SOMABATNE AND ANOTHER
. V. ■-•
RANASINQHE C. J.. TAMBIAH J. ANDBANDARANAIKE J.
S. C. NO. 61/86; C. A NO. 350/8?;
D: C. KALUTARA NO. 2552/LSEPTEMBER 15.1988 . .
Rei vindicatory suit — Encroachment — Settlement ^-'Mistake.
Where a settlement was entered whereby it was recorded that it was agreed thatif no foundation was found on the corpus by the Interpreter-Mudaliyar the actionwould be dismissed when what the plaintiff meant was only the remnants of anold house it was wrong to apply the test of the presence of a foundation todispose of the action.
Cass referred to:
(1) Thangarajasingham V. lyampillai 64 MLR 569
APPEAL from judgment of the Court of Appeal
P. Somatillekam with Miss Nevanka Goonewardene for petitionerHarmon J. C. Pereca for respondent.
Cur. adv. vuft.
October 19. 1988RANASINGHE, C. J..
The Plaintiff:Respondent-Respohdent (hereinafter referred to asRespondent) has. instituted this action against the Defendants-Petitioner.s-Appellants (hereinafter referred to as Appellants) for adeclaration of title to a portion of an allotment of land, calledGorakagahawatte and more fully described in the schedule to theplaint and for ejectment of the Appellants therefrom.
The Respondents claim title upon the basis of two deedsbearing Nos. 6515, dated 8.3.72, and 8203, dated 21.5.77.
'Upon a commission taken out by the Respondent the landclaimed by him was depicted as lots A and. B in Plan No. 1243,.which is marked 'B'. The portion, which the Respondent claims .has been encroached upon by the Appellants, is said to be Lot 'B'in the said plan, and the extent of such portion is given as 3.4perches.
The Appellants, who disputed the Respondent's claim too havehad the land, which they stated is theirs, surveyed and depictedin Plan No. 2650. which was marked D They claim not only lots1 and 2 in the said plan, but also a strip of land, 1 perch in -extent, along the northern boundary of lot 3. which they-state ^constitutes the Respondent's land
The portion, which was in dispute between the parties andwhich the Respondent claims has been encroached upon by theAppellants, is depicted in Plan 'B' as Lot B . and in Plan 'O' as Lot
. In' Plan 'Dv was also depicted as "item B" what the surveyordescribes as the "foundation" of an old house, and which is saidto be claimed by the Appellants. The area covered by such "itemB", according to the said surveyor, falls within lots 1 and 2 of thesaid plan.
When fhe case was taken up for trial on. 17.12.81. . a. settlement was arrived at between the parties. The terms of thesaid settlement were: that the interpreter-mudliyar of the courtshould inspect the land depicted in the plan 'D' referred; to above:that if he were to:find a "foundation" (gdfiie&dSeS) at the site marked. ’B’ in Pl$n 'D'. The Respondent's action was to be dismissed with.posts: that, on the other hand,if no such "foundation" was foUndtp exist at the said site 'B', then judgment was to be entered forthe Respondent
' ■ I
The interpreterimudliyar had propeeded to the said land on thesame day and had. inspected the portion in dispute-in thepresence of the two surveyors who had- prepared theaforementioned plans'B'and'D! respectively. r '
The Interpreter-mudliyar gave evidence before the learnedDistrict Judge on 18. 12. 81, as to the results of his-inspection;and, on the basis of the interpreter-mudliyar’s evidence, thelearned District Judge entered judgment for the Respondent, onthe footing that there was no "foundation" at the.site marked 'B'in. the said plan D'. Decree was entered accordingly by thelearned District Judge.
1 The Appellants then filed an application in the Court of Appealfor revision of. the said decree and/or restitutio-in-integrum. Itwas contended; that, a mistake had been made in entering the -terms of settlement before the District Court by the use. of the; word "foundation"; that what the Appellants had meant was only, the remnants of an old house; that, therefore, the Appellants* should be given relief on the basis of a mistake made by them inagreeing to the said 'settlement.
The Court of Appeal took the view that the Appellants hadmade no mistake.in agreeing to the said terms of settlementrecorded in the District Court.' The Court-rof Appeal, having
expressed the view that the term "foundation" is usually used toexpress the base or basis of a building', proceeded to hold thatwhat was described by the Interpreter-mudliyar as having beenfound by him at the said site could not have supported "anybuilding standing on it."
Learned Counsel appearing for the Appellants before this courthas ohly Contended that the Orders, of both the District Courtand the Court of Appeal, be set aside and that the case be sentt>ack for a continuation of the trial on the basis of the pleadingsfiled.
The contention, that a mistake was made by the Appellants inentering into the said settlement, seems to me to be untenable:and. having regard to the view expressed by the Court of Appealon this point. I see no reason to interfere with that part of theOrder of. the Court of Appeal refusing relief by way ofrestitutio-in-integrum.
A consideration of the evidence given by the interpreter-mudliyar, of the results of his inspection of the scene; in court on'18. 12. 81, makes it clear that he has set out three features hefound at the site:
<i> that.the said site, depicted as ‘B is, in comparison to
the rest-of the land, slightly elevated;
■ (ii) that there were, here and there, layers of cement mixedwith clay.- although he did not find any bricks;
(iii) that, when the mammoty was used, the layers of cement'seemed to Come off in pieces. .
It was upon this evidence that the learned trial Judgeconcluded that there was no "foundation” as contemplated bythe parties.'
Having regard to the view taken by the Court of Appeal inregard to the nature and the purpose of a "foundation", I find itdifficult to accept the conclusion arrived at by theXourt of
Appeal that the existence of such a 'base or basis of a building'is not borne out by What the interpreter-mudliyar testified to ashaving been found by him at the site.r
. It has. however, been.contended by learned Counsel appearingfor the Respondent that this court should not give relief to theAppellants by way of revision for the reasons: that no applicationhad been made to the learned District Judge to lead evidence tocontradict the evidence given by the iriterpreter-mudliyar; thatthere has been delay in making the application for relief to thecourt of Appeal: that, although there was a right of appeal from-the order of the District Judge, the Appellants failed to exercisethat right.-
, Having regard to the terms of the said settlement I do not thinkthat any application to lead evidence to contradict that of themterpreter-miidliyar's could have been entertained.by the learnedbistrict Judge. In any event, having regard to the view I haveformed of the evidence- so given by the interpreter-mudliyar.himself, the failure to move to lead evidence to the contraryShould not. in the circut7istarices.of this case, be counted againstthe Appellants..
The period, between the date of the Order made by the DistrictCourt and the making of the application to the Court of Appeal,the parties agreed, was only three months. This period of time jshot such as should, in the circumstances of this case, beconsidered to amount to inordinate delay in moving the Court ofAppeal for the exercise of the discretionary powers vested in it.
Having regard to the nature and the scope of the settlement,that was arrived , at between the parties on 17,12.81 andcommunicated to the learned District Judge, and the order madeentering judgment for .the Respondent by the learned DistrictJudge in terms of the said settlement, it seems to be clear, uponthe authority of the decision in the case of V.. Thangarajasingham& wife vs. M. iyampillai & wife. (1) (and the several authoritiesjreferjred to in the said judgment) that the Appellants would havehad no right of appeal from the said decree of the District Court.
The appeal of the Apipeflants is allowed; and the judgment ofthe Court of Appeal is set aside. The decree of the District Courtis also set aside, and the District Court is directed to settle theissues, and proceed to hear the trial upon the said issues:
The Respondent is also directed to pay the Appellants a sum ofRs. 210QA as costs of the proceedings before the Court -ofAppeal and of the appeal to this Court.
TAMBIAH. J. -1 agree.
BANDARANAYAKE. J. — I agree.