HOWARD C.J.— Sobitha Thera v. Wimalabuddhi Thera.
1941Present: Howard C.J. and Soertsz J.
SOBITHA THERA v. WIMALABUDDHI THERA et al.
176—D. C. Kurunegala, 18,640.
Buddhist Temporalities—Charitable Trust—Prescription—Trusts Ordinance,s. Ill (c), Cap. 72.
Section 111 (1) <c) of the Trusts Ordinance which provides that anyclaim in the interests of any charitable trust for the recovery of anyproperty comprised in the trust or for the assertion oi title to suchproperty shall not be held to be barred or prejudiced by any provisionof the Prescription Ordinance, applies to Buddhist Temporalities.
.A.PPEAL from a judgment of the District Judge of Kurunegala.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., andJ. R. Jayawardana), for the plaintiff, appellant.
E. B. Wikremanayake, for the defendants, respondents.
Cur. adv. vult.
June 4. 1941. Howard C.J.—
This is an appeal from a decision of the learned District Judge ofKurunegala dismissing the plaintiff’s action with costs. The plaintiff inhis plaint asked for a declaration that the land and buildings decribedin the schedule thereto belonged to the Weragala Vihare and that heshould be placed in quiet possession thereof and for damages. In dismis-sing the plaintiff’s claim the District Judge found as follows: — (1) thelands in question were the property of the Weragala Vihare ; (2) thedefendants had acquired title thereto by prescription; (3) the plaintiffwas the viharadipathi of the Weragala Vihare, was entitled to maintainthe action, but could not ask for an order of ejectment against the defend-ants. With regard to (2) the District Judge came to the conclusionthat the defendants had been in possession adversely to the plaintiff since1910. It was, however, contended by Counsel _for the plaintiff in theCourt below and in this Court by Mr. Perera that, even if the defendantshad been in possession adversely to the plaintiff since 1910, they couldnot acquire title by prescription by reason of the provisions ofsection 111 (1) (c) of the Trusts Ordinance (Cap. 72, Legislative Enact-ments of Ceylon). This contention,- however, was not accepted by theDistrict Judge who held that section 111 had no application to-the presentcase.*
I propose first of all to consider the applicability to the present case ofsection 111 of the Trusts Ordinance.
This section is worded as follows —
“ 111.(1) In the following cases, that is to say—
in the case of any claim in the interests of any charitable trust,
for the recovery of any property comprised in the trust, orfor the assertion of title to such property,
HOWARD C.J.—Sobitha Thera v. Wimalabuddhi Thera.
the claim shall not be held to be barred or prejudiced by any provision
of the Prescription Ordinance."
Section 99 contained in Part X. of the Ordinance, has as a marginalnote the words “ Special definitions Sub-section (1) is worded asfollows : —
“99.(1) The expression ‘charitable trust’ includes any trust for
the benefit of the public or any section of the public within or withoutthe Island of any of the following categories : —
. • . .
. . . .
for the advancement of religion or the maintenance of religious
rites and practices ; or
. ■ .
Section 109, also included in Chapter X., is worded as follows : —
“ 109. This Chapter shall not apply—
to religious trusts regulated by the Buddhist Temporalities
• ■ – – ”
Holding that section 111 had no application to the present case thelearned District Judge cited the concluding words of the judgment ofAkbar J. in Ratwatte v. Public Trustee1 which were as follows : —
“ All these points confirm me in my opinion that in spite of section109 of ,the Trusts Ordinance referring only to Chapter X., the wholeOrdinance, No. 9 of 1917, has no application to temples and Dewalesfor which special provision was made in Ordinance No. 19 of 1931.”
As the question of the applicability of the Trusts Ordinance to BuddhistTemporalities did not arise in this case Akbar J.’s dictum must beregarded merely as obiter. Even if this was not so, I should not beprepared to follow it. The mere fact that section 109 expressly excludesreligious trusts regulated by the Buddhist Temporalities Ordinance fromthe application of Chapter X. is a fact that in itself compels me to holdthat the. remainder of the Ordinance does so apply. It has, however,been further argued that inasmuch as Chapter X. is excluded, section 99—“ Special definitions ”—is also excluded. I am unable to accept thisargument. The remaining sections of Chapter X. bring into operationcertain provisions for the regulation of charitable trusts and it is fromthe operation of these provisions that Buddhist Temporalities are excludedby section 109. Even if it was held that section 109 was not a definitionthat could be applied to “charitable trust” as used in section 111 (1) (c),I am of opinion that without such a definition it must be read as includinga Buddhist'Temporality. In view of my interpretation of the foregoingprovisions of the Trusts. Ordinance I hold that the learned Judge waswrong in finding that section 111 (1) (c) had no application to BuddhistTemporalities, He has found as a fact that the defendants have been in
»12 c. L. B. 208.
HOWARD C.J.—Sobitha Thera v. Wimalabuddhi Thera.
adverse possession since 1910. Since the Trusts Ordinance came intooperation on April 16, 1918, on this finding of fact sufficient time had notelapsed for the acquisition of title by prescription.
Mr. Wikremanayake on behalf of the defendants has, however, raiseda further contention. He maintains that, even if it is held that section111 (1) (c) of the Trusts Ordinance applies to a Buddhist Temporality, ithas no application in the present case inasmuch as the adverse possessionof the defendants commenced in 1902 and hence a prescriptive title wasacquired by 1912, that is to say, before the Trusts Ordinance came intoforce. He contends that the occupation of the land became adversewhen the Medagala Temple was built on lot 1 by Saranankara, theplaintiff’s fellow pupil, and pupil of Piyadassi in the year 1902. Sara-nankara died in 1915, but it would appear that the defendants had cometo the Medagala Temple by 1910 and have been there ever since.Apparently the first defendant had been invited there by the signatoriesto D 3 owing to the neglect of the temple by the incumbent. I am unableto accept the contention that the prescriptive title acquired by thedefendants commenced to run from the building of the Medagala Templeby Saranankara. It is claimed that the defendants were in occupationas representatives of the Medagala Temple and hence they were thesuccessors in title of Saranankara who it is said was also a representativeof the same temple. No doubt it is true that a temple or its duly autho-rised representative may acquire title to land by prescription, vide Silvav. Fonseka and Wimalasuriya v. Wickramaratne'. A title by prescrip-tion can, however, only be established by proof of the undisturbed anduninterrupted possession by a defendant in any action or by those underwhom he claims, vide section 3 of the Prescription Ordinance (Cap. 55,Legislative Enactments of Ceylon). In Terunnanse v. Menike% it washeld that the “ possession ” contemplated in this section is that of aparty to a suit, or of his predecessor in title, but not that of a third party.Saranankara can only be claimed as the predecessor in title of thedefendants if they were all possessing the land as representatives of theMedagala Temple. It is, however, in evidence that Medagala Viharewas appurtenant to the Weragala Vihare of which the plaintiff is theViharadipathi. Saranankara built the Medagala Temple on land belong-ing to the Weragala Vihare whilst he was a pupil of Piyadassi, who withthe plaintiff was at the Weragala Vihare. The possession of the MedagalaTemple cannot be separated from the possession of the land on which itwas built. There is no evidence that Saranankara’s occupation cf thisland was adverse to the ownership of the Weragala Vihare. He cameinto occupation of such land because he was the representative of theWeragala Vihare. In such circumstances whatever title he possessed,was as trustee on behalf of the Weragala Vihare. In this connectionRanasinghe v. Dhammananda4 is in point. The possession by thedefendants who belong to a different sect is admittedly claimed on behalfof the Medagala Vihare as a separate entity distinct from, the WeragalaVihare. In' these circumstances the defendants cannot claim Saranankaraas their predecessor in title. There has been no pupillary or other
’ 15 X. L. It. 239.3 J A’. L. Jt. 200.
* 20 X. L. It, 140.* 37 X. L. It. 19.
HOWARD C.J.—Sobitha Thera u. Wimalabuddhi Thera.
succession so as to constitute uninterrupted possession under section 3 ofthe Prescription Ordinance and the claim to prescriptive title based onsuch possession from 1902 fails.
For the reasons given in this judgment the appeal is allowed. Thejudgment and decree of the Court below is set aside and judgment withcosts in this Court and the Court below entered for the plaintiff as claimedexcept in regard to the claim for damages. With regard to such claimthe case will be remitted to the District Judge for their assessment in theCourt below.
Soehtsz J.—I agree.
SOBITHA THERA v. WIMALABUDDHI THERA et al