KEVITIYAGALA ANANDA THERO v. PULIYANKADUWALA WIMALASARA THERO

006-SLLR-SLLR-1999-V-3-KEVITIYAGALA-ANANDA-THERO-v.-PULIYANKADUWALA-WIMALASARA-THERO.pdf


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KEVITIYAGALA ANANDA THERO
v.PULIYANKADUWALA WIMALASARA THERO
COURT OF APPEALWIGNESWARAN, J. ANDJAYAWICKREMA, J.
A. NO. 386/87 (F).
C. ANURADHAPURA NO. 9832/LNOVEMBER 04, 1997.
DECEMBER 18, 1997.
NOVEMBER 04, 1998.
Buddhist Temporalities Ordinance – Viharadhipathy – Rule of succession – Priestallowed to reside temporarily – Leave and licence – State land – Is it Sangika?
The plaintiff-respondent averred that the temple was a Purana Rajamaha Vihareand that the rule of succession is by the Rules of Sisyanu Sisya Paramparawa,and that he was in the line of succession and that the temple belonged to theMalwatte Chapter of the Siyam Nikaye. It was his further position that thedefendant-appellant had originally come to the temple with the leave and licenceof one Rev. Ratnajothi (earlier incumbent) and that he was interfering with theadministration of the temple and its temporalities.
The defendant-appellant averred that the land is State land, and the people ofthe surrounding colonies rehabilitated the temple and on their invitation he cameto reside in the said temple. It was his position that, a declaration that the plaintiff-respondent is the controlling Viharadhipathy of a temple in a State land is notpossible under the law, and that the State land is not Sangika; and challengedthe locus standi of the plaintiff-respondent.
Held:
At the meeting of the Temple Development Society held on 13.6.1978,presided over by the defendant-appellant, his utterances as recordedclearly establish that the defendant-appellant had come to reside in thistemple only for the purpose of his employment as a Teacher, and uptothat date he had never claimed any right or title to the Viharadhipathishipof the temple or its property.
CA Kevitiyagala Ananda Thero v. Puliyankaduwala Wimalasara Thero
(Jayawickrema, J.)39
The Government Agent had made an order to the District Land Officerto issue a permit. The permit was required only regarding an encroachmentand not for the temple itself; therefore, the position that the temple wassituated on a State land cannot be accepted.
The letter of appointment of the defendant-appellant by the SasanaraksakaSamithiya and Mahanayake of the Ramagngna Nlkaya contradict each otheras regards to the appointing authority, these documents do not state onwhat right the appointment was made; and no evidence was led on thisissue.
APPEAL from the judgment of the District Court of Anuradhapura.
Cases referred to:
Sumanasara v. Gunaratna – 8 CLW 69.
Pema v. Jinalankara Thero – 31 CLW 43.
Punchirala v. Dharmartanda Thero – 48 NLR 11.
Dharmarakkita v. Wijitha – 41 NLR 401.
Dhammaloka Thero v. Saranapala Thero – 57 NLR 518.
Jinaratana Thero v. Dharmarathana Thero – 57 NLR 372.
Nandarama v. Rathanapala Thero – 57 NLR 445.
Thoma Perera v. Premananda Thero – 52 CLW 14.
Okandeyaye Wangeesa Thero v. Mulkirigalla Sunanda Thero – 65 NLR 388.
N. R. M. Daluwatte, PC, with Gamini Silva for defendant-appellant.
D. R. P. Goonetilleke with S. Suraweera for substituted plaintiff-respondent.
Cur. adv. vult.
January 21, 1999.
JAYAWICKREMA, J.
This is an appeal from the judgment of the learned District Judgeof Anuradhapura dated 20.10.1987 entering judgment in favour of theplaintiff.
The original plaintiff Dutuwewa Ratanasara Thero instituted thisaction against the defendant-appellant claiming that he was the
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controlling Viharadhipathy of the temple called GalmaduwaSailabimbaramaya Purana Rajamaha Viharaya and ejectment of thedefendant therefrom. The plaintiff-respondent averred that the templewas a Purana Rajamaha Viharaya dated from the time of Sinhalesekings and that the rule of succession to this temple was governedby the Rules of Sisyanu Sisya Paramparava and that he was in theline of succession and that the temple belonged to Malwatta Chapterof the Siyam Nikaya.
The plaintiff-respondent averred that the defendant had no title tothe temple, that he had originally come into occupation of the templewith the leave and licence of one Kokmaduwa Ratanajothi Thero, theearlier incumbent of the temple and that he was now interfering withthe administration of the temple and its temporalities. The plaintiff-respondent further averred that Watawana Indragupta Thero was the■Viharadhipathy of the said temple and thereafter it devolved onPalugollagama Gunaratna Thero who by deed No. 3403 of 3.8.1963appointed Kokmaduwa Ratanajothi Thero to manage the temple onhis behalf and to succeed him as Viharadhipathy. Thereafter, GunaratneThero and Ratanajothi Thero by deed No. 1407 on 14.02.1972 (P2)appointed the plaintiff as Controlling Viharadhipathy of the said temple.The plaintiff pleaded that the said Ratanajothi Thero permitted thedefendant to reside temporarily from 31.7.77 when he came as ateacher in a school in the area and since the middle of 1978, thedefendant claimed rights and ownership and took the income fromthe temple and its appurtenant temporalities.
The defendant denied that he ever came on the invitation orpermission of Kokmaduwe Ratanajothi Thero and stated that the landdescribed in the answer was a State land and the people of thesurrounding colonies rehabilitated the temple and on their invitationhe came to reside in the aforesaid temple.
The original plaintiff died and his pupil Puliyankaduwala WimalasaraThero was substituted. It is admitted that the plaintiff and the defendantbelonged to two separate Nikayas, the plaintiff to the Malwatta Chapterof the Siyam Nikaya and the defendant to the Ramagngna Nikaya,respectively.
CA Kevitiyagala Ananda Thero v. Puliyankaduwala Wimalasara Them
(Jayawickrema, J.)41
The learned President's Counsel for the appellant submitted thatthe land described in the schedule which is the subject-matter of thisaction was a State land and that even the original plaintiff made anapplication to the Government Agent, Anuradhapura on 15.10.80asking for a permit (V4). He further contended that from the evidenceit was elicited that it was a State land and although the documentsV4 and P2 referred to a Sannasa, no evidence was led in that respect.Therefore, he contended that the position of the plaintiff as regardsa dedication in favour of Indragupta Thero by a Sannasa has not beenproved.
The learned President's Counsel for the appellant further submittedthat a declaration that the plaintiff is the controlling Viharadhipathyof a temple in a State land is not possible under our law. State landis not Sangika. He further contended that the plaintiff and the sub-stituted plaintiff have no locus standi to institute and maintain thisaction and that a Viharadhipathy cannot effectively appoint anotherto be Viharadhipathy in his place in his lifetime.
The learned President's Counsel for the appellant contended thatthe trial Judge was in error when he held that the defendant cannotquestion the title or the devolution of title of the plaintiff. The learnedPresident's Counsel for the appellant submitted that temples do notbelong to any Chapter, but priests in a temple may come under aNikaya or a Chapter of a Nikaya, and that temples do not come undera Nikaya.
He further contended that a Sangika temple is dedicated to theentirety of Sangha from the four corners so that no Nikaya can claimproprietary rights. But, the monks to whom it is dedicated on behalfof the Sangha can belong to a particular Nikaya.
The learned District Judge held that the temple belonged to theplaintiff according to Sisyanu Sisya Paramparawa. Further, he heldthat the defendant had come to the temple not as of right but onleave and license of the plaintiff as he had come to that area foremployment as a teacher.
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Historically, Purana (ancient) Viharas were built on State land ongrants by the King. In fact, in certain areas there are not only Buddhisttemples but even Churches, Kovils and Mosques built on State landon the basis of 99-year lease from the State.
History apart, in the instant case the contents of the documentsproduced by the defendant as "V1, V2 and V3° are revealing. Thedocuments 'V1, V2 and V3' are minute books of the Sasana AraksakaSamitiya of Galmaduwa temple. These minutes have been maintainedsince the inauguration of the Society from 1961 onwards.
According to the minutes dated 28th August, 1961 (page 7 of V2)this Society was formed on 7.8.1961 for the development of the PuranaGalmaduwa Viharaya. According to the minutes dated 22nd June,1962 (V1 – page 17) a meeting was held presided over by the plaintiffspredecessor Palugollagama Sri Gunarathanabidana Nayaka Thero ofDutuwewa Rajamaha Viharaya for the purpose of laying the foundationstone for a shrine room. According to these minutes, DutuwewaViharadhipathy has stated that this temple was in ruins for over 100years and thanked the Society for taking steps to rehabilitate it.According to the minutes of 26th December, 1962 (V2 – page 33)this Society with the consent of Dutuwewa Nayaka Thero decided toinvite a priest to convert this temple into a Meditation Centre. Whenone considers the above minutes it is abundantly clear that the Societywhich was formed by layman to rehabilitate this temple had actedon the guidance and instructions of Dutuwewa GunarathanabidanaThero who was the predecessor in title of the plaintiff.
Somewhere after 17th May, 1963 (page 58) there seems to havebeen some dispute between Dutuwewa Nayaka Thero and the Society.The Society thereafter decided to make an application to get a permitfrom the Goverment Agent regarding this temple land.
When one considers the minutes of the Vihara Development Societymaintained by the Society since its inauguration in 1961, it is veryclear that even before the formation of the Society and after itsformation the predecessor of the plaintiff had acted as Viharadhipathyof the temple and presided over some of the meetings of this Society.
CA Kevitiyagala Ananda Them v. Puliyankaduwala Wimalasara Them
(Jayawickrema, J.)43
The Vihara Development Society and Dutuwewa Nayaka Thero haveacted in co-operation to develop this temple till upto 1974. Accordingto the minutes of the Society (V1, V2 and V3) there seems to havebeen some dispute between Dutuwewa temple and the DevelopmentSociety thereafter on matters regarding the development, rehabilitationand other matters connected to the temple. There had been somedispute between the resident Bhikku of the temple and complaintshad been made to Dutuwewa Nayake Thero by the Society. Someof these disputes had been amicably settled by the intervention ofDutuwewa Nayake Thero.
According to the minutes of this Society dated 13th June, 1978(V9 – page 53 of V3) for the first time the defendant's name appearsin the minutes. On that date the Temple Development Society heldits meeting presided over by the defendant Kevitiyagala Ananda Thero.In those minutes he described himself as resident Priest (5qx3cS6xdoc50£© 0ckd) of the temple. The defendant priest had made a speechstating that the meeting was called on his earnest request for thepurpose of discussing the objections raised by Dutuwewa Viharadhipathyregarding the defendant being resident in the temple. The defendantin his speech as recorded in the minutes has clearly stated that hecame to reside in this temple temporarily until he gets a transfer toanother place; that he was residing in the temple at the request ofthe Dayaka Sabha and that he wished to thank the Dayaka Sabhafor that and informed them that he had already decided to leave thetemple for another place. Some of his utterances as reported in theminutes are as follows:
'8o0qte> gate®) gtS 0g> @0 gd® cQdtd ©s»O)£)oS06)ateGS ra)®©©) dkdd&sg@) o® 5®gq> S0®0 dCx£Q Q ©0 ®§0u5) gate®). ®@ o® eeto© gOa) oate®0iS 5)Oa)0) oa»o0Q. ®) gates) sixgo gojoc® osSdoti sxte) go>0® ©®)0e4S>a)Qggag 5>sa) ®)0£©S @6)03 00 g®@) os®). Oraos® oato® o®oo. ®@ do®. ®0®oo> oataxg ®a) 5)0® gtS So®) S00S 6 SDffeOo®) do egraatea) ms. o®oo>Sa® ©Sod 0® go5> ©fflegatoc) g®®a>® 00 0®)OdS)a)a0 cx®d3 SoQ. asro®©g»® o)o® ©0 gOtgtOoSoei gaxsoo sxBcs ggoO 0toOa®) ocooS « o@gx3)§® 000 ©3o®a) go 5>®S og00 raOgO0@O otOogate® Sg©a®). 6 ®)SoS. ®® o®Sa) 00 0 ®o<S 0)05»0o 5® o©a> Socsxi 6 sc® ajOgOoai® a>cSG0a®).
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®) 00035 Sqxd So®) gooes gca^D)0 SO o® gajsod gs53» omS o0Seo0).
6o (Sod® 000) oQ g)B©5» (5×53)8). ®® o©3) GX3)S ocaxs O)®0 SdSBQ (5X5®)
0©o)5)oc^ o® 0O0Q350 qogo®5©3) So® q^oo <jk$0S o® (X00® ta^0®0 g®@)
S9o0‘.
The above statement of the defendant clearly establishes the factthat he had come to reside in this temple only for the purpose ofhis employment as a teacher. Upto that date (ie 13.6.1978) he hadnever claimed any right or title to the Viharadhipathiship of the templeor its property. The above statement is a clear admission by thedefendant that he came to the temple on a temporary basis for thepurpose of employment.
Apart from the above statement there had been, heated argumentamong the members of the Dayaka Sabha at that meeting and anumber of members had severely criticized Dutuwewa Nayake Theroand it was unanimously decided to appoint the defendant priest asthe Viharadhipathy of this temple. The defendant accepted it andthereafter according to the minutes of this Society, the Society andthe defendant decided to face any consequences arising from thisact and made various representations to the Government Agent fora permit and even retained lawyers to assist the defendant. Due tothese actions of the defendant and the temple Development Societythe plaintiff filed this action in 1980 to vindicate his rights to the temple.In paragraph 12 of his plaint the plaintiff averred that the defendantdisputed his title from 13.11.1979 and this fact is clearly establishedby the defendant's documents marked as V3‘ and referred to above.
When one considers the above facts which were elicited from thedocuments marked by the defendant, it is abundantly clear that tillabout 1978, the defendant had no right nor any claim to the templewhich is the subject-matter of this case. It also very clearly establishesthe fact that the plaintiff and his predecessor in title were in controlof this temple.
Apart from the above facts the plaintiff himself had marked somevery old documents which substantiate the fact that the plaintiff andhis predecessor were in control of this temple. 'P1‘ dated 3rd August,
CA Kevitiyagala Ananda Thero v. Puliyankaduwala Wimalasara Thero
(Jayawickrema, J.) 45
1963, 'P2' dated 14th February, 1979, are deeds on which the plaintiffasserted his rights as Viharadhipathy of this temple; 'P3' dated 3rdDecember, 1955, which is the Samanera Declaration; 'P4' dated 30thJune, 1959, which is the Upasampada Declaration; 'P5‘ which is anotice of a religious ceremony dated 11th May, 1945; 'P6' dated 2ndMarch, 1932, which is a Upasampada Declaration; ‘P11' dated 28thNovember, 1979 which is a Samanera Bhikku Declaration refer to thetemple as belonging to the plaintiff and his predecessors in title.Documents 'P3, P4, P6, P8, P9 and P11 * are certified copies of thedocuments maintained under section 41 of the Buddhist TemporalitiesOrdinance.
As regards the submission made on behalf of the appellant thatthis temple is situated in a State land, the document marked as V4'clearly proves that the Government Agent had decided to issue apermit on the application of the plaintiff. 'V4' dated 15.10.1980 is anapplication by the plaintiff priest made to the Government Agent ofAnuradhapura claiming his title to this temple on a grant by KingKeerthi Sri Rajasinghe and stating that the temple was under thecontrol of his predecessors since 1774, and that it is depicted in planNo. 1549 of 1972. Although these documents were not produced atthe trial the Government Agent seems to have accepted this positiontaken up the plaintiff priest as shown by the minutes made by theGovernment Agent. The Government Agent had made an order tothe District Land Officer to take necessary steps to issue a permit.On his direction a file had been opened and necessary steps hadbeen taken to verify these facts. In the mean time the TempleDevelopment Society had made objections to the issue of such apermit and thereafter no steps were taken regarding this matter asthis case was instituted by the plaintiff against the defendant. Accord-ing to the document marked as 'V6', which is a letter addressed tothe Government Agent by the Superintendent of Surveys, Anuradhapura,dated 3.10.1984, the land which the plaintiff has claimed as belongingto the temple is referred to as "FVP No. 1549 lot No. 219; extentfive acres and 27 roods". The Superintendent of Surveys describesthis land as an "encroachment by Galmaduwa Buddhist Temple andpremises Chief Incumbent P. Sri Gunarathana Thero". This clearly
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proves the fact that the Chief Incumbent of Galmaduwa BuddhistTemple was the plaintiffs predecessor in title P. Sri GunarathanaThero. The permit was required only regarding an encroachment andnot for the temple itself. In view of this, the submission that the templewas situated on a State land cannot be accepted. According to theminutes of the Temple Development Society, there had been disputesregarding the cultivation of lands and paddy-fields which belong tothis temple which were in fact encroachments made by some of themembers of the Dayaka Sabha. According to the plaint the subject-matter of this action is 'Dutuwewa Galmaduwa Sri SylabimbaramayaPurana Rajamaha Viharaya' and according to the answer it is'Galmaduwe Purana Rajamaha Viharaya'. 'V6' produced by thedefendant states that Gunarathana Thero was the Chief Incumbentof Galmaduwa Buddhist Temple.
Against all the above evidence in favour of the plaintiff, the de-fendant's evidence regarding his claim is only subsequent to year1978. As stated above according to 'V9' the defendant was appointedas the Viharadhipathy of this temple by the 'Sasanaraksaka Samithiya'on 13th June, 1978. Subsequent to that appointment the defendantwas again appointed as Viharadhipathy of Galmaduwa PuranaRajamaha Vihara by the Ramagngna Nikaya (V11) on 22 March, 1983.The Maha Nayake of Ramagngna Nikaya issued a letter marked 'V12'dated 19.2.1986 stating that the defendant is the Viharadhipathy ofthis temple. These two documents (V9 and V11) contradict each otheras regards to the appointing authority. 'V9' and *V11' are not onlycontradictory in nature as the defendant's appointment asViharadhipathy, had been made by two different authorities, thesedocuments do not state on what right the appointment was made.The only conclusion, one can arrive at is that there had been noproper legal appointment as far as the defendant was concerned.Against these two documents the plaintiff produced the letter marked'P13' dated 5th January, 1979, issued by Maha Nayaka of MalwatteChapter of the Siyam Nikaya certifying that Dutuwewa GalmaduweSri Sailabimbarama Purana Rajamaha Viharaya belongs to the MalwatteChapter of Siyam Nikaya and that Sri Gunarathana Thero was theViharadhipathy of the temple. No evidence had been led by the
CA Kevitiyagala Ananda Them v. Puliyankaduwala Wimalasara Thero
(Jayawickrema, J.)47
defendant to prove whether the Dayaka Sabha or the SasanaraksakaSamithiya of the temple or even the Mahanayaka Thero of theRamagngna Nikaya had any right to confer on him theViharadhipathyship of the temple.
When one considers on a balance of probabilities the above factselicited from the evidence led in this case, it is abundantly clear thatthe plaintiff and his predecessors were appointed as Viharadhipathiesof this temple and were in control of the property of this temple.
The mode of succession to Viharadhipathy is governed by BuddhistEcclesiastical Law as there are no statutory provisions regarding themode of succession to Viharadhipathy of a temple. The question asto who succeeds to a Viharadhipathy is answered by reference tothe Buddhist customs recognised as Sisyanu Sisya Paramparawa.According to this rule the eldest pupil priest succeeds the masterunless a contrary rule is shown to be applicable, (vide Sumanasarav. Gunaratnafv). If at the original dedication no provision was madefor regulating the mode of succession to the incumbency, this rulewould apply and the person who dedicated the temple and the grantorscease to have any rights over the incumbency, (vide Pema v. JinalankaraThercP).
In Punchirala v. Dharmananda Thero™ a plaintiff who was not inthe line of pupillary succession from the original incumbent nor a pupilof the last incumbent, but had been placed in charge of the templeby the last incumbent who had then disrobed himself was not allowedto maintain an action for a declaration of title to property belongingto the temple. This decision proceeded on the basis that an incumbentcannot grant the right of succession to a stranger. In Dhammarakkitav. Wijitha™ it was held that the pupils of a deceased incumbent havethe right to elect one of their own number other than the senior pupilas incumbent when the senior pupil consents to or acquiesces in suchelection. In Dhammaloka Thero v. Saranapala Thero™ it was held thatupon the extinction of the line of the pupillary succession to a Buddhisttemple governed by the rule of succession known as Sisyanu SisyaParamparawa, the temple vests in the Sangha and the right of
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appoinment of a new Viharadhipathy vests in the Mahanayaka of thefraternity which has jurisdiction over it. The fact that a stranger hasfunctioned as Viharadhipathy for a long period does not entitle himto defeat the Mahanayaka's right of appointment, which is a right thatcannot be lost by prescription (vide Jinarathana Thero v. DharmarathanaThere?*-, Nandarama v. Rathanapala There?*).
In Thoma Perera v. Premananda There?* it was held that the term"Viharadhipathy" in section 4 (2) of the Buddhist Temporalities Or-dinance means the monk who is the Principal Bhikkhu in the line ofpupillary succession from the first incumbent of a temple. In that caseSansoni, J. observed: "At no time in the history of a Buddhist templein this Island has a priest who has no right to incumbency of a templebeen invested with the title to or the power to manage, the tempo-ralities of the temple. I am unable to accept the suggestion that theOrdinance of 1931 (cap. 222) had the far-reaching effect of conferringan important legal status on one who may not even claim to be andwho is not in law the chief priest of the temple".
Under section 20 of the Buddhist temporalities Ordinance all propertybelonging to any temple shall vest in the trustee or the controllingViharadhipathy for the time being of such temple. In OkandeyayeWangeesa Thero v. Mulkirigalla Sunanda There?* it was held thatin view of the lapse of time and the absence of record of the termsby which the succession to the incumbency was regulated by theoriginal dedication, the traditional and customary mode of appointmentwas for the Maha Sangha Sabha to make the appointment fromamong the Mulkirigala Paramparawa, a suitable monk being electedirrespective of whether he was a pupil of the last incumbent.
Applying the above principles of law to the facts of this case onecan only come to the conclusion, without any shadow of doubt, thatthe temple which is the subject-matter of this action belongs to theMalwatta Chapter of the Siyam Nikaya and that the plaintiff and hispredecessors were entitled and were in control of this temple andits property as controlling Viharadhipathies.
CA Kevitiyagala Ananda Them v. Puliyankaduwala Wimalasara Them
(Jayawickrema, J.)49
When one takes into consideration the above facts and law it isclear that the learned District Judge had considered all aspects andhad come to a correct determination.
We have examined the evidence led in this case, the documents,the written and oral submissions of the counsel and the evaluationof the evidence and the judgment entered by the learned DistrictJudge carefully. We are in agreement with the view taken by thelearned District Judge. The learned District Judge had preferred toaccept the evidence of the original plaintiff-respondent in preferenceto the evidence of the defendant-appellant.
We are satisfied that the learned District Judge had consideredand evaluated the totality of the evidence in this case and we arein agreement of the conclusion arrived at by the learned District Judge.
Hence, we affirm the findings of the learned District Judge anddismiss the appeal with taxed costs payable by the defendant-appellantto the substituted plaintiff-respondent.
WIGNESWARAN, J. – I agree.
Appeal dismissed.