W. A. RATWATTE, Appellant, and A. BANDARA and another, Respondents

053-NLR-NLR-V-70-W.-A.-RATWATTE-Appellant-and-A.-BANDARA-and-another-Respondents.pdf


SRI SKANDA RAJAH, J.—Ratwatte v. Barvlara
251
Present: Sri Skanda Rajah, J., and Manicavasagar, J.W. A. RAT WATTE, Appellant, and A. BANDAR Aand another, Respondents
S. C. 202(61—D. C. BaduUa, 13686(M
Buddhist ecclesiastical law—Ruhunu Kataragama Maha Devale—Claim by a personto be hereditary Maha Kapurala thereof—Burden of proof.
Appeal—Fresh evidence—Circumstances when reception of fresh evidence may bejustified.
Plaintiff sued the Basnayake NiLame of the Ruhunu Kataragama MahaDevale for a declaration that he was a duly appointed Kapurala of the Devaleon the footing that his father (added defendant) was the hereditary MahaKapurala who, according to custom, had the right to appoint subordinateKapuralas and in the exercise of that right appointed the plaintiff as Kapuralaon May 1, 1955. He alleged that the defendant refused to recognize hisappointment and prevented him from functioning as a Kapurala.
Held, that the burden of establishing that the added defendant had the rightto appoint the plaintiff a Kapurala was on the plaintiff.
Reception of fresh evidence in a case at the stage of appeal may bejustified if three conditions are fulfilled, viz., (1) it must be shown that theevidence could not have been obtained with reasonable diligence for use at thetrial, (2) the evidence must be such that, if given, it would probably have animportant influence on the result of the case, although it need not be decisive,(3) the evidence must bo such as is presumably to be believed or, in other words,it must be apparently credible, although it need not be incontrovertible.
V. Perera, Q.C., with II. W. Jayewardene, Q.C., C. R. Gunaratne,A. U. E. Molamure and L. C. Seneviratne, for 1st Defendant-Appellant.
C. D. S. Siriwardene, with B. Bodinagoda and Miss A. P. Abeyratne,for Plaintiff-Respondent.
W. D. Ghinasekera, with W. S. Weerasooria, for 2nd Defendant-Respondent.
Cur. adv. vult.
October 8, 1966. Sri Skanda Rajah, J.—
At the outset I would express my regret for the delay in setting downthe reasons for the decision. It was mainly due to my having had todeal with three very long trials of election petitions and to my participatingin some rather long Divisional Bench Appeals.
Appeal from a judgment of the District Court, Badulla.
232
SRI SKANDA RAJAH, J.—Ratwatte v. Bandara
The plaintiff-respondent Adikaram Bandara filed this action againstW. A. Ratwatte, the then Basnayake Nilame of the Ruhunu KataragamaMaha Devale, for a declaration that he was a duly appointed Kapuralaof the Dewale on the footing that his father Manis Appu, who was lateradded as defendant, was the hereditary Chief Kapurala, and who,according to custom, had the right to appoint subordinate Kapuralasand in the exercise of that right appointed the plaintiff as Kapuralaon 1.5.1955. He further alleged that the defendant refused to recognizethe said appointment and prevented the plaintiff from functioning as aKapurala and claimed damages.
The defendant contested this claim and the right or power of ManisAppu to make such appointments.
After a very lengthy trial the learned District Judge entered judgment:for the plaintiff declaring that—
there is an office of Maha Kapurala ;
the office of Maha Kapurala devolved by hereditary succession ;
the added-defendant Manis Appu is the holder of the office of
Maha Kapurala ;
the added-defendant, by virtue of the office, is entitled to appoint
and dismiss subordinate Kapuralas ; and
the plaintiff is a duly appointed Kapurala.
The defendant appealed. He died pending appeal and S. L. Ratwatte,the defendant’s successor in office as Basnayake Nilame, wassubstituted.
The real issue in this case is whether Manis Appu had the right toappoint the plaintiff a Kapurala. The burden of establishing was clearlyon the plaintiff. That appears to have been lost sight of by the learnedDistrict Judge ; for, he said, “ The first defendant has failed to prove byany convincing evidence of any instance where the Basnayake Nilamehad appointed a Kapurala to this Dewale ”. In expressing himself thushe was misplacing the burden on the first defendant. Had he notapproached the evidence in this case in this way he would have come toa different conclusion.
Chief Justice Howard’s remarks in The King v. Wegodapola 1 madein respect of an inordinately lengthened trial would apply with equalforce to this trial in which the real issue was clouded by its inordinatelength.
The document 1D17 of 6.7.1951, to which the plaintiff was an attestingwitness, would go to show that Basnayake Nilame Rambukpothasuspended Kapurala Solomon Appuhamy on a complaint by the MahaKapurala {i.e., Manis Appu) on 13.4.1951 and reinstated him on 6.7.1951.
1 {1941) 42 N. L. R. 4.19 at 469.
SRI SKANDA RAJAH. J.—Ratwatte v. Bnndara
233
If Manis Appu had the right that is claimed in this ease it is inconceivablethat he would have complained in writing to the Basnayake Nilameagainst Solomon Appu instead of dealing with the latter himself.
The evidence of M. F. A. Fernando, Head Clerk, Buddhist Tempora-lities, Public Trustee’s Office, is that after Rambukpotha, BasnayakeNilame, died an election was held and W. A. Ratwatte (the originaldefendant) was elected. One of the contestants at that election wasthe plaintiff. Thereafter, the plaintiff, his father Manis Appu andMr. Advocate Suntheralingam interviewed the Deputy Public Trustee.Fernando himself was present at that interslew. Their complaint wasthat the first defendant (W. A. Ratwatte, Basnayake Nilame) hadrefused to appoint Bandara (the plaintiff) as Kapurala. (This interviewwas on 19.5.1955 after W. A. Ratw'atte’s election as Basnayake Nilame.)
Manis Appu, in his evidence, admitted that he did not tellMr. Suntheralingam that he had the right to appoint Kapuralas. Alsohe said, “ This is the first time I have made an appointment of a Kapuralain writing. That is by letter P4. I gave the waiting to be in evidenceof the appointment in view of the dispute that has arisen with theBasnayake Nilame ”. He further said, “ I wrent to the first defendant’sWalawu and asked him to give me the place of Maha Kapurala skip ….On several occasions I went to him
If Manis Appu was Maha Kapurala by hereditary right and customwhat was the need for him to ask the Basnayake Nilame (the firstdefendant) for that post ?
If the learned Judge had not misplaced the burden on the first defendantbut had given due weight to the pieces of evidence I have just referredto he would have dismissed the plaintiff’s action with costs.
The question of the admission of fresh evidence at the hearing of thisappeal may now be referred to, though the above reasons are sufficientto support the decision we reached, viz., that the appeal should be allowedwith costs and plaintiff’s action dismissed with costs.
After appeal wTas filed in this case—but before the original defendant,W. A. Ratwatte, died—the added-defendant Manis Appu, presumablyencouraged by the success in this case, filed Case No. 2163 D. C. Badullaagainst one T. R. Charlis Appu and W. A. Ratwatte, Basnayake Nilame,claiming that he, Manis Appu, was the holder of the office of MahaKapurala of the Ruhunu Kataragama Maha Dewale, that he had in thatcapacity appointed Charlis Appu as a subordinate Kapurala and theappointment was terminable at his will and further claiming that he,Manis Appu, had the right to officiate as Kapurala during the Esalaseason.
The two defendants filed answer denying the existence of a hereditaryoffice of Maha Kapurala and that the Basnayake Nilame had appointedCharlis Appu as Kapurala of the Dewale as he was lawfully entitled to.
534
SRI SKANDA RAJAH, J.—Ratwatte v. Bandara
At the trial the following issues were, inter alia, raised :—
Is the right to appoint Kapuralas a right belonging to plaintiff
as Maha Kapurala ?
If so, was the appointment of first defendant (Charlis Appu)
contrary to custom and irregular ?
During the course of the trial W. A. Ratwatte died and S. L. Ratwatte,his successor in office as Basnayake Nilame, was substituted.
While the trial was proceeding certain documents were discoveredin the possession of one M. N. Rambukpotha, the son of a formerBasnayake Nilame. One of them was a letter written by Manis Appuon 16.11.1938 to the then Basnayake Nilame G. B. Katugaha (markedD155 in D. C. 2163) and another (D156) notes of inquiry held by thePublic Trustee in 1945 at which Manis Appu stated that BasnayakeNilame Katugaha dismissed certain Kapuralas and appointed othersas Kapuralas and a third was letter (D195) by which the BasnayakeNilame appointed one Munasinghe to function as Kapurala for the monthof Nawan (February-March) in 1946.
That action was dismissed and Manis Appu has appealed.
We decided to receive same in evidence for the reasons set out below.
In Ttamasamy v. Fonseha1 Weerasooriya, J., following the decisionreported at page 74 in 1Balasingham,s Notes of Cases, held that freshevidence would not be permitted to be adduced in appeal unless it is of adecisive nature ; it must be such that, on a new trial being ordered, itwould almost prove that an erroneous decision had been given. It maybe observed that the admission of these documents in D. C. 2163 provedto be decisive against Manis Appu, who claimed the very same right inthat case, and through whom this plaintiff claimed to have derived theoffice of Kapurala.
In Ladd v. Marshall2 Denning, L.J., said, “In order to justify thereception of fresh evidence or a new trial, three conditions must befulfilled: first, it must be shown that the evidence could not have beenobtained with reasonable diligence for use at the trial : second, theevidence must be such that, if given, it would probably have an importantinfluence on the result of the case, although it need not be decisive :third, the evidence must be such as is presumably to be believed or,in other words, it must be apparently credible, although it need not beincontrovertible ”.
Basnayake Nilames are elected. Therefore, they may not be awareof the existence of relevant documents in the possession of theirpredecessors or elsewhere. D155 was with the son of the formerBasna3rake Nilame.
The three conditions enumerated by Denning, L.J., are fulfilled.
Manis Appu was questioned (in D. C. 2163) as to whether he wrotethe letter (D155) to the then Basnayake Nilame Rambukpotha. Heattempted to disown it, but, ultimately admitted, “ This is like my
1 (1958) 62 N. L. E. 90.* (1954) 3 A. E. R. 745 at 748.
MANIC A VAS AGAR, J.—Ralwatte v. Bandara
235
signature ”. His subsequent evidence regarding one of the Kapuralas,viz., Theris, suffering from parangi, to which disease D155 makes reference,makes it highly probable that he wrote this letter (D155). If he had theright and power in accordance with custom, as alleged both in thiscase and in D. C. 2163, to appoint and dismiss Kapuralas at his willand pleasure he would not have written D155 to the BasnayakeNilame.
In 1)156 (in 1945) Manis Appu admitted to the Public Trustee in thepresence of the First Accountant, Public Trustee’s Office, that theBasnayake Nilame Katugaha dismissed some of the Kapuralas andappointed five other Kapuralas, with whom he was prepared to co-operate.
These three documents go to fortify the decision reached independentlyof them.
Manic av as agar, J.—
The issue which has to be determined in this action relates to theclaim of the plaintiff that he is the duly appointed Kapurala to theKataragama Devale : his appointment is derived from his father, theadded defendant, who he says holds the office of Maha Kapurala tothe Devale, and according to the custom, coming down from timeimmemorial, he alone has the right to appoint Kapuralas to thetemple.
An essential characteristic to a claim such as this is the enjoyment,as of right, nec vi nee clam nee precario, without interruption, of thealleged custom, and without acknowledgment or acquiescence of thatright in another, for such a length of time, sufficient in the opinion ofthe Court to infer as a fact that the custom has existed for a substantialperiod.
The onus of establishing this is on the plantiff who relies on its existence.Even assuming that the added defendant holds an office bearing thedesignation, Maha Kapurala to the Devale, by right of hereditary succes-sion—I consider the quality of the evidence relating to this falls quiteshort of the standard of proof that a Court requires—the plaintiff’saction must fail ; he has not discharged the burden of proving theexistence of the custom he claims : not only is the oral evidence, whichconsists in the main of the evidence of the added-defendant, who iskeenly interested in the success of this suit, not weighty enough to relyupon, but the documentary evidence produced at the hearing in theoriginal Court, and in appeal establishes that the Basnayake Nilamehas in the past exercised the right to appoint, and to take disciplinaryaction against Kapuralas, and the added-defendant has himselfacquiesced, without demur, in the act of the Basnayake Nilame, untilthe present dispute arose.
I agree with the reasons stated by my brother for the order we madeat the conclusion of the argument, allowing the appeal, and dismissingthe plaintiff’s action, and the cross-appeals with costs.
Appeal allou'ed.