028-SLLR-SLLR-1997-2-LOKU-MENIKA-AND-OTHERS-v.-GUNASEKARE.pdf
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LokuMenika and Others v. Gunasekare
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LOKU MENIKA AND OTHERSv.
GUNASEKARE
COURT OF APPEALDR. RANARAJA. J.
A. 379y89(F).
C. BANDARAWELA 8269/L.
DECEMBER 3,1996.
Rei-Vindicatio – Burden of Proof – Jus Vmdicandi – Proof of Dominium – Ouster -Adverse possession.
The plaintiff-respondent instituted action seeking a declaration of title to thecorpus. The defendant-appellant himself claimed title on a chain of title set out inhis answer. The District Court held in favour of the plaintiff. At the appeal, it wasurged that the learned District Judge had failed to appreciate that in a declaratoryaction the plaintiff must strictly prove his title.
Held:
The plaintiff must set out his title on the basis on which he claims a declarationof title to the land and must prove that title against the defendant.
A Court cannot grant any relief to a plaintiff except on what he has pleadedand proved to the satisfaction of Court.
A defendant should not be called upon to meet a new case or a new positiontaken by the plaintiff after he has already closed his case.
APPEAL from the District Court of Bandarawela.
Cases referred to:
Thievendran v. Ramanathan Chettiar, [1986] 2 Sri L.R. 219 at 222.
Hameed v. Weerasinghe – [1989] – 1 Sri L.R. 217.
Senanayake v. Silva – [1986] – 2 Sri L.R. 405.
Pathirana v. Jayasundera 56 NLR 166 at 172.
Haminey v. Appuhamy 52 NLR 49.
Peiris v. Savunhamy 54 NLR 207.
Kathiramathamby v. Arumugam 38 CLW 27.
Wanigaratne v. Juwanis Appuhamy 65 NLR 168.
Githohamy v. Karanagoda 56 NLR 250.
Diasv. Dias 61 NLR 116.
Simpson v. Omera Lebbe 48 NLR 112.
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N. Mahendra with Noel Fernando and Janaka Rodrigo for substituted-defendants-appellants.
Counsel appears for respondent.
Cur. adv. vult.
December 10.1996.
DR. RANARAJA, J.
This action was filed on 19.11.1971, by the plaintiff against thedefendant, for a declaration of title to the land called Gurukandura,described in the schedule to the plaint, ejectment of the defendanttherefrom and damages. By the amended answer dated 5.9.84, thedefendant disputed the correctness of the pedigree set out in theplaint. The defendant himself claimed title to the land on the chain oftitle set out in his amended answer and sought the dismissal of theplaintiff's action. On a date prior to the amended answer being filed,the trial which had commenced on 17 issues, continued on a furtherissue 18, with the evidence of 14 witnesses being led. Judgment wasdelivered on 14.8.89, in favour of the plaintiff as prayed for. Thisappeal is from that judgment.
The main ground of appeal is that, the learned District Judge hadfailed to appreciate that in a declaratory action the plaintiff muststrictly prove his/her title. In other words, the plaintiff came to Courton the basis that she was the sole owner of the land in dispute. Theevidence led on her behalf clearly established that, if at all, she was aco-owner of undivided interests. As such, the plaintiff’s action wasbased on a false premise.
An owner of a land has the right of possession of it and hence isentitled to sue for ejectment of a trespasser. Basing his claim on hisownership, which entitles him to possession, he may sue for theejectment of any person in possession of it without his consent. SeeThievendran v. Ramanathan Chettiar{' Hameed v. Weerasinghe(2>.The jus vindicandi or the right to recover possession is thusconsidered an important attribute of ownership in the Roman Dutch
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Loku Menika and Others v. Gunasekare (Dr. Ranaraja, J.)
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Law (Voet. 6.1.2) – Senanayake v. Silva®. The owner of immovableproperty is entitled, on proof of his title to a decree in his favour forthe recovery of property and for the ejectment of the person inwrongful occupation, Pathirana v. Jayasunderam. Where, in an actionfor declaration of title to land, the defendant is in possession of theland in dispute, the burden is on the plaintiff to prove that he hasdominium. Abeykoon Haminey v. Appuhamy<S), Peiris v. Savunhamy(6).In an action for a declaration of title and for restoration to possessionof land from which a plaintiff alleges he has been forcibly ousted, theburden of proving ouster is on the plaintiff. Kathiramathamby v.Arumugam<7). The plaintiff must set out his title on the basis on whichhe claims a declaration of title to the land and must, in Court, provethat title against the defendant in the action. The defendant need notprove anything, still less, his own title. Wanigaratne v. JuwanisAppuhamy®.
The logic of the decisions cited is very simple. A Court cannotgrant any relief to a plaintiff except on what he has pleaded andproved to the satisfaction of Court. The plaintiff in the instant case,has pleaded that the original owner of the land called "Gurukandura”died intestate leaving his sons Badderala and Kalu Banda, whoamicably partitioned the same, with Badderala getting 2 pelas whileKalu Banda became the owner of the 3 pelas which is the subjectmatter of the action. However, the plaintiff failed to produce anypartition plan or a deed in support of such amicable partition. When aland is allegedly amicably partitioned among co-owners, it is usual toexecute cross deeds among themselves or at least all the co-ownersshould sign a plan of partition. – See Githohamy v. Karanagoda®.Dias v. Dias®. Separate possession alone does not constituteadverse possession for the purpose of establishing prescriptive title.See: Simpson v. Omera Lebbe(,1). The basis on which the plaintiff hasbuilt her case is faulty.
The plaintiff laid claim to sole ownership of the land, described inthe schedule to the plaint on inheritance from her deceased parents,Kalu Banda and Punchi Menika and prescriptive possession.However, on the plaintiff’s own evidence she had four other siblings.
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She in fact had married out in deega. If so, being a Kandyan shewould not be entitled to inherit her paternal paraveni property. Shehad called the children of her sisters, who testified that they, theirgrandmother or parents possessed the said land at different times.This evidence cuts completely across the plaintiff’s pleadings.Midway through the trial on 4.11.88, after the plaintiff’s case wasclosed and a defence witness was giving evidence, a feeble attempthas been made to salvage the plaintiff’s case on the basis that theplaintiff was entitled to 1/3 share. In the first place, this issue shouldnot have been allowed to go in, even though the defendant’s counseldid not object. The basic principle being that a defendant should notbe called upon to meet a new case or a new position taken by theplaintiff after he has already closed his case. Having permitted thatissue, the learned District Judge was clearly in error in answering thatissue in favour of the plaintiff, in view of the decisions cited above.The defendant has set up title to the land on certificate of sale 523dated 8.5.1891, upon which Badderala obtained title to the landreferred to in D3. The plaintiff has not pleaded a single deed in herplaint. During the course of the trial, an attempt was made by theplaintiff to prove that the defendant was the Ande cultivator of thesaid field. It is significant that no mention of the defendant’s status asande cultivator is made in the plaint. The reason is clear. Thedocuments P1, P3, P7 to P12 produced to prove that fact have beenissued after the action was filed. The learned District Judge was inerror in holding with the plaintiff on a misconception of the Lawrelating to the burden placed on the plaintiff, who was seeking adeclaration of title, to plead and strictly prove her title. The plaintiffhas failed to discharge that burden.
The Judgment of the District Judge is accordingly set aside. Theplaintiff’s action is dismissed with costs.
The appeal is allowed with costs fixed at Rs. 5000/-.