LUWIS SINGHO AND OTHERSV.
COURT OF APPEAL.
A. 710/83 (F).
C. BALAPITIYA 1942/L.
MARCH 15, 1996.
Rei Vindicatio Action-Property belongs to a third party-Jus tertii-RomanDutch Law-Difference between Vindicatory Actions and Actions for Decla-ration of TitIB and Ejectment-De facto Possession – Prescription Ordinance,section 3
Actions for Declaration of Title and ejectment (as in this case) andVindicatory actions are brought for the same purpose of recovery of prop-erty. In a Rei Vindicatio action the cause of action is based on the soleground of violation of the Right of Ownership, in such an action proof isrequired that;
the Plaintiff is the owner of the land in question i.e. he has thedominium and,
that the land is in the possession of the Defendant*
Evcn if ar; owner never had possession it would not be a bar to a vindicatory
In an Action for declaration of Title and ejectment the proof that a Plaintiffhad enjoyed an earlier peaceful possession and that subsequently he wasousted by the Defendant would give rise to a rebuttable presumption of Titlein favour of the Plaintiff and thus could be classified as an action wheredominium need not be proved strictly.
'In an action for Declaration of Title and ejectment the Plaintiff need not sueby right of Ownership but could do so by right of Possession and ouster. Infact in such a case the Plaintiff is claiming a possessory remedy rather thanthe relief of vindication of Ownership*.
'While refusing to accept the submission that jus tertii as a defence invindicatory actions is not available under our law, it must be admitted thatjus tertii as a defence in cases filed for Declaration of Title and ejectmentbased on the provisions of section 3 of the Prescription Ordinance wouldnot be available if the third party is not a predecessor in Title or has not beenjoined in the action*.
Even if the principle of Jus tertii be part of the law of this country inappropriate Rei vindicatio actions it is not relevant in respect of cases filedin terms of latter part of section 3 of the Prescription Ordinance in the formof declaration of Title and ejectment.
It would appear that law permits a person who has possessed peacefullybut cannot establish clear title or ownership to be restored to possessionand be quieted in possession. This development of the law appears to havearisen due to the need to protect de-facto possession, it is different from theRight of an Owner recovering his possession through a Vindicatory Action.
APPEAL from the Judgment of the District Court of Balapitiya.
Cases referred to :
Allis Appu v. Endiris Hamy (1894) 3 SC 87.
Dhammalankara v. Marikar 54 NLR 181.
Unnanse y. de Hoedt 22 NLR 406.
Dharmasena v. Alles 1985 2 SLR pages 35 – 40.
Le Mesurierv. Attorney General 5 NLR 65.
Punchihamy v. Arnolis 1883, 5 SCC 160.
Wanigaratne v. Juwanis Appuhamy 65 NLR 167.
R.K. W. Gunasekera for 1 B-4th Defendant-Appellants.
K.S. Tillakeratne for Plaintiff-Respondent.
June 07, 1996.
The argument adduced by the learned Counsel for 1B to 4th De-fendant-Appellants in this case is that, where it is proved that a prop-erty belongs to a third party who is not a party to the case while theaction itself is between a Plaintiff on one side and a Defendant who isoccupying the premises in suit on the other, the Court must dismissthe Plaintiff's action for the following reasons
Plaintiff in an action for declaration of title and ejectment must provehis title and his right to possess.
Defendant need not do so and if Plaintiff fails on a balance of prob-abilities the defendant would succeed.
Under the Roman Dutch principle of Jus tertiithe Plaintiff must notonly prove a better title but also a title better than any known to theDefendant. In Sri Lanka too by raising jus tertii the Defendant couldrebut the title set up by the Plaintiff and assert that title is neither withthe Plaintiff nor the Defendant but with a third party.
It was submitted that in the present case the land in questionundoubtedly belonged to the State and therefore the Plaintiff could nothave had and maintained this action.
It was argued that jus tertii was recognized in Allis Appu v. EndirisHam/" and Dhammalankara v. Marikar™ though rejected in Unnansev. de Hoedt(3).
The learned counsel for the Plaintiff-Respondent argued that the prin-ciple of jus tertii was not part of our law. He cited the decision inDharmasena v. AHesi".
The issues raised in this case and the answers given by the learnedDistrict Judge of Balapitiya are very relevant when dealing with the
submissions of the learned Counsel for 1B – 4th Defendant-Appellants.When translated they read as follows :-
Does the land called Ambreliyagaha Hena belong to the Plaintiff &the 5th to 8th Defendants as set out in the plaint?
Is the said land depicted as lots 1 and 2 in plan No. 883 filed ofrecord?
Are the Plaintiff and 5th to 8th Defendants entitled to possess thesaid land?
Are the 1 st to 4th Defendants disputing the title of the Plaintiff andthe 5th to 8th Defendants as from 16.12.69?
If so what damages are payable to the Plaintiff?
Answer:- Rs. 500/- until the date of the plaint and thereafter Rs. 30/-per mensem until possession is restored.
Is the Plaintiff entitled to the reliefs claimed for in the plaint?Answer:-Yes.
Is this land depicted on plan No. 833 made by A.G.F. Perera! Li-censed Surveyor, a crown land?
Answer:- No. Not proved.
Is the said land depicted as No. 1 and 2 in preliminary Plan No.11939 of the Southern Province?
in Dharmasena v. Alias (supra) that judgment in such cases must bedeclaratory of the right pf a party to the suit and not of a stranger.
Therefore this court finds that:
Jus tertii as a defence was not available to 1B to 4th Defendant-Appellants in view of the answers given by Court to issues (vii)and (viii) and;
even if the principle of jus tertii be part of the law of this country inappropriate rei vindicatio actions it is not relevant in respect ofcases filed in terms of the latter part of section 3 of the Prescrip-tion Ordinance in the form of declaration of title and ejectment.
The appeal is therefore dismissed with costs fixed at Rs. 325/-.
WEERASEKERA, J. -1 agree.Appeal dismissed.
LUWIS SINGHO AND OTHERS V. PONNAMPERUMA