Mudiyanse and Others v. Bandulahamy.
MUDIYANSE AND OTHERS
H. A. G. DE SILVA, J., G.P.S. DE SILVA, J. ANDFERNANDO. J.
S.C. APPEAL No. 5/87
A. APPLICATION No. 251/86
C. EMBILIPITIYA No. 1011JANUARY 31. 1989
Vindicatory action – Settlement order under Land Settlement Ordinance – Settlementto abide by survey – Mistake – Amendment of consent decree – Civil Procedure Co-de. Section 189 – Revision – Restitutio-in-ihtegrum
' In this vindicatory suit the parties arrived at a settlement • that when Plan 1410(prepared lor the case) was superimposed on FVP 600 jf Lot No. 331 was within thecorpus claimed by the plaintiff (tracing his title to Settlement Order No. 402 under theLand Settlement Ordinance) he would give up such portion of it as fell within thecorpus shown in Plan 1410 to the defendant. Upon the survey the Commissionerreported that Lot No. 331 was not within the Corpus depicted in Plan 14.10: Afterconsideration of the Commissioner's survey report, decree was entered in terms of thesettlement and report. Three months later the defendants-appellants' applied to havethe decree set aside on the ground that they had mentioned Lot 331 by mistakewhereas their claim was to Lot 335. The District Judge refused to amend the decreein terms of section 189 of the Civil Procedure Code: The defendants applied to theCourt of Appeal for revision of that order and/or for restitutio-in-integrurn. The Court ofAppeal dismissed the application and an appeal was preferred to the Supreme Court.
Revision does not lie as the defendants-appellants do not base their applicationon any alleged illegality of that order. What they allege is that the settlement isvitiated by mistake. Revision does not lie where there is no question regarding-thelegality or propriety of the decree or the regularity of the proceedings.
To avoid an agreement for mistake the mistake must be an essential andreasonable one. The test of reasonableness is satisfied if the person shows either(1) that the error was induced by the fradulent or innocent misrepresentation ofthe other party or (2) that the other party knew or a reasonable person shouldhave known, that a mistake was being made, or (3) that the mistake was, in allthe circumstances excusable even where there was absence of misrepresentationor knowledge on the part of the other'party.
Restitutio-in-integrum can be claimed on the ground of justus error which connotesreasonable or excusable error.
The mistake of the defendants does not pass the test of reasonableness nor can it besaid that there was justus error. The mistake here could be deliberate and no damageappears to have been caused to the defendants.
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Cases referred to:-
Perera v. Don. Simon 62 NLR 118. 120
Cornelius Perera v. Oep Perera 62 NLR 413. 420
Mapalathan v. Elaywan 41 NLR 115
Phipps v. Bracegirdle 35 NLR 302
Luckow v. De Silva 70 CLW 65APPEAL from judgment of the Court of Appeal
W. Dayaratne with A. Panditharatne for defendants-appellants.
B.D.G. Bakmiwewa for the plaintiff-respondent.
Cur. adv. vult.
March 30, 1989.
H.A.G. DE SILVA, J.
The Plaintiff-Respondent instituted this action for a declaration oftitle to an undivided 3/4 share of a land called AmbagahadeniyaGodawatta 3 seers kurakkan sowing extent, for ejectment of theDefendants-Appellants and for the recovery of damages and costs.He claimed title to the said land by virtue of the interest he hadpurchased on Deed 6194 of 8.1.1969 from H.A.M.Punchimahatmaya; the source of title referred to in that deed wereDeeds Nos 8266 of 10.1.1945 and 22193 of 23.9.1935. According toa Settlement Order No 402 (Ratnapura) dated 12.8.1948 (P4) underthe Land Settlement Ordinance, sob-divisional Lot No 331, 2 roodsand 3 perches in extent, was settled on Punchimahatmaya, but thisLot number is not referred to in Deed 6194, or in the plaint. ThePlaintiff-Respondent further averred that he and his predecessors intitle had acquired prescriptive title to the said land and alleged thatthe Defendants-Appellants had unlawfully entered the land andcaused damage to his plantation. The Defendants-Appellants filedanswer averring that the land described in its schedule was a part of
V.P. 600 and claimed the entirety by paternal inheritance; no Lotnumber was mentioned in the answer, although F.V.P. 600 was listedin the answer as a document relied on.
At the trial, on the motion of the Plaintiff-Respondent’s counsel, acommission was issued for the survey of the land in dispute, andPlan No 1410 was prepared showing the corpus as Lot 1. Inconsequence of this plan an amended plaint was filed withoutobjection, and finally on 24.2.1982 the parties entered into asettlement. The terms of settlement were to the effect that Plan No
Mudiyanse and Others v. Bandulahamy (H.A.G.De SSilva, J.)
1410 should be superimposed on F.V.P. 600, and if Lot No 331(which particular Lot the Defendants-Appellants expressly andspecifically claimed was within the corpus claimed by thePlaintiff-Respondent, the latter undertook to give up that portion tothe Defendants-Appellants. Accordingly, another commission wasissued for that purpose, and the report of the Commissioner is to theeffect that Lot No 331 is not within the corpus in Plan No 1410. Afterthe Commissioner’s report and the superimposition were filed,consideration thereof was fixed for 24.10.1t984; and on that date,consideration was postponed for 23.1.1985. On that day, in thepresence of the Plaintiff-Respondent ' and the – 2ndDefendant-Appellant, the report was accepted by both sides, anddecree was entered in terms of the settlement and report.
On 24.4.1985, an application was made by- theDefendants-Appellants to have the decree set aside on the groundthat the Defendants-Appellants had mentioned Lot No 331 bymistake, and that in truth and in fact the portion that they hadpossessed and enjoyed, and had title to by paternal inheritance, wasLot No 335 of the aforesaid Settlement Order. In effect, it was theirposition that by Settlement Order No 402, the sub-divisional Lot No335, in extent 3 roods and 22 perches, had been settled in 1948 on
K.G. Appuhamy, and therefore the terms of settlement arrived at inCourt should have been that when F.V.P. 600 was superimposed onPlan No 1410, if Lot No 335 fell within the corpus, then that portionof the corpus should go to the Defendants-Appellants. On28.11.1985, after consideration, the learned District Judge-refusedthe application to amend the decree in terms of section 189 of theCivil Procedure Code. The Defendants-Appellants then applied to theCourt of Appeal for the revision of . that order of the District Courtand/or for restitutio in integrum. That application was dismissed bythe Court of Appeal, and hence this appeal.
It is quite clear that an application to revise the learned DistrictJudge’s order does not lie as the Defendants-Appellants do not basetheir application on the alleged illegality of that order. What they doallege is that the settlement is vitiated by mistake. In Perera v DonSimon(l), it was held inter alia that no application for revision laysince no question afose regarding the legality or propriety of thedecree or the regularity of the proceedings.
The main contention of the Defendants-Appellants in this appealwas that the remedy of restitutio in integrum was available by reason
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of the fact that the settlement was consented to by theDefendants-Appellants by their mistake in mentioning Lot No 331,when in truth and in fact their inheritance was from K.G. Appuhamywho had been settled Lot No 335 in the 1948 Settlement Order.
To substantiate this contention that there was a mistake on theirpart, they averred that they were well aware that the land which wasthe subject matter of this case was allotted to their father in thatSettlement Order, and they were quite certain that Lot Nos 1 and 2in Plan No 1410 would fall within the lot in the F.V.P. which had beenallotted to their father. Unfortunately, by accidental error or by anoversight, instead of mentioning Lot No 335 of the F.V.P., they hadconsented to the inclusion of Lot No 331 as the lot claimed by theDefendants-Appellants in the terms of settlement entered into in theproceedings in this case. Further, the 2nd Defendant-Appellant is theonly resident of the land in suit, and if the order of the learned DistrictJudge is given effect to, grave and irreparable loss would be causedto the 2nd Defendant-Appellant.
The Surveyor’s report of 24.4.1981 shows that Lot No 1 in Plan No1410, in extent one acre and 20 perches, is a garden claimed andpossessed by the 2nd Defendant-Appellant though disputed by thePlaintiff-Respondent, and the two houses standing thereon have bothbeen claimed and possessed by the 2nd Defendant-Appellant. Thecultivation on it too was claimed by the 2nd Defendant-Appellant. LotNo 2, in extent 13 perches, and. its cultivation has been claimed bythe 2nd Defendant-Appellant.
It is clear that the Defendants-Appellants were well aware that theland they claimed by paternal inheritance was Lot No 335, and sincethe terms of settlement were in the hands of theDefendants-Appellants’s Counsel, an error, if any creeping into theterms of settlement could have been avoided by due diligence; haddue diligence been exercised, both in the preparation of the case andin the consideration of the Commissioner’s report and Plan, and sucherror would not have remained undiscovered for over three years,until April 1985. Further, the material before us does not indicatewhether the error was that of the Defendants-Appellants or of theirCounsel, nor how exactly such error occurred. There is no suggestionthat the Plaintiff-Respondent induced, or had knowledge of, theDefendants-Appellants's alleged, mistake.
In Cornelius Perera v Leo Perera(2) Sansoni, J, summarised theprinciples governing the grant of restitutio in integrum:
Mudiyanse and Others v. Bandulahamy (H.A.G.De Silva, J.)
“…the Roman-Dutch Law enables a person to. avoid anagreement for mistake on his part when the mistake is anessential and reasonable one. It must be essential in the sensethat there was a mistake as to the person with whom he wasdealing (error in persona) or as to the nature or subject matterof the transaction (error in negotio, error in corpore). A mistakein regard to incidental matters is not enough. The test ofreasonableness is satisfied if the person shows either' (ij thatthe error was induced by the fraudulent Or' innocentmisrepresentation of .the other party, or (2) that the other partyknew, or a' reasonable person should have known,1 that amistake was being made, or (3) that the mistake was, in all thecircumstances, excusable (justus et probabilis error) even wherethere was absence of misrepresentation or knowledge on thepart of the other party. An agreement entered into in the courseof an action, like any other agreement, may be set aside onthese grounds.”
Although Counsel for the Appellant relied heavily on that decision,Sansoni, J., held that restitutio was available because he found thatthe test of reasonableness had been satisfied: the other party knewthat a mistake was being made. In the instant case, that test has notbeen satisfied.
In Mapalathan v Elayavan(3), it was held that relief by way ofrestitutio on the ground of justus errpr will not be granted to a partywfjo has failed, to place before the Court matter, which was at hiscommand, if reasonable diligence had been exercised.
In Perera v Don Simon( 1), Sansoni, J., observed:
“Restitutio in integrum can be claimed on the ground of justuserror, which I understand to connote reasonable or excusableerror. I am unable to see that such a ground exists in this case.It is, on the contrary, an example of damage arising fromcarelessness or negligence…..The case is all the worse if theerror is due to the, act of the [applicant] himself….’’.
In Phipps v Bracegyrdle(4), it was pointed out that restitutio can begranted –
“….on the ground that both parties have agreed to a settlementunder a mistake of fact, for as in the case of contract, theelement of consensus would be absent. It would be a dangerousextension of the law to hold that a party to an action can obtain
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relief from any and every mistake which he may make throughlack of knowledge of facts available to him, and that he isentitled to have all steps taken under the mistaken belief setaside and begin again from the point where he erred.
The mistake here was not induced by misrepresentation of thedefendant nor is it a question of mutual error
One cannot say in this case that there has been justus error asenunciated by Sansoni, J. The Defendants-Appellants knew that theland they possessed and claimed was that which was theirs bypaternal inheritance, and that too it was Lot No 335 settled on theirfather; why did they then advert to Lot No 331 to which they had nomanner of right, title or interest? As the learned Judges of the Courtof Appeal have queried, was it deliberately done or was it by reasonof an excusable error or mistake ? It appears to me that, as has beenstated in the'Court of Appeal judgment, the inclusion of Lot No 331has been deliberate in order to show that the Plaintiff-Respondentwas disentitled to the land he claimed, viz. Lot No 1 in Plan No 1410.
It is an accepted principle that restitutio in integrum would not begranted unless the person seeking it could show that damage hasbeen caused to him as a result of the error or mistake: vide Luckowv de Silva(5) and Phipps v Bracegyrdle(4). It is the contention of thePlaintiff-Respondent that the 2nd Defendant-Appellant has sold herrights to a third party. On 19.3.1986, as evidenced by R1 produced atthe argument in the Court of Appeal.
Further the Plaintiff-Respondent claims his rights from H.A?M.Punchimahatmaya, while Lot No 335 has been given to theDefendants-Appellants’s father K.G. Appuharfiy. The settlement inCourt does not in any way affect Lot No 335 as that was not the lotallotted to Punchimahatmaya, the Plaintiff-Respondent’s predecessorin title. Therefore there does not appear to be any damage caused tothe Defendants-Appellants.
For these reasons, both remedies sought by theDefendants-Appellants fail. I dismiss the appeal with costs.
P.S. de SILVA, J. – I agree.
FERNANDO, J. – I agree.