Sri Lanka Law Reports
REV. POLHENE PANNALOKA
REV. PANDITA MIDIGAMA PEMANANDA
G. P. S. DE SILVA. C.J.,
KULATUNGA, J. ANDRAMANATHAN.J.
S.C. APPEAL NO. 76/94.
C.A. NO. 703/94 (F).
OCTOBER 31. NOVEMBER 7 AND 25. 1994.
Buddhist Ecclesiastical Law – Appurtenant temple – Dedication.
The Aswaththaramaya was on the basis of the documents, a temple appurtenantto Boderagane Maha Viharaya of which the plaintiff was admittedly theViharadhipathi. The claim that the Aswaththaramaya was a separate and distincttemple was not borne out by the dedication or the other documents as the priestfrom whom title by pupillary succession was claimed was by all proofs onlyplaced in charge of it and not described as Viharadhipathi.
APPEAL from judgment of the Court of Appeal.
A. C. Gooneratne Q.C. with R. Sureshchandra for 1st defendant-appellant.
P. A. D. Samarasekera P.C. with Keerthi Sri Gunawardena for plaintiff-respondent.
Cur. adv. vult.
G.P.S.DE SILVA, C.J.
The plaintiff instituted these proceedings against the 1st and 2nddefendants seeking a declaration that he is the lawful Viharadhipathiof the temple known as Aswaththaramaya at Hiyare in the Galledistrict and for the ejectment of the 1st defendant from the temple.The 2nd defendant died before the trial and no substitution wasmade as substitution was not necessary. The 1st defendant in hisanswer denied the claim of the plaintiff and prayed for the dismissalof the action. After trial, the District Court, dismissed the plaintiff’saction. The plaintiff appealed to the Court of Appeal which reversedthe judgment of the District Court and held with the plaintiff. The 1stdefendant has now preferred an appeal to this court.
Rev. Polhone Pannaloka v. Rev. Pandita Midigama Pemananda
(G.P.$.de Silva. C.J.)
The plaintiff’s case was that Aswaththaramaya was a templeappurtenant to the temple known as Boderagane Maha Vihara atHabaraduwa (hereinafter referred to as the Boderagane temple) andthat the Viharadhipathi of the Boderagane temple placed a monk incharge of Aswaththaramaya to look after it for and on behalf ofBoderagane, temple. At the hearing before us, it was not disputedthat the plaintiff is the Viharadhipathi of the Boderagane temple andthat the Viharadhipathiship devolved on the plaintiff in the manner setout in the plaint.
The main issue arising on this appeal is whether Aswaththaramayais a temple appurtenant to the Boderagane temple as contended foron behalf of the plaintiff respondent or is a separate and distincttemple founded by Welihinda Ratnapala about the year 1916. Whilethe case for the 1st defendant was that Welihinda Ratnapala was thefirst Viharadhipathi of Aswaththaramaya and that he (the 1stdefendant) was a pupil of Welihinda Ratnapala, the plaintiff’s positionwas that Welihinda Ratnapala was not the Viharadhipathi ofAswaththaramaya but was appointed to be in charge of andadminister,' Aswaththaramaya in 1903 by Heenatigala Dhammatilakewho was admittedly the Viharadhipathi of the Boderagane templefrom 1897. to 1962. Moreover it was a part of the case for the plaintiffthat besides Aswaththaramaya there were 5 other temples whichwere appurtenant to Boderagane temple and amongst thoseappurtenant temples was Kalawitigoda Purane Viharaya (alsoknown as'Piyadassyaramaya).
At the hearing before us, Mr. A. C. Gooneratne, Counsel for the 1stdefendant appellant submitted that his case (to use his own words)"stands or fails by the document D1." Counsel urged that it was»thecrucial document in the case and it completely “destroyed” theplaintiff’s'case. Mr. Gooneratne thus rested his case entirely on D1.
D1 is: a “Pooja Pathraya" bearing No. 654 dated 2nd November1925. It is a formal dedication of a land by five persons of the villageof Hiyare to “Aswaththaramaya” as a sanghika gift. These fivepersons were the owners of the land which was known as Godewatte.Mr. Gooneratne submitted that Welihinda Ratnapala is named as therecipient of the gift. Further, Mr. Gooneratne relied very strongly on a
Sri Lanka Law Reports
(1994] 2 Sri LR.
recital in the deed which states that the sanction of the then Governorof Ceylon was obtained on 18th October 1916 for the purpose ofdedicating the land to the temple as required by the provisions ofsection 41 of the Buddhist Temporalities Ordinance No. 8 of 1905.Having regard to the fact that permission was obtained by the ownersof the land in October 1916 from the Governor, Mr. Gooneratnestrenuously contended that the construction of the temple itselfcommenced only in 1916 and that Welihinda Ratnapala was the firstViharadhipathi of Aswaththaramaya. The formal dedication was nodoubt in November 1925 but it was the submission of Counsel that,that was the point of time at which the building of the temple wascompleted. Counsel invited us to draw the inference that theconstruction of the temple went on from 1916 to 1925.
Moreover, Mr. Gooneratne stressed the fact that there was noreference whatsoever to the Boderagane temple in the entirety of D1.This, Counsel contended, negatived the claim of the plaintiff thatAswaththaramaya was appurtenant to Boderagane temple. On thecontrary, he argued, it strongly supported the position of the 1stdefendant that D1 conferred a right on Welihinda Ratnapala which isa right totally independent of Boderagane temple or indeed of anyother temple. The contention was that the title conveyed by D1 wasthe title of the admitted owners of the land (Godewatta).
On the other hand, Mr. Samarasekera for the plaintiff respondentrightly pointed out that section 41 of the Buddhist TemporalitiesOrdinance No. 8 of 1905 does not require the licence of the Governorto construct a temple; the licence was required “for any temple, orany person in trust for, or on behalf, or for the benefit of any temple toacquire any land Counsel submitted that the language in D1rather suggests a gift to the temple which was already in existence.I am inclined to agree with this submission. More importantly,paragraph 3 of D1 (as translated reads thus)"… under and by virtueof the sanction so granted the land is dedicated to theAswaththaramaya for the benefit of the monks of the Siamese sectfrom the four corners and the gift or dedication is made in the nameof the priest In charge of the affairs of the said temple, namely,Welihinda Ratnapala who was the Viharadhipathi of the Meepetemple” (The emphasis is mine). These words in D1 are of the utmost
Rev. Pothene Pannaloka v. Rev. Pandita Midigama Pemananda
(G. P. S. de Silva, C.J.)
significance for here there is the clear recognition of the status ofWelihinda Ratnapala as being no more than that of the monk incharge of Aswaththaramaya. This strongly corroborates the case forthe plaintiff and considerably weakens the position of the 1stdefendant, that Welihinda Ratnapala was the first Viharadhipathi ofAswaththaramaya. It is to be noted that in D1 Welihinda Ratnapala isnot described as the Viharadhipathi of Aswaththaramaya which is thecrux of the case for the 1st defendant. If in truth Welihinda Ratnapalawas the Viharadhipathi of Aswaththaramaya, it is very strange that hewas not so described in a formal document such as D1. On thecontrary, he is referred to as the Viharadhipathi of another temple (theMeepe temple).
Furthermore, Mr. Samarasekera made a cogent submission inregard to the purpose for which the five owners of the land obtainedthe “licence" from the Governor as set out in D1. It was Counsel’scontention that the permission of the Governor was sought andobtained in order to comply with the requirements of the law, namelythe provisions of section 41 of the Buddhist Temporalities OrdinanceNo. 8 of 1905. The purpose was to regularise the de factoconstruction of a temple on private property and was not to constructor establish a new temple. With this submission, I agree.
It is also not without significance that in paragraph 5 of the Answerthe 1st defendant specifically avers that “Aswaththaramaya at Hiyarewas founded in or about 1903". This position is inconsistent with theplea based on D1 that the commencement of the construction of thetemple was in 1916 when the Governor granted the licence in termsof the prevailing law. And, be it noted, the 1st defendant failed to giveevidence at the trial.
This apart, there is cogent documentary evidence which showsthat Aswaththaramaya was in existence long before 1916. I refer toP36, P37 and P38. P36 relates to a donation of a paddy field and 2coconut trees to the temple at Hiyare in 1907. P37 is similar gift of apaddy field to the temple at Hiyare in 1906. P38 is an endorsementon a deed indicating that the property dealt with was dedicated tothe Hiyare temple on 29th August 1912. The evidence of witnessMeepe Sirisumana shows that Aswaththaramaya is the only temple inHiyare.
Sri Lanka Law Reports
 2 Sri LR.
I now turn to the answer of the 1st defendant. He claimed in hisanswer that Welihinda Ratnapala was the original Viharadhipathi ofAswaththaramaya (and of Piyadassaramaya) and that WelihindaRatnapala had several pupils who in order of seniority were MeepeMedhankara, Meepe Pannasara, Denepitiye Pannatissa, DenepitiyaSaddhananda (the deceased 2nd defendant) and the 1st defendanthimself. There are 2 important documents which proved that theclaim of the 1st defendant is untenable. The first document is P22which is the minutes book of the Dayaka Sabha maintained atAswaththaramaya. The minutes clearly show that the 1st defendantwas placed in charge of Aswaththaramaya by the deceased 2nddefendant. He had no independent right but was in the position of alicencee under the 2nd defendant. The next document is P26, theUpasampada Declaration of the 1st defendant which clearly provesthat he was certainly not a pupil of Welihinda Ratnapala.
The judgment of the District Court is unsatisfactory. The severaldocuments produced by the parties have not been considered. Nofindings have been reached even in regard to the oral evidence. It isright to add that the record contains very helpful written submissionsfiled in the District Court but unfortunately the trial Judge has failed toconsider these submissions.
On the other hand, the Court of Appeal in a comprehensive andwell-considered judgment has concluded that the plaintiff is entitledto the relief prayed for in the plaint (except the claim for damages).The judgment of the Court of Appeal is accordingly affirmed and theappeal is dismissed with costs fixed at Rs. 750/.
KULATUNGA, J. -1 agree.
RAMANATHAN, J. -1 agree.
REV. POLHENE PANNALOKA V. REV. PANDITA MIDIGAMA PEMANANDA