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Present: Garvin A.C.J. and Dalton J.
PIETERSZ et al. v. BASTIAN FERNANDO et al.
367—D. C. Negombo. 327.
Buddhist Temporalities Ordinance, No. 8 of 1905, ss. 27 and 42—Leaseby the incumbent—Ejectment by dayakayas—Damages.
Where lessees, in occupation of a temple land on7 a lease executedby the incumbent, were ejected by the dayakayas and claimeddamages from them,—
Held, that a lease granted by an incumbent, in the absence of aduly appointed trustee, was valid and the lessees were entitled todamages on eviction.
PPEAL from a judgment of the District Judge of Negombo.
The facts appear from the judgment of Dalton J.
Zoyaa, for 1st, 2nd and 3rd defendants, appellant.
D. B. Jayatilaka, for 4th defendant, respondent.
H. V. Perera, for plaintiffs, respondent.
July 9, 1926. Garvin A.C.J.—
I agree that this appeal must be dismissed. The plaintiffs basetheir right to maintain this action on a lease of the premises grantedto them by the incumbent of the temple to which the land is said tobelong. No trustee has been appointed to the temple. In such acase the incumbent may, with the consent of the District Committee,lease the property of the temple. The defendants are trespassers,and do hot pretend that they have any right of any kind to ejectthe plaintiff. They assert, however, that as members of the con-gregation they decided to take the law into their own hands as theydisapproved of this priest’s administration of the property of thetemple. Their intentions, however praiseworthy, afford no justifica-tion, especially when an effective legal remedy is available.
It is argued in appeal that there is no evidence that the lease wasapproved by the District Committee, not a question on the pointwas put in the Court below. An objection of this kind whichinvolves a question of fact should have been clearly formulated inthe Court below. Under all the circumstances I am not disposed,to entertain it in appeal, even to the extent of sending the case backfor further evidence.
This is an appeal by the 1st, 2nd and 3rd defendants in the action.The plaintiffs claimed that they were lessees of the 4th defendant ofsixteen acres of land called Pansalwatta, under deed PI of June 9,1925, for a period of three years. After they had entered into
( » )possession of the land they say, they were forcibly ejected from theland by the first three defendants. They therefore claimed thatthese three defendants be ejected from the land and that they, theplaintiffs, be restored to possession; they further claimed damagesfrom the defendants jointly and severally until they are restored topossession. In the alternative they claimed that the lease be can-celled and that the 4th defendant be ordered to refund the sum paidon the signing of the lease and a further Es. 750 as damages. Intheir answer the 1st, 2nd and 3rd defendants pleaded that theywere dayakayas of the Chetiyarama temple, and that the landleased was the property of the temple, and that they take theincome of the land for the upkeep of the temple. The 4th defendantclaimed to be incumbent of the temple by right of pupilary succes-sion, and as such he had leased the land to the plaintiffs; that he wasnot responsible for any damages resulting from the acts of the JLst,2nd and 3rd defendants; and that the plaintiffs we^e not entitled toany cancellation of the lease. There is an admission by him thatthe land is temple property.
The answer of the first three defendants is silent as to the statusof the 4th defendant, but it is agreed that at the time of this actionthe question as to whether he was incumbent or not was the subjectof a separate action. That question has since been answered in favourof the 4th defendant.
A* question arose in the lower Court as to misjoinder ofparties and causes of action, but Mr. de Zoysa does not press thatquestion on appeal.
After hearing evidence the learned Judge found that the plain-tiffs were put in possession of the land leased by the 4th defendant(who was himself in possession of the land either as administratorof his tutor Wimalananda or as incumbent); that he was entitledto lease the property to the plaintiffs; that the first three defendantshad' no legal right to the land whatsoever; and that plaintiffs wereentitled to damages as against them from the date of ouster at therate of Rs. 36 a month until restored to possession. These threedefendants denied in their answer that they had ousted the plaintiffs,but there was no issue framed on that point. There is evidence,however, to support the plaintiffs' plea on this point, and in factit was not questioned that they or their watcher had been drivenaway by these defendants.
In appealing from this decision it was first of all urged that, itbeing admitted that the land is temple property, the lease by .the4th defendant was null and void, as being an alienation within themeaning of section 42 of the Buddhist Temporalities Ordinance.'.Phat section speaks of an alienation by " sale, mortgage, gift, orotherwise." Can it be said that a lease can come within the sectionas being an alienation " otherwise "? But for the word " mortgage,"and had the section stood alone, I should have been inclined to
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PieUraz, v. BaetianFernando
answer this question in the negative. But it is clear that, as thesection enacts that a mortgage is an alienation, a lease for a term ofyears, as here, may in fact be much more of an alienation thana mortgage. One may, however, obtain assistance on this questionfrom other sections of the Ordinance. Section 27 recognizes the rightof an incumbent to grant leases without the written consent of theDistrict Committee where there be no trustee. Apart from that,the incumbent, it is admitted, is prohibited from granting leases.Beading sections 27 and 42 together, I think it a reasonable inferencethat it was intended to include a lease within the term “ alienation "as used in that section. But it is urged that sections 87 and38 distinguish between property improperly alienated and leases. That*is true, but section 38 itself specially provides for a lease -being setaside if it be shown to be an “ improvident alienation/’
I have therefore come to the conclusion that a lease for a term ofyears does come within the term “ alienation ” as used in section 42of the Ordinance.
Is this lease PI then null and void? The incumbent has powerunder section 27 to grant leases, and it seems to me that where hedoes so, in the absence of any evidence to the contrary, one is quiteentitled to assume that he has done so under the powers given himto be exercised in the circumstances set out. The three defendantsin their answer deny all knowledge of the existence of the deed andmerely add that the 4th defendant was not incumbent. No questionwas raised otherwise as to the validity of the lease. The evidenceled for the defendants is silent as to the existence of a trustee, andone was not therefore surprised at the statement of Mr. Jayatilakn,in reply to a question by the Court, although of course that is notevidence, that there is in fact no trustee appointed. The incumbentclearly having the right to effect an alienation by way of lease underthe provisions of section 27, . having done so, in the absence of anyproof that he acted in contravention of that section, this Court mustpresume that he acted legally. If the defendants doubted this, theyhad full opportunity of questioning the 4th defendant on the pointwhen he was in the witness box. They did not do so. The factthat the lease does not actually state in express terms that he grantedthe lease as incumbent is immaterial here. That is admit-tedly the only capacity in which he could grant it. The leaseis therefore in my opinion a valid lease as the plaintiffs claim.
As pointed out by the trial Judge, the only justification for theiraction in forcibly ejecting the plaintiffs is the reason given by the1st defendant that the 4th defendant was squandering the incomeof the temple and so no longer fit to remain in possession. There iscertainly some support for this in the evidence, but these defendantshave their proper remedy against the 4th defendant. They arecertainly not entitled to take the law into their own hands, eject thelessees, and take possession of the temple property. As the action
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was constituted by the plaintiffs' on the evidence led, and on thefacts found thereon, which are fully supported by the evidence, 1 amof opinion that the learned Judge was right in entering judgmentagainst the first three defendants for damages as decreed andrestoration of possession.
A large part of Mr. Perera's argument was based upon theassumption that the action of the plaintiffs was a possessory actionand nothing else. It is true that the plaintiffs, incidentally, claimedto be restored to possession, but they went much further than that.They claim damages, and also, in the alternative, for cancellation ofthe lease. They based their claim upon the lease by the 4th defend-ant and upon the plea that he was lawfully entitled to grant thelease. That right was specifically denied by the first three defend-ants. If the action had been differently constituted, then 1 thinkthe argument might have been to the point. As constituted, how-ever, it seems to me that Mr. de Zoysa's answer to it was correct.It is true that so far as one can judge from the pleadings the positionis not without some doubt, as they are somewhat confused and havenot been very clearly drawn. But I think it was never intendedthat the action was to be regarded as a possessory action. This isclearly also the view taken by both sides in the Court below and bythe trial Judge. After some evidence had been led there on behalfof the plaintiffs, Counsel for the 1st, 2nd and 3rd defendants actuallyasked if the plaintiffs wished to convert the action into a possessoryaction. The answer given was that he could so move if he wished.Counsel neither moved nor gave expression to any view that in facthis action as constituted was a possessory action. No useful purposewould therefore be served by expressing one's views on the interest-ing argument addressed to the Court on the assumption 1 havementioned.
For the reasons 1 have given the decision of the learned Judge wascorrect, and this appeal should therefore be dismissed, with costs.
PIETERSZ et al. v. BASTIAN FERNANDO et al