011-NLR-NLR-V-79-2-REV.-OLUWAWATTE-DHARMAKEERTHI-THERO-Defendant-Appellant-and-REV.-KEVITIYA.pdf
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SAMAR AKOON, C.J.—Dharmakeerthi Thcro v. Jinasiri Thero
1978Present: Samarakoon, C. J., Ismail J., and
Sharvananda, J.
REV. OLUWAWATTE DHARMAKEERTHI THERO,Defendant-Appellant
* and
REV. KEVITIY AG ALA JINASIRI THEROPlaintiff-Respondent
S. C. 423/73 (F)—D.C. Kandy 8319/L
Buddhist Ecclesiastical Law—Action for declaration that plaintiffViharadhipathi of a temple—Whether Sangika or Pudgalikaproperty—Proof of dedication essential—Does declaration lie ifno such evidence.
The plaintiff instituted this action against the defendant prayingfor a declaration that he was the lawful Viharadhipathi of a templecalled Rama Vihara and for ejectment of the defendant therefrom.While the plaintiff claimed that the property was Sangika thedefendant claimed it as Pudgalika property belonging to him. It wassubmitted on behalf of the defendant, in appeal, that there was noproof in this case that the premises in question was Sangika property.
Held :
That the plaintiff could not succeed in this case unless he
proved that the premises in question was Sangika as hecould not claim to be Viharadhipathi of Gihi Santhakalands.
That dedication is a sine qua non for premises to become
Sangika and the mere fact that a temple has been givento the Sangha does not make it Sangika. It must bededicated in the manner prescribed by the Vinaya to.become Sangika.
That there was no proof of such dedication in this case and the
plaintiff’s action must therefore fail.
Cases referred to :
Scranankara Unnanse vs. Indajoti Unnanse, 20 N.L.R. 385. ■Wickramasinghe vs. Unnanse, 22 N.L.R. 236.
Wijewardena vs. Buddharakkita Thero. 59 N.L.R. 121.
SAMAHAJvOOX, C.J.—Dharmakeerthi Thero v. 3 inasiri Thero
87
APPEAL from a judgment of the District Court, Kandy.
H. W. Jayewardzne, Q.C., with T. B. Dissanayake and Miss
Welles, for the defendant-appellant.
C. R. Gunaratne, with Bim.a.1 Rajapakse, for the plaintiff-respondent.
Cur. adv. vuit.
May 25, 1978. Samarakoon, C.J.
The plaintiff-respondent instituted this action against thedefendant-appellant praying for a declaration that he is thelawful Viharadhipathi of a temple called Rama Vihare, situatedin Kandy and for ejectment of the defendant-appellant from thepremises. The plaintiff claimed that the property was Sangika.These premises were first acquired by Suriyagoda SonuththraThero on a Crown Grant No. 9503 of 30th March, 1883, for Rs. 75.By D1 the land is granted and assigned to Sonuththra Thero, hisheirs and assigns and the Crown inter alia reserved the power toresume possession of any pent of the said land if the necessityarose. Title plan 126169 dated 13th February, 1883, is annexed tothe deed. Sonuththra Thero died in 1396. The plaintiff alleged thatSonuththra Thero founded thereon a Buddhist temple, whichwas consecrated about 70 years prior to the date of action andthat this Rama Vihare has existed as Sangika premises for aperiod “beyond the memory of any living person”. He states thatSonuththra Thero thereby became the first Viharadhipathi. Hewas succeeded by his senior pupil Kalutara Sudhamma and onthe latter’s death in 1940 by his senior pupil BiyapaththugamaDharmakeerthi. The plaintiff claimed to have suceeded to theincumbency as senior pupil of Dharmakeerthi. He stated that thedefendant was disputing his rights and asked that he be declaredthe Viharadhipathi and that the defendant be ejected from thepremises.
The defendant denied that these premises were Sangika orthat there was any place of worship on the land called RamaVihare. He stated that it was the pudgaiika property ofSonuththra Thero and after his death his lay heirs transferredthis land to Kotigala Sumanatissa Thero and KalutaraSudhamma Thero upon Deed No. 657 dated 9th September, 1903(D6). Sumanatissa Thero by Deed No. 4280 dated 27.12.1956 gifteda half share of the premises to the defendant. The defendant alsoclaimed that after the death of Sudhamma Thero, SumanatissaThero became entitled to the entirety. He further stated that in1938 a private chapel was constructed on the land. The learnedJudge has held that these premises were Sangika and entered
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SAMAR AKO ON, C.J.—Dharmakeerlhi Thcro v. Jinamri Thero
judgment for the plaintiff. From this the defendant appeals andcounsel appearing for him confined his argument to this questiononly. He stated that there was no proof that the premises wereSangika and readily conceded that if there was sudh. proof the• plaintiff was entitled to judgment. The learned Judge hasreferred to certain documents wherein Sonuththra Thero,Sudharma Thero and Sumanatissa Thero are referred to asViharadhipathi of Rama Vihare. In some one or the other priestrefers to himself as Viharadhipathi. They could not in any waybe proof of dedication. The issues on this point are as follows : —
Did Suriyagoda Sonuththra Thero upon Crown Grant No.
W. 4472 dated 20.3.1883 become the owner of the land
and premises described in the schedule to the plant ?
Did the said Suriyagoda Sonuththra Thero—
Restore an ancient Vihare which stood on the said
land, and/or
Establish a place cf Buddhist worship thereon ?
If so, did the said Suriyagoda Sonuththra Thero run and/or
convert the said land into Sangika property ?
Issue 2 (a) refers to an ancient Vihara which stood on the landand the case of the plaintiff was that he ran the said Vihare asSangika property. Plaintiff’s witness Kevitayagala DhammasidiThero stated in cross-examination that he first went to the premi-ses in 1925 and at that time there was an old Vihare there and aBodhi. In cross-examination he admitted that he could not have •gone there before 1930 and what foe stated earlier was knowledgegathered from his tutor. His evidence cannot be accepted in proofof the existence of a Vihare in 1883 at the time of the Crowngrant or even later up to 1930. The plan P3 made in June 1917,only shows the. “ site of Rama Vihare ”, meaning thereby thatRama Vihara once stood there. Further the Crown grant conveys3 R. of Uduwatte Kelle, a well known forest within the limits ofMunicipal Council of Kandy. Issue 2(b) read with the secondpart of issue 3 means that Sonnuththra Thero established a placeof worship there and converted it into Sangika property. Thereis not an iota of evidence to support this. In fact in 1917 whenSudharma Thero and Sumanatissa Thero instituted action No.25444 of the District Court of Kandy (D9) to vindicate a right ofway to this land over the defendant’s neighbouring land theyclaimed as owners of Rama Vihara Watta. If the plaintiff is tosucceed in his case he must prove that the premises is Sangika.He cannot claim to be the Viharadhipathi of Gihi Santhaka lands.Dedication is a sine qua non for these premises to becomeSangika. “ This dedication may take the form of a writing or maybe verbal, but in either case it is a formal act, accompanffed by a
La‘-ff V. Fernando
89
solemn ceremony in the presence of four or more priests whoapparently represent the Sarva Sanga or entire priesthood.” perSampayc, J. in Wickremasinghe v. Unnanse, 22 N.L.R. 236 at242. It is “ dedicated to the whole order, the Sangha present andfuture throughout the world, in all directions North, South, East'and West” (per Bertram C. in Saranankara Unnanse v. Indra-joti Unnanse, 20 N.L.R. 385 at 394) Basnayake, C.J. described theceremony in more detail as fellows: —
■“ There must be an. assembly of four or more bhikkus. Theproperty must be shewn ; the donor and donee must appearbefore the assembly, and three times the formula generallyused in giving property to the Sangha with the necesssaryvariation according as it is a gift to one or more. Water mustbe poured into the hands of the donee or his representative.The Sangha is entitled to possess the property from that timeonwards. No property can become sangika without such aceremony. Sometimes there is a stone inscription recordingthe grant or a deed is given.” (Wijewardena v. Buddha-rakita Thera, 59 N.Lr.R. 121 at 124.)
The mere fact that a temple has been given to the Sangha doesnot make it Sangika. It must be dedicated in the manner pres-cribed by the Vinaya to become Sangika. There is no proof ofsuch a ceremony in respect of Rama 'Vihare Watta. The plaintifftherefore fails in his claim. There are other issues based onwhether it is pudgalika property. No claim in this respect wasmade in the plaint and I would therefore leave them open fordecision in a properly constituted case. Subject to this the appealis allowed and the plaintiff’s action is dismissed with costs inboth Courts.
Ismail, J.—I agree.
Skarvananda, J.—I agree.
Appeal allowed.