KOCH J.—Piyamine Unanse v. Nandina.
1935Present: Koch J.
PIYARATNE UNANSE v. NANDINA.
116—C. R. Kandy, 15,023.
Evidence—Document not produced at trial—Existence unknown to party—admission in appeal—Buddhist Temporalities Ordinance, No. 19 of1931, ss. 26 and 27.
An official document the existence of which was not known to a partyduring the trial may be admitted in appeal.
Section 27 (1) of the Buddhist Temporalities Ordinance does not applyto the lease of a paraveni pangu tenant’s interest in temple land.
^^PPEAL from a judgment of the Commissioner of Requests, Kandy.
V. Ranawake (with him Mackenzie Perera), for plaintiff, appellant.
N. E. Weerasooria, for second defendant, respondent.
July 12, 1935. Koch J.—
The only question that arises in this appeal is whether the landPiliangewatte of about 2 pelas and 5 lahas is a maruwena or a paravenipangua belonging to the Uda Aludeniya Vihare.
If it is maruwena pangua, then the lease by the first defendant to thesecond defendant of this land will, under section 26 of Ordinance No. 19of 1931, be invalid and of no avail in law. If it is a paraveni pangua,then the lease would hold good.
It was argued in the lower Court that even if the land was a paravenipangua, under section 27 of this Ordinance there were certain obligationson the part of the obligee which, not having been fulfilled, rendered thelease void.
v The learned Commissioner is right in holding that this section onlyapplies to transfers and does not extend to leases, and second defendant’scounsel would also appear to be right when he argued that a breach ofthe obligations would only result in a prosecution and would notnecessarily affect the validity of the transaction.
No oral evidence for the defence has been called. The decision mustturn on the documents relied on by both parties, coupled with the evidenceof the plaintiff.
It is true that the plaintiff in his evidence .does say that the land ismaruwena, but if the documents prove that the land was not, the oral37/11
KOCK J.—Piyaratne Unanse v. Nandina.
evidence is valueless. If on the other hand the documents are notconclusive, weight may. rightly be given to his evidence. Section 10 ofOrdinance No. 4 of 1870 gives a final and conclusive effect to the findingsof the Commissioner appointed under that Ordinance to inquire. Therecord of these findings is to be found in the documents P 1 and D 1,which are really one.
The plaintiff depended on P 1 on the entry No. 4, which gives the nameof the pangua as hewisi and the description as maruwena. He alsostated that the first defendant was his tenant and performed servicesby playing the tom-tom which is hewisi. The evidence already recordedon his behalf is not sufficient to show that the Piliangewatte describedin his schedule comes within the hewisi. On the other hand, thePiliangewatte which is mentioned overleaf and described as paraveniis 2 pelas in extent, and not 2 pelas and 5 lahas. The latter entry is whatis depended on by the second defendant.
The burden was on the plaintiff, and on the evidence placed before thelearned Commissioner, the Commissioner perhaps could not come to anyother conclusion than he did.
The appellant, however, in appeal has filed an affidavit with a documentannexed and has moved that this document be taken into consideration.His counsel has argued that the effect of this document is to turn thescale completely in favour of the plaintiff, as this document has referenceto two Pilangewattes, one of which is described as paraveni being 2pelas in extent only, and the other which comes within the hewisi beingmaruwena and is 2 pelas and 5 lahas in extent, and it is the latter whichis athe land in dispute in this case. The plaintiff in this affidavit hasstated that he discovered this document after the trial but before thejudgment, and that he brought this fact to the notice of the learnedCommissioner just before judgment was delivered. There appears to betruth in this statement as there is a note by the learned Commissionerrelevant to this point immediately after the entry “ judgment read inopen Court ”.
I think the Commissioner was right in not interrupting the deliveryof his judgment that was already ready, merely because this fact wasimmediately before brought to his notice, but it is a different matterwhen properly presented to this Court in appeal. There was objectionon the part of the second defendant’s counsel to this application beingentertained. He relied on the decision in 1 Balasingham’s Notes, p. 74(S. C. M. of May 8, 1913). Plaintiff’s counsel relied on the cases ofSenadarage Appu v. De Silva1 and Jandiris v. Deve Renta'.
In the latter case His Lordship Macdonell C.J. laid down that thepower of this Court to entertain such an application must be exercisedwith caution, but where the fresh evidence discovered was documentaryand not oral, and particularly where it came from a record of a Court,the danger of accepting such a document at a late stage was reduced to a
J 1 Times Law Report 139.
2 33 N. L. R. 200.
MAARTENSZ J.—Marriot v Ratnapala.
The document now relied on is a Government document, and I amsatisfied that its existence was not known to the plaintiff during thetrial. In these circumstances I think his application should be allowedon terms.
The judgment of the learned Commissioner is pro jorma set aside andthe case sent back for further consideration of the identity of the landdescribed in the plaintiff’s schedule in reference to the new document.The Commissioner will give this document its appropriate weight andconsider its effect with reference to P 1 or D 1 and other documentsproduced. Both parties will be entitled to call further evidence to explainthis new document. If the second defendant has also discovered freshdocumentary evidence since the trial, he will be entitled to lead suchevidence. The Commissioner after this will deliver bis judgment. Thesecond defendant will be entitled to all costs incurred in the lower Courtup to date. Costs of appeal and further trial will abide the final event.
PIYARATNE UNANSE v. NANDINA