011-SLLR-1988-V2-PODIHAMY-V.-ELARIS-AND-OTHERS.pdf
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PODIHAMYV.
ELARIS AND OTHERS*
COURT OF APPEAL
GOONEWARDENA J.. & VIKNARAJAH. J.
CANO. 365/79 (F)
OX. MT, LAVINIA NO! 10538/LFEBRUARY 17 and 18.1988..
Vindicatory suit — Judgment delivered after long delay (1V* years).Concession made by attorney-at-law — Can 'it'be resiled from in appeal?Prescription<
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Where the impression created by the conduct and evidenceof a witness does ‘not play a' significantly important role, a delay of t Vi years (some of it excusablebeing caused by the transfer of the Judge) in delivering the judgment is not fatalto the validity of the judgment-■ : '
yvhere on the invitation of Counsel the District Judge answered issues relatingto the identity of the disputed land thus eliminating the dispute regarding it. and. held in favour of plaintiffs title it is not possible to reagitate’ in appeal, the'questions involved in such issues.• *
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Counsel, attorney, pleaders and other such persons would doubtless beregarded by the Court as empowered to make admissions on behalf of their -clients in all matters relating to the progress and trial of the matter in issue. Inthe case before Court it was. not an admission but rather ^concession thatCounsel made that upoh. the evidence before it he could not properly invite theCourt to answer the issues any other way.-The substance of the concession is .^jso supported by the evidence.
. The evidence did not establish .-prescriptive possession especially in view oftle fact that the parties were close relations who had been living in amity earlierwhich suggests the need to look for .ouster as a starting point for prescriptivepossession. There is no evidence pointing in this direction. The accuracy of theplan relied on by the defendant was also open to question.
Cnee referred to s
Saravanamuttu vrSarayanamutty.6.tiJ{ 1..
Phillippu v. Ferdinands 1 Matara Cases, 207
Fernando v. GirigorisAppu 26 NLR 469
4.. Punchi Banda v. Pynchi'Banda 42 NLR 3825J DeMefv. QeAlwis 13 Ceylon Law Recorder 2Q7
' Payn v. Estate Rennie andanother SALR 1960 (4) p.261
Appeal from the Judgment of the District Court of Mount Lavinia.
N. R. M. Daluwatte P.C. with H. M. P. Herat for 1st respondent-appellantP. A D. Samarawickrama P.C. with M. 8. Peramuna for plaintiff-respondent.
Cur. adv vutt.
March 31. 1988QOONEWARDENE.J.
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In this action the plaintiff-respondent sought from the DistrictCourt a declaration of title to an allotment of land .calledDelgahawatte- situated at Pannipitiya and described upon his' original plaint of,2nd April 1964 as being the Southern portibnout of Lot C thereof as shown on plan dated -22nd April 1914made by D. J.’W. Edirisinghe Licensed Surveyor ,(P6). Upon acommission issued to S. Jegadeesan Licensed Surveyor at theinstance of the plaintiff, a survey was done and he thereafterdescribed the subject matter in his amended plaint of .14th July1976 by reference to a plan prepared after such survey bearingNo. 1516 A (P5A) as Lot Z1 on such plan.
The plaintiffs case was that the entire Lot C of Delgahawatteoriginally belonged to one Themis Appuhamy who. on P8 of1917 transferred it to P. Menchihamy who together "with herhusbabd William Appuhamy on P9 of 1931 transferred theproperty to their daughter Jane Nona the wife of the plaintiff whohaving gifted it on P 10 of 1952 to Sisilawathie and Sarnelis tH&sister and brother-in-law respectively of the plaintiff, got it backon P11 of 1952 and thereafter transferred it to him on PI 2 of. 1960. The plaintiffs position was that Lot C as it originally stoodin course of time got broken up into two portions by .reason ofthe High Level Road passing through the land, that Lot Z1 in planP5A was the portion that fell to the South of such High LevelRoad and'that the 1st defendant the widow of Arnolis Wijeratne(who was his wife Jane Nona's brother) was without title inunlawful possession of the same:-
The case of the 1st defendant was that her parents-in-lawMenchihamy and William Appuhamy I earlier'referred toupon TD2 of 1917 acquired certain undivided interests in
Delgahawatte which came to be possessed as a defined portionsituated both to the-North and to the South of High Level Road,that they upon deed No. 98 of J 945 (1D1) conveyed.a 2/3rdshare of the rights they so acquired to Amolis Wijerathe herhusband who in lieu of such undivided 2/3rd share entered intoexclusive possession of the land depicted on plan No. 182 of18th January 1965 <1D16) and that upohvhis death she as hiswidow together with her children1 the other defendants acquiredtitle to this land. The land depicted on 1D16 is shown to becomposed of lots X and Y indicated thereon. In essence the caseof the 1st defendant therefore was that after' the deed IDT infavour of her husband Amolis Wijerathe. he acquired title to LotY in plan 1D16 which is'the Lot material to this case as the sameit would appear is identical with the portion of Lot C in plan P6 tothe;South of High Level Road which the plaintiff claims is Lot Z1in plan P5A and to which he sought to' be declared entitled to inthis action. The 1st defendant also set up'a prescriptive title tosuch Lot-Y in plan 1D16 as against the plaintiff.
At the conclusion of the trial the District Judge held With theplaintiff and hence this appeal.
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It is convenient to refer at this point to the fact that there hadbeen a dispute to the plaintiff's ownership of the portion 6f Lot Cwhich lies to the North of High Level Road and described as LotX1 in plan P5A(and also in plan P5). That dispute was one raisedBy one Marihamy Wijeratne another daughter of Menchihamyand William Appuhamy, I earlier referred to, which resulted incase No. 10537/L being instituted against her by the plaintiff(vide plaint in that case P14). The defence taken up there (Videanswer P14A) was that Menghihamy and William Appuhamyupon deed Ng: 97 of 5th May 1945 (which was executed on theSame day as deed No'. 98 (1D1J l earlier, referred to.) conveyedan undivided 1/3rd share of what they acquired, ori 1D2. inter,alia to Ma'rihamy (the remaining 2/3rd share-being whafwasconveyed on 1D1 to Amolis Wijeratne as I earlier referred to)which'came to be represented by the land shown on plan 181 of1965 prepared1 by the same Surveyor Anil Peiris on the same dayas: plan No. 182 (1D16)..The plaintiff was successful in thataction both in the District Court and in the Supreme Court, and
what is of importance as far as the present case goes is thatthere was a concurrent finding by both Courts that the plan thereP5 prepared after a survey earned out by Surveyor Jegadeesanand the superimposition of plan P6 pn the property surveyed byhim namely the said Lot C in its entirety was accurate (a findingthat would extend to the land in dispute in this case as well,namely Lot Z1 in plan. P5A-or plan P5 both of-which ereidentical^•
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At the hearing, before us the first point taken for the appellant'was that contained in paragraph 5 of the position of appeal thatthe judgment of the District Judge vyas delivered after a lapse of-one year and three months after the conclusion of the evidencein the case. It would appear from the journal entries that after theevidence was over, time had been obtained by the parties totender written submissions and the District Judge had himselfbee retransferred to another station; This would have rendered itnecessary for the despatch of the case record from the DistrictCourt to the District Judge at his new station where undoubtedlyhe would^.have been engaged, in his new work. There would-alsohave been some element.of delay occasioned by the need to takesteps to have him gazetted to deliver judgment. Counsel referred•to the case of Saravanamuttu v. Sarayanamuttu (V assuppporting his argument based upon this delay but Iunderstand that judgment to emphasize the position that'tn thatcase, the, impression created by the witnesses whom the trialJudge , saw. and heard was of the utmost, importance. This «sbrought out from.the words of Sinnathamby.J in his judgmentwhere he says (at f- 5) "In a case which turns more on’theimpression created by the conduct and evidence of witnesses asin divorce proceedings than on the, construction of documentsas in commercial cases, the importance of making a. decisionwhere the facts and the impressions on the mind of the Judgeare fresh and clear cannot.be too strongly stressed',’. The presentcase as t see it is not such a one where the impression createdby the. conduct -and evidence of witnesses plays any suchsignificantly, important role. This . point j- think in thecircumstances of this particular case must be taken to fail. .
The first two Issues suggested for’the palintiff dt the trial of thecase and adopted by Court are important in view of the next
submission of Counsel .for the 1st defendant-appellant They aretherefore rendered into English and reproduced thus:—'
'([1) Is the Lot depicted as T ih plan No. 182 of 20th January1965 filed of record identical with Lot Z1 shown on plan'No. 1516A of 5th October. 1966 made by .surveyorJegadeesan also filed of record?
(2) Does the said Lot Z1 form part of Lot *C’ shown on plandated 22nd April 1914 made by D. J. W. EdirisingheLicensed Surveyor?
i – One can readily understand the importance of these issueswith respect to the identity of the. disputed portion andconsequently the anxiety of Counsel to press his submissions -with respect to them.
In his written submissions tendered to the District Court.Counsel appearing for the 1st defendant had with respect tothese two issues invited the District Judge to answer them in theaffirmative, thereby simplifying the case of the'plaintiff and thetask of the District Judge in1 no small measure. Accepting suchinvitation the District Judge did so. and in my view, correctly didso. The effect of this was that the District Judge, as he was askedto d6' by the 1 st defendant's own Counsel, concluded that Lot Z1in plan 1516A of Surveyor Jegadeesan (P5A) was identical with•Lot.Y in plan No. 182 (1D16) and that such Lot was part of Lot Cin plan P6, made by Surveyor Edirisinghe.. Upon that basis theDistrict Judge decided thatthe plaintiff has established Lot Z1 inplan P5A in respect of which be sought a declaration of title tobe a part of the land conveyed , on P9 by Menchihamy andWilliam Appuhamy to Jane Nona their daughter and the title towhich came to reside in the plaintiff. He concluded that title toLot Y in plan 1D6 shown to be identical with Lot Z1 in plan P5Atherefore could not have passed to Arnolis' Wijeratne thehusband of the 1 st defendant on 1D1 as was her case. '
{ The submission of 1 st defendant's Counsel at the hearingbefore us was that the invitations tb answer issues 1 and 2dn thismanner by her Counsel was not binding on the Ist-defendant
and that it was permissible at the appeal to reagitate thequestions involvedJn such issues. He contended that accordingly.he was able to demonstrate arithmetically that thesuperimposition .of plan. P6 u0bn his plan-P5A by SurveyorJegadeesan was inaccurate .and consequently that the plaintiffhad failed to establisftthat the title he claimed to have upon P12was with respect to Lot Z1 in plan P5A which was the title hesought to vindicate in this action. The point Counsel sought tomake was that Lot C upon plan P6 is shown to be 24.62 perchesin extent while the total of the extents of Lots X1 and Z1 allegedlyportions of Lot C was 24.20 perches and that clearly and visiblythat portion of. Lot C included into High Level Road had to bemore than the difference which was only 0,42 perches. Heargued that there was therefore clearly, an error, in – thesuperimposition and a consequent inaccuracy of plan P5A. -v
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Counsel relied on the. case of Phillippu v. Ferdinandis as .supporting his contention that the admission implicit in thewritten submissions of Counsel with respect to issue Nos 1 and2 are.nof binding on the 1st defendant. In that case (at page210) Burnside C. J. said thus: t—" The District Judge in settlingthe issues says, it is admitted.that the 1st defendant executed a ■deed of gift for the entirety of,the land, but I have failed to findanywhere in the record any conclusive entry of such admissionso as to conclude the defendants from disputing the effect of it.And I should hold that any admission which-might be made forthe defendants attempting to bind them_ to their manifest*p.rejudice in the veify essence of the*defence oh their <pleadingsand contrary to their contention on their evidence.would not bindthem without showing that they have expressly authorised theirCpunsel to. make it and with'a full knowledge of its effect". ^
In the case of Fernando v.Singoris Appu it was held thatwhen .a proctor under the^general. authority given to'him .by: aproxy enters into a compromise with regard to the .action such-acompromise is binding on the client.
The case of Punchi Banda v. Punchi Banda W was one .where -Soertsz J (with Howard C.J.) agreeing had occasion to considerthe case'of Philippu v. Ferdinandis (supra). While not expressing
disagreement with it Soertsz'J. yet said (at p.382) "It has been.held in several cases that a proctor has the right to settle orcompromise. a matter or case entrusted to him even withoutconsulting his Client in regard to.it {Fernando v. .SingorisAppuhamy.26 N. L. R. 469 V!) and I suppose Counsel may makean admission if he is instructed by his proctor to make it…
I think the^ffect of the authorities on this question is correctlystated? iirf -A Text Book of the Law of Evidence in Ceylon' 'byE. R. S. R. Coomaraswamy (1st Edition) at page 8.4 thus: "Asregards Counsel:'attorneys, pleaders and other such persons,they would doubtless be regarded by the Court as empowered to; make admissions on behalf of their clients:in all matters.relating'tothe brogressrand.trial of the matter in issue". '
., Upholding the contention of Counsel would imply that noCourt can act upon what is conceded by Counsel appearing-before it and this argument taken further would mean that ifCounsel concedes something or accepts the correctness of.something in this Court-it would be possible to resile therefronvshould tl)e matter later proceed to the Supreme Court. .
What I have said so far on this question is in regard to theposition relating'to admissions proper: What we are dealing with- here however is something different from what the cases refer to..
As I have already pointed' out at the conclusion of the trial. Counsel made their addresses to Court (in writing in this case).The invitation by Counsel for the defendant made to the CouFt toanswer fhe; first two .issues in this way has to be understoodtomean that upon -an examination of the material presented to theCourt (including documents connected with the other case No.10537/L I referred to that went up in appeaf to the SupremeCourt) it was not with any sense of responsibility possible to askthe Court to answer them in any other way; in my view a perfectlyproper course-for< Counsel to adopt and one well within hisauthority! One cannotstrictly say that there was an 'admission' in.the sense Counsel argued. Rather, it vyas an act of concession by. Counsel that upon the evidence before it he could not properlyinvite the Court to answer the issues any. other way. I cannotagree therefore that this point is well taken. •'
Having said that, it is yet meaningful to point out that in anyevent the challenge to. the accuracy of plan P5A is as I see itbased upon a fallacy, that being that the extent of Lot C shown inplan P6 to be 24.62 perches' ha! been computed correctly. Thatthere was a computation error, in the Stated extent of Lot C in-plan P6 seems reasonably clear/ Surveyor Sathiyapalan who haddone a survey in the case has in his report stated^that upon acorrect computation the extent of land shown as LotC in plan P6he found to be 29 perches while as the District Judge observesSurveyor AnH Peiris who gave evidence for the 1 st defendanthimself found such extent to be 26.07 perches. While notforgetting that the Supreme Court accepted the accuracy of theplan and superimposition as I have already pointed out, there ison the other hand sufficient material to come to the conclusionthat Surveyor Jegadeesan was able to obtain a sufficient numberof points of fixation in order to' correctly survey the land aridproperly superimpose On his plan P5A the earlier plan P6.
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The final point taken by Counsel for the 1 st defendant was thatthe District Judge had not properly addressed his-mind to theissue of prescription. His argument in this regard appears to bethat upon the application of the doctrine of absorption as' hetermed it. it is clear that the defendant had acquired ,aprescriptive title to the disputed lot. He reliedfor this submission.on two cases, namely De Mel v. De Atwisand Payn v. EstatePennie and another (8) as illustrating this doctrine. Upon areading of these cases I have not been able to find an express*reference in either, to any such doctrine. They both deal withsomewhat straight forward, questions arising out of claims basedupon prescriptive possession in- the context of the factsapplicable in each and are in-my view of no particular assistancehere.'
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The District Judgefound that in support of her claim based onprescriptive possession although receipts showing payment ofassessment rates were produced by the 1st defendant they hadreference to buildings on the adjoining portion to the West theproperty of the defendants and- their predecessor ArnolisWijeratne and that there was nothing to show that they hadreference to the disputed portion. I see no reason to believe
having regard to the evidence that the District Judge was wrongin such conclusion. In viewing the claim of the 1st defendantbased upon-prescriptive possession One must nqtJose'sight ofthe very important fact that the parties are close relatives whohad been jiving in amity during earlier times which thereforerendered it necessary for the 1st defendant to'show somepositive act suggesting ouster as a starting point for prescriptivepossession to commence.. Such.an,act J do .not think the 1stdefendant was successful in showing although in this connectionthe argument of'Counsel was that plan 1D14 was a .pointer inthat direction.,1Di4 purports to be a plan prepared by Surveyor
W.M. Perera after a survey made on-9th April 1957 (less than tenyears before the action was filed on 21st April 1964) and. theproperty shown on it is said to have incorporated within it boththe [disputed Lot .as well..the land to the West of if, being, theproperty of the defendants with no division visible between them.Apart from what I have already pointed>out that parties are closerelatives, to give this plan, the effect contended for. at the veryleast one must be^able to say that it contains an accuraterepresentation of the physical features found to be existing onthe ground. That it is deficient in that. regardCounsel for therespondent convincingly pointed out by drawing attention to thefact that buildings standing upon it at the time of the survey arenot shown. One must conclude .therefore that- its accuracy-isquestionable and thus cannot serve the purpose that Counsel for,tbe defendant claimed it does- i am of the view that the DistrictJudge adequately considered the question of prescriptivepossession and came to a correct conclusion thereupon;
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The District Judge I think properly addressed his mind to the .questions before him and arrived at a correct decision in thecase. His judgment is therefore affirmed and the. appeal is.►dismissed with costs
VIKNARAJAH, J.
-l apree . . .
Appeal dismissed.