WAHARAKA ALIAS MORATOTA SOBHITA THERO v. AMUNUGAMA RATNAPALA THERO

020-SLLR-SLLR-1981-1-WAHARAKA-ALIAS-MORATOTA-SOBHITA-THERO-v.-AMUNUGAMA-RATNAPALA-THERO.pdf


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Moratota Sobhita Thero v. Amunugama Ratnapala Thero
201
WAHARAKA ALIAS MORATOTA SOBHITA THERO
v.
AMUNUGAMA RATNAPALA THERO
SUPREME COURT
SAMARAKOON, Q.C., C.J. SAMARAWICKREMA, Q.C., J, ISMAIL. JWEERARATNE, J. AND WANASUNDERA, J.
. S. C. (S.C.) 178/71 (F) D. C. KEGALLE 17176/L.
JANUARY 26. 28. 1981
Buddhist Ecclesiastical Law — Succession by dedication — Res judicata – Misjoinder —Prescription — S. 17 Civil Procedure Code – S. .3 and 10 Prescription Ordinance —S. 34 Buddhist Temporalities Ordinance.
The rules of res judicata apply to cases involving succession to an incumbency and the. Courts cannot and will not allow the same question to be re-agitated once a competentCourt has decided the issue. In cases where the pupil derives his right from the dedicationby right of pupillary succession, and not in reality from his tutor, successive incumbents.in the same paramparawa are bound by decisions concerning devolution in the sameparamparawa.
Section 17 of the Civil Procedure Code enjoins a Judge not to dismiss an action formisjoinder or nonjoinder of parties. The wrong party should be struck off and the"necessary amendments to the pleadings made. Merely striking out the name of a wronglyjoined plaintiff would sometimes suffice.
The right to an incumbency is a legal right enforceable in law and It is not purely anecclesiastical matter. When a Viharadipathi of a temple sues to be declared entitled to theoffice of Viharadhipathi of a temple and to eject those disputing his rights or to recover- possession of the temple and its endowments he is enforcing a right he has in law andany such claim is exempt from the provisions of the Prescription Ordinance by virtue ofthe provisions of s. 34 of the Buddhist Temporalities Ordinance of 1931. Therefore allcases that have held that such an action is bound by the provisions of s. 3 or s. 10 of thePrescription Ordinance have been wrongly decided.
The Viharadhipathi has the control and management of the Temple premises and itsoccupation. No priest can select for himself a place of occupation independently of thewishes of the Viharadhipathi. A priest who is guilty of contumacy can be ejected from thetemple.
Cases referred to
Moragolle Sumangala v. Kiribamune Piyadassi 56 N.L.R. 32
Podiya v. Sumangala Thero 58N.L.R. 29
Piyaratne Thero v. Pemananda Thero 62 N.L.R. 193,202
(41 London and Lanchashire Fire Insurance Co. v. P. & O. Company 18 N. L.R. 15
Algama v. Mohamadu 4 C.W.R. 73.
Kudhoos v. Joonoos 41 N.L.R. 25
Dingiri Appuhamy v. Pangananda Thero 67 N.L.R. 89
Rewata Unanse v. Ratnajothi Unanse (1916) .3 C. W. R. 193
Terunnanse v. Terunnanse (1927) 28 N.L.R. 477.
Premaratne v. Indasara .(1938) 40 N.Lfl. 233.
Kirikitta Saranankara Thero v. Medagama Dhammananda Thero 55N.L.R.313
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(1981) 1S.L.R.
Pandith Watugedera Amaraseeha Them v. Tittagalle Sasanatilleke Them 59N.L.R. 292
Henepolle Pansalle Sumangala Unanse v. Henepolla Pansalle Sobita Unanse5 S.C.C. 235, 236
Saranankara Unnanse v. tndajoti Unnanse 20 N.L.R. 385,401
Ratnapala Unnanse v. Sego Saibu Sego Abdul Cader 5 S.C.C. 61
Mahattaya v. Kumarihamy 7 S.C.C. 84
Kande v. Kiri Naide (1843 — 1955) Ramanathan's Reports 51.
Rathanapala Unanse v. Kewitiagaie Unanse 2 S.C.C. 26
Heneya v. Ratnapala Unnanse 2 S.C.C. 38
Somittare v. Jasin 1 A.C.R. 167
Sidharta Unanse v. Udayara 6.C.W.R. 29
Terunnanse v. Don Aron 34 N.L.R. 348, 351.
Wimaiatissa v. Perera 1 A.C.R. 83
Dias v. Ratnapala Terunnanse 40 N.L.R. 41
Devarakkita v. Dharmaratne 21 N.L.R. 255
Sumana Tissa Unanse v. Sometara Unanse 4 Leader L. R. 27
Piyadasa v. Deevamitta 23 N.L.R. 24, 25
Dhammejoty v. Tikiri Banda (1891) 3 S.C.C. 121
GooneratneNayake Them v. PunchiBanda Korala 28 N.L.R. 145,148
Guneratne v. Punchi Banda 29 N.L.R. 249
Terunnanse v. Ratnaweera 1 Times 48.
Therunnanse v. Andrayas Appu 68 N.L.R. 286
-Weeraman v. Somaratne Them 69 N.L.R. 438
Dharmaratne v. Indasara Isthavira 47 N.L.R. 460
Sobita Them v. Wimalabuddhi Them 42 N.LR. 453
Dhammananda Them v. Saddananda Them 79(1) N.L.R. 289
Appeal from judgment of the Court of Appeal.
C. R. Gunaratne with T. B. Dissanayake and Keerthi Sri Tillekeratne for the 1st defendant-appellant.
Eric Amerasinghe with J. W. Subasinghe, N.R.M. Daluwatte and Y. N. W. Abayaratne forthe substituted plaintiff-respondent.
Cur. adv. vult.
April 6,1981.
SAMARAKOON, C.J.
This is an action that was instituted in the District Court of Kegalle'on the 2nd February, 1965. After a chequered career it finally cameup for hearing on the 7th July 1969 on which date issues wereframed. These and other issues were finally accepted on 16thJanuary, 1970, and the trial commenced immediately thereafter.Order was delivered by the District Judge on 20th June, 1971, andthe Plaintiffs who were unsuccessful, appealed to the SupremeCourt on the 2nd July, 1971. Pending the hearing in appeal the 1stPlaintiff died and the 2nd Plaintiff was substituted in his place byorder of the then Supreme Court made on 10th March, 1975. Theappeal itself was heard by the Court of Appeal and allowed on 6thDecember, 1979. The first Defendant appellant has now appealedto this Court.
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Moratota Sobhita Thero v. Amunugama Ratnapala Thero
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The action was instituted by the deceased 1st Plaintiff (herein-after referred to as 1st Plaintiff) and the substituted Plaintiff(hereinafter referred to as the 2nd Plaintiff) for the recovery ofpossession of a temple known as Selawa Vihara in TunpalataPattu of Paranakuru Korale in the District of Kegalle. They averredthat the 1st Plaintiff was the Viharadhipathi and the 2nd Plaintiffwas the Trustee of Degaldoruwa Temple and the Meda Pansalaat Malwatte Vihara which were "comprised in a Charitable Trustfor the advancement of Buddhism and for the maintenance, support,benefit and use of the pupillary successors of Moratota Unitanse."They stated further that Selawa Vihare has from the time of Mora-tota Unnanse been appurtenant to Degaldoruwa Vihare and assuch, they were entitled to possess it with, its endowments. The1 st Plaintiff claimed as the pupillary successor of Moratota Unnanseand the 2nd Plaintiff, who was the only pupil of the 1st Plaintiff,claimed as the Trustee of the Vihare. Their prayer in the plaint(and all its subsequent amendments) was as follows:
"1. For a declaration that the said Selawa Vihara is compris-ed in a charitable Trust.
That the 1st plaintiff as Viharadhipathi and/or the2nd plaintiff as Trustee be declared entitled to be quietedin possession of the said Vihara and its endowments.
The 1st defendant be ejected from the said Selawa Viharaand be decreed to pay plaintiffs the sum of Rs. 3,000/-as damages already sustained with further damages at therate of R$.100/- per month till the plaintiffs are restored
.to possession of the said Vihare and its endowments.
For costs and for such other and further relief as to thisCourt shall seem meet."
It is common ground that the Venerable Moratota RajaguruDhammakkande Thero, Mahanayake of Malwatte, was the Vihara-dhipathi of Degaldoruwa Vihara of Meda Pansala in Malwatteand of Selawa Vihara and that the succession to the said templeswas governed by the Sisyanu Sissiya Paramparawa (pupillary)rule of succession. Each Vihara had been separately endowed withvast acres of land. To the Selawa Vihara King Sri WickremaRajasinghe, the last King of the Kandyan provinces, gifted largetracts of land on its restoration by Moratota Unnanse in 1806A:D. (2349 AB). This grant is engraved on a stone slab built intothe outer wall of the Vihara. (Vide an extract of the ArchaeologicalSurvey of Ceylon — Vol. XII — 1892 by P.C. Bel p. 19). The Plain-tiffs pleaded that the 2nd Defendant had been placed in possession
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of Selawa Vihara by the Plaintiffs and that the 1st Defendant hadbeen permitted to occupy a portion of the Vihara and is nowdisputing the Plaintiff's rights to the temple and its endowments.The first Defendant denied this. The 1st Defendant claimed thetemple in his own right by pupillary succession to Moratota Unnan-se and denied that Selawa Vihara was appurtenant to DegaldoruwaVihara. He claimed for it a distinct and separate existence. The 2ndDefendant did not file answer.
Thf Plaintiffs averred that Moratota Unnanse died leaving 2pupils:
Dunumale Seelawansa Unnanse, and
Paranatale Unnanse.
It was alleged that Paranatale Unnanse was beheaded by theKing and that Seelawansa Unnanse succeeded to the incumbency.He died and was succeeded by Balaharuwe Sonuththara Unnanse.He in turn was succeeded by his only pupil Paranatala Seelawansa(Jnr) who disrobed himself leaving :
Sumana Unnanse,
Sumangala Unnanse, and
Ratnapala Unnanse.
The first named died and the second named disrobed himself.Neither left pupils and Ratanapala Unnanse succeeded to theincumbency. The 1st Plaintiff claimed the incumbency to SelawaVihara by pupillary succession to Ratnapala Unnanse.
. The 1st Defendant contested this line of succession. He contend-ed that Moratota Mahanayake died leaving two pupils :
Deliwala Dhammadinna Unnanse, and
Paranatale Unnanse.
Paranatale Unnanse as senior pupil succeeded to the incumbencyand upon his being beheaded his senior pupil Mahalle SobithaUnnanse succeeded him. Sobitha Unnanse died and was succeededby his chief pupil Parusselle Dhammajothi Thero. The 1stDefendant claimed that he succeeded Parusselle DhammajothiThero.
The 1st Defendant also took up an alternative position. He statedthat when Paranatale Unnanse was beheaded the King reigning atthe time took back the Vihara and handed it to KobbewalaUnnanse but the British Government restored it to Deliwala
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Moratota Sobhita Them v. Amunugama Ratnapala Them
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DhammadinnaThero and upon his death UdayaleGunaratana Therobecame the Adhipathi. Gunaratana Thero by Deed No. 1661dated 18th July 1936 "nominated and constituted" ParanataleRatnapala Unnanse as Viharadhipathi who thereafter officiated.He in turn by Deed No.11007 dated 7th May, 1839 nominatedthe following :
Balaharuwe alias Paranatale Sumana Unnanse,
Balaharuwe alias Paranatale Ratnapala Samanera,
Parusselle Samanera Unnanse (later Parusselle Dham-majothi Thero), and
4: Sirimalwatte Sumangala Unnanse.
The fourth named officiated as Viharadhipathi and on his deathParusselle Dhammajothi- succeeded him. He was succeeded by oneof his pupils Waharaka Sonnuttara Thero. Sonnuttara Thero died in1946 and he was succeeded by Waharaka Gunaratana Thero. The1st Defendant claims to have succeeded to the incumbency on thedeath of Gunaratana Thero in 1962. Certain admissions by partiesrecorded on 7—7—1969 curtailed the lengthy dispute somewhat.They are as follows :
"1. It is admitted that Selawa Vihare and its endowments
were dedicated to Moratota Anu Nayaka and the pupillary
successors according to the rule 'Sissiyanu-Sissiya-Parampara-
wa.
2. It is also admitted that although the parties come bydifferent process in or about 1836 Paranatala Ratanapala(senior) was the lawful Viharadhipathi of the said Vihare asthe pupillary successor of Moratota according to rule ofSissyanu-Sissiya-Paramparawa and that the said ParanatalaRatanapala by his deed No.11007 of the 7th May, 1849conveyed the said Vihare to four persons namely : 1
(1)Sumana;
Ratanapala (Junior);
Sumangala;and (4) Parussella.
Admission 2 was later modified on 7-7-1969 as follows:
"2. It is stated by the plaintiff and admitted by thedefendant as an alternative claim that although the partiescome by different process that in or about 1836 ParanatalaRatanapala Senior was the lawful Viharadhipathi of thesaid Vihara as the pupillary successor of Moratota according
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to the rule of Sissyanu-Sissiya-Paramparawa and that thesaid Paranatala Ratanapala by his deed No. 11007 of the7th May, 1849, conveyed the said Vihara to four personsnamely:
Sumana;
Ratanapala (Junior);
Sumangala;and (4) Parussella.
This second admission concerned the alternative claim of the 1stDefendant.
The following issues were framed and finally accepted by theJudge:
Is the Judgment and Decree in' D.C. Kandy Case No.81630 res-judicata between the parties that Parussellawas neither robed or ordained by the said ParanatalaRatanapala senior?
If issue No. (1) is answered in the affirmative, was thesaid deed No. 11007 inoperative to pass any right, title orinterests to the said Parussella or to his pupillary successors?
Is the said Selawa Vihare appurtenant to DegaldoruwaVihare ?
Is the Judgment and Decree in D.C. Kandy Case No.4541.5res judicata between the parties that the 1st plaintiff is thepupillary successor of Paranatala Ratanapala senior ?
Is the 2nd plaintiff the lawful trustee of DegaldoruwaVihare ?
If issues (3) (4) and (5) are answered in the affirmative, arethe plaintiffs entitled to the reliefs prayed for in theplaint ?
Is there a misjoinder of plaintiffs and causes of action ?
Is the Selawa Vihare a Buddhist Temple separate anddistinct from Degaldoruwa Vihare ?
Is the 1st defendant the duly appointed Trustee of SelawaVihare ?
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Moratota Sobhita Thero v. Amu nugam a Ratnapala Them
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If issue No. (9) is answered in the affirmative, are thePlaintiffs in this case entitled to any relief ?
Have the 1st Plaintiff and his predecessors abandonedtheir claims, if any, to the Office of Viharadhipathi ofSelawa Vihare?
Is the cause of action of the 1st Plaintiff and/or the 2ndPlaintiff barred by lapse of time ?
a. Is the 1st defendant in the line of pupillary succession to
Moratota Anu Nayaka as set out in paragraphs 4, 5, 10and 11 of the further amended answer dated 1—2—68 ?
b.Or as set out in paragraphs 6, 7, 8, 9, 10 and 11 of the
amended answer of 1—2—68 ?
If issue (13) is answered in the affirmative, is the 1stdefendant liable to be ejected ?
Did Paranatala Ratanapala die leaving three pupils —
viz :
Sumana;
Amunugama Ratanapala;and (3) Sumangala ?
Did Amunugama Ratnapala succeed to Paranatala Ratana-pala by virtue of Sumana dying leaving no pupils andSumangala having disrobed himself as stated in the plaint?
If issues (15) and (16) are answered in the negative, is the1st Plaintiff entitled to the relief claimed ?
Did Paranatala Ratanapala die without nominating hissuccessor as set out in the plaint ;
OR
Did he nominate his successor on deed No. 11007 of 1849?
If Paranatala Ratanapala did execute deed No.11007 of1849 nominating his successor, is the 1st Plaintiff entitledto succeed on the averments pleaded in the amendedplaint of 17th December, 1967 ?
|s there any appointment in favour of either of the plain-tiff to the office of Trustee of the Selawa Vihare ?
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If no.t are the plaintiffs entitled to be placed in possessionof the endowments of the Selawa Vihare and to theejectment of the defendants ?
If issue No. 3 is answered in the affirmative is the appoint-ment of the 1st defendant as Trustee of the Selawa Viharevoid and of no value in law?
Is the judgment and decree in D.C. Kandy case No.90099res judicata and are the defendants estopped from claimingthat Mahella was a pupil of Moratota or a pupillary suce-ssor of Moratota?
Was Paranatala Anu Nayake ever the Viharadhipathi ofSelawa temple ?
Even if Paranatala Ratnapala – No. 1, was the lawfulViharadhipathi as stated by the plaintiff and he, thesaid Paranatala Ratanapala No. 1, disrobed himself leavingthree pupils:
Sumana;
Ratanapala No. 2;and Sumangala.
and the said Sumana succeeded to Ratanapala No. 1, andSumana died leaving no pupil as stated by the 2nd plaintiffin his evidence; was Ratanapala No. 2 entitled in law tosucceed to the office of Viharadhipathi?
If the preceding issue is answered in the negative, is theplaintiff entitled to the office of Selawa Viharadhipathy ?
After trial the learned Judge answered issue 7 in the 1st Defendant'sfavour and dismissed the Plaintiff's action. Issue 26 was notanswered by the District Judge.
The 1st Plaintiff relies on three decisions of the Supreme Courtto establish his claim as pupillary successor of Moratota RajaguruDhammakkande Thero who was admittedly the original Viharadhi-pathi of Degaldoruwa Vihare. The first of these was the caseNo. 81630 instituted in the District Court of Kandy in 1879 byParuselle Dharmajothi Unnanse of Malwatte (through whom the 1stDefendant now claims in this case) against Tikiri Banda Paranatala,Pillawala Dhammadassi Unnanse and Amunugama RatanapalaUnnanse (Plaint P10). He claimed to be entitled to DegaldoruwaVihare and its endowments upon a Deed, dated 7th May 1849
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Moratota Sobhita Them v. Amunugama Ratnapata Thero
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executed by Paranatala Thero (Senior). The Supreme Court heldthat Dhammajothi Unnanse was not a pupil of Paranatala (Senior)and therefore not a pupillary successor of the original granteeMoratota Mahanayake. (Vide 4 S.C.C. 121).
The next case is the case No. 9009 which was instituted in theDistrict Court of Kandy. This was also instituted by ParusselleDharmajothi Thero on 27th January 1882 against the three personswho were the Defendants in Case No. 81630 referred to above. Inthis the priest claimed to be the sole Incumbent of DegaldoruwaVihare by right of pupillary succession to Mahalle Sobitha Unnanse(Plaint PI3) who, he alleged, was a pupil of Moratota Mahanayake.The plaintiff failed to establish this and his action was dismissed.
The last of the cases is No. 45415 instituted in the DistrictCourt of Kandy on 4—7—1934 (Plaint P5). In that case the 1stPlaintiff and 2nd Plaintiff (both appellants in this case) claimedMeda Pansala in Malwatte Pansala as being part and parcel of theendowments of. Degaldoruwa Vihare. The four Defendants whowere priests residing in Meda Pansala claimed it by right of success-ion to Parusselle Dhammajothi Thero. The second Defendant in thiscase, Waharaka Gunaratne Thero, was the Tutor of the 1stDefendant in that case, and the 1st Defendant claims to havesucceeded him.
The Supreme Court held that Meda Pansala was appurtenant toDegaldoruwa Vihare and that the 1st Plaintiff as the rightfulincumbent of Degaldoruwa Vihare was entitled to Meda Pansala(Vide 3.9 N.L.R. 236). These cases establish that ParusselleDhammajothi Thero was not a pupillary successor to MoratotaMahanayake, that the 1st Plaintiff was the rightful pupillarysuccessor to Moratota Mahanayake and therefore entitled toDegaldoruwa Vihare and its appurtenant, Meda Pansala. In this caseboth contestants agree that Selawa Vihare was granted to MoratotaMahanayake and his pupillary successors. It is this same line ofsuccession that applies to Degaldoruwa Vihare. In District CourtKandy Case No. 9009 the Supreme Court held that MahalleSobitha Unnanse was not a pupil of Moratota Mahanayake. The 1stPlaintiff pleaded that these decisions were res adjudicata betweenthe parties. There is no doubt that the rules of res judicata willapply in cases of this kind. Courts cannot and will not allow the.same question to be reagitated once a competent Court has decidedthe issue. There must be an end to litigation. Moragolle Sumanga/avs. Kiribamune Piyadassi Podiya vs. Samangala Thero *2)In a case such as this where the pupil derives his right from thededication by right of pupillary succession, and not in reality fromhis tutor, successive incumbents in the same paramparawa are
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bound by decisions concerning devolution in the same parampara-wa. It is analogous to a fideicommissum. "While a fiduciary inrelation to fidei commissaries, can be regarded as representing theinheritance, a tutor in’ relation to his pupils in a particular line ofsuccession can be regarded as re presenting the succession or thatline—per Sansoni J. in Piyaratne Thero vs. Pemananda TheroTherefore issues 1, 2 and 4 were correctly answered and 1st Plain-tiff was properly held to be the de jure Viharadhipathi of SelawaVihare.
The question was raised as to whether Selawa Vihare was anappurtenance of Degaldoruwa Vihare. Degaldoruwa Vihare wasgranted on a Sannas by King Sri Rajadhi Rajasinghe to MoratotaMahanayake Thero. This Sannas is reproduced by Lawrie at page138 of Vol. 1 of his Gazetteer (Vide judgment P8). Selawa Viharewas restored in the year 1779 A.D. (2322 A.B.) by MoratotaMahanayake and King Sri Wickrama Rajasinghe, who reigned inKandy from 1798 — 1815 A.D., dedicated lands to this templewhich were to be inherited by pupillary succession to MoratotaMahanayake. This dedication is engraved on a rock built intothe outer wall of the Vihare and is dated 2439 A.B. (1806 A.D.)(Vide P19). Lands belonging to Selawa Vihare were surveyed in1864 and registered as Temple Land under the Temple LandRegistration Ordinance 1856 (P1 and P2). A Service TenuresRegister had been prepared for its lands that were subject to servicetenures (P3 and P4). Services were performed by Paraveni Nilakara-yas of Selawa Vihare which services were also utilised to maintainMeda Pansala which was the Avasa of Moratota Unnanse. But thislast fact does not prove that Selawa Vihare was appurtenant toDegaldoruwa. The finding that Selawa Vihare was not appurtenantto Degaldoruwa Vihare is correct.
Issue 7 raised a question of misjoinder of Plaintiffs and causes ofaction. The learned District Judge answered it in the affirmative.His view was that "the status of a Trustee and the status of Vihara-dhipathi cannot constitute one cause of action." They were, in hisopinion distinct. In the original plaint and its subsequentamendments the 1st Plaintiff pleaded that he was the Viharadhipa-thi of Selawa Vihare and the 2nd Plaintiff stated that he wasTrustee of Selawa Vihare by virtue of the fact that he was Trusteeof Degaldoruwa Vihare. Neither prayed for a declaration of status.The joint prayer is as follows :
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Moratota Sobhita Thero v. Amunugama Ratnapala Thero 211
That Selawa be declared a Charitable Trust.
That they or one of them be quieted in possession.
' 3. That they be awarded damages against the first Defendant.
In the original plaint dated 2—2—1965 (and all its subsequentamendments) the Plaintiffs pleaded that since 30th September,1964, the first Defendant was in forcible possession and disputingtheir rights. In considering this objection one must first look atthe plaint and its averments. The first Plaintiff does not ask for adeclaration that he is the Viharadhipathi nor does the 2nd Plaintiffask for a declaration that he is the Trustee of Degaldoruwa Vihareor even of Selawa Vihare. The Plaintiffs plead that the firstDefendant is "wrongfully and unlawfully disputing the plaintiffs'
rights to the said Selawa Vihare and is in wrongful and
unlawful possession thereof" causing loss and damage. "Cause ofaction" is defined in section 5 of the Civil Procedure Code asfollows:
"cause of action" is the wrong for the prevention or redress ofwhich an action may be brought, and includes the denial of aright, the refusal to fulfil an obligation, the neglect to performa duty, and the infliction of an affirmative injury."
The relief claimed was alleged to exist in them jointly against thefirst Defendant. Therefore the joinder conformed to the provisionsof section 11 of the Civil Procedure Code, At the end of the trialthe learned Judge found that Selawa Vihare was not a appurtenantof Degaldoruwa Vihare and this finding implied that the 2ndPlaintiff had at no tirti^a cause-of action to join in this action as he .could claim no rights in Selawa Vihare based on his status asTrustee of Degaldoruwa Vihare. It was then open to him, to givejudgment for the 1st Plaintiff alone without amendment of thepleadings as he was empowered by section 11 of the Civil ProcedureCode to do. Instead, he dismissed the action which dismissal wasnot warranted in law. The Court of Appeal was of the view that theJudge should have acted under the provisions of section 17 of theCivil Procedure Code. This section enjoins a Judge not to dismissan action for misjoinder or nonjoinder of parties. The SupremeCourt has held that in cases of misjoinder the Court shouldfacilitate the correction of defects by striking off wrong parties andby making the necessary amendments to pleadings. London andLanchashire Fire Insurance Co. v. P. & 0. Company(4) Algamma.v. Mohamadu ^ Kudhoos v. Joonoos Dingiri Appuhamy v.Pannananda Thero(l). Even if section 17 of the Civil ProcedureCode was applicable I would not in this case send the case back for
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such action to be taken in view of the fact that the 2nd Plaintiffhad no cause of action whatsoever. Technicalities of this naturemust be overcome to ensure the least possible expense and delay.Merely striking out the name of the 2nd Plaintiff from the captionwould have sufficed. However in the circumstances of this case thiscourse of action is not necessary.
The next question is the issue of Prescription. The Appellant'scontention is that this action is a claim for an incumbency andtherefore one for declaration of a status which Claim is barred in3 years in terms of section 10 of the Prescription Ordinance.Hewata Unnanse v. Ratnajothi UnnanseW Terunnanse v.Terunnanse^'i and Premaratne v. Indasara^Q). I n Kirikitta Sarana-nkara Thero v. Medegama Dhammananda Theroi11) GratiaenJ. came to the same conclusion, though reluctantly, but heexpressed doubts as to this proposition in the following manner:
"The earlier authorities certainly seem to indicate that, ifa trespasser who disputes the status of the true incumbent of atemple continues thereafter to remain in adverse possessionwithout interruption for a period of three years, the dilatoryincumbent's right to relief in the form of a declaratory decreebecomes barred by limitation under section 10. We must,of course, regard ourselves as bound by these decisions, butwith great respect, I think that, on this particular point, thequestion calls for reconsideration by a fuller Bench on anappropriate occasion. It is clear law'that an impostor cannotacquire a right to an incumbency by prescription; nor can therights of the true incumbent be extinguished by prescription. •Although the operation of section 10 may destroy the remedyaccruing from a particular "denial", the right or status itselfstill subsists, it is true that the lawful incumbent can take nosteps after three years to enforce his remedy if it is basedexclusively on that particular "denial" of his status, butthere is much to be said for the argument that a continuinginvasion of a subsisting right constitutes in truth a continuingcause of action. Indeed, the contrary view would indirectlyproduce the anomalous result of converting the provision ofsection 10 into a weapon for the extinction of a right whichcannot in law be extinguished by prescription."
He adopted the same principle in Moragolla Sumangala vs. Kiriba-mune Piyadassi (1) Basnayake C. J. also expressed doubts as to thecorrectness of this view. He thought that such an action was ineffect not only for a declaration of status but also for the recoveryof the temple and its property and therefore the provisions ofr.tion 3 of the Prescription Ordinance should apply. His obiter
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dictum in die case of Pandith Watugedera Amaraseeha Thero v.Tittagalle Sasanatifake Thero is as follows:
"The plaintiff's action is in effect an action, for notonly a declaration of status, but also for the recovery of thetemple and its property, for, his prayer is that the defendantbe ejected from the premises described in the Schedule to theplaint.
It would therefore not be correct to treat the instant caseas an action for- declaration of a status alone. The period ofprescription in respect of actions for the purpose of beingquieted in possession of lands or other immovable property,or to prevent encroachment or usurpation thereof, or toestablish a claim in any other manner to land or property isgoverned by section 3 and not by section 10 of the Prescrip-tion Ordinance. The decisions of this Court (1916) 3 C.W.R.198 (8)(1927) 28 N.L.R. 477 (9>, and (1938) 40 N.L.R.
235 which held that an action for an incumbency of atemple, being an action for a declaration of a status, is barredby the lapse of three years from the date when the cause ofaction arose, may have to be re-examined in a suitable case inthe light of the altered rights of a Viharadhipathi who is nowempowered to sue and be sued as the person in whom themanagement of the property belonging to a temple is vested."
In the case of Kirikitta Saranankara Thero (supra) Gratiaen J.expressed the view that "an impostor cannot acquire a right to anincumbeney by prescription nor can the rights of the true incum-bent be extinguished by prescription." He cited no authority forthis proposition. When he later came to decide the case of Mongo-lia Sumangala vs. Kiribamune Piyadassi (supra) he stated this to besettled law. As a part of Buddhist Ecclesiastical Law this is true.Prescription was a later British concept. The question I ask myselfis — Does the Prescription Ordinance apply in this case ?
It must be borne in mind that the prayer to the plaint in thisaction merely asks that the plaintiffs be quieted in possession ofthe Vihare and its endowments and for the ejectment of the firstDefendant. As a result of the issues framed the learned DistrictJudge held that the 1st Plaintiff must be deemed to be the lawfulsuccessor to Moratota Mahanayake in respect of the incumbency ofSelawa Vihare It is in that capacity that the prayer tothe plaintmust be considered. In the result he is praying for recovery ofpossession and damages as Viharadhipathi. In considering this ques-tion I proceed on the basis that Selawa Vihare was at all times sang-ika property, as this was the accepted basis throughout the trial by
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both contesting parties. What was the Buddhist Ecclesiastical Lawin regard to the rights and powers of a Viharadhipathi in the templeand its endowments, and in what form do they now exist after themany British Statutes interfering with them? No doubt one hasto refer to the Buddhist Scriptures to find the original rules. Theyare the three Pitakes but over the centuries rites, rituals, customsand practices have developed, particularly in relation to dealings inproperty, and these are tolerated by Buddhists as accretionsgrowing out of historical necessity. Dias J. in Henepolle PansalleSumangala Unnanse v. Henepolle Panselle Sobita Unnansestated the position thus:
"These Pitakas, three I believe in number, contain a largebody of rules and regulations with reference to theconduct of the priesthood, to the succession to ecclesiasti-cal property, and so forth; but the Buddhists of Ceylonhave not adopted ail these rules, and our Courts haveonly given effect to such rules as have been adopted inthis country. Now, one of the fundamental rules of-right, a priest, according to Buddhist theology is that a
priest is not entitled to hold property commonly calledPudgalika in this individual right A priest, according to
Buddhist law, is supposed to be a pauper, and he isindebted for his daily subsistence to the charity of Budd-hists. This rule is, to some extent, in force in this country,for we occasionally see Buddhist priests going round withtheir pattre of vessel to collect their daily food. This isthe correct Buddhist usage; but in point of fact, theBuddhist priests of this country are landed proprietorsthey buy and sell and enter into contracts in their ownright, and these dealings are upheld by our courts."
De Sampayo J. in Saranankara Unnanse v. Indrajoti UnnanseU4)preferred to look to actual practice and custom. He found himselfin agreement with Dias J. (quoted above) and added:
"This view is confirmed by the number of departuresfrom the strict Buddhist law and the creation of newprecedents. For instance, notwithstanding the rule ofabsolute poverty, priests generally hold considerableprivate property which is at their own disposal, andon their death descends to their lay heirs, Ratanapa/aUnnanse v. Abdul Cader( 15) Mahattaya v. Kumarihamy(16).passages in Marshall's Judgments and Morgan's Digestwhich reproduce the old Buddhist rule. Again, a priest
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may acquire property by special gift or bequest, and hemay inherit his brother's or sister's estate, or if he be the onlychild, he has a right to his father's lands in preference to, colla-terals. Kande v. Kiri /Va/cfei17). He was also entitled, beforethe enactment of the Buddhist Temporalities Ordinance, tothe savings out of the revenue of the temple. See Ratnapalavs. Abdul Cader (supra) and the authorities therein cited.Another instance of modification is found in SumangalaUnnanse vs. Sobita Unnanse (supra), where it has been held,notwithstanding the authority of the Buddhist scriptures tothe contrary, that a deed of gift conferring the incumbencyon a pupil may be revoked by the grantor and a new appoint-ment made. Without referring to all the examples of thiskind, I may mention that the jurisdiction exercised withoutany question by the Asgiriya and Malwatte Colleges in appo-inting incumbents to vacant temples where the line ofsuccession has been broken, appears to have no support inthe Buddhist scriptures, which confer that power upon theentire priesthood. Nor is there any warrant in the books forthe distinction between the Siamese and the Amarapurasects, and for the incapacity of a priest of one sect to succeedto an incumbency held by a priest of the other sect. I wish,however, to make it clear that these changes should beregarded, not as lapses, but as necessary developments in thecourse of centuries. Doctrine and belief are, of course, immu-table, but discipline and administration are naturally subjectto modifications. Accordingly, it becomes necessary, inmatters of the latter kind, to look to actual practice andcustom rather than to the accient canons."
Then again he quotes the statement of Sri Sumangala GahagodaNayake Thero of Dambulla in regard to the much litigated ruleof pupillary succession as follows :
"What I have now stated does not appear in any booksbut is the custom handed down for ages. Buddha did notcreate Sissiyanu Sisya paramparawa succession but theKings did, who in ancient times dedicated temples to theworship of Buddha by Royal Sannas". I
I think one can safely assume that the original rules contained inthe scriptures have not uniformly been adhered to by the Buddhistsof this country but various practices, custom and usage have sprungup and these have from time to time been recognised by theCourts. It is to those decisions that one must look to find that partof the Buddhist ecclesiastical law that has. escaped the ravages ofBritish and other legislations. The historical evolution of this law
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is contained in a series of decisions the correctness of whichhowever is not necessary for us to examine. The Viharadhipathiwas entitled to the temple and its lands (1 Beven & Siebel Reports1859p. 32). An incumbent held "the temple lands subject to theduty of making provision out of the revenues for the maintenanceof the temple. Anything which he saves out of revenues and diespossessed of, passes to his legal representative — that is the personwho would be his legal representative were he a layman, perClarence J. in Ratnapala Unanse vs. Sego Saibu Sego Abdul Cader(supra). This was a decision in June 1882. Property dedicated to aVihare or Pansala was the property of the incumbent for thepurposes of his office, including his own support and the mainte-nance of the temple and its services. Rathanapala Unanse vs. Kewi-tiaga/a Unanse*18! He could alienate or encumber the lands to meetthe needs and exigencies of the Vihare. Heneya vs. RatnapalaUnnanse^i These decisions show that the Viharadhipathi referredto as the 'incumbent' which term is more appropriate to Englishlaw, was considered to have proprietary rights over the templeand its endowments and to wield almost unfettered power overthem.
The first of the legislative attempts to control this power was theBuddhist Temporalities Ordinance No. 3 of 1889 as amended byOrdinance No. 17 of 1895 and Ordinance No. 3 of 1901. Theywere subsequently consolidated into the Buddhist TemporalitiesOrdinance No. 8 of 1905. The essence of this Statute was that titleto the temple and its endowments movable and immovable wasvested in Trustees elected in terms of section 17 of the Ordinance.Section 20 reads as follows
"All property, movable and immovable, belonging or inanywise appertaining to^or appropriated to the use of anytemple, together with all the issues, rents, and profits of thesame, and all offerings made for the use of such templeother than the pudgalika offerings which are offered for theexclusive personal use of any individual priest, shall vest in thetrustees of such temple, subject, however, to any leases andother tenancies, charges, and encumbrances affecting any suchimmovable property; and such issues, rents, profits, andofferings shall be appropriated by such trustees for thefollowing purposes and no other:
The proper repair and furnishing of such templeand the upkeep of the roads and buildings belongingthere;
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The maintenance of the priesthood and ministerialofficers attached to such temple;
The due performance of religious services andceremonies as heretofore carried on, in, or by or inconnection with, such temple;
The promotion of education;
The relief of the poor in the case of a dewale, and thecustomary hospitality to priests and others in the caseof a vihare;
The payment of compensation under sections 37 or38 ;
The payment of such share of the expenses incurredor to be incurred in carrying out the provisions ofthis Ordinance as shall be determined by the districtcommittee."
One of the Trustee's duties was to utilise income for th.e mainte-nance of the priesthood and ministerial officers, the maintenanceand repair of the temple and buildings and for the performance ofreligious services. By section 30 he was permitted to sue and couldbe sued as Trustee in the name of the temple. The reasons why thiswas necessary was considered to be that neither the temple nor theViharadhipathi was a corporation and could not therefore in thelaw maintain an action for temple property. Section 28 casts a dutyon the incumbent to furnish information to the Trustee and to thePresident of the District Committee with regard to offerings madeto the temple, regarding value of paraveni, maruveni and other landsand the value of rents issues and profits of these lands.
" I ncumbent" here is defined as follows in section 2:"Incumbent" shall mean the chief resident priest of a temple."
This definition includes both the Viharadhipathi or the Chiefresident priest officiating on his behalf. The latter was known as'Adhikari'. This term'incumbent'could include the Viharadhipathiif he was resident in the temple, [vide 20 N.L.R. at 397^). There-after sections for vindication of title to temple property could onlybe maintaind by a Trustee as title was vested in him, Somittare. v.Jasin®Q) not by reason of the fact that section 30 empowers theTrustee to sue (as this decision states) but by reason of the vestingin terms of section 20 of the Ordinance. Yet it appears that thisright of action in the Viharadhipathi was not lost till a Trustee was
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in fact elected. The title remained in the incumbent until such time.In the case of Sidharta Unnanse v. Udayara <21' a case decided in1919, de Sampayo J. held that the incumbent priest, as de factoTrustee, was entitled to maintain a possessory action to recover afield belonging to a Dagoba. This right was recoqnised becausea Trustee had not been elected as reouired bv the Ordinance. (VideDrieberg J. in Terunnanse v. Don Aron (22).On the other handin the case of Wimalatissa v. Perera*23* it was held that the incum-bent was not entitled to sue for rights to land and only the Trusteecould do so. See also Dias vs. Ratanapala Terunnase*24*
These provisions in the Ordinance of 1889, and especially section20 thereof, did not however remove certain inalienable rights andinterests of the incumbent in the temple and its endowments. In theyear 1919 in the case of Devarakkita v. Dharmaratne ^ the incum-bent priest was declared entitled to the control and administrationof the Vihare. Ennis, A. C. J. expressed himself thus:
"Till the passing of the Buddhist Temporalities Ordinance aquestion of the incumbency involved without doubt the poss-ession of the lands and other property of the Vihare. After theenactment of these Ordinances the property of the Vihare wasvested in the trustee, and it is suggested now that the incumbenthas no material interest in the property. I am unable to say thatthis is so; it would seem that the prevailing priest or incumbenthas the control and administration of the Vihare itself, althoughthe property vests in the trustee, and, therefore, the right to anincumbency is still a legal right, and not purely an ecclesiasticalmatter."
The incumbent was not however granted a right to obtain eject-ment. So also in the case of Sumana Tissa Unnanse v. SometaraUnnanse in which the incumbent priest was granted only a dec-laration of his right to the incumbency of the Vihare but was de-nied the right to eject the trespasser and the right to damages. I willrevert to this later in this judgment. In the year 1921 in the case ofPiyadasa vs. Deevamitta(2?) De Sampayo J. reiterated this right ofcontrol and management. He stated:
"The first defendant, in the first place, depends on thedocument granted to him by the High Priest Galgiriawa Teru-nnanse. The document is an informal non-notarial instrument,and is therefore insufficient to create such an interest in theproperty as the first defendant claims. Moreover, I doubtwhether the High Priest, even apart from the Buddhist Tempo-ralities Ordinance, though he had control and managementof the premises and might regulate its occupation and use,
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had any right to give away any part of it or to create an interesttherein to last beyond his own tenure of office. The first defen-dant, in the next place, falls back upon the general principlethat sangika property is common to the entire priesthood, andthat an individual priest cannot be ejected therefrom. Thisprinciple was stated by Cayley C. J. in Dhammejoty v. TikiriBandanas follows: 'A Buddhist priest cannot be ejected froma Buddhist vihare except for some personal cause, irrespectiveof the rights of property'. There is no doubt about thisBuddhist law, and it is therefore unnecessary to examine furtherthe authorities on that subject. This right of the priesthood,however, surely does not mean that an individual priest canselect for himself a particular place in the vihare independentlyof the chief incumbent and against his wishes. I think that anypersistent assertion of an insistence on such an alleged right is a'personal cause', for which he may properly be asked to leave.Such conduct would amount to contumacy, and in the exerciseof ecclesiastical discipline and order, the incumbent has, I think,sufficient authority even to eject the offending priest.”
In the year 1926 in the case of Gooneratne Nayake Thero v.Punchi Banda Korala^ the chief priest of Dambulla Vihare wasdeclared entitled to the gabadage (store) and muItenge (kitchen) ofthe Vihare and their unhampered use for the purpose of performingthe religious rites and ceremonies of the Vihare. A Trustee was notentitled to appoint or dismiss the ministerial officers attached tothe Temple. Lyall Grant J. stated as follows:
"In order to understand the position, one has to inquireinto the precise functions which the gabadage and the multengeserve in the temple economy. The gabadage is the store-roomcontaining rice set apart for the temple offerings and for themaintenance of the priests. It also contains some utensils usedin the handling of the rice. The Multenge is the kitchen to whichthe rice is taken from the gabadage, and where it is prepared forthe purpose of 'pooja' and offerings in the temple.
It is clear from the evidence that this preparation of rice ispart of religious ceremony.
In order to ascertain how far the duties of the trusteeextend, one has to consider the scope and intention of the .Ordinance. It is clear that the main intention of the Ordinanceis to remove from the priesthood the general control and mana-gement of the property belonging to a temple. Such propertyusually consists — apart from the temple buildings and orna-ments — of lands which are set aside for the maintenance of
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temple worship.
No intention is shown in the Ordinance, and it is incon-ceivable that any such intention could exist, to interfere in anyway with the due performance of religious rites.
The general effect of section 20 appears to be that theproperty is vested in the trustee for the purposes set out in sub-section (a), (b), (c) and (d).
Sub-section (b) relates to the maintenance of the priesthoodand ministerial officers attached to such temple, and sub-section
relates to the 'due performance of religious services andceremonies as heretofore carried on, in, by, or in connectionwith, such temple'.
Rice brought into the gabadage is rice which has either beengrown on temple lands, and is therefore an issue or the profit ofimmovable property, or it is an offering for the use of thetemple, or it is rice bought by the trustee from the rents andprofits of the temple. In any case, it is rice vested in the trusteewhich he has placed in this building.
But the general store of rice of which the trustee is in chargeis kept in a building called the 'attuwa', and when he removesany of this rice to the gabadage he makes an appropriation forthe purposes set out in sub-sections (b) and (c), as contemplatedby section 20 of the Ordinance. Once he has made such an app-ropriation, it appears to us that he has nothing further to dowith the disposal of the rice. He has handed it over for thespecial purpose of religious worship, and the manner in whichit is so used is entirely a matter for the Nayake Unnanse or highpriest."
With regard to the interference by the Trustee he stated asfollows:
''The second issue is as to the appointment of ministerialofficers attached to the temple. We can find nothing in theOrdinance which entitles a trustee to appoint or dismiss suchofficers.
Their duties are religious or quasi-religious, connected withthe rites and ceremonies of the temple, and they are officerswho must appropriately come under the jurisdiction of thehigh priest. That this is so appears clearly from the appellant'sown evidence. He admits that the account given by the plaintiffof the duties of the Kattiyana Ralas is correct, and that after
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the Padaviya Vidane has removed rice from the store he (theappellant) has nothing further to do with it. He cannot point toany duties which the officials perform which are of a purelysecular nature and which pertain to duties entrusted to thetrustee.
An incumbent's right to maintenance from the income of thetemple and its endowments' was a right that could be enforcedagainst the Trustee. Gunaratne v. Punchi Banda See also Teru-nanse v. Ratnaweera(31)
The above cases show clearly that the Buddhist TemporalitiesOrdinances of 1889 and 1905 left untouched an incumbent's inalie-nable customary rights and interests in the temple and its endow-ments required to be exercised or used by him for the purpose ofhis office.
The next enactment is the.Buddhist Temporalities Ordinance of1931 (Cap. 318). We now have a return to the strict Ecclesiasticallaw in that "incumbent" has been replaced by "Viharadhipathi",Section 2 defines the term as follows:
"Viharadhipat.hr" means the principal bhikku of a templeother than a dewale or kovila whether resident or not."
Realisation seems to have dawned on all concerned that the Vihara-dhipathi carried with him all the powers accruing to that office,which was of special significance, and the chief resident monk(adhikari) was in fact merely the agent of the Viharadhipathi,resident elsewhere. Title was vested in the Trustee appointed by theViharadhipathi. Section 20 reads as follows:
"All property, movable and immovable, belonging or inanywise appertaining to or appropriated to the use of anytemple, together with all the issues, rents, moneys, and profitsof the same, and all offerings made for the use of such templeother than the pudgalika offerings which are offered for theexclusive personal use of any individual bhikku, shall vest in thetrustee or the controlling Viharadhipathi for the time being ofsuch temple subject however, to any leases and other tenancies,charges, and incumbrances already affecting any such immova-ble property."
The Trustee or the Controlling Viharadhipathi remained as theperson who could bring on action rei vindicatio in respect of theTemple and its lands. Therunuanse v. Andrayas ApptP^Weeramanv. Somaratne Thero.^ Management of the property belonging to aTemple not exempted from the provisions of section 4(1) vested inthe Trustee. Application of income received by the Trustee is go-
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verned by section 25. They have to be applied inter alia for main-tenance of the temple, the bhikkhus ministerial officers and the dueperformance of religious worship and such customary ceremonies"as heretofore maintained." Besides recognising the "Viharadhipa-thi" of a temple in place of the "incumbent"the Ordinance of 1931made some other significant changes. District Committees and elec-ted Trustees ceased to exist. In their place we have a Trusteenominated by the Viharadhipathi (section 10) for every temple notexempted from the operation of section 4(1) and a "ControllingViharadhipathi" for the management of a temple exempted fromthe provisions of section 4(1) but not exempted from the operationof the entire Ordinance (section 4 (2)). The Public Trustee is givena number of duties and functions by the provisions of this Ordi-nance. All property, movable and immovable, are vested in theTrustee or Controlling Viharadhipathi. Vide section 20 (whichcorresponds to section 20 of the 1905 Ordinance). Section 25 stipu-lates the purpose for which the income of the temple shall beappropriated by the Trustee. Section 18 empowers a Trustee orControlling Viharadhipathi to sue and be sued as Trustee orControlling Viharadhipathi in the name of the temple. (Vide section30 of 1905 Ordinance). Another important innovation in the 1931Ordinance is the provision for the registration of Bhikkus. [Section41(1)]. It is not necessary here to refer in detail to the variousdifferences between the 1905 Ordinance and the 1931 Ordinance.For the purpose of this case I need only refer to the provisions ofsection 34 which reads as follows:
"In the case of any claim for the recovery of any property,movable or immovable, belonging or alleged to belong to anytemple, or for the assertion of title to any such property, theclaim shall not be held to be barred or prejudiced by anyprovisiqn of the Prescription Ordinance.
Provided that this section shall not affect rights acquiredprior to the commencement of this Ordinance.
This was a most important addition and one of the reasons for itsintroduction, I think, is the recognition of the existence and therights and powers of the Viharadhipathi vis a vis the temple and itsendowments. It provided that the Prescription Ordinance shall notapply in two instances:
To any claim for the recovery of property movable or
immovable, belonging to or alleged to belong to anytemple, and
To any claim for the assertion of title to any property of any
temple.
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The application of the second of these is obvious. Title to templeproperty is vested in the Trustee by virtue of section 20 and healone is entitled to assert title and to institute actions rei vindicatioin respect of such property. The first limb must therefore applyto recovery other than by way of action rei vindicatio Action forrecovery of dues from Nilakarayas would be covered by this.<So also would all these rights of the Viharadhipathi in the templeproperty. The right to an incumbency is a legal right enforceablein law and it is not purely'an ecclesiastical matter. Devarakkita v.Dharmaratne (supra). With this legal right goes not rights of owner-ship in the property of the temple but those other rights acquiredby virtue of his office which rights are enforceable in law againstTrustees and all those denying such rights. He has the right to bemaintained from the funds of the temple and its temporalities andhe is entitled to call on the Trustee for this and even to enforce hisright in law. This is recognised by the provisions of section 25 ofthe Ordinance (Cap. 318), Gunaratne v. Punchi Banda [supra).Indeed, I would go further. He is entitled to claim such income for-discharging his duty of maintaining all his pupils and all residentpriests. He is entitled to the full possession of the Vihare and allbuildings within the temple premises and their unhampered use forthe purpose of performing his religious duties and ceremonies,Gunaratne Nayake Thero v. Punchi Banda Korale (supra). Forthis purpose he is entitled to the income of the temple and itstemporalities (section 25). He has the sole right to the appointment,control and dismissal of the ministerial officers of the temple whoassist in the maintenance and the performance of the religiousrites of the temple. (28 N.L.R. at 14929.) He has the control andmanagement of the temple premises and its occupation. No priestcan select for himself a place of occupation independently of thewishes of the Viharadhipathi. A priest who is guilty of contumacycan be ejected from the temple. Piyadasa v. Deevamitta (supra).Dharmaratne vs. indasara IsthaviraW) Podiya vs. Sumanga/a Thero(supra).Ke alone has the right to appoint a Trustee in whom titlethereafter vests. (Section 10(1)). For all these he clearly musthave possession of the buildings which comprise the temple andof the buildings and other property used for the purpose of resi-dence of the monks and for the services conducted in the temple.The lands which constitute the endowments are, in a sense, appur-tenant to the temple and some of them are held – by tenants onperformance of services, and the income of the rest is intended tobe used for the purposes of the temple. It is true that the BuddhistTemporalities Ordinance provides that such lands should vest ina duly appointed trustee. In the case of this temple, there is no suchtrustee but the 1st defendant is not setting up any distinct title to
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such lands. He admits that they constitute the endowments of andbelong to Selawa Vihara and he is in possession only because heclaims to be the Viharadhipathi of the said temple. Plaintiff willnot obtain complete relief in respect of the dispute adjudicatedupon in this action, and the 1st defendant will be permitted tocontinue, to some extent, his denial of the rights of the plaintiffunder the dedication relied on in the plaint if the Defendant is notremoved from the control and possession of the lands which he hasentered into on his claim to be the Viharadhipathi which claim hasnow been found to be wrong and unsupportable. Recovery ofsuch possession is "the recovery of property" referred to in thefirst part of section 34. When a Viharadhipathi sues to be declaredentitled to the office of Viharadhipathi of a temple and to ejectthose disputing his rights or to recover possession of the templeand its endowments he is enforcing a right he has in law and anysuch claim is exempt from the provisions of the PrescriptionOrdinance by virtue of the provisions of section 34 (Cap. 318).Therefore all cases that have held that such an action is bound bythe provisions of either section 3 or section 10 of the PrescriptionOrdinance have been wrongly decided and should no longer beconsidered good law.
We are conscious of the fact that the law as stated by us maynot be fully in accord with the Buddhist doctrines and scriptures,but decisions of long standing and the legislation on the subject arethe proper basis on which we may proceed even though we are afinal court of appeal. Any real changes in the law must come fromthe legislature and it would not be proper for us to encroach onthe functions of that body.
Issue 24 reads thus:
(24) Was Paranatala Anunayake ever the Viharadhipathi ofSelawa Temple ?
The learned District Judge answered this issue "No". The Presidentof the Court of Appeal thought that this issue referred to Parana-tala Ratnapala (1) in regard to whom an admission was made at thecommencement of the trial and that admission was later amended.The President of the Court of Appeal expressed surprise at theanswer to the issue in view of the relevant facts and other findings.It has been submitted to us that the issue refers to ParanatalaUnnanse who was a pupil of Moratota himself, who was laterAnnunayake, and was beheaded by the King. This issue was raisedby Counsel for the Plaintiff apparently because the first claim ofthe Defendant was that Paranatala became the Viharadhipathiafter Moratota and that he left, as his pupil, Mahilla, and the1st Defendant claims to be in line of succession from Mahilla.
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This submission appears to i/s to be correct and the Presidentof the Court of Appeal erred in thinking that the Issue referredto Paranatala Ratanapala (1).
In view of the findings above no useful purpose will be servedin discussing the issue as to whether Selawa Vihare is a CharitableTrust. If and when such need arises it will be time to decide whet-her. Sobitha Thera v. Wimalabuddhi Thera‘S was correct in law.
I have grave doubts as to its correctness.
As stated earlier the 1st Plaintiff died pending the decision inappeal. By its order dated 10th March, 1975, the then SupremeCourt ordered the substitution of the 2nd .Plaintiff in his stead.The order proceeded on the basis that it was admitted that the2nd Plaintiff is the only pupil of the deceased. This was a decisionmade in terms of section 404 of the Civil Procedure Code followingthe decision in the case of Dhammananda Thero v. SaddanandaThero^G. The substituted Plaintiff is therefore entitled to the'reliefs claimed in .the plaint against the 1st Defendant who is an*impostor. The appeal of the first Defendant is dismissed and thefirst Plaintiff as Viharadhipathi of Selawa Temple is hereby declaredentitled to the control and possession of the temple and its endow-ments and I order that he be restored to and be quieted in posse-ssion of Selawa Temple and its endowments. I further order thefirst Defendant not to interfere with the first Plaintiffs controland possession of the temple and its endowments and further directthat the first Defendant be ejected from the endowments describedin the schedule to the plaint. The first Plaintiff will be entitled tocosts of this appeal. The order of the Court of Appeal in respectof costs in that Court and the District Court will stand.
SAMARAWICKREMA, J.ISMAIL, J.WEERARATNE.J.WANASUNDERA, J.
I agreeI agreeI agree
I agree ■
1st defendant's Appeal dismissed