Sri Lanka Law Reports
 2 Sri LR.
COURT OF APPEAL.
L. H. G. WEERASEKERA, J.
DR. ANANDA GRERO, J.
C. MATARA 41/REAUGUST 31, 1994.
Rei-Vindicatio Action – Tenancy – Licensee – Judicial Evaluation of Evidence -Authenticity of documents – Role of a Trial Judge.
Plaintiff-Respondent sought a declaration of Title to the land in question. TheDefendant-Appellant was alleged to be a licensee, who attempted to create aTenancy. The Learned District Judge accepted the Plaintiff-Respondent’s claim.
Though (V2) has been evaluated and considered with P5 and P6 noevaluation or examination of V2 has been made with V6. There has been noproper evaluation of the Evidence of the Grama Sevaka. No evaluation of whetherD2 is authentic or not has been made though it was suggested to the contrary.
What was sought to be evaluated is the content of the document (V2) withoutevaluating its authenticity and if authentic only then it would have requiredevaluation as to its content and legal import.
Per Weerasekera, J.
“Trial Judges should concern themselves not merely to be umpires in afriendly game of shadow strategy but should themselves investigate bymeans of questions and incisive and in-depth inquiry on the factspresented by Evidence and attempt to determine and thereby ascertain thetruth so that they may be in a position to evaluate judicially the evidencepresented."
APPEAL from the Judgment of the District Court of Matara.
Case referred to:
1. Santhern Pulle v. Kathiresa Pulle – 39 C.L.W. 01.
Faiz Musthapha, PC. with A. Panditharatne for Defendant-Appellant.N. R. M. Daluwatta, PC. with Daya Guruge for Plaintiff-Respondent.
Cur. adv. vult.
Sanipala v. Bamunusinghe (Weerasekera, J.)
Plaintiff-Respondent sought a declaration of title to the landdescribed in the schedule to the plaint bearing premises No. 83,Rahula Road, Matara. Plaintiff-Respondents position was that theDefendant-Appellant was in possession of the land and premises andthat the Defendant-Appellant who was the licencee though requestedin 1980 by Arnolis to deliver vacant possession did not do so. Thatthereafter the Defendant-Respondent by P1 attempted to create atenancy by the deposit of rent for the months of October, Novemberand December 1981, which was returned by the Plaintiff by P2 andthat by P3 on 11.03.82 the day after P2 made a complaint to theGrama Sevaka.
The Defendant-Appellants position was that he took the premisesin dispute on rent from the plaintiff’s father Arnolis who is now deadand claimed to be a monthly tenant of the Plaintiff-Respondent interms the Rent Act.
The question that had to be determined was whether theDefendant-Appellant was a licencee under Plaintiff-Respondent'sfather Arnolis and subsequently under the Plaintiff-Respondent orwhether the Defendant-Appellant was a tenant.
This appeal is from the judgment of the Learned District Judge ofMatara dated 28.8.84 declaring the Defendant’s Appellant a licenceeand the Plaintiff’s-Respondent claim being upheld.
Learned President’s Counsel for the Defendant Appellant urgedthat on a consideration of the judgment there has been no properjudicial evaluation of the Defendant-Appellant's case.
To recapitulate the evidence on behalf of the Plaintiff-Respondentbriefly, it was their case that Defendant’s Brother who gave evidencein support of the Defendant-Respondent was instrumental in gettingthe premises from Arnolis temporarily until the Defendant-appellantrepaired his parental house as he was Arnolis wife’s sister’s son. ThatArnolis orally requested the return of the premises in 1980 after whichby P2 by the deposit of rent with the local authority the Defendant-Appellant attempted to create a tenancy and by P3 a complaint was
Sri Lanka Law Reports
 2 Sri LR.
made by the Plaintiff-Respondent. The evidence led on behalf of theDefendant-Appellant was that the agreed rent was 50/- per monthand that as the owner of the premises was his uncle the Defendant-Appellant he insisted on no receipts. That when Arnolis started tomake demands for the return of the premises from 2.1.81, he made acomplaint against Arnolis to the Grama Sevaka marked P1 and inconsequence Arnolis made a statement V2 to the Grama Sevaka,where he stated that the Defendant-Appellant gave him Fifty Rupeesmonthly though not as rent. The Grama Sevaka who had served inthis area for about 21 years produced V1 & V2 and testified to thefact that Arnolis signed V2. The signature on V2 is denied by a sisterof the Plaintiff-Respondent regrettably though not by the Plaintiff-Respondent for reasons undisclosed, in order to support the denial ofthe signature on V2 and to suggest it was fraudulent the Plaintiff-Respondent produced documents P5 & P6. Whilst the Defendant-Appellant in order to support his assertion that V2 was in fact signedby Arnolis and that he signed differently at different times produceddocument V6.
On a careful examination of the judgment of the Learned DistrictJudge of Matara dated 28.8.84, I find that though V2 has beenevaluated and considered with P5 and P6 no evaluation orexamination of V2 has been made with document V6.1 also find thatno proper evaluation of the evidence of the Grama Sevaka an Officialagainst whom nothing is alleged and who had served in this area for21 years has been made. No evaluation of the evidence of theDefendant-Appellant as to his inability to produce Rent Receipts hasbeen attempted in the light of his evidence of the close relationshipbetween Arnolis and the Defendant-Appellant. No evaluation ofwhether D2 is authentic or not has been made though it wassuggested to the contrary. What was sought to be evaluated is thecontent of V2 without evaluating its authenticity and if authentic onlythen it would have required evaluation as to its content and legalimport. It is my view that this judgment is seriously devoid of judicialevaluation of the Defendant-Appellant’s case as a whole.
Though I would not go so far as to subscribe to the view thatwhere there are two sides facing one another and manoeuvring forposition and who for strategic reasons or through misconception ordefault fail to call witnesses or produce documents or by investigative
Sanipala v. Bamunusinghe (Weerasekera, J.)
cross-examination reveal the truth the judge should enter the arena ofconflict. Trial Judges should concern themselves not merely to beumpires in a friendly game of shadow strategy but should themselvesinvestigate by means of questions and incisive and indepth inquiryon the facts presented by evidence and attempt to determine andthereby ascertain the truth so that they may be in a position toevaluate judicially the evidence presented.
The Learned District Judge has sought to accept the version of thePlaintiff-Appellant as it seems to me on not only grounds not althoughinsufficient but without a proper evaluation of the Defendant-Appellant's case. In this case the Learned District Judge has not hadthe facts fully before him nor as he might have done exercised withindepth and incisive investigation of what was the truth nor has heevaluated even whatever evidence was available to him from theDefendant-Appellant’s position.
In these circumstances, I cannot but agree with the sentimentexpressed by Bertram C.J. in the case of Santhern Pulle v. KathiresaPulle(,) where it was
Held “that where it appears to the Appeal Court that theLearned Trial Judge had to choose between the version of theopposing parties and adopted the version of one party, ongrounds not all together sufficient while there exist certain pointsin favour of the other party which points have not been properlyinvestigated, the justice of the case requires that the judgmentshould be pro-forma be set aside and the case remitted for anew trial where all the facts may be fully investigated”.
For the reasons set out I set aside the judgment of the LearnedDistrict Judge of Matara, dated 28.8.84 and remit the case back tothe District Court of Matara for a new trial de-nevo.
The Defendant-Appellant will be entitled to costs of this appealfixed at Rs. 1,500/-
DR. ANANDA GRERO, J. -1 agree.
SANIPALA V. BAMUNUSINGHE