086-NLR-NLR-V-21-DAVARAKKITA-v.-DHARMMARATNE-et-al.pdf
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Present : Ennis A.C.J. and Loos A.J.
DAVARAKK1TA v. DHARMMARATNE et ol.
175—D. C. Galle, 15,052.
Action to be declared to be entitled to an incumbency of a Vihare—Is it apurely ecclesiastical matter l—Prescription.
The presiding priest or incumbent• has the control and adminis-tration of the Vihare itself, although', after the passing of the Bud.dhist Temporalities Ordinance, the property of the Vihare vests inthe trustee, the right to an incumbency is still a legal right, and notpurely an ecclesiastical matter.
’’J"1 HE facts appear from the judgment.
E. W. Jayawardene (with him J. S. Jayawardene), for theappellants.
A. St. V. Jayawardene (with him Amarasekera), for the respondent.
October 14, 1919. Ennis A.C.J.—
In this case the plaintiff prayed to be declared entitled to theincumbency of the Kettarama Vihare. He also asked for ejectmentand costs. The learned Judge allowed the plaintiff’s claim. Onappeal it is conceded by counsel for the respondent that he cannotmaintain the judgment so far as it directs the ejectment of thedefendants. I have, therefore, to consider the appeal of the defend-ants only as regards the declaration in favour of the plaintiff inrespect of the incumbency. It was first contended that this was nota matter which the Civil Courts should take cognizance of, that itwas purely ecclesiastical, and that the Civil Courts had no jurisdic-tion. Till the passing of the Buddhist Temporalities Ordinancesa question of the incumbency involved without doubt the possessionof the lands and other property of the Vihare. After the enactmentof these Ordinances the property of the Vihare was vested in thetrustee, and it is suggested now that the incumbent has no materialinterest in the property. I am unable to say that this is so; it wouldseem that the presiding priest or incumbent has the control andadministration of the Vihare itself, although the property vests inthe trustee, and, therefore, the right to an incumbency is still alegal right, and not purely an ecclesiastical matter. The case ofSaranankara Unnanse v. Indajoti Unnanse 1 bears this out. That
IMS.
1 (1918) SO N. L. B. 385.
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1819.
Bums
A.O.J.
Dacatakkiia
v.Dhamma-
MtlW
was a case of a claim to an incumbency in which the Court exercisedjurisdiction, and De Sampayo J. in his judgment expressly refersto the right of the chief resident priest as a “ legal claim to suchpresidency. ’’1 am, therefore, against the first contention made
for the appellants.
With regard to the second contention that the plaintiff's claimhas been prescribed, I am unable to say that this is so. It wouldseem that this Vihare belonged to one Amuhena Nayaka, and thaton his death there were disagreements and uncertainties as to thesuccession, and four out of five of the pupils appointed them-selves joint members in the incumbency in 1875, a position whichthey confirmed by deed. Two of them subsequently died, and in acase before the Courts on a claim by Mawella to be declared theincumbent of the Vihare, the Court decided that the survivors underthe deed were joint incumbents, namely, Mawella and the presentplaintiff. Mawella apparently did not personally reside at theVihare, but placed there the first defendant- as his representative,who took Mawella’s share, or rather the share which Mawellaconsidered himself entitled to. (Whether or not the trusteeacquiesced in this division we are not told.) The first defendantremained at the Vihare until Mawella’s death some two years ago,when he began to claim the right to administer the property as thepresiding priest or “ incumbent. ” In these circumstances, I amunable to see how any question of prescription can arise, because itis clear that until Mawella’s death there was no possession adverseto the plaintiff, and no assertion or exercise of a right adverse to him.The question only arose after the death of Mawella, and, therefore,is not within the prescriptive period, even if we assume that anyquestion of prescription can arise in the case. On the death ofMawella the survivor of the joint incumbency in 1875 became thesole chief resident priest. So far as this matter is within the juris-diction of the Courts, it is purely a question of fact, and it is hardlynecessary to consider the authorities cited in support of the judg-ment, namely, the passages in the Vinaya, the original of which hasnot been produced. I would accordingly dismiss the appeal withthe variation only mentioned at the beginning of my judgment,namely, the elimination of the order for ejectment contained in thedecree. In my opinion each party should pay its own costs on theappeal.
Loos A.J.—I agree.
Appeal dismissed.