032-NLR-NLR-V-50-MENIKA-et-al.-Appellants-and-DHAMMANANDA-Respondent.pdf
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CANEKE.'RATNE J.—Menikav. Dhammananda
1948Present: Canekeratne and Dias JJ.
MENIK A el al., Appellants, and DHAMMANANDA, Respondent
S. C. 518—D. C. Kandy, 982
Possessory action—Field not belonging to temple—Possessed as part oftemporalities—Juristic possession—Right of Viharadhipathi to decree forejectment.
Where a field which did not form part of the property of a vihare waspossessed by the viharadhipathi as part of the temporalities—
Held, that his possession was juristic possession and he was entitled tomaintain a possessory action if ousted.
Terunnanse v. Don Aron(1932) 34, N. L. R. 348 and Dias v. RatnapalaTerunnanse (1938 ) 40 N. L. R. 41 distinguished.
A PPEAL from a judgment of the District Judge, Randy.
N.E. Weerasooria, K.C., with A. L. Jayasuriya and W. D.
■Gunasekera, for defendants, appellants.
B. Wikramanayake, K.C., with C. R. Gunaratne and M. P.Spencer, for plaintiff, respondent.
Cur. adv. vult.
September 24, 1948. Canekeratne J.—
This is an appeal by the defendants from a judgment declaring theplaintiff entitled to a field and consequential relief.
It appears that Nawinne Dharmadasi the Chief Priest of AsgiriyaVihare, preached bana at a dagoba and shrine in Rondadeniya and thattwo dayakayas present at the preaching gave this field to this Chief Priest■*' for his supasa ”. He by document P 1 (1729 Saka year) conveyed thisfield to his pupil Potuhera Thero, then officiating priest to the DaladaMandira. The plaintiff, the secretary of the Asgiriya Vihare, claimedthat the title to the field devolved on him and brought the action againstthe first defendant his “ andakaraya ” and the second defendant whowas assisting the first defendant. The defendants denied the title of theplaintiff and pleaded that one Hawadiya was the owner of the field andthat the title thereto devolved on them.
In March, 1937, the plaintiff gave the cultivation of the field to thefirst defendant at the request of one Naida, his father-in-law ; the seconddefendant is a brother of the first. The first defendant cultivated thefield as the plaintiff’s andakaraya till about March, 1943, when theplaintiff gave the cultivation to one Aruma. The defendants obstructedArum a and prevented him from continuing the cultivation. The learnedJudge came to the conclusion that the field in question was held byPotuhera Mahanayake Thero as pudgalika property and that it devolvedon the plaintiff. Mr. Wikramanayake did not take up this positionat the argument in appeal but supported the decree of the lower Courton the ground that the field was the Sanghika property of the doneeon the deed of 1729 and that it devolved on the plaintiff as Sanghikaproperty. Mr. Weerasooria contends that the action must fail,
CANEKERATNE J.—Afenika v. Dhammafumda
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inasmuch as the plaintiff has no title to the property, the title beingin the Viharadhipathi of Kondadeniya Vihare. The respondent requestedthe Court to treat the action as a possessory action and allow the plaintiffto keep that part of the decree that directs that he be put and quieted inpossession of the property, the defendants being ejected therefrom andbeing ordered to pay damages and costs. Mr. Weerasooria protestedagainst such an application being entertained at this stage, especiallyas the objection to the maintainability of the action was taken at theearliest opportunity but the plaintiff failed to remedy the defect. It wasfurther contended that the action cannot be maintained as a possessoryaction and he referred to the cases of Terunnanse v. Don Aron1 and Dias v.Ratnapala Terunnanse 2.
On the substantial question whether this field belongs to theplaintiff or to the defendants the learned Judge has given strong reasonsfor holding in favour of the plaintiff and it would be impossible for anAppellate Court to set aside the finding on the question of possession andno attempt was made to challenge this finding. If at the trial thelearned Judge who had full control of the record had amended theissue so as to suit the facts proved, he could have given a decree in favourof the plaintiff for possession unless the decisions quoted preventedhim, for the plaintiff would have established a good cause of actionfor the ejection of the defendants.
Potuhera Nayake Thero, who was later Potuhera Mahanayake Thero,was the Viharadhipathi of Asgiriya Vihare and also of KondadeniyaVihare which is said to be under the control of Asgiriya Vihare. He lefttwo pupils Ratnapala and Panawa Deepankara. It is alleged that thisfield came to Ratnapala on his tutor’s death. On September 5,1944, anapplication was made by the plaintiff to add “ as 3rd defendant the Viha-Tadhipathi of Kondadeniya Vihare in view of the fact that the field in dis-pute falls within the plan of that Vihare ”. He was present in Court andexpressed a willingness to be added. As defendants’ Counsel objected tothe addition of this party, the Judge appears to have questioned him andwhen he said he disclaims title to the field in dispute he (the Judge) madeorder in these terms “ I do not think he is a necessary party to this action.Plaintiff may call him as a witness ”.
Possessory remedies were granted to persons who had juristic possession.A person must have not merely the corpus, but also the animus of posses-sion : the will coinciding with the physical relationship. A person notonly holds the thing in his hands, but intends to hold it for himself alone :it is his intention to exclude every one else from the thing. So far as theexclusion of others is concerned, he holds the thing in just the same way asif he were the actual owner, i.e., as if he had legally sole control over it,whether he is really the owner or not, and whether again, in the latter case,he knows he is not the owner (as in the case of a pledgee or a lessee 3) orbelieves himself to be the owner (as in the case of a bona fide possessor).Any one who intends to exclude every body else has the animus domini,{the will of an owner), just as much as the owner himself. The possessionof the juristic possessor entitles him to a legal remedy quite irrespectivelyof his right4.
1 {1932) 34 N. L. R. 348.3 {1933) 35 N. L. R. 352; 1 Our. Law Rep. 275.
3 (1938) 40 N. L. R. 41.* (1911) 14 N. L. R. 317.
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George v. Richard
By P6, dated December 30, 1853, Panawa Deepankara and Ratnapala,the two pupils of the Mahanayake, settled their disputes; Ratnapala wasgiven the right to possess and enjoy the field in question. Ratnapalawould take the property not for himself but in trust for his foundation,i.e., his successors in the line of descent. There is evidence to show thatsince 1853, this field has been in the possession of Ratnapala and his succes-sors : Ratnapala by P 7 dated April 2, 1869, gave over the Vihare and thelands including this field to his two pupils Piyaratna and Saranankara. Inthose days it was not uncommon for an incumbent to give over by deedhis Vihare and the properties to the person whom he intended to be hissuccessor. Saranankara by P 9 dated April 17, 1918, transferred the fieldto Piyaratna. The plaintiff is the successor of Piyaratna. The evi-dence shows that the plaintiff was in possession of this field as part of thetemporalities that have come to him as a successor of Potuhera Maha-nayake Thero. It is clear that since 1853 the Viharadhipathi of Ron da-deni ya Vihare has not exercised any rights over this field andthatthe presentViharadhipathi does not claim any rights. The plaintiff has been holdingthe field in just the same way as if he were the owner. What the sectionsas interpreted by the two cases seem to show is this : if there is any prop-erty belonging to a Vihare, it is vested in the trustee—who a trustee is canbe ascertained from sections 4,7, 8,9,10,11 (1)—an action in respect there-of can be brought by the trustee only, a provisional trustee (section 11(2)) may in some cases but not one called a de facto trustee. It thuspresupposes that the property is one belonging to the Vihare, e.g., aproperty that admittedly belongs to it or one that may be claimed to belongto it may fall within it. There is not even a superficial resemblancebetween those cases and the present one: the proposition advancedby the appellants does not even follow logically from them.
The plaintiff is entitled to be restored to the possession of this field.The judgment of the District Court is varied by deleting the declarationof title in favour of the plaintiff; he is entitled to keep that part of thedecree ordering the ejection of the defendants, the placing and quietinghim in possession, damages and costs. The appellants will pay the costsof appeal to the respondent.
Dias J.—-I agree.
Decree varied.