025-SLLR-SLLR-1990-V-1-DHARMATILLEKE-THERO-v.-BUDDHARAKKITA-THERO.pdf
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Dharmatilleke Thero v. Buddharakkita Them
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DHARMATILLEKE THERO
V.BUDDHARAKKITA THERO
COURT OF APPEAL.
S. B. GOONEWARDENE. J. (P/CA) and WEERASEKERA. J..
C: A. No. 154/79(F) ,D. C. KALUTARA No. 2496/L.
OCTOBER 3. 5, 9. 11. 1989.
Buddhist Ecclesiastical Law-Entitlement to Viharadhipathiship-Entries in Samanera andUpasampada declarations-Evidence in rebuttai-Seniority by act ol robing.
Buddhist Temporalities Ordinance ss. 41(2) (a) (i), 41(2) (b), 46(6)—Circumstances inwhich an appellate court should set aside judgment
Pothuwila Sri Saranatissa Thero was the Viharadhipathi ot Kottarama Kande Vihare. Hewas succeeded by Heenatiyangala Jinarama Thero and functioned as Viharadhipathi untilhis death on September 03.1976. The plaintiff priest (Dharmatilleke Thero) was robed on30th September, 1952, while the detendent priest (Buddharakkita Thero) was robed on2nd November, 1951. In the form of declaration of the robing of the defendant SaranatissaThero was named in cage 7 as the robing tutor in terms of s. 41(2) (a) (ii) while in plaintiffssamanera declaration Jinarama Thero was named as robing tutor. Both plaintiff anddefendant were presented for ordination on June 15, 1961 by Saranatissa Thero andJinarama Thero. The entries in the declarations are prima facie evidence ot the factscontained therein. In the upasampada declarations ot both plaintiff and defendant therobing tutors under ss. 41(2) (a) (i) and 42 (2) (b) included the name of Jinarama Thero asone of the robing tutors.
Held :
Evidence in rebuttal ol the entries in the declarations which constitute prima facieevidence can be led and can be oral or documentary. Oral evidence car. be led tcsupplement the information in the declarations.
The entries in the upasampada declaration of the defendant show thatone of the robingtutors of the defendant priest was Jinarama Thero and this is prima facie evidence of thisfact. This prima evidence receives confirmation from other items of evidence as well. Thenotification of the lorthcoming ordination ol the plaintiff and defendant along with fourothers in June 1961 was under the joint names of Saranatissa Thero and Jinarama Theroand in this all of them were described as their samanera pupils.
The District Judge who saw and heard the witnesses and watched their demeanour hadfound lor the defendant. Where the personality of the witnesses is an essential element,the appellate Court should not set aside the decision of the trial judge save in the clearestof cases.
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Cases referred to:
Jinawansa Them v. Piyarama Thero 1982 1 Sri LR 273
Saranajothy Them v'. Dhammarama Them 61 NLR 76. 79
Powell v. Streaiham Manor Nursing Home 1935 AC 2*3
APPEAL from the judgment ot the District Judge ol Kalutara.
Dr. H. W. Jayewardene O. C with N. J. Seneviraine. H. Amarasekera and H. Cabral lotthe plaintiff -appellant.
A. C. Gunaratne O. C. with B. Rajapakse and Mrs. Jayalath for the defendant-respondent.
Cur. adv. vult.
December 7, 1989
S. B. GOONEWARDENE, J. (P/CA).
In this action in the District Court, the plaintiff-appellant sought by way ofrelief in the main, a declaration that he was the lawful Viharadhipathi ofKottarama Kande Vihara, said to be a famous temple situated atKaluwamodera in Alutgama in the District ot Kalutara. The principalancillary relief he asked was that he be restored to possession of thistemple and its temporalities on the basis that the defendant respondentwas in wrongful and unlawful possession thereof upon an illegitimateclaim of title to such Viharadhipathiship. His case upon his plaint wasfounded upon an assertion that at an earlier point of time a priest by thename of Pothuwila Sri Saranatissa Thero was the chief incumbent andthat he was succeeded after death by Heenatiyangala Jinarama Therowho officiated in that capacity till September, 1976 and that on the latter'sdeath he (the plaintiff appellant) succeeded to the Viharadhipathiship ashis senior pupil.
For present purposes it suffices to say that the position ol thedefendant was that he himseif was the senior pupil of HeenatiyangalaJinarama and thus succeeded to the Viharadhipathiship, a position whichthe District Judge upheld, resulting in this appeal.
To narrow down the questions before this Court on this appeal it isconvenient to state that on the admissions and concessions made in the
CADharmatilleke Thoro v. Buddharakkita Tharo (Goonewardane, d.) ■213
District Coun and at the hearing betore us, the following matters can betreated as being capable of acceptance without controversy:-
This temple is not exempted from the provisions of Section 4( 1) ofthe Buddhist Temporalities Ordinance.
The rule of succession applicable to the Viharadhipathiship is thatwhich is known as the Sisyanu Sisya Paramparawa Rule.
Heenatiyangala Jinarama who died on 3rd September, 1976, andthrough whom both the plaintiff and the defendant claim title, wasthe undisputed last chief incumbent.
The plaintiff was robed as a Samanera on 30th September, 1952,his robing tutors being Pothuwila Sri Saranatissa andHeenatiyangala Jinarama.
The defendant was robed bn 2nd November, 1951, and PothuwilaSri Saranatissa was his robing tutor.
The plaintiff and defendant were each presented forordination byboth Pothuwila Sri Saranatissa and Heenatiyangala Jinarama andboth duly ordained on 15th June, 1961, and thus each had both ashis ordaining tutors.
The case presented by the plaintiff in these circumstances was thatwhen he was robed on 30th September, 1952. Heenatiyangala Jinaramawas one of his robing tutors whilst on the other hand when the defendantwas robed on 2nd November, 1951, Heenatiyangala Jinarama was notone of his robing tutors. On the basis therefore that he was the only oneout of the two of them who had been robed by Heenatiyangala Jinarama,he claimed that in law he succeeded the latter as chief incumbent of thistemple under the Sisyanu Sisya Peramparawa Rule of succession.
The case of the defendant conversely was that on the occasion of hisrobing on 2nd November, 1951, Heenatiyangala Jinarama was one of hisrobing tutors and that since this event predated the robing of the plaintiffon 30th September, 1952, he became the senior pupil of HeenatiyangalaJinarama by robing and thus succeeded the latter as the lawful chiefincumbent of this temple.
The answer therefore to the simple question as to whetherHeenatiyangala Jinarama was one of the defendant's robing tutors whenhe was robed on 2nd November, 1951, becomes decisive as to the resultof this appeal, counsel being agreed that the succession depended upon
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the seniority acquired by the act of robing, as indeed is the correct positionin law. If such answer is in the affirmative the defendant must succeed,but if in the negative, the plaintiff. The District Judge for his part upheldthe defendant's contention that Heenatiyangala Jinarama was one of hisrobing tutors and consequently dismissed the plaintiff's action.
Counsel forthe plaintiff had two criticisms to make about the judgmentof the District Judge apart from the conclusions he reached. One suchcriticism was that there had been delay on his part in delivering suchjudgment, but here I am of the view that that criticism is withoutfoundation and that a period of about 4 1/2 months (that is the timebetween 16.1.1979 being the date on which the plaintiff's writtensubmissions had to be filed and 5.6.1972 the date on which the judgmentwas delivered) was not in the circumstances of this case excessive. Theother criticism made by Counsel for the appellant was that the judgmentof the District Judge was sketchy and lacking in adequate considerationof the evidence tendered for the plaintiff and on the basis of this criticismCounsei contended that at the very least the plaintiff was entitled to havea fresh hearing of the action in the District Court. Apart from a naturalreluctance I would have against adopting that course of sending this caseback for a retrial having regard to the fact that it had been instituted asfar back as the beginning of 1978,1 do not think the circumstances of thecase warrant it. Although it could possibly be said that the District Judgemight perhaps have dealt with certain aspecis cf the matter in somewhatgreater depth, having regard however to the narrow compass withinwhich the real issue in the case falls, I take the view that the judgment ofthe District Judge is not inadequate to meet the requirements of justice.When all is said and done it is not as though there are no findings on theprincipal questions at all. Our approach therefore I think should be this.There is a clear finding by the District Judge in the defendant's favour, theevidence oral and documentary is before us, evidence lo which Counselhas made copious reference and which we can independently evaluateand therefore the effect of a judgment by us would be to do justiceaccording to law as between the plaintiff and the defendant.
Counsel for the plaintiff in argument before us placed the greatestpossible emphasis upon the worth of the contents of document P3 (orP31) which is a certified copy of the Samanera declaration of thedefendant. The main thrust of his argument was directed at stressingwhat he submitted was the value and significance of this document, which
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if I recall right he characterised as the most important bit of independentevidence in the case being a contemporaneous record of the events of thedefendant's robing on 2nd November, 1951. This document was oneprepared to comply with the requirements of section 4l(2)(a) (ii) of theBuddhist Temporalities Ordinance and the details contained there arethose asked for in the ‘form’ of document prescribed by the Statute itself(Form 'B' in the schedule). Such forms duly filled are required by section41 (2)(b) to be forwarded to the Registrar-General who in turn is directedto file them and make registers thereof. Such entries are stated to be“prima facie evidence of the facts contained therein in all Courts and forall purposes”. (Section 41(6)). Counsel drew our attention to the fact thatin document P3 the defendant's samanera declaration, the name ofPothuwila Sri Saranatissa is given as the tutor by robing and that he andthe defendant have both placed their signatures at the foot thereof. Hepointed to the words “Name of robing tutor or names of robing tutors andresidence" as being the information asked for in cage 7 and in effectcontended that the presence of this one name Pothuwila Sri Saranatissawas virtually an insurmountable obstacle in the circumstances of thiscase to the defendant's endeavours to establish that HeenatiyangalaJinarama was also his robing tutor. His argument was that this singlename standing in cage 7 was evidence that Heenatiyangala Jinaramawas not a tutor by robing of the defendant on the one hand and that it wasan admission by the defendant that Pothuwila Sri Saranatissa alone washis robing tutor on the other.
To begin with I find it difficult to take the view that the presence of thesewords “Name of robing tutor or names of robing tutors" in cage 7 of aSamanera declaration renders it necessary that the names of all robingtutors should be inserted. If that be so, I find it hard to understand why atthe foot of this form in the compartment set apart for “Signatures tocorrectness of above particulars” there is provision only forone "Signatureof robing tutor". Rather, it seems to me that what is demanded by theStatute is the insertion of the name of at least one robing tutor (it there bemore than one) who takes responsibility for the accuracy of that informationgiven by placing his signature at the foot of the document in testimonyinfer alia of the fact that the samanera in question was duly robed by him;while the object of the provision in cage 7 for the inclusion of the namesof other robing tutors is merely permissive to enable that information aswell to be furnished if desired. The documents produced at the trialrelating to the robing of other priests connected with this temple seem to
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indicate that it was not unusualforthose concerned in providing informationrelating to such acts themselves to have looked at the matter in that way.Indeed if one examines the plaintiff’s own upasampada declaration P9which in cage 7 also made provision for inserting the “Name of robing tutoror names of robing tutors" one sees that initially according to theinformation furnished by the plaintiff himself the name of Pothuwila SriSaranatissa alone appeared as robing tutor although subsequently by anamendment dated 30th September, 1976, the name of HeenatiyangalaJinarama had also been included upon the application of the Mahanayakeof the Malwatte Vihare acting at the instance of the plaintiff. As a corollaryto that view I find it difficult to agree that the absence of the name ofHeenatiyangala Jinarama as a robing tutor in cage 7 of P3, can beevidence having the effect of showing that he was not a robing tutor. Thecontents of this kind of document can be evidence of what in fact itcontains but I cannot agree that it can be evidence, especially prima facieevidence, of what it does not contain. As section 41 (6) itself points out,an entry shall be prima facie evidence of the "'facts contained therein",which I understand to be prima facie evidence of a positive nature as towhat is actually contained there and not prima facie evidence ot anegative nature as to what is not contained there. It is perhaps apt hereto refer to what Samarakoon C.J. in the case of Jinawansa Them v.Piyaratne Thero{ 1) (a case cited by Counsel for the appellant himselt)inexplaining the import of the words ‘prima facie' in section 41 (6) (at p. 279)said,
“Evidence in rebuttal (of this prima facie evidence) may be eitheroralordocumentaryorboth.TheRegistermaintained by the Registrar-General is not the only evidence. Oral evidence may be given to provethe fact of robing or ordination (Saranajothy Them v. DhammaramaThem (61 N.L.R. 76 at 79) (2). Nor is it conclusive of the fact of robingor ordination. Oral evidence may be led to disprove entries therein".
If oral evidence can be led to disprove information shown in thesedocuments I cannot go along with a view suggesting that oral evidenceor any other evidence may not be led to supplement such information. Insimilar manner I cannot agree that the contents of P3 can be taken as anadmission against the defendant that Heenatiyangala Jinarama was nothis robing tutor. The information in cage 7 might arguably, oiherrequirements being met, be an admission that Pothuwila Sri Saranatissawas the defendant's tutor even if one disregards the fact that the
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defendant was only about 11 years in age at the time that the declarationon P3 was made. But the contention that it can become an admission thatHeenatiyangala Jinarama was not his robing tutor is one I cannot accept.The argument that there was this admission in P3 that HeenatiyangalaJinarama was not the defendant's robing tutor, which is based upon thecontention of Counsel for the appellant that it was incumbent, by virtue ofthe terms of cage 7 of P3, to give the names of all the defendant's robingtutors, is flawed in another respect as well. In the case of JinawansaThero v. Piyaratne Thero (supra) Samarakoon , C. J. rejected acontention that in this kind of declaration where a party has signed at thefoot of the document, he was certifying to the correctness of ail theparticulars contained in the body of the document. Keeping that in mindthe question is as to who is responsible for the information given in cage7 of the samanera declaration regarding the name or names of the robingtutor or robing tutors as the case may be. In my view the answer to thatquestion is to be found in the provisions of section 41 (2) (a) (ii) whichcasts the duty of procuring a copy of the relevant 'form' and enteringtherein the details regarding such samanera, on the robing tutor who isalso called upon to himself forward such declaration to the Registrar-General (section 41 (2) (b)). By contrast in the case of an upasampadadeclaration the duty of procuring the relevant 'form' entering the appropriateparticulars and forwarding such declaration to the Registrar-General iscast on the Upasampada Bhikku himself (sections 41 (2) (a) (i) and 41 (2)(£>)). In the face of this provision casting this duty on the robing tutor in thecase of the robing declaration the argument that the samanere inquestion, the defendant, was responsible for the contents of cage 7 of thedeclaration P3 to the extent that anything contained therein operates asan admission by him, in my view becomes untenable. Indeed in adducingan argument pertaining to the defendant's upasampada declaration P10containing information favourable to the defendant that HeenatiyangalaJinarama was also one of his robing tutors, Counsel for the plaintiff withthe object of challenging the value of such information adopted what Ithink was a not altogether consistent stance based upon the view takenby Samarakoon C,J. in Jinawansa Thero v. Piyaratne Thero (supra)regarding the divisibility of responsibility for the contents of a declarationamong those signing at the foot of such declaration, as I will advert to later.
The result then is that the absence of the name of HeenatiyangalaJinarama in cage 7 of P3 does not conclude the question whether he was
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intact a robing tutor of the defendant. As Samarakoon C., J. in the caseof Jinawansa Thero v. Piyaratne Thero (supra) said “nor is it (thedeclaration) conclusive (even) of the fact of robing or ordination".
The next question is whether there was other evidence thatHeenatiyangala Jinarama was a robing tutorof the defendant to jusiify theconclusion reached by the District Judge that he was.
To establish this the defendant relied strongly on his upasampadadeclaration, certified copies of which have been produced at the trial byboth sides marked P10 and V10 respectively. If any document can beconsidered a contemporaneous record of the event in question itself, thismust be it, as the declaration on it had been made on the same date asthe date of ordination namely 15th June 1961, although it was not acontemporaneous record of the event of robing referred to in cage 7. Onthe other hand the document P3 the defendant's samanera declarationwas not quite a contemporaneous record of the event of robing as thedeclaration there had been made on 23rd November, 1951, some daysafter the event of robing which had taken place earlier on 2nd November,1951. P10, in the defendant's assertion, is important as on it the namesof his robing tutors shown in cage 7 are those of Pothuwila Sri Saranatissaand Heenatiyangala Jinarama Whilst purportedly supporting the oraltestimony of the defendant that one of his robing tutors had beenHeenatiyangala Jinarama this document is of importance to the defendantin view of the fact that he had been presented for ordination on this day,namely 15th June, 1961, at the Malwatta Maha Vihara in Kandy byPothuwila Sri Saranatissa and Heenatiyangala Jinarama, as was doneon the same date and at the same place in the case of the plaintiff as well(vide P9). These upasampada declarations like the samanera declarationare made in accordance with the ‘form' prescribed by the BuddhistTemporalities Ordinance in section 41 (2) (a) (i) (Form A in the schedule)and here too cage 7 is in terms identical with cage 7 of a samaneradeclaration while cage 19 similarly makes provisions to give the "Nameof tutor or names of tutors presenting for ordination". Here too at the footof the document similar words as in a samanera declaration “Signaturesto correctness of above particulars" are used, but once again provision ismade inter alia for the placing of the signature of one tutor only presentingfor ordination. In the document P10 with which we are concerned
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however, both tutors presenting the defendant for ordination PothuwilaSri Saranatissa and Heenatiyangala Jinarama have placed their signaturesas indeed they have done in the case of the plaintiff (vide P9). While thedefendant seeks to derive strength from the presence of the signaturesof Heenatiyangala Jinarama that it is eloquent testimony to the truth of thestatement in cage 7 that he was a robing tutor of the defendant occuringas it does below the words "Signatures to correctness of the aboveparticulars”, Counsel for the plaintiff in argument belore us sought todecry its evidentiary value altogether. That, counsel attempted to do byfalling back on what Samarakoon C., J. said in Jinayvansa Thero v.Piyaratne Thero (supra) that by the mere presence of his signature in thismanner the person who so placed his signature does not necessarily takeresponsibility for the correctness of all the particulars in the declaration.Indeed Samarakoon C., J. did say so, but that was with respect to the factsin the case before him and not in such absolute terms as contended byCounsel. I certainly do not understand Samarakoon C., J. to have saidthat in every instance each of' the signatories necessarily takes noresponsibility for some of the information provided. Each case must beexamined with respect to its own facts and whether a particular signatorydoes or does not take responsibility for the accuracy of any particular itemof information given on any occasion must depend on the character ofsuch signatory and the nature of the particular item of information underconsideration. Secondly, Counsel for the plaintiff contended that P10was of no use to the defendant because he had in cage 21 thereofinserted the word “no" in response to the query , “Serial number in thesamanera register if any". This, Counsel contended was contrary to thefact having regard to the availability of the defendant’s samaneradeclaration P3 which bears on its face its serial number, i cannot take theview that this was a deliberate attempt at falsehood on the part of thedefendant as suggested, just as much as I cannot accept that when hemade this declaration as far back as June 1961, in an attempt at creatingevidence to bolster a false future claim to this Viharadhipathiship, in thepresence of both his ordaining tutors he displayed a temerity to utter thename of Heenatiyangala Jinarama as one of his robing tutors contrary tothe fact. In a good many of the upasampada declarations produced at thetriai pertaining to several other priests including the declaration of theplaintiff himself the word “no" occurs against the information sought incage 21 although in the case of the plaintiff if cannot be said that that wasan incorrect statement in view of the fact that his samanera declaration(which was not produced at the trial) appears not to have been available.
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I am of the view therefore that the statement in cage 7 of document P10that Heenatiyangala Jinarama was one of the robing tutors of thedefendant is prima facie evidence of that fact. Such statement in PIOI think is as much prima facie evidence as the statements in cages 7 and19 respectively of the upasampada declaration of HeenatiyangalaJinarama himself (P38) produced by the plaintiff at the trial, that his robingtutor and one of his ordaining tutors had been Pothuwila Sri Saranatissawho however had nowhere placed his signature at the foot of thatdeclaration.
Accepting as l do that the statement incage7of PlOthat HeenatiyangalaJinarama was a robing tutor of the defendant is prima facie evidence ofthat fact, it is helpful to see whether such evidence receives confirmationelsewhere so as to justify the affirmation in appeal of the District Judge'sfinding to that effect. It is convenient at this point to advert to the worth ofthe information contained in cage 7of P10 that Heenatiyangala Jinaramahad been a robing tutor of the defendant, in the view of a witness,admittedly a priest of standing, to some aspects of whose evidence Mr.Gunaratne, Counsel for the defendant-respondent referred us. That wasParavehera Prajnananda Thero the Chief Sanganayake of the WesternProvince called to testify as a witness for the plaintiff. Appraised of thecontents of this cage bearing the names of the two monks said to haverobed thedefendant namely Pothuwila Sri Saranatissa and HeenatiyangalaJinarama the witness has stated that it was not possible not to accept itscorrectness. As I understand his evidence it was not that he wassuggesting that he was present on this occasion and was speaking inverification of the truth of this information from personal knowledge butrather that, based upon a consciousness of the solemnity of the occasion,the procedure and practice adopted at such ceremonies and the valueplaced upon information recorded in circumstances such as thesesurrounding the ordination of the defendant, he was making this statement; in evidence.
Of some what like significance is the testimony of witness LoolbadduweUparathana a co-pupil with Pothuwila Sri Saranatissa of their commontutor Malewana Seelawansa Thero and therefore belonging to thepararriparawa to which the monks of this temple belong. He was a witnessfor the plaintiff and endeavoured to support him by testifying that he waspresent on the occasion of the defendants robing which he claimed wasdone only by Pothuwila Sri Saranatissa. He also testified to the role he
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played in securing for the defendant the Sanganayakaship of the Kalutaradistrict and endeavored to explain that he had been misled by thedefendant into describing him as the Viharadhipathy of the Kande Viharain a letter (V8) he wrote to the Chief Priest of the Malwatte Chapter inKandy, but was compelled nonetheless to admit that this post ofSanganayake is ordinarily conferred upon the Chief Incumbent of theKande Vihara. It is not unreasonable to think that this kind of importantappointment is done not in a careless and irresponsible manner but onlyafter careful investigation of all material facts and the background andqualifications of the appointee.
Dr. Jayewardene, Counsel for the appellant was heard to say thatunlike at the occasion of the robing ceremony of the defendant priestwhich was held at Kande Vihare, the temple in question in this case, incircumstances of a somewhat intimate nature where a few laymen wererobed as priests with an accurate record made of all information that hadto be included in the samanera declaration, the upasampada ceremonyheld in Kandy at Malwatte Maha Vihara was of a more impersonal naturewith many samanera priests being ordained in busy circumstances whererelevant information would not ordinarily be recorded with the samedegree of accuracy. He was endeavouring to persuade us that despitethe presence of Pothuwile Sri Saranatissa and Heenatiyangala Jinaramaand their participation at the ordination ceremony of the defendant andthe subscription of their signatures to the upasampada declaration P10,having regard to the nature of the circumstances surrounding suchceremony where a large number of priests were ordained, they wereperhaps not conscious of the information shown in cage 7 of P10 beinginserted. As Mr. Gunaratne, Counsel for the respondant pointed out theplaintiff’s own evidence negatives this contention. He has admitted thaton this day he himself, the defendant and two others had been ordainedand that just as he did, the defendant in his hearing mentioned the namesof his robing tutors as Pothuwila Sri Sarantissa and HeenatiyangalaJinarama in their very presence and without any denial from them. In suchcircumstances I find myself hard pressed to say that Pothuwila SriSaranatissa and Heenatiyangala Jinarama did not associate themselveswith the information in cage 7 of P10 that they were the robing tutors ofthe defendant. If any other evidence of acknowledgement of this by thesetwo priests is necessary, that is to be found in document P5 produced bythe plaintiff himself at the trial. That was a notification under their jointnames given by Pothuwila Sri Saranatissa and Heenatiyangala Jinarama
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dated 8th of June, 1961, of the forthcoming ordination fixed for the 15thJune, 1961 of the plaintiff, the defendant and two others all four of whomare described by them there as their samanera pupils.
I do not think it becomes necessary to dwell on more of the evidencesupporting the defendant's contention that Heenatiyangala Jinaramawas one of his robing tutors except perhaps to make a reference to anitem of evidence given by the plaintiff himself. In cross examination he hasanswered in the affirmative a question asked as to whether it was notcorrect that six samaneras (names mentioned with the defendant's as themost senior and including the plaintiff) were in seniority the pupils of bothPothuwila Sri Saranatissa and Heenatiyangala Jinarama. II anything isan admission in this case, that I think is it.
Having regard to the course adopted by Counsel for the plaintiff inassailing the conclusion reached by the District Judge that the defendanthad been robed by Heenatiyangala Jinarama, which took the form of achallenge to show differently though in respect of the respondent's case,that it had no basis of independant worthwhile evidence to support it otherthan certain items of what Counsel styled self serving evidence, all thatit becomes necessary to do here to demonstrate that such conclusionwas justified is to point out, as I have done, some items of evidence whichshow otherwise, and which certainly escape the description Counselused of “self serving evidence",
Before I conclude it is necessary I think briefly to say something aboutthe approach that should be adopted by an appellate tribunal in a mattersuch as this. Relevant to such approach Samarakoon C. J. in JinawansaThero v. Piyaratne Thero (supra) referred (at page 281) to the “pricelessadvantage" the District Judge had in the original Court of seeing andhearing the witnesses and of watching their demeoanour. In similar veinthe House of Lords in Powell v. Streatham Manor Nursing Home (3)pointed out that where the personality of the witnesses was an essentialelement in the decision (as here) there being a conflict of evidence of factan appellate Court ought not, save in the clearest of cases, to set asidethe decision of the trial Judge who has seen and heard the witnesses. Inthe instant case in my view there is no justification for interfering with theconclusions reached by the District Judge which as I perceive arewarranted by the evidence that was before him. t would concur with hisfinding to the effect that the defendant did discharge the burden of proof
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that lay upon him in this regard and successfully established that he wasa pupil by robing of Heeriatiyangala Jinarama. The District Judge havingproperly addressed his mind to the issues before him and having cometo a correct decision thereon, his findings and judgment are affirmed andthis appeal is dismissed with costs.
WEERESEKERA, J.-1 agree.Appeal dismissed