(: 477 )
Present: Garvin and Dalton JJ,
TERDNNANSE n. TERDNNANSE et al353—D. C. Galte, 22,849.
prescription—Right to incunibcncy of Buddhist temple it* three years—
Ordinance No. 22 of 1871f s. 11.
An action for the declaration of. a right to the incumbency of aBuddhist temple is barred in three years from the time when thecause of action arose.
Rewata Unnanse v. Ratnajoti Unnanse 1 followed.
Appeal from a judgment of the District Judge of Galle.
J.S. Jayawardene, for plaintiff, appellant.
de Zoysa, for second defendant, respondent.
H. F. Perera, for third defendant, respondent.
April 14,1927. Garvin J.—
This action was brought by a Buddhist priest to obtain a declara-tion that he was the rightful incumbent of.Kusumarama Vihare andthat he was entitled as such to* be placed in possession thereof.
The first defendant is a rival claimant to the incumbency, whohas been-proved .to have been. officiating as incumbent since thedeath of. Sangha Nanda, who was admittedly the lawful incumbentof this vihare. .Sangha Nanda died , in 1914. It has been mostclearly established that for at least five years prior to the bringing -ofthis action the 'first defendant was in .occupation of the incumbency,,and; has been recognized by the congregation as the incumbent.
The learned District Judge has held that the plaintiff’s appoint-ment was the more regular, vand would have entitled him to therelief he claims but for the circumstance that his right of actionis barred by limitation.
The plaintiff appeal?, and it was urged * in support of his appealthat an action to be declared the rightful incumbent of a vihare isnot barred in three years, as. the District Judge has held, but ,isavailable until ten years have • expired from the date on which, therightt accrued.
The point is covered by authority. In the case of Rewata Unnansev. Ratnajoti Unnanse (supra) Shaw A. C. J. and Schneider J. inseparate judgments held that an action for a declaration of right to
1 3 G. W. B. 193.
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the incumbency of a Buddhist vihare was barred in three years fromthe time when the cause of action arose by section 11 of OrdinanceNo.‘22 of 1871.
It was urged that this is not a binding authority, inasmuch as theopinion expressed on this point was not necessary to the decisionof the case, and that in any event it should be reconsidered.
Section 11 of Ordinance No. 22 of 1871 enacts that no action shallbe maintainable in respect of any cause of action not expresslyprovided for or exempted from the operation of that Ordinance unlesscommencing within three years of the accrual of the cause of action.
Such actions as the one under consideration are not expresslyexempted from the operation of the Ordinance. If the Ordinancedoes not provide for such a case then section 11 applies and theaction is barred.
Counsel for the appellant suggests that provision is made for thecase by section 8 of the Ordinance. That section relates to actions“ for the purpose of being quieted in his possession of land or otherimmovable property or to prevent encroachment or usurpationthereof or to establish a claim in any other manner to such land orother property ” and declares that proof of undisturbed and uninter-rupted possession for a period of ten years previous to the bringingof the action shall entitle the person adducing such proof to a decreein his favour. This is clearly not an action for the recovery ofimmovable property based on a right acquired by ten years’ adverseand uninterrupted possession thereof. Nor is it a case in whichsuch an action based on title is being resisted on the ground of suchadverse and uninterrupted possession. By the Buddhist Tempo-ralities Ordinance the property of the vihare both immovable andmovable is vested in the trustee, who in this case is the seconddefendant. An incumbent clearly has no title to the immovableproperty of the temple nor a right to the possession thereof. Apartfrom his ecclesiastical duties, an incumbent of a vihare has certainlights of administration and control of the vihare itself, but theseare not such rights as are contemplated by section 3. They springfrom and appertain to the office of incumbent, 'and cannot existapart from it.
The right of the plaintiff to the enjoyment and exercise of thoserights is dependent, upon his right to the incumbency. It is manifestthat in form and in substance this is an action for a declaration ofthe plaintiff’s right to the incumbency. In the absence of specialprovision in Ordinance No. 22 of 1871, section 11 of the Ordinanceapplies to the case, and the action is barred by limitation in threeyears.
This appeal must, therefore, be dismissed, with costs.
Dalton J.—I agree.
TERUNNANSE v. TERUNNANSE et al