VELAUTHER et al. v. ARUMOGAM

080-NLR-NLR-V-40-VELAUTHER–et-al.-v.-ARUMOGAM.pdf


305
MAARTENSZ J.—Velauther v. Arutnogam.
1938Present: Maartensz and Hearne JJ.
VELAUTHER et al. v. ARUMOGAM.
289—D. C. Jaffna, 9,081.
Prescription—Action for declaration of a right to a status—Period oflimitation—Ordinance No. 22 of 1871, s. 11.
An action for declaration of a right to a status is barred unless it isbrought within three years from the time when the cause of action arose.Rewata Unnartse v. Ratnajothi lJnnanse (3 C. W. R. 193) followed.
^ PPEAL from a judgment of the District Judge of Jaffna.
N. Nadarajah (with him G. E. Chitty), for defendants, appellants.
S. J. V. Chelvanayagam (with him E. B. Wikramanayake), for secondplaintiff, respondent.
Cur. adv. vult.
March 30, 1938. Maartensz J.—
The plaintiffs sued the defendants in this action for a declaration thatthey were entitled as hereditary poosaries to half the Pooja rights of thetemple called Esura Vinajagakovil (hereafter referred to as “ the temple ’’)and to possess and enjoy the income of half the temple properties describedin the schedule to the plaint. They alleged as a cause of action that thedefendants did in the month of July, 1934, and thereafter prevent themfrom exercising the rights sued for.
The defendants in their answer admitted that the plaintiffs werehereditary poosaries but pleaded that the plaintiffs were not entitledto the relief claimed as they had renounced whatever rights they hadin the year 1924. There was no plea in the answer that the action wasbarred by lapse of time or that the defendants had acquired the rightsof the plaintiffs by prescriptive possession. But one Of the issues onwhich the case was tried was: “ 5. Have the defendants acquiredby prescription the poo j ah rights belonging to plaintiffs by virtfie ofdecree in case No. 10,861, D. C. Jaffna
The case was decided on this issue. The District Judge held that thefirst plaintiff had given up his rights in 1924 and not exefcised them forover ten years and had therefore lost whatever rights he had.
The second plaintiff he held had attained his majority in 1928 and hadnot given up his rights for ten years before the action was filed which wasin 1936. The second plaintiff was accordingly declared entitled to one-third of the rights sued for.
It was contended for the defendants, who have ' appealed from thisorder, that the action was one for declaration of a Status which .wasbarred in three years and that the District Judge was wrong in decidingthe issue on the footing that the period of prescription was ten years.
It was urged on behalf of the respondent that as the action Was fbughtin the Court below on the footing that the period of prescription was tenyears it must be presumed that title to the temple property was vestedin the poosaries. I am unable to accept this contention. 'There isnothing in the decree in case No. 10,861 (P 1) upon which the plaintiffs40/24
306
MAARTENSZ J.—Velauther v. Arumagam.
base their claim to be hereditary poosaries from which it can be inferredthat the title to the temple properties was vested in them ; and theydo not in their plaint attribute their claim to possession of the templeproperties to any other right than that of poosaries. I accordinglyhold that the action was one for the declaration of a status. The appellants’contention that the right to bring an action for a declaration of a statusis barred by the lapse of three years from the date the right to sueaccrued is supported by authority. In the cases of Rewata Vnnanse v.Ratnajothi Unnanse 1 and Terunanse v. Terunanseit was held that anaction for declaration of a status is governed by section 11 of thePrescription Ordinance, No. 22 of 1871, and barred unless brought withinthree years from the time when the cause of action arose.
It was contended for the respondent in the first place that we shouldnot entertain the plea as it was not raised in the Court below, and in thesecond place, that the defendants had not established that the action wasnot brought within three years ffrom the time the cause of action arose.
In my judgment both contentions must be upheld.
The appellant’s contention certainly does not fall within the ambit ofissue 5 which I have quoted nor was such a contention put forward in theCourt below as arising under that issue. I cannot agree that it wasurged in the words “ plaintiffs rights have been prescribed ” appearingin the notes of Counsel’s arguments on page 106 of the record. If section11 had been cited and a plea in bar relied on the Judge could not haveignored it and I think all doubts as to whether the contention was raisedor not are disposed of by the fact that no reference is made to section 11in the petition of appeal nor exception taken to the District Judgedeciding the 5th issue on the. footing that the period of prescription wasten years.
In the cases cited there was a definite issue in each case raising thequestion whether the action was barred by lapse of time. The plaintiffsand the disputing defendants were rival claimants and there was definiteevidence regarding the date when the plaintiff’s right was disputed andevidence that the defendants exercised the right instead of the plaintifffor over three years.
In this case the defendants were also entitled to perform the rights of apoosari and the fact that they exercised the rights did not per se amountto a denial of the rights of the plaintiffs. In 1922 there was some disputebecause the 1st defendant did not let the plaintiffs cultivate some land.They complained to the Maniagar who held an inquiry. The firstdefendant’s evidence is that at the inquiry the first plaintiff said hecould not perform the ceremonies and that the second plaintiff wouldlook after them. Some paddy was given to the second plaintiff to settlethe dispute. That was in March, 1924. The dispute must have endedthen, for in June, 1924, the second plaintiff" performed the poojahceremonies. He then left the Island and according to the defendantsdid not come back to the temple till 1934. In June 1934, he assistedthe second defendant in performing the. ceremonies. When the secondplaintiff’s turn came round in the next month, he was told he had norights and he was not allowed to perform the rights.
1 (1916) 3 C. W. R. 193.2 (1927) 5 Times of Ceylon Law Reports, p. 1.
307
ABRAHAMS C.J.—Raymond v. Wijey war dene.
This is the first occasion on which the second plaintiff's right wasdisputed by the defendants and as the action was filed in 1936.it is notbarred by lapse of time.
There remains the question whether the second plaintiff is entitled to aone-third share of the rights he was declared entitled to or only toone-fourth, as alleged by the appellants.
The District Judge has not held that the defendants acquired the rightsof the first plaintiff. What he found was that the first plaintiff gave uphis rights and lost them by non-user for over ten years. Whether thisruling is correct or not is not in questidh as the 1st plaintiff has notappealed. On this finding the first plaintiff’s one-fourth devolved on theother hereditary poosaries and the second plaintiff thus becomes entitledto one-third as declared by the District Judge.
The appeal is dismissed with costs.
Hearne J.—I agree.
Appeal dismissed.