CA)
The plaintiff-respondent instituted this action against the defendant- iappellant, seeking his ejectment from the land described in the scheduleto the plaint and damages. The defendant-appellant whilst denyingaverments in the plaint, prayed for dismissal of the action on the basisof having acquired prescriptive rights to this I'and.
The trial in this case proceeded on 18 issues and the learnedDistrict Judge by his judgment dated 03. 07.1995, entered judgmentfor the plaintiff-respondent. It is from the aforesaid judgment thatthis appeal has been preferred.
The main submission of learned counsel for the defendant-appellant 10was that, this action being a possessory action, the plaintiff-respondenthas failed to file it within one year from the alleged date of ouster.
The plaintiff-respondent in his plaint claimed that he obtainedtitle to this land from Dona Wimala Beatrice Perera and PitipanaArachchige Senaka Kumara on deed of Transfer bearing No. 677,dated 02. 06. 1982, attested by Mervyn Samaraweera, N.P.
The defendant-appellant whilst denying averments in the plaintrelating to the manner of obtaining title by the plaintiff-respondentaverred the following :
That his father M. M. Kiri Banda came into occupation of 20the premises bearing No. 120/118 as a tenant under
P. E. Perera and continued to pay rent upto 1975.
That from 1975 Kiri Banda ceased to pay rent to P. E. Pereraupto his death in 1977; and
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Sri Lanka Law Reports
[2002] 2 Sri L.R.
That the defendant-appellant since his death occupied thepremises in suit by a title adverse to and independent ofany person and thereby acquired a prescriptive title.
The evidence of the plaintiff-respondent revealed that P. E. Pererawas the husband of Beatrice Perera and Senaka Kumara was theson of P. E. Perera. The defendant-appellant too, accepted this 30position, despite his earlier position of pleading ignorance of therelationship.
The plaint disclosed the manner of obtaining title by the plaintiff-respondent and contained a plea for the ejectment of the defendant-appellant without a plea for declaration of title. The absence of a pleafor a declaration of title may have been the reason for learned counselto submit that this was a possessory action.
It is necessary to emphasize that the issues Nos. 1, 2 and 3 hadbeen formulated on the basis of ‘acquisition title’ by the plaintiff-respondent. The learned District Judge having answered the said 40issues in the affirmative entered judgment for the plaintiff-respondent.
In the circumstances, this action could be properly classified as anaction for declaration of title.
It is no doubt correct to state that prayer to the plaint did not containa plea for declaration of title. However, it cannot be overlooked thattitle pleaded in the body of the plaint formed the basis for the issuesraised at the trial and the question of title was examined by the DistrictJudge before arriving at a finding that the plaintiff-respondent hasobtained title from deed No. 677, dated 02. 06. 1982. It is well-settledlaw that once issues are framed and accepted by Court, pleadings 50recede to the background, (vide Haniffi v. Nalamma.P
In Pathirana v. Jayasundera at 173 it was observed that a decreefor a declaration of title may be obtained by way of additional reliefeither in a rei vindicatio action proper or in lessor’s action againsthis overholding tenant.
CA
Dharmasiri v. Wickrematunga (Waerasuriya, J. (P/CA))
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(3)
In Jayasinghe v. Tikiri Banda it was held that although plaintiffhas not asked for a declaration of title it does not prevent him fromseeking the relief for ejectment. Thus, it would be manifest that
absence in the prayer, for a declaration of title causes no prejudice,if in the body of the plaint, the title is pleaded and issues were framedand accepted by Court on the title so pleaded.
Therefore, the submission of learned counsel for the defendant-appellant that this action was a possessory action is unacceptable.
The plaintiff-respondent has placed evidence to establish the identityof the land and his title to the land in suit. The evidence of thedefendant-appellant in respect of his claim for prescriptive rights inboth evasive and unconvincing.
Having examined the evidence, it seems to me that there is nobasis to interfere with the findings of the District Judge. Therefore,
this appeal is dismissed with costs.
DISSANAYAKE, J. – I agree.
Appeal dismissed.
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