025-SLLR-SLLR-2010-V-2-JAMALDEEN-ABDUL-LATHEEF-AND-V.-ABDUL-MAJEED-MOHAMED-MANSOOR-AND-ANOTHER.pdf

On the basis of the above averment, the Respondents havein payers (1) and (2) of the replication prayed for damagesin a sum of Rs. 33,000/- for every cultivation season (aafeaca),until the quiet and peaceful possession of the land describedin the schedule to the petition is restored to the Respondents.I quote below the relevant prayers (1) and (2) of the replication:

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At the commencement of the trial, no admissions wererecorded, and the following five issues were formulated bycourt, which revealed that there was a dispute regardingthe identity of the corpus. Accordingly, on the applicationof the Respondents, court issued a commission on D. M. G.Dissanayake, Licensed Surveyor, to survey the land referredto in the schedule to the petition filed by the Respondents aswell as the land described in the schedule to the answer filedby the Appellants, and report whether they were the same.After his Plan bearing No. 1176 dated 10th October 1990 andthe accompanying report was furnished to court, at theinstance of the Appellants, a further commission was issuedon K. V. Somapala, Licensed Surveyor, to survey the landclaimed by the two contending parties to the case, and hisPlan No. 2025 dated 16.04.1991 was also filed of record.Thereafter, on 12.08.1991, the following further issues wereframed by court, issues 6, 7, 13 and 14 on the suggestion oflearned Counsel for the Respondents, and issues 8 to 12 assuggested by learned Counsel for the Appellants:-

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On behalf of the Respondents, Abdul Majeed MohamedMansoor, the 1st Plaintiff-Respondent-Respondent, MohomadIbrahim Lebbai Noor Lebbai, the alleged Attorney underPower of Attorney bearing No. 7598 dated 30th Octo-ber 1981 (P7), Vijitha Ellawala, Provincial Govi Jane SewaOfficer, Anuradhapura, D. M. G. Dissanayake, LicensedSurveyor, and Ranathunga Herath, Grama Seva Officer,Tulana, Nachchaduwa, testified at the trial. For the Appel-lants, Jamaldeen Abdul Lathif, the 1st Defendant-Appellant-Appellant, Vidana Arachchige Premadasa, a cultivator in anadjoining paddy field, Ulludu Hawage Karunaratne, Registrarof Lands, Anuradhapura, and K. V. Somapala, LicensedSurveyor gave evidence.
On the conclusion of witness testimony, and afterconsidering the submissions made by learned Counsel for

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the contending parties, on 5th October 1994 the learnedDistrict Judge entered judgementin favour of the Respondents,answering inter alia issues 6, 7 and 11 in the affirmative, andissues 8, 9, 10, 12 and 13 in the negative, with the answer toissue 14 being "d*. 15,000 S” The essence of the decision of thelearned District Judge is contained in the following passageof his judgement:-

The final order embodied in the judgment of the learnedDistrict Judge, if my conjecture be correct, was for theejectment of the Appellants from the land described inthe schedule to the petition, presumably on the basis of adeclaration of title to the said land in favour of the Respon-dents, and damages in a sum of Rs. 15,000 until the quietand peaceful possession of the land is delivered to theRespondents, with no order for costs, expressed by the learnedDistrict Judge in cryptic precision in the following manner:-

By its judgment dated 1st December 2004, the Court ofAppeal has affirmed the aforesaid decision of the DistrictCourt, observing that it is “abundantly clear that the land
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claimed by the Defendants (Defendant-Appellants-Appel-lants) is the same land which is described in the schedule tothe plaint (petition)”. It is important to note that the Court ofAppeal concluded as follows
Since this is an action for declaration of title itwould be pertinent to consider the decision in Wan-igaratne vs. Juwanis Appuhamxy*1* where in theSupreme Court has held that, “in action rei vidicatiothe Plaintiff must prove and establish his title”. Thislegal principle has been followed in our Courts right along.In the instant case the learned Judge has duly consideredthe un-contradicted evidence of the Is' Plaintiff inrelation to acquisition of title and has arrived at thefinding according to the deeds produced by the 1*Plaintiff, the Plaintiffs had acquired title to the subjectmatter. I conclude that this is a correct finding on theevidence which had been available before the DistrictCourt.
This Court has granted special leave to appeal on severalsubstantial questions of law, but before setting out thesequestions, it may be useful to mention that in upholding thetitle of the Respondents to the land described in the sched-ule to the petition, the District Court and Court of Appealrelied on Deed No. 6165 dated 9th February 1987 (PI) andthe prior deeds respectively bearing Deed No. 6024 dated 29thFebruary 1944 (P3), Deed No. 6121 dated 12th May 1944(P4), Deed No. 6468 dated 10th December 1944 (P5) and DeedNo. 7167 dated 8th August 1946 (P6) produced in evidence,which admittedly establish that the ownership of the aforesaidfour acre land had been transmitted from the original ownerAlavapillei Sanarapillai through some intermediate trans-ferees to one Muhammad Mohideen Cader Saibu Mohideen
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Sadakku (hereinafter referred to as Sadakku), who died in1948. The courts below also relied on the Power of Attorneybearing No. 7598 (P7) dated 30th October 1981, purported tohave been executed by Sadakku’s son Mohideen Abdul Caderappointing one Mohomed Ibrahim Lebbai Noor Lebbai as hisAttorney with power to look after and to alienate the landdescribed in the schedule to the petition. It is by virtue to thepower alleged to have been vested in him by the said Power ofAttorney that the said Noor Lebbai purported to transfer byDeed No. 6165 (PI) dated 9th February 1987 and attested byLionel P Dayananda, Notary Public, the entirety of the landdescribed in the schedule to the petition to the RespondentsAbdul Majeed Mohomed Mansoor and Abdul Majee AbdulNizar.
The substantial questions on the basis of which specialleave to appeal has been granted by this Court, are set outbelow:-
(a) Is the Power of attorney produced marked P7
proved?
Does the Deed produced marked PI operate toconvey the title of Mohideen Abdul Cader, to theRespondents?
If not, was the Court of Appeal in error in holding thatthe Learned District Judge had correctly arrived atthe finding that the Respondents had established titleto the subject matter of the action?
Did the Court of Appeal err in failing to consider thatthe Learned District Judge had not duly evaluated theevidence on the question of prescription?
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At the instance of W. Dayaratne, P.C., who appeared forthe Respondents the following additional questions were alsoformulated for the consideration of this Court, which are setout below:-
Has the issue regarding the validity of the Power ofAttorney marked P7 and the deed produced marked PI,been raised for the first time in the Supreme Court at thestage of application for leave?
Are the Appellants entitled to take up the said issue atthe stage of application for Special Leave to Appeal?
Is it mandatory to read the documents in evidence of theRespondents at the conclusion of the trial?
Certain Preliminary Matters
Before dealing with the substantive questions on whichspecial leave to appeal has been granted by this Court, all ofwhich relate to the title of the contending parties to the landdescribed in the schedule to the petition of the Respondents,it is necessary to dispose of the two preliminary questions 3and 4 raised by learned President’s Counsel for the Respon-dents when special leave was granted. These questions focuson the alleged belatedness in taking up the positions coveredby questions 1(a) and (b) above.
Mr. Dayaratne, has strenuously contended that theaforesaid questions relating to “the validity of the Power ofAttorney marked P7 and the deed produced marked PI”,have been raised for the first time in the Supreme Courtat the stage of application for special leave, and that thesebeing mixed questions of law and fact, they cannot be raisedfor the first time on appeal. He has invited our attentionto the decision of a Five Judge Bench of this Court in
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Rev. Pallegama Gnanarathana v. Rev. Galkiriyagama Soratha(2)in which is was held that a question which is not a purequestion of law, but a mixed question of fact and law, cannotbe taken up for the first time on appeal, and stressed that theapex court, which does not have the benefit of the findingsand reasoning of a lower court, should not be compelled togo into a question of fact or mixed question of fact and law,raised for the first time on appeal.
Mr. Faisz Mustapha, PC., did not contest the correctness ofthe proposition of law urged by Mr. Dayaratne, but submittedthat that the questions raised are pure questions of law, andthat in any event, they had arisen for consideration in theDistrict Court itself. In this connection, it is necessary toobserve at the outset that question 1(a) and (b) on whichspecial leave to appeal has been granted in this case, do notraise the question of validity of the Power of Attorney markedP7 and the deed produced marked PI as stated in question 3,but the first of these deals with the proof of the said Power ofAttorney and second with the construction and legal implica-tions of the Deed marked PI. It is also necessary to observethat these questions arise from the very first issue raised atthe trial, which was as follows
It is this issue which was subsequently reformulated asissues 6 and 7 (quoted in full earlier in this judgment) in thelight of the plans and reports furnished by the commissionedsurveyors.
It is noteworthy that paragraphs 2 to 10 of the petitionfiled by the Respondents in this case narrate the alleged chainof title of the Respondents, all of which have been denied in

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the Answer of the Appellants, and in particular paragraph7 refers to the Power of Attorney P7 and paragraph 8 to theDeed PI. Furthermore, the Power of Attorney P7 was marked“subject to proof”, and Mr. Mustapha, has stressed that ithas never been proved, and that therefore the Deed PI couldnot have conveyed any title to the Respondents. He has sub-mitted further that the action from which this appeal arises,being an action for declaration of title which has been treatedby both the District Court and the Court of Appeal as a reivindicatio action, the onus was clearly on the Respondentsto prove the aforesaid instruments and demonstrate how theRespondents derived title to the land described in the scheduleto the petition. Mr. Dayaratne, has contended that an actionfor declaration of title is distinguishable from a rei vindicatioaction required stricter standards of proof, and that theinstant case is only an action for declaration of title in whichthe Respondents would succeed if the Appellants cannotestablish a stronger title or a right to possess.
A curious feature of this case is that it commenced as anaction for declaration of title in which ejectment was not prayedfor by either of the contending parties in their initial plead-ings, and a new prayer was introduced into the replicationwithout any express prayer for ejectment for additional relief byway of damages in a sum of Rs. 33,000/- for every cultivationseason (aasteno) until the quiet and peaceful possession ofthe land described in the schedule to the petition is restoredto the Respondents. At the tried, no issue was formulatedwhich could justify an order for ejectment, but the learnedDistrict Judge by his judgement dated 5th October 1994 orderedejectment without any express declaration of title infavour of the Respondents. After the Appellants lodged theirappeal to the Court of Appeal, the District Court proceeded toissue writ pending appeal for the ejectment of the Appellants
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from the land described in the schedule to the petition, whichorder and the subsequent orders reissuing writ of possessionmade by the District Court, have been stayed by the Courtof Appeal from time to time in connected revisionaiy andappellate proceedings.
The affinity between the action for declaration of titleand an action rei vindicatio has been considered in severallandmark decisions in Sri Lanka and South Africa, whichseem to suggest that they are both essentially actions for theassertion of ownership, and that the differences that havebeen noted in decisions such as Le Mesurier v. AttorneyGeneral3) are differences without any real distinction. Inthe aforementioned case, Lawrie, J., at 74 compared anaction for the recovery of land in the possession of the Crownto the English prerogative remedy of petition of rights, andobserved that –
I call the action one for declaration of title which, I takeit, is not the same as an action rei mndicatio.
Similary, in Pathirana v. Juyasundar&4) where a plaintiffused an over-holdig lessee by attornment for ejectment,and upon the defendant pleading that the land wassold to him by its real owner who was not one of thelessors, the plaintiff moved to amend the plaint to add a prayerfor declaration of title, in refusing such relief in circumstanceswhere this could prejudice the claim of the defendant toprescriptive title, Gratiaen, J., observed at 173 that –
A decree for a declaration of title may, of course, beobtained by way of additional relief either in a rei vindicatioaction proper (which is in truth an action in rem) or in alessor’s action against the over-holding tenant (which is an
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action in personam). But, in the former case, the declara-tion is based on proof of ownership; in the latter, on proof ofcontractual relationship which forbids a denial that thelessor is the true owner.
The above quoted dictum does not, of course, mean thata lessor or landlord is confined to the contractual remedyagainst an over-holding lessee or tenant or that he cannotsue in rem to vindicate his title and recover possession. Allit means is that if he chooses the latter remedy, he cannotsucceed just because the over-holding lessee or tenant failsto prove his right to possess, or simply rely on the rule ofestoppel that a tenant cannot contest the title of his landlord,and must be able to establish his title against the wholeworld.
Clearly, the action for declaration of title is the modemmanifestation of the ancient vindicatory action (vindicatio rei),which had its origins in Roman Law. The actio rei vindicatiois essentially an action in rem for the recovery of property, asopposed to a mere action in personam, founded on a contractor other obligation and directed against the defendant ordefendants personally, wherein it is sought to enforce a merepersonal right (in personam), The vindicatio form of actionhad its origin in the legis actio procedure which symbolizedthe claiming of a corporeal thing (res) as property by layingthe hand on it, and by using solemn words, together with thetouching of the thing with the spear or wand, showing how dis-tinctly the early Romans had conceived the idea of individualownership of property. As Johannes Voet explains in hisCommentary on the Pandects (6.1.1) “to vindicate is typicallyto claim for oneself a right in re. All actions in rem are calledvindications, as opposed to personal actions or conductions.”
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Voet also observes that –
From the right of ownership springs the vindication of athing, that is to say, an action in rem by which we sue fora thing which is ours but in the possession of another.(Pandects 6.1.2)
It is in this sense that the rei vindicatio action is oftendistinguished from “actions of an analogous nature” (perWithers, J., in Allis Appu v. Edris Harm/® at page 93) forthe declaration of title combined with ejectment of a personwho is related to the plaintiff by some legal obligation(obligatio) arising from contract or otherwise, such as anover-holding tenant (Pathirana v. Jayasundara (supra) oran individual who had ousted the plaintiff form possession(Mudalikamy v. Appuhami/6) and Rawter v. Rossi® 3 SCC145), proof of which circumstances would give rise to apresumption of title in favour of the plaintiff obviating theneed for him to establish title aganist the whole world (in rem)in such special contexts. These are cases which give effect tospecial evidentiary principles, such as the rule that the tenantis precluded from contesting the title of his landlord or a personwho is unlawfully ousted from possession is entitled to arebuttable presumption of title in his favour. Burnside CJ., hasexplained the latter principle in Mudalihamy v. Appuhamy(supra) in the following manner –
Now, prima facie, the plaintiff having been in possession,he was entitled to keep the property against the wholeworld but the rightful owner, and if the defendant claimedto be that owner, the burden of proving his title rested onhim, and the plaintiff might have contented himself withproving his de facto possession at the time of the ouster.
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The action from which this appeal arises is not onefalling within these special categories, as admittedly, theRespondents had absolutely no contractual nexus withthe Appellants, nor had they at any time enjoyed pos-session of the land in question. Of course, this is not acircumstance that would deprive the Respondents to thisappeal from the right to maintain a vindicatory action,as it is trite law in this country since the decisions of theSupreme Court in Punchi Hamy v. Amolisf81 and AllisAppu v. Edris Hamthat even an owner with no morethan bare paper title (nuda proprientas) who has neverenjoyed possession could lawfully vindicate his propertysubject to any lawful defence such as prescription. Nor would thefailure to pray for the ejectment of the Appellants (an omissionwhich has been supplied by the learned District Judge by hisdecision) affect the maintainability of the action for declarationof title (which declaration the learned District Judge has notgranted expressly, although he may have done so by way ofimplication) or change the complexion of the case, which isessentially an actio rei vindicatio. The District Court and Courtof Appeal, as has been seen, in their respective judgmentshave correctly assumed that the action from which thisappeal arises is an actio rei vindicatio. They have also awardedthe Respondents relief by way of ejectment despite theabsence of a prayer for ejectment in their petition or evenin their replication, the correctness of which award is hotlycontested by the Appellants.
An important feature of the actio rei vindicatio is that ithas to necessarily fail if the plaintiff cannot clearly establishhis title. Wille’s Principles of South African Laws (9th Edition -2007) at pages 539-540 succinctly sets out the essentials ofthe rei mndicatio action in the following manner:-
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To succeed with the rei vindicatio, the owner must prove ona balance of probabilities, first, his or her ownership in theproperty. Secondly, the property must exist, be clearly iden-tifiable and must not have been destroyed or consumed.Thirdly, the defendant must be in possession or detentionof the thing at the moment the action is instituted. Therationale is to ensure that the defendant is in a position tocomply with an order for restoration. (emphasis added).
In Abeykoon Hamine v. Appuhamjf10), Dias, SPJ. quotedwith approval, the decision of a Bench of our judges in DeSilva v. Goonetilekdn) where Macdonell, C.J., had occasion toobserve that –
There is abundant authority that a party claiming adeclaration of title must have title himself. “To bringthe action rei vindication plaintiff must have ownership
actually vested In him” – 1 Nathan p. 362, S. 593
This action arises from the right of dominiumThe
authorities unite in holding that plaintiff must show titleto the corpus in dispute, and that if he cannot, the actionwill not lie”.
In Dharmadasa v. Jayasena(l2i De Silva, C.J/. equatedan action for declaration of title with the rei vindicatio action,and at 330 of his judgement quoted with approval the dictumof Heart, J., in Wanigaratne v. Juwanxs Appuhamy,,3>, for theproposition that the burden is on the plaintiff in a rei vindica-tio action to clearly establish his title to the corpus, echoingthe following words of Withers, J., in the old case of Allis Appuv. Endris Hamy (supra) at 93 –
In my opinion, if the plaintiff is not entitled to revindicatehis property, he is not entitled to a declration of title,
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If he cannot compel restoration, which is the object of arei xrindicatio, I do not see how he can have a declarationof title. I can find no authority for splitting this action inthis way in the Roman-Dutch Law books, or decisions ofcourt governed by the Roman-Dutch Law.
As Ranasinghe, J., pointed out in Jinawathie v.Emalin Perera11^ at 142, a plaintiff to a rei mndicatioaction “can and must succeed only on the strength of hisown title, and not upon the weakness of the defence.” InWanigaratne v. Juwanis Appuhamy, (supra) at page 168,Heart, J., has stressed that “the defendant in a rei vindicatioaction need not prove anything, still less his own title.”Accordingly, the burden is on the Respondents to thisappeal to establish their title to the land described in theschedule to their petition, and they can only succeed by showingthat Mohamed Ibrahim Lebbai Noor Lebbai had the powerand authority to convey the title (dominium) of the said landto the Respondents by executing Deed No. 6165 (PI). It is forthis purpose vital to prove the Power of Attorney marked P7by which, it is claimed, that Sadakku’s son Mohideen AbdulCader appointed Noor Lebbai as Attorney for executing theDeed marked PI and that the said deed operated to conveythe alleged title of Mohideen Abdul Cader to the Respondents.These were clearly not matters raised for the first time at thestage of grant of special leave to appeal, and ought to haveengaged the attention of the learned District Judge in view ofissue 1, 6 and 7 framed at the commencement of the trial.
For the aforesaid reasons, I am of the opinion thatsubstantive questions 3 and 4 should be answered infavour of the Appellants. Accordingly, I answer question 3 inthe negative and question 4 in the affirmative, and hold that
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substantive questions 1(a) and (b) have to be addressed indetermining this appeal.
Proof of the Power of Attorney
Substantive Question 1(a) on which special leave hasbeen granted by this Court, is whether the Power of Attorneymarked P7 has been duly proved. As already noted, thisquestion is of extreme importance for establishing the chainof title of the Respondents, as it is by virtue of the powervested in him by the said power of attorney that the Attorneynamed therein, Noor Lebbai, purported to execute theDeed marked PI, by which the Respondets claimed to havederived their title to the land described in the schedule to thepetition. In this connection, it is relevant to note that whenthe said Power of Attorney was first mentioned in the courseof his testimony on 12th August 1991 by the 1st Petitioner-Respondent-Respondent, Abdul Majeed Mahamed Mansoor,the tender in evidence of a photocopy of the said power ofattorney was objected to by learned Counsel for the Appellants,and the said photocopy was marked subject to proof.
When a document is marked subject to proof, it is essentialfor the said document to be proved through witness testimony.The procedure for tendering a document in evidence in thecourse of witness testimony is dealt with in Section 154 of theCivil Procedure Code, and what is most relevant to this caseis the first sentence of Section 154 (1), which provided that –
Every document or writing which a party intends touse as evidence against his opponent must be formallytendered by him in the course of proving his case at thetime when its contents or purport are first immediatelyspoken to by a witness.
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The explanation to this section is very useful in under-standing this provision, and in particular understanding howa document marked subject to proof is to be proved. The saidexplanation is reproduced below, in full:-
If the opposing party does not, on the document beingtendered in emdence, object to its being received, and if thedocument is not such as is forbidden by law to be receivedin evidence, the court should admit it. If, however, on thedocument being tendered the opposing party objects to itsbeing admitted in emdence, then commonly two questionsarise for the court:-
Firstly whether the document is authentic – in other words,is what the party tendering it represents it to be; and
Secondly, whether, supposing it to be authentic, itconstitutes legally admissible evidence as against theparty who is sought to be affected by it.
The latter question in general is matter of argumentonly, but the first must be supported by such testimony as theparty can adduce. If the court is of opinion that the testimonyadduced for this purpose, developed and tested by cross-examination, makes out a prima facie case of authenticity andit further of opinion that the authentic document is evidenceadmissible against the opposing party, then it should admitthe document as before (emphasis added).
The question therefore is whether the authenticity andadmissibility of the Power of Attorney (P7), which was markedsubject to proof, has been established through subsequenttestimony and analytical reasoning.
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In Sri Lanka, the rules for the proof of documents arecontained in Chapter 5 of the Evidence Ordinance No. 14of 1895, as subsequently amended. Of particular, relevanceto the proof of the Power of Attorney in question are Section67 to 73 of the Evidence Ordinance. The Power of Attorneymarked P7 is alleged to have been executed and attestedin India, but the purported executant Mohamed MohideenAbdul Cader, was not called to testify regarding its execution,nor was any attempt made to show that the signature of thepurported executant appearing on P7 was that of Abdul Cader.Sections 68 to 71 of the Evidence Ordinance deal with theproof of documents which are required by law to be attested,while Section 67 and 72 of the Ordinance deal with the proofof documents which are not required by law to be attested.Section 68 of the Ordinance provided that –
If a document is required by law to be attested, it shallnot be used as evidence until one attesting witnessat least has been called for the purpose of proving itsexecution, if there be an attesting witness alive, andsubject to the process of the court and capable of givingevidence, (emphasis added).
Mr. Faisz Musthapha, P.C., has submitted on behalf ofthe Appellants that in terms of Section 2 of the Prevention ofFrauds Ordinance No. 7 of 1840, as subsequently amended,any “sale, purchase, transfer, assignment, or mortgage of landor other immovable property” is of no force or avail in law un-less the same is notarially attested. He has further submit-ted that, just as much as Deed bearing No. 6165 dated 9thFebruary 1987 (PI) was required by the aforesaid provisionto be notarially attested, even the Power of Attorney (P7), byvirtue of which Mohomad Ibrahim Lebbai Noor Lebbai, theexecutant of PI, purported to have the authority or power
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to make the same, was required by law to be attested. Hebased this submission on the premise that the conferment ofauthority or power to another to enter into any sale, purchase,transfer, assignment, or mortgage of land or other immovableproperty, was a contract or agreement for “establishing anysecurity interest, or incumbrance affecting land” withinSection 2 of Ordinance No. 7 of 1840, and was governed bythe same formalities. It was Mr. Musthapha’s contention thatjust as much as the Deed marked PI was required by law tobe attested, so was the Power of Attorney marked P7, and atleast of attesting witness thereof should have been called forthe purpose of proving its execution.
The question as to who is an attesting witness has beenconsidered in several leading judgements of our courts,and the gist of the decisions such as Kirihanda' v.Ukkuwd15) Somanather v. Sinnetambxf161 and Seneviratnev. Mendisll7) is that as a general rule, the witnesseswho were present at the time the deed, last will or otherinstrument was executed are attesting witnesses compe-tent to testify, and even the notary public before whom itwas executed is deemed to be an attesting witness if heknew the executants personally. However, it is also relevantto note that in Baronchy Appu v. Poidohamifl8), HildaJayasinghe v. Francis Samarawickrame,19) and Samarawick-rema v. Jayasinghe and Another201, it has been held thatwhere the execution of such an instrument is challengedon the ground that it had been signed before it was written,and at least one of the attesting witnesses is alive, theevidence of the notary alone, even where he knew theexecutant, is not sufficient and at least one of the attestingwitnesses should also be called to testify. Such stringentproof is insisted upon in view of the solemnity that is attached
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to such a document and the need to prevent fraud. The Powerof Attorney marked P7 was purportedly executed in theRamanathapuram District of Tamilnadu, India before B.M.MHamid Hasan, Advocate & Notary Public. It is clear fromthe certification of the notary in the attestation clause of P7that the notary did not know the executants Abdul Caderpersonally and depended on the “information” given by the twoattesting witnesses, namely M. Shayeed, 'son of MohamedAsanalabai, and V. Ravindran, son of C. Velusamy, bothof Ramanathapuram District, India, neither of whom werecalled to testify in proof of its execution, and no explana-tion was given for the omission to do so. There was also noevidence in regard to whether or not the aforesaid powerof attorney was registered in India in terms of the IndianRegistration Act, 1908, and it is clear from the testimonyof Ulludu Hawage Karunaratne, Registrar of Lands,Anuradhapura, that the said power of attorney was notregistered in Sri Lanka nor was it tendered to the Registry withthe second copy of the Deed marked PI for registration. Thereis also no evidence to show that P7 was registered in termsof the Notaries Ordinance No. 4 of 1902, as subsequentlyamended, and what has been produced as P7 is not acertified copy issued under Section 8 of the said Act.
For the Respondents, Mr. Dayaratne has argued withgreat force that P7 was not a document that requiredattestation. In particular, he referred to the provisions of thePowers of Attorney Ordinance No. 4 of 1902, as subsequentlyamended, which provides for the registration of writtenauthorities and powers of attorney. He pointed out that inSection 2 of the said Ordinance, the term “power of attorney”is defined so as to “include any written power of authorityother than that given to an attomey-at law or law agent, given
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by one person to another to perform any work, for any act,or cany on any trade or business, and executed before twowitnesses, or executed before or attested by a notary publicor by a Justice of the Peace, Registrar, Deputy Registrar, or byany Judge or Magistrate, or Ambassador, High Commissioneror other diplomatic representative of the Republic of Sri Lanka”,and relied on this inclusive definition for his contention thatthe law did not insist that a power of attorney must necessarilybe in writing or should be registered. He submitted that aperson may be appointed as attorney to deal with immovableproperty through a video recording, voice mail or telephonecommunication.
Mr. Dayaratne also submitted that the question whetherthe power or authority given for a person to execute a deedfor dealing with immovable property on behalf of its ownershould itself be executed in a similar manner had engagedour courts in the late nineteenth and early twentieth centuryin several cases, and heavily relied on the decisions in MeeraSaibo u. Paulu Silva(21>, Sinnathamby v. JohnPullei22], Beebee v.Sittambalami23] and Pathumma v. Rahimathf24), whichhave held that the grant of authority to execute anotarial document does not itself require notarial execution.Mr. Dayaratne pointed out that in Sinnathamby v. John Pulle,(supra) it was argued on the authority of Hunter v. Parker125'that a power of attorney to execute a deed can only be givenby an instrument under seal, but Ennis, J., brushed asidethis argument stating at 276 that-
The laws of Ceylon, however, do not provide for thedistinction found in English Law between deeds, i.e.,documents signed, sealed, and delivered, and documentsunder hand only. Deeds in the sense in which the word
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is used in English Law do not exist in Ceylon, and theEnglish Rule cited applies in England to deeds only.
Mr. Dayaratne also stressed that in Pathumma v.Rahimath Bertram, (supra) CJ., at 160 referred to the deci-sion in Meera Saibo’s case (supra) and observed that “thatwas decided more than 20 years ago, and, I think, it must betaken to be now settled law”, a view that has been endorsedby Justice Dr. C. G. Weeramanty, in his Law of Contracts,Vol. 1 page 184.
Mr. Musthapha who appears for the Appellants, hassubmitted that logic and policy demanded a more cautiousapproach, and contended that a power of attorney by virtueof which a person such as Noor Lebbei claims that he hadthe power to execute any writing, deed, or instrument foreffecting the sale or transfer of any land or other immov-able property such as Deed No. 6165 dated 9th February1987 (PI), should be executed in the same manner in whichsuch writing, deed or instrument is required to be execut-ed. He also drew attention to the decision of the SupremeCourt in the case of Dias v. Femandd26) which supportedhis submission, and I quote below a passage from the judge-ment of Burnside, C.J., in this case which I consider verypertinent: –
Now it is manifest that the object of the (Prevention ofFrauds) Ordinance was to secure the most solemn proofof the contract, and not to let it depend upon the veryfallible proof which parol evidence would, more especial-ly in this country, afford. It would be, in the languageof Lord Eldon, the most mischievous evasion of theOrdinance, if, whilst the instrument of lease itself mustbe of the solemn character prescribed, yet the authority to
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execute it and thus bind a party to it might depend uponthe weakest and most unsatisfactoiy of all proof. TheEnglish statue requires a mere writing: our Ordinancerequires a most solemn writing, which has all of, and morethan, the solemnity of the execution of a deed by EnglishLaw, and in this material particular the two enactmentsdiffer, and upon the way to a decision based on the wellrecognized principle of English Law, that the authority toexecute a deed must be by deed.
Of course, the opinion of Burnside, C.J., was not followedby the Supreme Court in Meera Saibo’s case (supra) and thesubsequent decisions, but the Chief Justice’s hindsight indecrying the possibility of authorizing execution of a deed by anon-notarial conferment of power as “the most mischievousevasion” of the Prevention of Frauds Ordinance, can be morereadily appreciated in the context of changing circumstancesand developments of the law in Sri Lanka and abroad. Inparticular, it is necessary to consider the rapid increasein land related frauds in Sri Lanka, which have generallycontributed to a sense of lawlessness and social instabilityleading to murder and other serious crimes.
It is necessary to stress that Withers, J., in his judgments inMeera Saibo, (supra) quoted the above dictum of Burnside, C. J.,with some concern, but was persuaded to follow the reasoningof Ms. Berwick, the much celebrated and long standingDistrict Judge of Colombo, set out in his judgment in NamaSivaya v. Cowasjie EduljieP71, which he chose to add as anattachment to his judgement in its entirety and has beenreproduced in 4 NLR 232 to 235.
Mr. Berwick’s celebrated judgement in the Nama Sivayacase, may for convenience summarized as follows:-
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SC(Saleem Marsoof J.)363
Mere “solemnities” (as the Civil law calls them) howeveressential they may be to give validity to an act, and towhatever extent they may have been devised with a viewto better authentication and proof under the Englishlaw, have not been introduced in Ceylon by virtue of theintroduction of the English Law relating to evidence;
It therefore does not follow that, even if in the EnglishLaw a power of attorney to execute an'instrument mustbe evidenced by an instrument of equal solemnity, thesame is the Law of Ceylon;
The delegation of authority to enter into a deed is apersonal act; the execution of the personal delegation isa “real” act. The latter must, in the present case, be donein conformity with the lex loti, titae; it may be that theformer is to be governed by the law of the place where thedelegation is made, viz., England, where the law does notrequire the conferment of such authority shall be attestedeither by a notary or by witnesses.
The Roman-Dutch Law authorities are silent as to thenecessity of any special solemnities for the valid constitu-tion of the mandate of an attorney, and nowhere in hisTreatise on the Contract of Mandate does Pothier advert tothe necessity for notarial attestation for this purpose;
Van Leeuwen, in his Censura Foresis (part 1, lib. 4, cap. 24)divides powers of attorneys into general and special, andalso into express and tacit; and while be points out thatthere are many things which cannot be done under ageneral power of attorney (among others, sales andalienations), but which require a special power, heindicates no such difference under the further divisioninto express (Quod expressum verbis sit [ant literis]) and
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tacit mandates, which is part of the law relating to agents;and
(1) The contention in the context of Ordinance No. 7 of 1840that the power of attorney itself establish an “interestaffecting land” cannot be sustained because the powerof attorney does not establish or convey any interest inland; it only authorizes another person to convey such aninterest by all legal form and solemnities which the law ofthe Island may require.
If we have to apply to this case the principles of theRoman-Dutch law so authoritatively enunciated byMr. Berwick in the aforesaid judgment, the Respondentswill necessarily fail simply because the Power of Attorneymarked P7 is not a special power of attorney which is requi-site for empowering another to enter into a sale or alienationas explained by Van Leeuwen, in his Censura Forensis(part 1, lib 4, cap. 24). I quote below the operative paragraphof P7 which makes it abundantly clear that this was definitelynot a special power of attorney:-
To superintend, manage and control the aforesaid land orany other landed property which I now or hereafter maybecome entitled to, possessed of or interested in and tosell and dispose of the said land which now or hereafterI may become entitled to possessed of or interested in byprivate contract or to enter into any agreement for salethereof for such price or prices and upon such terms andconditions as my said Attorney shall think fit.
Furthermore, as the distinguished District Judge ofColombo has observed (vide sub paragraph (c) of the abovesummary), the form of delegation is governed by the law of theplace where the delegation is made, which in this case is India,
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SC(Saleem Marsoof, J.)365
and the Respondents have failed to discharge the burdenplaced on them by law to prove the applicable legal principlesand formalities in force in that country at the relevantperiod.
It is trite law that in terms of Section 45 of the EvidenceOrdinance, the law of a foreign country has to be provedthrough the evidence of experts, or as outlined in the firstproviso to Section 60, through other means such as theproduction in court of treatises on law where the author isdead or whose presence cannot be reasonably procured,an no expert testimony of the law in force India has beentendered in evidence or other material produced in court.The decision of this Court in Sreenivasaraghava Pyengar v.Jainambeebe AmmaP8) in this regard should be under-stood in the light of the fact that at the time of that deci-sion, British India was part of Her Majesty’s realm as muchas Ceylon was, and was not a foreign country. In thatcase, the Supreme Court refused to rely on a documentpurporting to be a “true copy” of the original power of attorney,which has been copied by a registering officer in a book keptunder the Indian Registration Act, 1908, and held that thiswas not in itself sufficient to establish the fact of executionof the original power of attorney. In the case before us, whathas been produced is a mere photocopy, with no evidence inregard to how the photocopy was obtained, and in this casetoo there is no evidence to show that the power of attorney hadbeen registered under the Indian Registration Act, 1908.
It was in these circumstances that Mr. Dayaratne soughtto rely on the presumption in Section 85 of the EvidenceOrdinance in regard to the Power of Attorney marked P7.In my considered opinion, the Respondents cannot invokethe assistance of this presumption, as the “authentication”
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required to attract the said presumption must be clear,specific and decisive. It has been held in Mohanstet v. JayashriAIR<29' that “authentication” for this purpose is somethingmore than execution, and cannot be based on the identifi-cation by a third person who is not called to testify in thecase, in circumstances where the executant was not person-ally known to the Magistrate before whom the power of attor-ney in question was executed. As Desai, J., observed in thecourse of his judgement at 204 to 205 –
It is now well settled that authentication is more thanmere execution before one of the persons designated inSection 85. . . .
As far as the identity of the executant is concerned, theMagistrate in fact indicates that he is personally unawareof the executants but puts his signature on the basis ofidentification made by an Advocate. It is true that suchidentification by the advocate is mentioned in the rubberstamp, and one may presume that it is on the basis ofsuch identification that the Magistrate proceeded to putthe rubber stamp. But will this amount to authenticationby the Magistrate? Section 85 contains a presumption,a presumption which may operate in favour of the partyrelying on a document and to the prejudice of the partyalleging that the document is not a genuine one. For thepurpose of such presumption to operate, particularlyin the background of the facts above ascertained, theauthentication must be clear, specific and decisive, andbereft of the features which I have indicated earlier. Ifthere is the slightest doubt, then the Court must be loatheto rely on the presumption contained in Section 85 andmust be equally loathed in applying such presumption infavour to the party relying on the document.
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The case at hand is similar, as it is evident from theattestation clause Of P7 that the Notary Public relied on the“information” provided by the two attesting witnesses withregard to the identity of the executant, who was otherwisenot known to him. In these circumstances, I am of theopinion that the Respondents have failed to furnish suffi-cient evidence to satisfy court that the applicable formalitiesof the law have been complied with in executing the powerof attorney, or to show, as contemplated by Section 69 ofthe Evidence Ordinance, which is applicable to proof of anydocument executed abroad, that the “attestation of oneattesting witness at least is in his handwriting, and that thesignature of the person executing the document is in thehandwriting of that person.”
It is also pertinent to note that Mr. Berwick had in hisjudgement in the Nama Sivaya (supra) case very correctly ana-lyzed the question of the form of delegation of authority as onefilling within the law relating to agents, but it does notappear whether he considered the question as to whetherthe insertion by Ordinance No. 22 of 1866, of inter alia thewords “principals and agents” into the Introduction of EnglishLaw Ordinance (Civil Law Ordinance) No. 5 of 1852 had theeffect of making the English law applicable on this subjectapplicable in Sri Lanka. Of course, that would not have madeany difference to the decision in that case, as Mr. Berwickhimself had concluded, as will be seen from sub-paragraph (c)of my summary of the reasoning of Mr. Berwick, that theStatute of Frauds of 1677 did not require attestation forconferment of authority for executing a deed.
However, it is important to note that the relevant provisionof the Statute of Frauds have been replaced in the UnitedKingdom by Section 74(3) to 74(5) and Section 123 to 129 of
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the Law of Property Act 1925 (c 20) and Section 219 of theSupreme Court of Judicature (Consolidation) Act 1925 (c 49),which in turn have given way to Section 1 of the Powers ofAttorney Act of 1971 (c. 27). The latter Act has been amendedby the Law of Property (Miscellaneous Provisions) Act of 1989(c 34), and as so amended, Section 1(1) of the Powers ofAttorney Act of 1971 would read as follows:-
1(1) An instrument creating Power of Attorney shall be
executed as a deed, or by direction and in the presence
of, the donor of the power, (emphasis added).
It is noteworthy that the Law of Property (MiscellaneousProvisions) Act of 1989 generally abolished the prior lawwhich required a seal for a valid execution of a deed by anindividual, and substituted for the words “signed and sealedby “which were found in Section 1 (1) of the Powers of AttorneyAct of 1971 the words “executed as a deed”. Section 1(3) ofthe 1989 Act also provided that –
An instrument is validly executed as a deed by anindividual if, and only if –
it is signed –
by him in the presence of a witness who atteststhe signature; or
at his direction and in his presence and thepresence of two witnesses who each attest thesignature; and
it is delivered as a deed by him or a personauthorized to do so on his behalf.
A question of some difficulty that could arise in Sri Lankain view of these developments in the United Kingdom is
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SC(Saleem Marsoof, J.)369
whether the above quoted English statutory provisionswould become applicable in Sri Lanka through Section 3 ofthe Introduction of English Law Ordinance which seeks toincorporate into our legal fabric in regard to “principals andagents”, and certain other specified subjects, the law that“would be administered in England in the like case, at thecorresponding period, if such question of issue had arisenor had to be decided in England, unless in any case otherprovision is or shall be made by any enactment now in forcein Ceylon or hereinafter to be enacted.” Although there doesnot appear to be a decision of the Supreme Court on thispoint, it must be pointed out that the decision of the Courtof Appeal in Wright and Three Others v. People’s Banft301would appear to suggest an affirmative response to thisquestion. In that case, the Court of Appeal affirmed thedecision of the District Judge that Section 2(1) of the EnglishFactors Act of 1889 was part of our law, and it is noteworthythat in the course of his judgement at 300 G.P.S. deSilva, J., (as he then was) observed that “what is applicable isnot only the English law in force at the time of the enactmentbut also any subsequent statute.” The Sri Lankan Powers ofAttorney Ordinance No. 4 of 1902, as subsequently amended,may not be a stumbling block to an argument in favour ofapplying the English provisions relating to the execution ofa power of attorney by an individual, as the local Powers ofAttorney Ordinance is confined, as clearly set out in itspreamble, to the “registration of written authorities andpowers of attorney” and there is no contrary provision inregard to the execution of powers of attorney either in thatOrdinance or in the Prevention of Frauds Ordinance.
It is, however, unnecessary for the purpose of this caseto express an opinion in regard to this question, since asalready noted, the Power of Attorney marked P7 was allegedlyexecuted in India and would attract the Indian law relating to
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form, and furthermore, even if it is regarded as a documentthat does not require attestation as urged by Mr. Dayaratne,the Respondents would still fail. This is mainly because,according to Section 72 of the Evidence Ordinance, “anattested document not required by law to be attested may beproved as if it was unattested”, and Section 67 of the sameOrdinance provides that –
If a document is alleged to be signed or to have beenwritten wholly or in part by any person, the signature orthe handwriting of so much of the document as is allegedto be in that person’s handwriting must be proved to be inhis handwriting.
Admittedly, P7 does not purport to contain Abdul Cader’shandwriting, but it contained a signature which is alleged bythe Respondents to be his. It is noteworthy that none of thewitnesses who spoke about P7 testified that the signaturepurporting to be that of Abdul Cader was placed thereon inthe presence of such witness, nor was any effort made bythe Respondents to show by comparison of other documentsthat may have contained the signature of Abdul Cader,that the signature on P7 was that of Abdul Cader. TheAttorney named in the said Power of Attorney, Noor Lebbaihas testified in the case, and has stated that in 1972 Sadakkuleft Sri Lanka leaving the land in his charge, and that muchlater and after the demise of Sadakku, his son Abdul Caderwho lives in India, executed the Power of Attorney marked P7authorizing him to look after the land and also to alienate itif the need arises.
Although he has placed reliance on P7, he did not statethat he was personally present in India when the executantplaced his signature on it, or seek to identify the signa-ture as that of the executant Abdul Cader. He also did not
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SC(Saleem Marsoof J.)371
explain how P7 came into his hands, or why only a pho-tocopy thereof was tendered in evidence. No doubt, asWidham, J., observed in King v. Peter Noni^31] at 17, theso called “best evidence’ rule “has been subjected to whit-tling down process for over a Century" and it is not alwaysnecessary today to produce in court the original of adocument on which he relies. However, the non-productionof the original document without any explanation as to whythe original is not being produced, is certainly a matter forcomment and may affect the weight to be attached to theevidence which is produced in its stead. See, the observa-tions of L. H. de Alwis, J., in Vanderbona v. Justin Pereraat 68, and A.R.B. Amarasinghe, J., in Stella Perera &Others v. Margret Silva at 173.
It is therefore clear that applying the test of proof of adocument that was not required by law to be attested, therewas no primafade evidence to prove its authenticity, and thequestion of its admissibility did not even arise. I am thereforeof the opinion that the contention of the learned President’sCounsel for the Appellants that the Power of Attorney markedP7 has not been proved as required by law has to be upheld.
There remains, however, one more matter on whichlearned Counsel for the contending parties have madesubmissions, which was raised in the context that the usualpractice of reading in evidence the documents that weremarked and produced at the trial in the course of witnesstestimony was not followed when the case for the Respon-dents was closed on 27th April 1993. This is substantivequestion 5, which specifically focuses on this issue, namely:is it mandatory to read the documents in evidence at the
conclusion of the trial? There is no provision in the Civil
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Procedure Code that mandates the reading in of the markeddocuments at the close of the case of a particular party.However, learned and experienced Counsel who haveappeared in the original courts in civil cases from timeimmemorial developed such a practice, which has receivedthe recognition of our courts. For instance, in Sri LankaPorts Authority and Another v. Jugolinija – Boat East*34*Samarakoon, CJ., commented on this practice, and ventured toobserve at 23 to 24 of his judgement that if no objection toany particular marked documents is taken when at the closeof a case documents are read in evidence, “they are evidencefor all purposes of the law.” It has been held that this is thecursus curiae of the original courts. See, Silva v. Kingerslef3S];Adaicappa Chettiar v. Thomas Cook and Son'361, Perera v.Seyed Mohomedi37); Balapitiya Gunananda Thero v. TalalleMethananda Thero ,38); Cinemas Limited v. Sounderarajan,39);Stassen Exports Ltd., v. Brooke Bond Group Ltd., and TwoOthers (40).
It would therefore follow that even though the Power ofAttorney marked P7 had in fact not been proved as requiredby law, if the learned Counsel for the Respondents had readin P7 in evidence with the other marked documents at theclose of the case for the Respondents without any objectionbeing taken on behalf of the Appellants, P7 would havebeen deemed to be good evidence for all purposes of the law.However, that is not what actually happened in this case.A photocopy of the power of attorney allegedly granted byAbdul Cader to Noor Lebbai was marked P7 subject to proof,no proof whatsoever was adduced to prove the aforesaidphotocopy, and none of the marked documents were read inevidence at the conclusion of the Respondents’ case.
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For all these reasons, I hold that the Power of Attorneymarked P7 has not been duly proved, and cannot be actedupon as evidence. I therefore hold that question 1(a) on whichspecial leave to appeal has been granted in this case, shouldbe answered in the negative.
Title of the Respondents
The other connected substantive question on which leavehas been granted, which relate to the title of the Respondentsto the land described in the schedule to the petition, has beensplit up into two sub-questions which are reproduced below:
(b) Does the Deed produced marked PI operate toconvey the title of Mohideen Abdul Coder, to theRespondents?
If not, was the Court of Appeal in error in holding thatthe Learned District Judge had correctly arrived atthe finding that the Respondents had established titleto the subject matter of the action?
Mr. Musthapha has submitted on behalf of theAppellants that Deed No. 6165 (PI) does not operate toconvey the title of Mahideen Abdul Cader, to the Respondents.He has contended in so far as the procedure set out inSection 31 of the Notaries Ordinance No. 1 of 1907, assubsequently amended, has not been complied with in respectto the execution of Deed No. 6165 (PI), it is a nullity. The saidprocedure is found in rule 30, which provides that –
If he (a notary) attest any deed or instrument executedbefore him by means of an attorney, he shall preservea true copy of the power of attorney with his protocol,and shall forward a like copy with the duplicate to theRegistrar of Lands
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I also note that the Registrar of Land, Anuradhapura,Ulluduhewage Karunaratne, who was called to give evidenceon behalf of the Appellants, has stated in his testimony thata copy of P7 has not been forwarded along with the duplicateof the deed marked PI in compliance with the procedure setout in Section 31 of the Notaries Ordinance. However, in myview this contention cannot be sustained as Section 33 of theNotaries Ordinance clearly enacts that –
No instrument shall be deemed to be invalid by reasononly of the failure of any notary to observe any provi-sion of any rule set out in section 31 in respect of anymatter of form: provided that nothing hereinbeforecontained shall be deemed to give validity to anyinstrument which may be invalid by reason of non-compliance with the provisions of any other written law.
Mr. Musthapha has further submitted that a plainreading of Deed No. 6165 marked PI reveals that thealleged attorney Noor Lebbai has purported to convey the landdescribed in its schedule as its owner, and not as the holderof the Power of Attorney mared P7. He has also stressed thatthe notary before whom the aforesaid deed was executed hasnot mentioned in his attestation, in what other capacity NoorLebbai signed the deed in question. Mr. Dayaratne has, inhis response, relied very much on the language used in theoperative part of the deed, wherein Noor Lebbai refers to thePower of Attorney marked P7, and states that –

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SC(Saleem Marsoof J.)375

It is not at all clear from the above quoted words thatNoor Lebbai purported to act as an Attorney on behalf ofhis principal. In fact, in the below quoted words, he evendescribes himself as the vendor (S^-egeraod), and purports tosell the property in Question and also to defend title:-

I am of the opinion that in the circumstances, the Deedmarked PI does not purport to be a conveyance of the title
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allegedly vested in Abdul Cader through the instrumentalityof an alleged agent, and is in effect a purported conveyanceof title and possession which Noor Lebbai never enjoyed, andwhich he cannot in law dispose of.
Apart from this, there is also considerable doubt as towhether Abdul Cader himself had title to the said four acreland, as there is inadequate material before court to concludethat the admitted ownership of Sadakku had devolved onAbdul Cader. I find that the Respondents have failed toestablish the devolution of title to Abdul Cader. Althoughit appears from the testimony of Respondents’ witnessMohamed Ibrahim Lebbai Noor Lebbai that there was atestamentary case with respect to the estate of Sadakku, nodocumentary evidence whatsoever has been produced at thetrial in regard to how the ownership of the land described inthe schedule to the petition devolved on the heirs of sadakku.It transpires from the testimony of Noor Lebbai, thatSadakku’s brother Kachchi Mohideen succeeded to a 2/10thshare of the land described in the schedule to the petition andthat Sadakku’s two sons Mohomadu Mohideen and AbdulCader, also inherited undivided shares in the land, the pro-portions of which have not been clearly established. Therefore,it is evident from the testimony of the Respondents’witnesses themselves that Abdul Cader was not the soleowner of the land described in the schedule to the petition.It follows that, even if the Power of Attorney marked P7 wasproved, that evidence led in regard to the devolution of titlefrom Sadakku to Abdul Cader cannot be said to have establishthe title Abdul Cader to the entirety of the land on thestandard of proof that is required in a rei vindicatio action. Itis also important to bear in mind that, for the reasons alreadyadvanced, in so far as the execution of the Power of Attorneymarked P7 has not been duly proved, Noor Lebbai did nothave any power or authority to bind Abdul Cader and for
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SC(Saleem Marsoof, J.)yfj
that reason alone, Deed No. 6165 (PI) cannot operate toconvey any title to the Respondents.
I therefore have no difficulty in answering the substan-tive question 1(b) in the negative and holding that the Deedproduced marked PI does not operate to convey the admittedtitle of Muhammad Mahideen Cader Saibu Mohideen Sadakku,or the alleged title of Mohideen Abdul Cader, to theRespondents.
Sub-question 1(c) was of course intended to beconsequential upon question 1(b) being answered in thenegative, and requires some attention, because it raisesthe question, in that event, whether the Court of Appealwas in error in holding that the Learned District Judge hascorrectly arrived at the finding that the Respondents hadestablished title to the subject matter of the action. It is in thiscase somewhat difficult to fathom what is meant by thewords “the subject matter of the action”, as there has beena great deal of confusion in this regard. It was in view of thisconfusion that this Court specifically invited learned Counselto make submissions on the question of the identity of thecorpus, even though none of the substantive questions on whichspecial leave had been granted by this Court, directly raisedany issue in regard to the identity of subject matter of theaction from which this appeal arises.
It is trite law that the identity of the property with respectto which a vindicatory action is instituted is an fundamentalto the success of the action as the proof of the ownership(dominum) of the owner (dominus). The passage from Wille’sPrinciples of South African Laws (9th Edition – 2007) at pages539-540, which I have already quoted in this judgement,stresses that to succeed with an action rei vindicatio, which
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this case clearly is, the owner must prove on a balance ofprobabilities, not only his or her ownership in the property,but also that the property exists and is clearly identifiable.It is also essential to show that the defendant is “in posses-sion or detention of the thing at the moment the action isinstituted.” Wille also observes that the rationale for this“is to ensure that the defendant is in a position to complywith an order for restoration.”
The identity of the subject matter is of paramountimportance in a rei vindicatio action because the object ofsuch an action is to determine ownership of the property,which objective cannot be achieved without the propertybeing clearly identified. Where the property sought to bevindicated consists of land, the land sought to be vindicatedmust be identified by reference to a survey plan or otherequally expeditious method. It is obvious that ownershipcannot be ascribed without clear identification of the propertythat is subjected to such ownership, and furthermore, theultimate objective of a person seeking to vindicate immovableproperty by obtaining a writ of execution in terms of Section323 of the Civil Procedure Code will be frustrated if thefiscal to whom the writ is addressed, cannot clearly identifythe property by reference to the decree for the purposeof giving effect to it. It is therefore essential in a vindicatoryaction, as much as in a partition action, for the corpus to beidentified with precision.
Doubts in regard to the identity of the land sought tobe vindicated in this case arise from the fact that while theRespondents in their petition laid claim to a four care landknown as “Palugahakumbura”, in Mahawela, Pahalabaagesituated in the village of Pandiyankulama in Nachcha
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Tulana of Ulagalla Korale in Hurulu Palata of theAnuradhapura District, by virtue of Deed bearing No. 6165(PI), the 1st Appellant asserted prescriptive title to a landdescribed as “Nilattu Patti Wayal” falling within LD 2 Ela inthe village of Pandiyankulama in Nachchadoova Tulane ofUlagalla Korale in Hurulu Palata in extent 3 acres 2 roodsand 26 perches.
In the schedule to the petition filed by the Respondents,which closely followed the schedules to the deeds marked PIto P6, there was no reference to any survey plan and the fouracte land claimed by the Respondents was described in thefollowing manner:-
All that field called Palugaha Kumbura situated inthe Pahala Bagaya of the Mahawela at NachchaduwaPandinkulama in Nachcha Tulana of Ulagalla Korale inHurula Palata in the District of Anuradhapura of theNorth Central Province, bounded on the North by the fieldof Nawuran Lebbe Mohiyadeen Pitcha and Others, Eastpresently by Welle and the property of Yusoof Lebbe oneof the vendors hereof, South by the property of Ali TambyLebbe Sharibu and the Others and West presently by theproperty of Sultan Unus containing in extent Four Acres(4A-0R-0P) more or less together with the paddy cropsthat are growing now on the land.
In the Schedule to the answer filed by the Appellants,which too made no reference to any survey plan, the landclaimed by the 1st Appellant was described as follows
The land known as Nilattu Pitti Wayal, in extent 3 acres, 2roods and 26 perches (A3-R2-P26) situated within the LD2 Ela of the village of Pandiyankulama in Nachchadoowa
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Tulana of Ulagalla Korale in Hurulu Palate in the Districtof Anuradhapura of the North Central Province, boundedon the North by the paddy fields belonging to Y. M. Ismailand M. P. Kairun Nisa, on the East by the LD 2 Ela onthe South by the paddy-field of D.C.M. Wijesinghe and onthe West the paddy field of U. Cader Beebee and T. C. M.Munesighe, together with all things from therein.
It was perhaps in view of the differences in extent anddescription of the lands claimed by the contending par-ties, and the circumstance that neither the schedule to thepetition nor the schedule to the answer described the landin suit by reference to a survey plan, that the District Courtissued a commission on D. M. G. Dissanayake, LicensedSurveyor, to survey the land referred to in the schedule tothe petition filed by the Respondents as well as the landdescribed in the schedule to the answer filed by the Appel-lants, and report whether they were the same. Plan bearingNo. 1176 dated 10th October 1990 and the accompanyingreport prepared by Surveyor Dissanayake after the surveyof a land pointed out by the contending parties as the landin dispute, showed that the land which the parties werecontending for was only 2 acres, 3 roods and 0.75 perchesin extent and was situated in the village of Madawalagame(Final Village Plan 520) within the Nachchadoova GS Divi-sion in Kandu Tulana of Kanadara Korale in NuwaragamPalata, in the Anuradhapura District, which according to theSurveyor Dissanayake, was an altogether different localityfrom the area where the land described in the respectiveschedules to the petition and the answer was situated.
It was in these circumstances, that the District Courtissued a further Commission on K. V. Somapala, Licensed
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Surveyor, to survey the land claimed by the two contendingparties to the case. Surveyor Somapala prepared Plan No.2025 dated 16.04.1991, which revealed that the land surveyedby him, the boundaries of which had also been pointed outby the contending parties, was in extent 2 acres 3 roods and31 perches and was situated in the village of Pandiyankulama,in Nachchadoova Tulana of Ulagalla Korale in the HuruluPalata in the Anuradhapura District. Although falling shortof the four acres claimed by the Respondents in their petitionby approximately 1 acre, 1 rood and 9 perches as well as theland claimed by the 1st Appellant in the answer by 2 roodsand 35 perches, the location and boundaries of the landdepicted in Plan No. 2025 were somewhat consistent with thedescription of the land set out in the schedule to the petitionof the Respondents as well as the description of the land setout in the schedule to the answer.
It is remarkable that although a comparison of theschedules to the petition and answer filed in this case give theimpression that they refer to two distinct and different landswith two different names and dimensions and boundarieshaving nothing in common except that they were situatedin the village of Pandiyankulama in Nachchadoova Tulanaof Ulagalla Korale in Hurulu Palata, in the AnuradhapuraDistrict, the boundaries of Plan No. 2025 prepared bySurveyor Somapala almost perfectly tally with the boundariesof the land described in the schedule to the answer filed bythe Appellant. According to both the aforesaid Plan and theschedule to the answer, on the northern boundary of the landdepicted therein are the paddy fields belonging to Y. M. Ismailand M. P. Kairun Nisa, and on the eastern boundary is theLD 2 Ela. The southern boundary of the said Plan and theschedule to the answer, is the paddy field belonging to
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D.C.M. Wijesinghe and on the western boundary is the paddyfield belonging to U. Cader Beebee and T. C. M. Munasinghe.It is relevant to note that in the aforesaid Plan, SurveyorSomapala has also endeavoured to indicate the names of theprevious owners of the paddy fields mentioned above, but hedoes not in his report or testimony in court, disclose how hegot these particulars, and it is a reasonable inference thathe had got these particulars from Plan No. 1176 and reportprepared by Surveyor Dissanayake, which I shall advert topresently.
It is of some significance that Plan No. 1176 preparedby Surveyor Dissanayake, though placing the surveyed landin a different village called Madawalagama in Kandu Tulanaof Kandara Korale in the Nuwaragama Division, shows thatthe northern and eastern boundaries of the land surveyedby Dissanayake substantially tally with the northern andeastern boundaries of the land described in the schedule tothe answer of the Appellants: In Plan No. 1176, the northernboundary is shown as the paddy field previously owned byNawuran Lebbe Mohiyadeen and presently owned by Y. M.Ismail. No. reference is made to any paddy field belonging toM. P. Kairun Nisa in Plan No. 1176, although in the scheduleto the answer that paddy field too is said to be on the northernboundary. Similarly, the eastern boundary of the landdepicted in Plan No. 1176 is the irrigation canal and reser-vation while in the schedule to the answer it is described asLD 2 Ela.
However, it would appear that the southern and westernboundaries of Plan No. 1176 are substantially different fromthe corresponding boundaries of the land described in theschedule to the answer. In Plan No. 1176, the paddy fieldon .the southern boundary is indicated as previously ownedby Ana Ali Thambi Lebbe and presently claimed by
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D. S. Gunesekera whereas according to the schedule to theanswer, the southern boundary consists of the paddy fieldbelonging to D. C. M. Wijesinghe. In Plan No. 1176, thewestern boundary is shown as the paddy field previouslyowned by Lebbe Thambi Yusuf and presently claimed byD. S. Gunesekara and P. Nainul Abdeen while in the scheduleto the answer, the land described in the schedule to thepetition is bounded on the west by the paddy field of U. CaderBeebee and T. C. M. Munesinghe.
It is interesting to note that Surveyor Dissanayake hasendeavoured to show the boundaries of Plan No. 1176 ina manner as to be consistent with the boundaries of theland described in the schedule to the petition filed by theRespondents. Thus, the northern boundary of the said land,is the paddy field of Nawuran Lebbe Mohiyadeen Pitcha andothers which is sought to be substantiated in Plan No. 1176by referring to Y. M. Ismail as the claimant to the paddy fieldon the northern boundary as the successor in title of NawuranLebbe Mohiyadeen and others. Similarly, the southernboundary in the aforesaid Plan is described as the paddyfield claimed by D. S. Gunasekera and previously owned byAna Ali Thambi Lebbe, while in the schedule to the petitionthe corresponding boundary is the paddy field belonging toAli Thambi Lebbe Sharibu. However, there is some incon-sistenc as far as the eastern and western boundary of theland described therein is the “welle” and the properly of(@©de) and the property of Yusoof Lebbe, whereas in the PlanNo. 1176 and report, on the eastern boundary of the landis the irrigation canal and reservation, but there is noreference to the property of Yusoof Lebbe. Of course, the “theirrigation canal” on the eastern boundaiy of the aforesaidplan does not give rise to much of an issue, as the Sinhaleseterm “welle” (@Sde) refers to an embankment or mound of acanal or a paddy field, but no light was shed by any of the
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surveyors or witnesses in regard to the reference to YousoofLebbe in the schedule to the petition. Similarly, according toPlan No. 1176 and its report, on the western boundary of theland surveyed is the paddy field claimed by D. S. Gunasekereand C. Jainul Abdeen and originally owned by Lebbe ThambiYusoof, but the schedule to the petition states that on thewestern boundary is the property of Sultan Yunoos, whichis entirely a different name, and there is no basis on whichthese boundaries can be said to be consistent.
It is also important to empahsise that neither SurveyorDissanayake nor any other witness who testified at thetrial, including the 1st Petitioner-Respondent-Respondent,the 1st Defendant-Appellant-Appellant and Surveyor Somapala,placed before court any documentary or other evidence tosubstantiate the alleged succession to title to the fields orpaddy fields on the northern and southern boundaries ofthe land described in the schedule to the petition, whichinformation had been used by Surveyor Dissanayake forthe purpose of synchronising the boundaries of the landdescribed in the schedule to the petition with the landdepicted in Plan No. 1175 and the accompanying report, anduncritically adopted by Surveyor Somapala in Plan No. 2025and report annexed thereto. In the absence of such evidence,there is no justification to conclude that the boundaries ofthe land surveyed by these surveyors as the land in dispute,tally with the land described in the schedule to the petitionof the Respondents. To Illustrate this point, the statementin the aforesaid survey plans and reports to the effectthat the paddy field situated on the northern boundary ofthe land subjected to the survey was claimed by one Y. M.Ismail is an empirical fact reported and testified to by bothsurveyors which they were competent to make, but the state-ment to the effect that the previous owners of the said paddy
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field were Nuwuran Lebbe Mohiyadeen Pitcha and others, isclearly hearsay, in the absence of any documentary or otherevidence to substantiate the accuracy of that statement. Soalso, the statement on the said plans and reports to the ef-fect that the paddy field on the southern boundary originallybelonged to one Ali Thambi Lebbe, which substantially tallieswith the name of the owner of the property described in theschedule to the petition, namely Ali Thambi Lebbe Sharibu, isat best hearsay, in the absence of any evidence to relate theaforesaid original owner or owners to the respectiveclaimants of the said property at the time, of the survey.
Furthermore, despite the superficial similarity betweenthe lands depicted in Plan No. 1175 and Plan No. 2025,particularly, the bifurcation of the land by two canals, oneclose to the northern boundary and the other almost at thecenter of the land, the said two plans seek to locate the landsby reference to two distinct villages, tulanas, korales andpalatas and even the location and description of the landdescribed in the schedule to the petition does not tallywith the village, tulana, korale and palata of Survey orDissanayake’s Plan No. 1175. In any event, this superficialsimilarity could only be used to show that the lands surveyedby Dissanayake and Somapala were substantially similar,but there is no reference to any such bifurcations of canals inthe schedule to the petition.
Despite these obvious differences, the parties did notappear to have any difficulty in identifying the corpus atthe stage of formulating the issues after the return of thecommission to survey the land or lands in dispute. It isunfortunate that neither the learned District Judge, nor thelearned Counsel for the contending parties, realized thatissue 6 sought to described the land in dispute by reference
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It is manifest that issues 6 to 8, thus formulated haveonly confounded the confusion in regard to the identity ofthe land in dispute, which the testimony of the two surveyorsin this case has in no way helped to reduce. SurveyorDissanayake was unable to explain the differences in thevillage name, tulana, korale and palata between the scheduleto the petition and his Plan bearing No. 1176, although thename of the land an some of the boundaries specified in theschedule to the petition tallied with his plan. On the otherhand, Surveyor Somapala was clear in his testimony thatthe land surveyed by him could not be the same as the landsurveyed by Surveyor Dissanayake as the village, tulana,Korale and palata within which the two lands were situatedwere different, althought the structure and the bifurcationsof the canals on the two plans were similar.
To sum up, from the issues raised by the contendingparties as well as the documentation and evidence led in thiscase, it would appear that despite serious doubts regardingthe location of the lands surveyed by the commissioned

to the schedule to the petition of the Respondents as wellas Plan No. 1176 Sind the accompanying report prepared bySurveyor Dissanayake despite their mutual inconsistency inregard to not only the extent of the land but also with respectto the village, the tulana, the Korale and the palata in whichthe land is situated. It is also significant that issue 8 raisedon behalf of the Appellants did not seek to describe the landclaimed by them by reference to the schedule to their answeror the plan and report prepared by Surveyor Somapala, andthat in the aforesaid issue they had assumed that the boneof contention in the case was one and the same land, which
they ventured to describe as
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surveyors, the Respondents as well as the 1st Appellantwere claiming title to substantially the same land. It is alsomaterial to note that the extracts of the Register ofAgricultural Lands produced by respectively theRespondents marked P2 and the Appellants marked "8fdescribe the land described in the schedule to the petition as“Palugahakumbara” in extent 3 acres, 2 roods and 26perches, under serial No. 15/353 in Cultivation OfficerDivision of 42A Tulana up to the year 1987, and in the year1988 the description of the land was changed to “NilattuPattiya” in extent 4 acres, under Serial No. 19/459 in thesame Cultivation Officer Division. Of course, the surveysconducted on commissions issued by court disclosed a muchsmaller land, the earlier plan bearing No. 1176 depicting anextent of 2 acres. 3 roods and 7.5 perches, which was lessthan the land extent shown in Plan No. 2025 prepared bySurveyor Somapala by approximately 24.5 perches, possiblydue to the shifting of the northern boundary due to someencroachments.
In these circumstances, in my opinion, the learnedDistrict Judge was justified in concluding that the landsclaimed by the contending parties are one and the sameand is substantively depicted in the survey plan prepared bySurveyor Dissanayake, a finding which has been affirmed bythe Court of Appeal. However, what the lower courts havefailed to realize is that this does not necessarily mean thatthe land depicted by Surveyor Dissanayake, in his PlanNo. 1176 is identical with the land described in the scheduleto the petition and the title deeds PI and P3 to P6. Suchidentification is vital to a vindicatory action such as thisin which a declaration of title and ejectment of the Appel-lants has been sought by the Respondents by virtue of the
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said title deeds. It is unfortunate that neither the learnedDistrict Judge nor the Court of Appeal has taken into consid-eration the inconsistencies fully outlined above, that exist inidentifying the boundaries of the land described in theschedule to the petition with the land actually surveyed bythe two surveyors on commissions issued by the court.
The learned District Judge was not helped by theobvious confusion in issue 6 which, as already noted,sought to describe the land claimed by the Respondents byreference to the schedule to the petition filed by them aswell as by reference to Plan No. 1176 depicted by SurveyorDissanayake. The learned District Judge uncriticallyanswered the issue in the affirmative, causing great ambiguityin identifying the land, with respect to which a declarationof title was sought by the Respondents. The learned DistrictJudge had in his judgement purported to make an expressorder of ejectment, based no doubt, on an implicit declarationof title to land claimed by the Respondents, ignoring the factthat the schedule to the petition referred to in the said issue6, placed the land in the village of Pandiankulama in NachchaTulana in tha Ulagalla Korale in Hurulu Palata of theAnuradhapura District, while Plan No. 1176 dated 10thOctober 1990 prepared by Surveyor Dissanayake placed itin the village of Madawalagam in Kandu Tulane within theKanadara Korale in Nuwaragam Palata of the same District.The learned District Judge has also failed to make any findingpertaining to the extent of the land described in the scheduleto the petition, which was four acres according to the scheduleto the petition, while it was only 2 acres, 3 roods and 7.5perches according to Surveyor Dissanayake’s Plan No. 1176.He has also not arrived at any finding in regard to which ofthe two survey plans that had been prepared on commissions
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SC(Saleem Marsoof, J.)389
issued by court, depicted the land described in the scheduleto the petition accurately, particularly in the context that PlanNo. 2025 was more in accord with the location of the land asset in the schedule to the petition, but depicted a slightlylarger land in extent 2 acres, 3 roods and 31 perches.
The learned District Judge has come to the conclusionthat the bone of contention between the contending partiesis the same as the land described in the schedule to thepetition of the Respondents as well as the schedules to thetitle deeds marked PI and P3 to P6. In doing so, he hastotally lost sight of Section 187 of the Civil Procedure Code,which provides that the judgment “shall contain a concisestatement of the case, the points for determination, the
decision thereon, and the reasons for such decision” It is
obvious that bare answers to issues without reasons are notin compliance with the requirements of the said provision ofthe Civil Procedure Code, and the evidence germane to eachissue must be reviewed or examined by the Judge, who shouldevaluate and consider the totality of the evidence. This, thelearned District Judge has failed to do, and the Court ofAppeal has overlooked in affirming the decision of the DistrictCourt.
It is the primary duty of a court deciding a case involvingownership of land, whether it is a partition action or reivindicatio action, to consider carefully whether the relevantland (corpus) has been clearly identified. As already stressed,identity of the land is fundamental for the purpose ofattributing ownership, and for ordering ejectment. In order tomake a proper finding, it is necessary to formulate the issuesin a clear and unambiguous manner to assist the reasoningprocess of court. In my considered opinion, the learned
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District Judge has seriously misdirected himself in themanner in which he formulated issue 6, which makesreference to the schedule to the petition and the plan andreport prepared by Surveyor Dissanayake, which differdrastically form each other with respect to the location,boundaries and extent of the land described or depictedtherein. By answering the issue in the affirmative with-out clarifying whether he was going by the schedule to thepetition or on the basis of one of the survey plans preparedon the commissions issued by court, and if so which one, thelearned District Judge has altogether begged the question ofidentity of the corpus which is so vital to a vindicatory action,which negates the possibility of deciding on the question oftitle that arises in this case. The resulting judgement, whichunfortunately has been affirmed by the Court of Appeal, isfatally flawed, and the finding that title to the land claimedby the Respondents devolved on them by virtue of DeedNo. 6165 marked PI is altogether unfounded.
For all these reasons, I hold that substantive question1(c) has to be answered in the affirmative, and that the Courtof Appeal was indeed in error in affirming the decision of thelearned District Judge that the Respondents had establishedtitle to the subject matter of the action.
Prescription
In view of my answers to the 3 sub-questions ofsubstantive question 1 on which special leave has beengranted by this Court, it is unnecessary to decide question2, which is whether the Court of Appeal erred in failing toconsider that the learned District Judge has not dulyevaluated the evidence on the question of prescription. Itherefore do not propose to go into this question in depth. In arei uindicatio action, it is not necessary to consider whether
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the defendant has any title or right to possession, where theplaintiff has failed to establish his title to the land sought tobe vindicated and the action ought to be dismissed withoutmore.
However, I wish to use the opportunity to deal with asubmission made by learned President’s Counsel for theRespondents before parting with this judgement. He hassubmitted that in terms of Section 45(3) of the AgrarianServices Act No. 58 of 1979, as subsequently amended, anentry made in the Agricultural Lands Register maintainedunder that Act is admissible as prima facie evidence of thefacts stated therein, and that accordingly, the entry madein the Agricultural Land Register, a certified extract fromwhich was produced markedin which the names of theRespondents appear as the landlords constitute prima facieevidence of their title to the land claimed by them as well asthe fact of their possession thereof through a tenant cultivator.It is obvious that Section 45(3) of the said Act was notintended to extend to title to agricultural land, and that thepresumption arising from the entries inwith regard tothe landlord and description of land is displaced in this caseby the overwhelming evidence that the Respondents hadnever enjoyed possession of the land “Nilaththu Pattiyal”which had been possessed exclusively by the Appellants.
It is the name Hinni Appuhamy that appears in theextract markedas tenant cultivator for the ten yearsfrom 1979 to 1989, despite the alteration which theRespondents admittedly got done in 1988, by which thename of the 1st Appellant as landlord, and the descriptionof the land as “Nilaththu Pattiyal" in extent 3 acres 2 roodsand 26 perches, had been replaced by the names of theRespondents as landlords and description of the land
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as “Palugahakumbura” in extent 4 acres. Neither HinniAppuhamy, nor any other witness, was called by theRespondents to establish that the paddy field cultivated byHinni Appuhamy was in fact the four acre land to which thedeeds PI and P3 to P6 related, and it is manifest that thealteration to the Agricultural Land Register effected in 1989was a calculated move by the Respondents to stake a claimto the land possessed by the Appellants on the basis that thesaid land was the same as what is described in the scheduleto the petition and the schedules to the said title deeds,which fact however, the Respondents have failed to establishby evidence.
Conclusion
In all the circumstances of this case, I allow the appealanswering the substantive questions 1, 3, 4 and 5 on whichspecial leave had been granted by this Court, in favour of theAppellants. I do not consider it necessaiy to answer substan-tive question 2. I would accordingly set aside the judgmentsof the District Court and the Court of Appeal, and makeorder dismissing the action filed by the Respondents in theDistrict Court. I also award costs in a sum of Rs. 25,000/-payable to the Appellants jointly, by the Respondents jointlyand severally.
J. A. N. DE SILVA, C.J. – I agree.RATNAYAKE, J. – I agree.appeal allowed.