Sri Lanka Law Reports (1978-79) 2 S.LR.
Hemapala v. Abeyratne
COURT OF APPF.AL.
ABDUL CADER, J. AND VICTOR PERERA, J.
c.a. (s.c.) 239/72 (F-)—d.c kalutara 1472/l.
JANUARY 25, 1979.
Evidence Ordinance, section 68—Proof of execution of deed—Issue notraised at trial—Can such matter be raised in appeal.
Where a defendant had put the plaintiff to proof of a deed (PI) inthe answer bu' no issue was f amed at the tri'd a=i!<- ^ue
execution and the deed was marked in evidence, and when the case forthe plaintiff wa3 closed his counsel read the deed in evidence alongwith other documents, it is too late to raise the plea in appeal thatno evidence has been called to prove due execution of the deed interms of section 68 of Evidence Ordinance.
APPEAL from the District Court, Kalutara.
C. Ranganathan, Q.C., with Ajit Tillekewardene, for the defendant-
H. W. Jayewardena, Q.C., with Miss P. Seneviratne, for the plaintiff-resnondent.
Hernapafa v, Abeyrafne (Abdul Cader, J.)
January 25, 1979.
ABDUL CADER, J.Mr. Ranganathan concedes that prior registration will not avail
in this case. He also agrees that prescription does not arise inthis case. The next matter in issue would be whether the landconveyed to plaintiff by PI has been identified to be the landin dispute. On this matter, there was ample evidence on whichthe District Judge has held that it has been properly identifiedto be the land conveyed by PI. The name of the land wilbinthese four boundaries is in dispute, but it would not be materialso long as the land has been properly identified as the land indispute. In respect of one boundary of this land, there is somedoubt because the deed PI gives the northern boundary asrubber land whereas the plan shows that there is a road to thenorth. But, in the plan it is described as a new road, and to thenorth of it is said to be “ Formerly rubber land now paddySince three boundaries tally and the fourth boundary appears tobe correct, we are satisfied that the judgment of the learnedDistrict Judge is correct so far as the identity of the land isconcerned.
Mr. Ranganathan drew our attention to paragraph 2 of theplaint where PI is pleaded, and paragraph 2 of the answer whichhas put the plaintiff to the proof of PI. He states that since nowitness has been called to prove due execution in terms ofsection 68 of the Evidence Ordinance, this Court should hold thatPI has not been proved, and, therefore, the entire case of theplaintiff fails. Though we find that the proof of PI has been putin issue in the answer, at the trial no issue was framed as regardsdue execution of PI. In fact, the counsel who appeared for theplaintiff had expressly stated that the plaintiffs do not admitthe due execution of deed D8. Even at that stage, the defendant’scounsel could have stated that equally the defendant did notadmit the due execution of the plaintiff’s deed PI. That was notdone. When the case was closed for the plaintiff, the plaintiff’scounsel read in evidence PI along with other documents. Evenat that stage, this deed was not challenged.
Sri Lanka Law Reports (1978-79) 2 S. L.R_
Counsel’s written submissions are in the record. Thereis nothing to indicate in those written submissions that the exe-cution of PI was challenged. The petition of appeal lias beenfiled without any reference to due execution of PI. In fact, itstates that PI was not challenged. It is too late to raise thisissue in this Court, and we do not agree with Mr. Ranganathanthat we can go into the question of execution of this deed inappeal.
Mr. Ranganathan now draws our attention to the fact thatthe decree has been entered following the schedule to the plaintthough the Judge has expressly answered issue 6 as follows :—Lots 2 to 6 comprise the land claimed bv the plaintiff andshown as Lot A in Plan 1519.
Therefore we amend the Schedule to read as follows :
All that land called and known as Kirigalmulla situated,at Egaloya in Gangaboda Pattu of Pasdun Korale East in theDistrict of Kalutara, Western Province, bounded on the northby new road, east by road to Botale and Ingiriya, south byrubber land belonging to Mr. Ranasinghe, and west by roadand Lot B depicted as Lots 2 to 6 in Plan 777 made by M.Setunga which is identical with Lot A in Plan 1519 dated:
made by H. Wijesurendra, Licensed Surveyor, inextent 1 Acre 1 R,ood 21 Perches together with the buildingsincluding the boutique building standing thereon and theplantations and everything else standing thereon inclusive ofthe paddy field lying within the said boundaries.
The appeal is dismissed with costs.
VICTOR PERERA, J.—I agree.Appeal dismissed.
W. D. D. Weerasinghe…Attorney-at -Law.
Hemapala v. Abeyratne