SITHY MAKEENA AND OTHERS vs. KURAISHA AND OTHERS

042-SLLR-SLLR-2006-V-2-SITHY-MAKEENA-AND-OTHERS-vs.-KURAISHA-AND-OTHERS.pdf


CA
Sithy Makeena and Others vs.
Kuralsha and Others
341
SITHY MAKEENA AND OTHERSvs.
KURAISHA AND OTHERSCOURT OF APPEAL.
IMAM, J.
SRISKANDRAJAH, J.
CA 2009/2002.
DC KANDY 16369/L.
FEBRUARY 24,25,2005.
MAY 02,2005.
Civil Procedure Code – section 18(1) -Addition of parties – Who is a necessaryparty ? – Issue whether the defendant is a statutory tenant under the plaintiff ora trespasser – Estoppel – Rei Vindicatio action – Land Acquisition Act, 7(1), 38,38(a) – When does title vest in the State ?- Revision – Exceptional circumstances.
The plaintiff-petitioners in the Rei Vindicatio action instituted against thedefendants sought a declaration of title to the land in question and eviction ofthe defendants. The defendants-respondents in their first answer took up theposition that they are tenants and in their amended answer that they havebecome statutory tenants. The defendants made an application under Section18(1) and sought to add the Urban Development Authority (UDA) as a necessaryparty to the action as the ownership had been vested in the UDA. The Courtallowed the application.
HELD:
The question to be decided by Court was whether the defendants-respondents were the statutory tenants under the plaintiffs or not – If thedefendants were unsuccessful in establishing their statutory tenancythen they would be trespassers and hence liable to be ejected.
The defendants-respondents having admitted that they came intopossession under the plaintiffs' predecessor in title and havingsubsequently taken up the position that they were statutory tenantsunder the plaintiffs they are estopped from claiming title under theUDA.
The Gazette referred to by the defendant-respondents is a notificationpublished under 7(1) of the Land Acquisition Act – This is only thepublication of the intention of the State and not evidence of title in theState. Evidence of title in the State can only be inferred from a publication
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in terms of section 38. In any event, there is no evidence that the plaintiffs'houses were vested in the UDA due to the absence of a section 38(1)Gazette Publication.
Held further:
As the 2nd plaintiff-petitioners- the next friend of the 3rd, 4th, 5th plaintiff-petitioners was ill and confined to bed for a period beyond 14 days -That would constitute exceptional circumstances. The failure to lodgea leave to appeal application has been satisfactorily explained to Court.
APPLICATION in revision from an order of the District Court of Kandy.
Cases referred to:
Thalagune vs. De Livera – 1997 – 1 Sri LR 253
Robert Dissanayake and Others vs. People's Bank -1991 2 Sri LR 320
Arumugam Coomaraswamy vs. Andiris Appu – 1985 2 Sri LR 219
Silva vs. Fernando -15 NLR 499 (P. C.)
Najim Udeen vs. Nageswari – 1999 3 Sri LR 123
Selliah Marimuttu vs. Sivapakkiyam – 1986 1 CIR 264
Riza Muzni with Da vid Weeraratne for 2nd, 3rd and 5th plaintiffs-respondents-petitioners.
Sunil Cooray with D. H. Siriwardane for 1A and 2nd defendant-petitioner-respondents.
Cur. adv. vult.
March 16th, 2006.
IMAM, J.This is a Revision Application tendered by the 2nd, 3rd, 4th and 5thPlaintiff-Respondent-Petitioners (hereinafter referred to as the 'Petitioners”)seeking to set aside the order of the Learned Additional District Judge ofKandy dated 30.08.2002 (P10) in case No. 16369/L, to dismiss theapplication of the Defendant-Petitioner-Respondents (hereinafter referredto as the Respondents') to add the parties sought to be added, inter-aliaother reliefs sought for in the aforesaid application.
The facts of the case are briefly as follows : The ‘Petitioners’ togetherwith the 1st Plaintiff instituted action bearing No. 16369/L in the District
CA
Sithy Makeena and Others vs.
Kuralsha and Others (Imam J.)
343
Court of Kandy against the 'Respondents’ seeking a Declaration of Title tothe land described in the 2nd Schedule to the plaint, for the ejectment ofthe 'Respondents’ therefrom and for other relief as prayed for in the plaint(P1). The 1 st and 2nd Respondents filed Answer and subsequently amendedthe answer. (P2, P3 and P4 respectively). The 2nd Respondent in hisanswer and amended answer took up the position that he was the statutorytenant of the plaintiffs predecessor in title namely Kalyani Kumari,Meanwhile the 1st defendant died, and 1A Defendant-Respondent wassubstituted in place of the deceased 1st Defendant. The Defendants-Respondents (Respondents) by petition dated 05.03.2002 made anapplication under section 18(1) of the Civil Procedure Code seeking to addthe Urban Development Authority, Battaramulla and Kandy respectivelyas necessary parties to the action, the aforesaid petition and Affidavitbeing marked as ’P5’ and ‘P6’ respectively. The Petitioners tendered theirobjection with regard to the addition of parties (P7). Consequently theparties agreed to dispose of the matter by way of written submissions withthose of the Petitioners and Respondents being marked as P8 and P9respectively. The learned Additional District Judge delivered order (P10)on 30.08.2002, having permitted the application to add the parties as partyDefendants. It is to set aside this order that the petitioners have tenderedthis Revision Application.
The Petitioners contend that the Respondents have sought to add theUrban Development Authority on the basis of the Gazette Publicationmarked as ‘3 S T. The Petitioners further aver that on a perusal of theGazette No. 612/20 dated 31.05.1990, it is a publication under section38(a) of the Land Acquisition Act, which section vests title in the State toany property duly acquired. It is pointed out that the Gazette Notificationhas been published by the Minister for Lands, Highways and MahaweliDevelopment, and the schedule refers to part of the premises in suit,namely No. 955/4, and also to part of the plaintiffs premises No. 955/3.The Respondents aver that what is significant here is that the word usedin the said gazette is “ezMOes" which means part of the garden of bothpremises to construct “William Gopallawa Mawatha” which runs parallelto Peradeniya Road in anticipation of the “Gam Udawa” fair which washeld during that period at Pallekelle. The respondents further contend thatthis explains as to why the Acquisition Notice was published by the Ministerof Highways and also as to why the Plaintiffs are still in occupation ofpremises No. 955/3 and the 2nd Defendant is wrongfully in occupation ofthe premises in suit. The Respondents further contend that the positiontaken up by the UDA that the said land was utilized for the construction of
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the New Kandy Court complex is false as the entire process for theconstruction of the aforesaid court complex commenced only after 1997,whereas the Gazette is dated 31.05.1990.
The Respondents contend that by way of a preliminary objection theyhave taken up that there are no ‘Exceptional Circumstances’ set out forthe petitioners to succeed in this Revision Application, and that althoughthe order of the learned Additional District Judge dated 30.08.2002 is anappealable order that no Leave to Appeal application has been tenderedby the Petitioners within 14 days of the order. It is submitted by theRespondents that with regard to the application of the Respondents madeon 01.04.2002, the UDA should have been added as a necessary party tothis action as the ownership of the corpus had been vested in the UDA.The Respondents assert that the main question for determination is whetherthe plaintiffs (Petitioners) are the owners of the corpus or whether it is theUDA, and the Respondents contend that the UDA is the owner of thecorpus, and should thus be added as a necessary party to this action. It isthe view of the Respondents that this action being a Rei Vindicatio actiontitle has to be examined, that the UDA is the owner of the corpus, that theorder of the learned Additional District Judge of Kandy is correct in factand law and hence that the Revision application of the Petitioner’s bedismissed with costs. I
I have examined the Revision application of the Petitioners and theposition taken up by the Respondents. This is a Rei Vindicatio actioninstituted by the Plaintiffs (Petitioners) against 1A and 2 Defendants(Respondents) seeking a declaration of title to the land described in the2nd schedule to the plaint together with the buildings and plantationsthereon. The Plaint has been filed on the basis that the Defendants(Respondents) are trespassers while that answer and amended answerdisclose that the Defendants initially claimed to be tenants of the Plaintiffspredecessor in title, and subsequently by an amendment took up theposition that they were statutory tenants. Thus the question to be decidedby Court was whether the Defendants (Respondents) were the statutorytenants under the Plaintiffs or not. If the Defendants were unsuccessful inestablishing their Statutory Tenancy then they would be trespassers andhence liable to be ejected, It is well settled law that only the parties to aRei Vindicatio action are bound by the decision in such a case, as a ReiVindicatio action is an action in Personam and not an action in Rem.
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Sithy Makeena and Others vs.
Kuraisha and Others (Imam J.)
345
It is settled law that a case must be decided as at the date of theinstitution of the action, as held in Thalagune vs. De Livera(1). Thus theaddition of parties must necessarily have a bearing on the dispute thatexisted between the parties on 17.05.1990 in this case.
Although the Government Gazette No. 612/20 dated 31.05.1990 referredto part of the premises, in my view it referred to part of the premises in suitnamely 955/4 and also to part of the Plaintiffs (Petitioner’s) premises No.955/3, which was part of the garden of both premises acquired to constructthe William Gopallawa Mawatha" in view of the “Gam Udawa” fair held atPallekelle in 1990. As the New Court Complex in Kandy commenced onlyafter 1997, the aforesaid Government Gazette Notification in my view didnot apply to the New Court Complex in Kandy. On a perusal of GovernmentGazette No. 1008/7 dated 31.12.1997 (R1) it is a notification publishedunder section 7(1) of the Land Acquisition Act informing the public that theState intends to acquire the lands mentioned therein. This is only thepublication of the intention of the State and not evidence of title in theState. Evidence of title in the State can only be inferred from a publicationin terms of section 38 of the Land Acquisition Act. 'R1 ’ set out the landsthe State intended to acquire to construct the New Kandy Court Complex.However the said premises Nos 955/3 and 955/4 were NOT acquired, andthe New Kandy Court Complex has reached completion without suchacquisition.
In my view the dispute between the plaintiffs and the defendants in thiscase is confined to whether the 2nd Defendant in particular is a statutorytenant under the Plaintiffs or a Trespasser. Such a decision would notaffect the UDA in any manner whatsoever, The Plaintiffs can obtain completerelief against the Defendants (Respondents) without having the UDA addedas a party to this action. This is in conformity with the decisions in RobertDissanayake and Others vs. Peoples Bank12’ and ArumugamCoomaraswamy vs. Andiris Appu<3>.
The Plaintiffs do not have any cause of action against the UDA, andthus in my view the UDA is not a necessary party to this action.
The principle in Talagune vs. Livera (Supra)vias followed in Silva vs.Fernando(4> and Najimudeen vs. Nageswari.(5>
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The Defendants (Respondents) having admitted that they came intopossession under the Plaintiffs predecessor in title namely Kalyani Kumari,and having subsequently taken up the position that they were the statutorytenants under the plaintiffs are estopped from claiming title under the UDA,which the Defendants (Respondents) in any case do not have. Furthermorewith regard to 'RT there is no evidence that the Plaintiffs houses werevested in the UDA, due to the absence of a section 38(1) Gazettepublication. Thus for the aforesaid reasons there was no need to add theUDA as a necessary party to this action.
The Respondent took up a preliminary objection that the Petitioners didnot file a leave to appeal application within 14 days of 30.08.2002. Thepetitioners have explained their difficulty in paragraphs 8 and 9 of thepetition, which was due to the 2nd Petitioners having fallen ill in Colomboas borne out by the medical certificate of Dr. Mawjood (P11) and the 1stPlaintiff-Petitioner being an elderly person was unable to take the necessarysteps to canvass the order dated 30.08.2002. Furthermore the 3rd, 4thand 5th plaintiff-petitioners who are minors appeared in this case by theirduly appointed next friend the 2nd plaintiff-petitioners. Hence as the 2ndPlaintiff-petitioner was ill and confined to bed for a period beyond 14 daysthis would in my view constitute Exceptional Circumstances.
In Selliah Marimuttu vs. Sivapakkiyam(6> it was held that anapplication for revision is available where the failure to exercise the right ofappeal is explained to the satisfaction of the Court.
Hence, I dismiss the preliminary objection of the Respondents andhold that the Petitioners could act in revision in this case.
For the aforesaid reasons I permit the Revision Application of thePetitioners to set aside the order of the learned Additional District Judgeof Kandy dated 30.08.2002, and further dismiss the application of theDefendant-Respondent to add the Urban Development Authority as anecessary party to the action. I make no order with regard to costs
SRISKANDARAJAH, J. — / agree.
Application allowed.