MAPALANE DHAMMADAJA THERO, Defendant-Appellant and ROTUMBA WIMALAJOTHI THERO,

021-NLR-NLR-V-79-1-MAPALANE-DHAMMADAJA-THERO-Defendant-Appellant-and-ROTUMBA-WIMALAJOTHI-THERO-.pdf


Dhammadaja Thero v. Wimalajothi The.ro
145
977 Present: Pathirana, J., Udalagarua, J., Ismail, J.,Tittawella, J., and Gunasekera, J.
MAPALANE DHAMMADAJA THERO, Defendant-Appellant
and
ROTUMBA WIMALAJOTHI THERO, Plaintiff-RespondentS.C. 438/68—D C. Matara 2274/L
Buddhist Ecclesiastical Law—Action for declaration that plaintiffViharadhipathi of and entitled to certain temples together withtheir temporalities—Whether action for declaration of status—Period of prescription applicable—PrescriptionOrdinance,
sections 3, 10—Buddhist Temporalities Ordinance (Cap. 318)sections 4, 18, 20, 34—Civil Procedure Code, sections 34, 207.
Abandonment of bhikku’s right to incumbency—Circumstances in whichsuch plea can prevail—What conduct can amount to abandonment.
Concept of “ de facto ” a,nd “ de jure ’’ Viharadhipathi discussed.
The plaintiff instituted this action to have himself declared thelawful Viharadhipathi of five temples exempted from the operationof section 4(1) of the Buddhist Temporalities Ordinance, and assuch Viharadhipathi to be declared entitled to their temporalitiesdescribed in the schedule to the plaint. He also prayed for theejectment of the defendant therefrom and that he be placed inpossession of the said temples and their temporalities. Among thequestions that arose,-for determination at the trial was the questionwhether an action; of this nature was prescribed in three yearsunder section 10 of the Prescription Ordinance. The learned trialJudge took the view that section 10 did not apply and that such airaction was not prescribed in three years. The defendant appealedinter alia on this question and in view of the fact that although theSupreme Court had earlier held that the three year period ofprescription did apply, different opinions had been expressed incertain judgments subsequently, this question was referred fordecision to a bench of five judges.
Held (Udalagama, J. dissenting) : That an action of this natureto be declared Viharadhipathi of a temple was not prescribed inthree years and section 10 of the Prescription Ordinance had noapplication to such an action. By virtue of the provisions of theBuddhist Temporalities Ordinance (Cap. 318) the temporalities ofa vihara which had been exempted from the provisions ofsection 4(1) of that Ordinance have been vested in the Viharadhi-pathi who is termed for the purposes of the Ordinance, ControllingViharadhipathi (vide sections 4 and 20). An action for a declarationthat a bhikku is Viharadhipathi of a temple filed after the Ordinance,in which he also asks for possession of his temporalities is thereforenot one for a mere declaration of a status to which section 10would have applied.
Held further (by Pathirana, J., Ismail, J., and Gunasekera,J.) :
That such an action is one to which section 3 of the Prescrip-tion Ordinance applies and the period of prescription applicablewould therefore be ten years.
That the plaintiff’s cause of action arose on 16.4.59 on thedeath of his tutor Pannalankara Thero and as this action wasinstituted on 15th October. 1965, the plaintiff’s claim was not barredby the provisions of the Prescription Ordinance.
Per Tittawella, J.“ Such an action is not one that can
be barred by lapse of time at all. It carries with it anassertion to the title of the movable and immovable propertybelonging to the temple and it cannot be barred by lapse of time inview of the express provisions of section 34 of the BuddhistTemporalities Ordinance. Even if one considers an action of this
!•—.A 41933(79/05)
146
Dhammadaja Tliero v. Wimalajothi Thero
nature to be one for the declaration of a status, there is in such anaction a continuing invation of subsisting right. It would thusconstitute a continuing cause of action not barred by any rules ofprescription. ”
Although the question of law above referred to induced thereference to this bench of five judges the whole appeal was arguedbefore this court and submissions were made on behalf of thedefendant-appellant on the question Whether the plaintiff-respondenthad abandoned his rights to these temples and the Viharadhipathi-ship. The facts relevant to these submissions that emerged from theadmissions and the evidence were that one Pannalankara MahaThera had been the lawful Viharadhipathi and had died on 16thApril, 1959, and the defendant-appellant had been a co-pupil of his.The temporalities described in the schedule to the plaint had vestedin the said Pannalankara Maha Thera as such Viharadhipathi andthe rule of succession applicable was the sisyanu sisya paramparawa.The plaintiff-respondent was the senior pupil of the saidPannalankara Thera. The latter by a deed P3 had purported toappoint the defendant-appellant as his successor and the plaintiff-respondent as well as five brother priests also pupils of PannalankaraThera signed the document F3 consenting to this appointment. Onthe death of the plaintiff-respondent’s tutor the defendant-appellantassumed office as Viharadhipathi and took residence in the mainvihara of that paramparawa while the plaintiff respondent himselfleft this vihara and took up residence in another of the appurtenantviharas. Further after the death of Pannalankara Thera thedefendant-appellant had filed an action in the District Court ofColombo to withdraw some moneys lying to his credit in an accountat the Bank of Ceylon and the defendant-appellant gave a writingconsenting to such withdrawal and also as one of the defendants inthat action filed answer admitting the defendant -appellant’s claimand praying inter alia that “judgment be entered declaring thatthe plaintiff is the controlling Viharadhipathi of the said temples ”.This action was however, dismissed and in fact in the course of thejudgment the learned District Judge held that it was the plaintiff-resoondent who was entitled to be controlling Viharadhipathi. Thesaid deed P3 also contained a clause which stated as follows : “ AndI also desire that after the demise of my said successor (i.e. thepresent defendant-appellant) my said pupils by mutual consentappoint any one of them to the chief incumbency and viharadhipathi-ship of the said six viharas
Held (by Pathirana, J., Ismail J,. Tittawella, J. and Gunasekera, J.) :
That the argument based on abandonment must fail. If the deedP3 was considered in its entirety it could not be said that the consentof the defendant-appellant to this document constituted anabandonment ; but quite apart from this the circumstancessurrounding its execution and the evidence of the plaintiff-respon-dent showed that even the partial renunciation contained in thedocument was not so freely and voluntarily given as to work anyforfeiture against him. Further the other conduct of the plaintiff-respondent referred to above including his leaving the main viharaof the paramparawa, in the context of this case, was only continuedacquiescence by the respondent in the partial renunciation containedin the deed P3 and could not amount to any further or fi illerrenunciation so as to be a new and complete abandonment.
In any event the submission on behalf of the defendant-appellantthat the plaintiff-respondent had at least renounced his right toofficiate as Viharadhipathi could not stand as the Buddhist Ecclesia s-tical Law does not recognise such a renunciation of the right t ofunction as Viharadhipathi. The office of Viharadhipathiship ii'inalienable and a priest on whom this office has devolved a< :cordingto the sisyanu sisya paramparawa rule of succession only holds itin his lifetime to pass it on according to law to his senior pupil opsuch other pupil as he may select.
Dhammadaja Thtro v. Wimalajothi Thero
H7
The plaintiff-respondent had also filed a cross-appeal against afinding against him in respect of one of the. temples, namely,Sunandharamaya Viharaya. This temple had been brought underthe operation of section 4(1) of the Buddhist TemporalitiesOrdinance :subsequent to the institution of this action and the trialJudge therefore held against the plaintiff-respondent on the questionof prescription in regard to this temple.
Held :
That inasmuch as the rights of parties must be determined as
at the date of action and this vihara had been broughtwithin the operation of section 4(1) of the BuddhistTemporalities Ordinance only during the course of theaction, as at the date of the action the temporalities of thatvihara too were vested in the respondent. His action wasnot prescribed therefore in respect of this temple as welland the cross-appeal must be allowed.
That, however, a decree could not now be entered giving the
respondent possession of the temporalities of this templeinasmuch as it had during the course of the action beenbrought within the operation of section 4(1). Neverthelessas the plaintiff-respondent had now been declared thelawful Viharadhipathi of this temple as well he would beentitled to nominate himself as Trustee of the temporalitiesof that vihara in terms of section 10(1) of the BuddhistTemporalities Ordinance and assume possession of thosetemporalities also on that right.
Cases referred to :
Sobhitha Unnanse vs. Ratnapala Unnanse, (.1881) Beven & SiebelsReps. 32.
Ratnapala Unnanse vs. Kevitiyagala Unnanse, 2 S.C.C. 26.
Henaya vs. Ratnapala Unnanse, 2 S.C.C. 38.
Elisahamy vs. Punchi Banda et al., 14 N.L.R. 113.
Dhammrakkita Unnanse vs. Sumangala Unnanse, 14 N.L.R. 400.
Revata Unnanse vs. Ratnajothi Unnanse, 3 C.W.R. 193.
Saranankara Unnanse vs. Indajoti Unnanse, 20 N.L.R. 385.
Davarakkita vs. Dhavmaratne, 21 N. L. R. 255.
Terunnanse vs. Terunnanse, 28 N. L. R. 477.
Gunananda vs. Deepalankara, 32 N.L.R. 240.
Saddhananda vs. Sumanatissa, 36 N.L.R. 422.
Sumana Terunnanse vs. Somaratana Terunnanse, 5 C.L.W. 37.
Premaratna vs. Indrasara, 40 N.L.R. 235.
Chandrawimala Terunnanse vs. Siyadoris, 47 N.L.R. 304.
Buddharakkita Thero vs. Public Trustee, 49 N.L.R. 325.
Pemananda vs. Welivitiye Soratha, 51 N.L.R. 372.
Algama vs. BvAdharakkita, 52 N.L.R. 150.
Samarasinghe vs. Pannasara Thero, 53 N.L.R. 271.
Saranankara Thero vs. Dhammananda Thero, 55 N.L.R. 313.
Pemananda Thero vs. Thomas Perera, 56 N.L.R. 413.
Pitawala Sumangala vs. Hurikaduwa Dhammananda, 59 C.L.W. 59.
Podiya vs. Sumangala, 58 N.L.R. 29.
Moratota Sobita Thero vs. Akwatte Dewamitte Thero & another.
S.C. 405 (F), 1958—D.C., Kegalle Case No. 10050.
Amaraseeha Thero vs. Sasanatilaka Thero, 59 N.L.R. 289.
Dheerananda Thero vs. Ratnasara Thero, 60 N.L.R. 7.
Dheerananda Thero vs. Ratnasara Thero, 67 N.L.R. 559.
Ramsarup Das vs. Rameshwar Das, (1950) A.I.R. (Patna) 184.
148
PATHIRANA, 3.—Dhammadaja The.ro v. Wimalajothi Thero
^PPEAL from a judgment of the District Court, Matara.
H. W. Jayewardene, Q.C., with C. Ranganathan, Q.C., K.V.P.Jayatilleke, Miss S. Fernando and Miss P. Seneviratne for thedefendant-appellant,
Eric S. Amerasinghe, with J. W. Subasinghe, N. S. A. Goone-tilleke, M. B. Peramuna and Miss K. D. Meddegoda, for theplaintiff-respondent.
Cur. adv. vult.
December 12, 1977. Pathirana, J.
The plaintiff instituted this action on 15.10.1965 against thedefendant-appellant to have himself declared the lawful Vihara-dipathi of five temples and as Viharadipathi to be declaredentitled to the temporalities described in the schedule to theplaint for ejectment of the defendant therefrom and that he beplaced in possession thereof.
Among the questions that came up for decision in this appealwas whether an action to be declared entitled to be the Vihara-dipathi of a temple, which is exempted from the operation ofsection 4 (1) of the Buddhist Temporalities Ordinance and themode of succession to which is regulated by sisyanu sisyaparamparawa, is prescribed in 3 years in terms of section 10 ofthe Prescription Ordinance. The learned District Judge took theview that it was not prescribed in 3 years and section 10 of thePrescription Ordinance did not apply.
In view of opinions expressed as far back as in 1954 byGratiaen, J. in Saranakara Thero vs. Dhammananda Thero, 55N. L. R. 313, and thereafter in 1957 by Basnayake, C. J. inAmaraseeha Thero vs. Sasanatilake Thero, 59 N-L.R. 289,doubting that such an action was prescribed in 3 years undersection 10 of the Prescription Ordinance and that therefore thequestion called for reconsideration by a fuller bench, thisquestion was referred at the invitation of the learned counselappearing in this appeal by a bench of 3 judges to the ChiefJustice, who in terms of section 14 (3) of the Administration ofJustice Law has directed that this appeal be decided by thepresent bench of five judges of this Court.
I shall at the outset set out the relevant passages in thejudgments of Gratiaen, J. and Basnayake, C. J. where the pointinvolved is considered along with the suggested answers.Although the point was not in fact decided, they however serveas useful guidelines for the purpose of deciding the question fordecision in this appeal.
JPATHIBANA, J—Dhammadaja Thero t>. Wimalagothi Thero148
Gratiaen, J. in Saranakara Thero vs- Dhammanada Thero(supra) at 315, stated:—iJ#
a The earlier authorities certainly seem to indicate that,if a trespasser who disputes the status of the true incumbentof a temple continues thereafter to remain in adversepossession without interruption! for a period of three years,the dilatory incumbent’s right to relief in the form of adeclaratory decree becomes barred by limitation undersection 10. We must, of course, regard ourselves as boundby these decisions, but with great respect, I think that, onthis particular point, the question calls for reconsiderationby a fuller bench on an appropriate occasion. It is clearlaw that an imposter cannot acquire a right to an incum-bency by prescription; nor can the rights of the true incum-bent be extinguished by prescription. Although the opera-tion of section 10 may destroy the remedy accruing from aparticular “ denial ”, the right or status itself still subsists.It is true that the lawful incumbent can take no steps afterthree years to enforce his remedy if it is based exclusivelyon that particular “ denial ” of his status, but there is muchto be said for the argument that a continuing invasion of asubsisting right constitutes in truth a continuing cause ofaction. Indeed, the contrary view would indirectly producethe anomalous result of converting the provisions of section10 into a weapon for the extinction of a right which cannotin law be extinguished by prescription. ”
Basnayake, C. J. in Amaraseeha Thero vs. Sasanatilake Thero(supra) at page 293 said: —
“The plaintiff’s action is in effect an action, for not onlya 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 tothe plaint.
It would therefore not be correct to treat the instantcase as an action for declaration of a status alone. Theperiod of prescription in respect of actions for the purposeof being quieted in possession of lands or other immovableproperty, or to prevent encroachment or usurpation there-of, or to establish a claim in any other manner to land orproperty is governed by section 3 and not by section 10 ofthe Prescription Ordinance. The decisions of this Courtwhich hold that an action for an incumbency of a temple,being an action for a declaration of a status is barred bythe lapse of three years from the date when the cause ofaction arose, may have to be re-examined in a suitable case
1**.—A 41C5S (79/06)
150PATHIRANA, J.—Dhammadaja Thero v. Wimalajothi Thar a
in the light of the altered rights of a Viharadipathi who isnow empowered to sue and be sued as the person in whomthe management of the property belonging to a temple isvested. ”
The facts of the present case are briefly as follows : —
The plaintiff claimed that Pannalankara Maha Nayake Therowas the Viharadipathi of these temples and on his death on16.4.59 the plaintiff as the senior pupil became entitled to theViharadipathiship of the said temples and temporalities. Theplaintiff stated that although by deed No. 818 of 1.2.59 the saidPannalankara Maha Nayake Thero had appointed the defendantwho was his co-pupil to succeed him as Viharadipathi of the saidtemples, the purported appointment on the said deed was of noforce or avail in law and was null and void. He alleged thatsince 13.7.1975 the defendant was wrongfully and unlawfullycollecting and appropriating the income from the temporalitiesof the said temple in violation of the plaintiff‘s rights.
The defendant pleaded that on deed No. 818 of 1959 Panna-lankara Thero appointed him his co-pupil, to succeed him asViharadipathi of the said temples. He further pleaded that theplaintiff and the other five pupils of Pannalankara Therorenounced their right, title and interest and abandoned all theirclaims to the said temples. He pleaded certain documents in con-firmation of their renunciation and abandonment and stated thatsince the death of Pannalankara Thero on 18.4.59 the defendantis in lawful occupation, residence and possession of the Vihara-dipathiship of the said temples and their temporalities. Heclaimed that he had succeeded by virtue of the said appointmentor by pupillary succession to the incumbency of the said fivetemples and the temporalities on the ground that all the pupilsof Pannalankara Thero had renounced or abandoned theirrights to the Viharadipahiship of the said temples. He furtherpleaded that the plaintiff’s claim was prescribed in law.
Although the plaintiff took up the position at the trial that thedispute with the defendant started in December 1963 and there-fore even assuming that the period of prescription is three years,his claim was not prescribed, the learned District Judge rejectedthis contention. He held that Pannalankara Thero by deed No.818 of 1959 had purported to appoint the defendant to succeedhim as Viharadipathi of the said temples. The plaintiff wasaware of this as he was a witness to this deed and there was anadmission in his evidence that from the date of execution of thesaid deed the defendant was claiming the Viharadipathiship ofthe said temples. He therefore held that the plaintiff’s right ofaction against the defendant arose from the time of the execution
PATHJRANA, J.—Dhammadaja There v. Wimaiajoihi There15T
of deed No. 818 or at any event on the death of Pannalankara.Thero on 16.4.59. I should think that the plaintiff’s cause of actionarose after 16.4.59 on the death of his tutor Pannalankara Thero.
There were three questions for determination in this casebefore the District Court,- namely,
whether the plaintiff had abandoned and renounced hisrights to the Viharadipathiship of the said temples.
whether by the deed of appointment No. 818 of 1959 ofpupillary succession, the defendant succeeded as Viharadhipathiof the said temples. The question would only arise if the firstquestion is answered against the plaintiff.
if the plaintiff had not abandoned or renounced his rightswhether his cause of action was prescribed.
On the first question the learned District Judge has held thatthe plaintiff had not abandoned or renounced his rights to theViharadipathiship of the said temples. I have perused thejudgment prepared by my brother Gunasekera, J. who has dealtwith this aspect of the matter. I agree with the conclusion andreasons reached by Gunasekera, J. that the learned DistrictJudge was right in holding that the plaintiff had not abandonedor renounced his rights to the Viharadhipathiship of the saidtemples.
On- the question of prescription the learned District Judgereferred to the meaning of the term “ incumbency ” in theBuddhist Temporalities Ordinance of 1905 under which therights to the temporalities of a temple are vested not in the in-cumbent but in a lay trustee. He next referred to the introduc-tion of the expression “• controlling Vitharadipathi ” in the pre-sent Ordinance of 1931 in which under section 4 (2) and section20 the management and title of the properties belonging to thetemple are vested in the controlling Viharadipathi. He concludedthat an action in respect of a temple the endowments of whichare vested in the controlling Viharadipathi unlike in an actionfor incumbency of a temple governed by the old Ordinance,would not be an action brought for a mere declaration of statusbut would also involve the question of title to its endowmentsand therefore the action did not come under section 10 of thePrescription Ordinance and was not prescribed in three years.
It would be useful in order to appreciate the arguments pre-sented to us to give a resume of the rights of a chief incumbentof a Buddhist temple in relation to the properties belonging tothe temple before the Buddhist Temporalities Ordinance of 1889
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PATHIRANA, J.—Dhammadaja Thero v. Wimalajothi Thero
and the impact of that Ordinance and the Ordinance of 1905 and1931 particularly in relation to the rights of an incumbent to theproperties belonging to the temple.
In Saranankara Unnanse vs. Indajoti Unnanse, 20 N.L.R. 385at 394, Bertram, C. J. considers the essential nature of a viharaand the rights of the Buddhist clergy in connection therewithaccording to the principles laid down in the “ Vinaya Hethereafter considers how those principles have been affected bythe religious custom known as pupillary succession. Quotingfrom the original Buddhist texts he states that a Vihara is con-sidered as being dedicated to the whole order of the Sangha pre-sent and future throughout the world. Every Vihara belongs tothe whole order of the Sangha to the full extent of the accom-modation which it affords and cannot be portioned out in shareswhether divided or undivided. So strict was this original rule—later relaxed—that it went to the extent of laying down that nobhikku had separate personal ownership even over his robes. Agift of robes was, strictly speaking, made to the whole orderthough nominally given to a priest for his own use and reallyhis own. Subject to the rules, they were, technically speakingthe property of his Sangha. Bertram, C.J. then states :
“ This general principal of the dedication of every viharato the Sangha as a whole is affected by the religious customunder which temples have been from time to time dedicatedfor the use of a particular priest and his pupils and thepupils of those pupils in perpetual succession. ”
He was referring to the succession by the pupillary successionknown as sisyanu sisya paramparavoa.
He then proceeds to state that this mode of succession affectedthe general principle in two ways. Firstly, in creating a specialoffice in connection with the Vihara called an “ incumbent ”and secondly, in giving a special right of residence and main-tenance to the pupils of the original priest.
In the course of time the principle was accepted that propertydedicated to a Vihara or Pansala was the property of the indivi-dual priest who was the incumbent of the foundation for thepurpose of his office including his own support and the main-tenance of the temple and its services and on his death it passed)y inheritance to an heir who was ascertained by a peculiar ruleof succession or special law of inheritance and was not generallythe person who would be by general law the deceased priest’sKevitiyagala Unnanse, 2. S.C-C. 26, and Henaya vs. Ratnapalaheir in respect of his property. See .Ratnapala Unnanse vs.Unnanse, 2 S.C.C. 38.
PATHIRANA, J.—Dhammadaja Thero v. Wimalajothi Thero
153
The Buddhist Temporalities Ordinance, No. 3. of 1889, wasenacted for better regulation and management, of BuddhistTemples in the island. By section 2 “ incumbent ” meant thechief resident priest in a Vihara. Section 20 of that Ordinancevested all the temple property in a lay trustee. The presidingpriest or incumbent, however, had the control and administra-tion of the Vihara itself although the property of the Viharavested in the trustee, (see Devarakkita vs. Dhammaratne, 21N.L.R. 2551 The Buddhist Temporalities Ordinance of 1905 madean inconsequential change in the definition of the word “ incum-bent ” in section 2 to mean “ the chief resident priest in a tem-ple”. The Ordinance of 1931, however, introduced the new con-cept of the controlling Viharadipathi. The Ordinance spoke forthe first time of a Viharadipathi and not an incumbent. Section2 of the Ordinance defines a “ Viharadipathi ” as “ the principalbhikku of a temple whether resident or not ”. In the case of atemple exempted from the operation of section 4 (1) of the Ordi-nance, by section 4 (2) the management of the property belong-ing to every temple was vested in the Viharadipathi of suchtemple hereinafter referred to as “ the controlling Viharadi-pathi ”. Section 20 of the Ordinance states that all propertymovable and immovable belonging to the temple other than“ pudgalika ” property vested in the controlling Viharadipathifor the time being of such temple.
I have also to keep in mind in considering the submissions madein this case two other cardinal principles affecting the office ofthe de jure Viharadipathi of a temple. As pointed out by Gratiaen,
J.in Saranankara Thero vs. Dhammananda Thero, an impostercannot acquire the right to an incumbency of a temple and norcan the rights of a true incumbent be extinguished by prescrip-tion. The question we have to decide is which section of thePrescription Ordinance extinguishes the remedy of a lawfulincumbent arising out of the particular denial of his rights.
Mr. Jayewardene for the defendant-appellant relied stronglyon the decisions of this Court which held that a claim to beentitled to the Viharadipathiship of a Buddhist temple is onefor a declaration to a status and therefore barred unless theaction is instituted within three years of the accrual of the causeof action. I shall now examine these decisions.
In Revata TJnnanse vs. Ratnajothi Unnanse, (1916) 3 C.W.R.193, the plaintiff claimed that he was the original incumbent ofthe temple and that he was entitled to reside in the Vihara.Schneider, A. 3. took the view that the action did not fall withinsection 3 of the Prescription Ordinance because it was not an
154
PATH 1RANA, J.—Dhammadaja Then v. Wimalajothi Thero
action for a declaration of title to immovable property foundedupon 10 years’ possession by the plaintiff or by him and hispredecessors. Schneider, A. J. then said at page 198: —
“ This is obviously an action for the declaration of a status,namely, that the plaintiff is the senior pupil of the deceasedMadankara. The plaintiff himself values the right he claimsat Rs. 350 whereas the vihara and its temporalities must beworth according to the evidence in the case many thousandsof rupees. If the action is not governed by section 4 it mustneeds fall under section 11, for it can fall under no other.The period of limitation under section 11 is three years fromthe time the cause of action shall have accrued. ”
Section 11 corresponds to the present section 10 of the Prescrip-tion Ordinance.
In Terunncinse vs. Terunnanse, (1927) 28 N.L.R. 477, theevidence clearly established that for at least 5 years prior to thebringing of the action the 1st defendant was in occupation of theincumbency and had been recognised by the congregation astne incumbent. The District Judge held that the plaintiff’sappointment was more regular and would have entitled him tothe relief he claimed but for the circumstance that his right ofaction was barred by limitation. The plaintiff appealed and urgedthat the action was not barred in three years but was availableuntil 10 years had expired from the date on which the rightaccrued. Garvin, J. following Revata TJnnanse vs. RatanajothiUnnanse (supra) rejected this contention thus :
“ This is clearly not an action for the recovery of immovableproperty based on a right acquired by ten years’ adverseand uninterrupted possession thereof. Nor is it a case inwhich such an action based on title is being resisted on theground of such adverse and uninterrupted possession. Bythe Buddhist Temporalities Ordinance the property ofthe vihare both immovable and movable is vested in thetrustee, who in this case is the second defendant. Anincumbent clearly has no title to the immovable property ofthe temple nor a right to the possession thereof. Apart fromhis ecclesiastical duties, an incumbent of a vihare has certainrights of administration and control of the vihare itself, butthese are not such rights as are contemplated by section 3.They spring from and appertain to the office of incumbent,and cannot exist apart from it.
PATIAIBAKA, J.—Dhammadaja Thero v. Wimalajathi Thero155
The right of the plaintiff to the enjoyment and exerciseof those rights is dependent upon his right to the incumbency.It is manifest that in form and in substance this is an actionfor a declaration of the plaintiff’s right to the incumbency.In the absence of special provision in Ordinance No. 22 of1871, section 11 of the Ordinance applies to the case, and theaction is barred by limitation in three years. ”
These two cases had been decided when the BuddhistTemporalities Ordinance of 1905 was in operation. There istherefore much to be said for the contention put forward byMr. Amerasinghe, who appeared for the plaintiff-respondent thatunder the Ordinance of 1905 the property of a Buddhist Vihara,movable and immovable, was vested in a trustee and the incum-bent had no title to the immovable property nor a right to thepossession thereof and therefore under that Ordinance anincumbent was only entitled to the right to the incumbency andnot to any of the properties. In fact, this was the main argumentwhich influenced Garvin, A. J. in Terunnanse vs. Terunnanse{supra).
The case of Premaratane vs. Indasara, (1930) 40 N.L.R. 235no doubt held that the claim to an incumbency of a temple wasprescribed in three years. This was acase decided on 3rd June,1938, after the Ordinance of 1931. According t</ this decision theplaintiff’s cause of action was barred by a lapse of 3 years after .the defendant became incumbent in January or February 1931.The impact of the 1931 Ordinance in relation to the property olthe temple vesting in the Viharadipathi was not considered inthis case.
Sumangala vs. Dhammananda Thero, 59 C.L.W. 59, is areport of a case which reproduces the order of the learnedDistrict Judge distinguishing 3 C.W.R. 193 and 28 N.L.R. 477.The District Judge has remarked that these were decisionsunder the Ordinance of 1905. That Ordinance did not vest theincumbent of a temple with the temporalities of a temple. Underthe Ordinance of 1931 all temple property was vested in theViharadipathi. An incumbency action brought under thepresent Ordinance in respect of a temple where the propertiesare.vested in the incumbent would not be an action brought forthe mere declaration of a status but would also involve thequestion of title to the temple. The District Judge held infavour of the plaintiff. The defendant appealed to the SupremeCourt which merely dismissed the appeal without giving anyreasons. I agree with Mr. Jayewardene that this case is notvery helpful to decide the present appeal because in that case,
166PA'rh I RAMA, J.—Dhatnmadaffa Thero v. Wimalajothi Thero
It was conceded that the plaintiff was the Viharadipathi andthe only question was whether he was entitled to the.temporalities.
The other case relied upon by Mr. Jayewardene isDheerananda Thero vs. Ratnasara Thero, 67 N.L.R. 559, whichdecided that the claim of a plaintiff to be declared the Viharadi-pathi of a Buddhist temple is an action for a declaration forstatus and is therefore barred unless brought within 3 years ofthe accrual of the cause of action. This case too is not veryhelpful because it was conceded by counsel that a claim ofthis nature has to be brought into Court within 3 years of thecause of action arising.
In the cases decided after the 1931 Ordinance came intooperation where the prescriptive period for an action to bedeclared entitled to the Viharadipathiship of a temple had beenheld to be 3 years under section 10 of the PrescriptionOrdinace, the altered rights of a Viharadipathi consequent tothe enactment of section 4 (2) and section 20 had not beenconsidered. Where these altered rights were in fact consideredas in Amaraseeha Thero vs. Sasanatilake Thero (supra) doubtshave been expressed about the 3 year period.
Mr. Jayewardene’s basic submission nevertheless was, thatdespite the alterations brought about by 1931 Ordinance vestingthe management and the rights in the temporalities of a templein the controlling Viharadipathi, the decisions of this Courteven given when the Ordinance of 1905 was in operation thatan action for the office of Viharadhipathi of a temple was apersonal action for a declaration of status and therefore section 10of the Prescription Ordinance applied, the action being barredin 3 years, were still good law. His argument took the follow-ing lines. Under section 2 of the 1931 Ordinance “ Viharadi-pathi ” is defined as “ the Chief Bhikku of a temple whetherresident or not ”. According to Mr. Jayewardene he need notbe a de jure Viharadhipathi. The bhikku who for the time beinghas been resident in the temple and had controlled its affairscame within the expression controlling Viharadipathi1. Evena de facto Viharadipathi came within this definition. In supportof his contention he relied on Sumana Terunnanse vs. Soma-ratana Terunnanse, (1936) 5 C.L.W. 37, Chandrawimala Terun-nanse vs. Siyadoris, (1946) 47 N.L.R. 304, Algama vs. Buddha-rakkita, 52 N.L.R. 150.
Mr. Jayewardene’s argument is that section 4 (1) vests themanagement of the property belonging to the temple in even ade facto Viharadipathi. Section 20 also vests all temporalitiesin the controlling Viharadipathi. If, therefore, any bhikku who
PA.T-fcU-RA.NA, J,—Dhammadaja Thero v. Wimaiajothi Thero
157
.lays a claim to be the controlling Viharadhipathf of a templewishes to bring an action he must first establish his personalright to such an office. Having successfully done so and havingobtained a decree that he was entitled to be the controllingViharadipathi of the temple and its temporalities, he can thenproceed against the person in possession of the temple and itstemporalities. The initial action for a declaration of a statusmust be brought within 3 years. Otherwise it is time barred.Mr. Jayewardene-’s argument will therefore stand, or fall onwhether the term “ controlling Viharadipathi ” in section 4 (2)and section 20 will include a de facto Viharadipathi and notnecessarily a de jure Viharadipathi. There is then the otherpractical difficulty in accepting this contention, which wouldarise out of the plea of res judicata that can be raised againstthe second action in view of section 34 and section 207 of theCivil Procedure Code.
I shall now examine the cases relied upon by Mr. Jayewardene.
Sumana Terunnanse vs. Somaratana Terunnanse, (1936) 5
L.W. 37, wa a case decided when the Ordinance of 1931 was inoperation. A bhikku who had been resident in a temple for 40years and who was during this time in charge of its affairs washeld entitled to maintain an action on the ground that he camewithin the expression “ controlling Viharadipathi ”. Theplaintiff was subordinate to one Revata Unnanse who was thechief pupil of the last incumbent and it was contended that hewas nevertheless therefore the proper party to sue. RevataUnnanse hovever had lived away from the temple and hadexercised no control over its affairs.
Soertsz, J. held :
“There is the evidence, oral and documentary to showthat the plaintiff is the controlling Viharadipathi. RevataTerunnanse had lived away from the temple for very manyyears and has exercised no control over its affairs. In the• circumstances I think the plaintiff satisfies the requirementof section 18 of »the Buddhist Temporalities Ordinance andis entitled to. maintain this action. ”
Although Soertsz, J. has not expressly stated so it may verywell be that the ground of his decision was that RevataUnnanse having abandoned the temple his pupils if any had tolose their rights to the temple. The plaintiff therefore had asco-pupil of Revata Unnanse, become the Viharadipathi of thetemple and having functioned as such for over 40 years wastherefore entitled to bring the action. There is, therefore, alegal basis for the plaintiff to be entitled to bring the action.
158
PATTTTR ANA, J.—Dhammadaja Thero v. Wimalajothi Thero
In Chandrctwimala Terunnanse vs. Siyadoris, 47 N.L.R. 304,de Silva, J. dealt with the case where the plaintiff was not thelawful Viharadipathi of the temple. It was conceded quitecorrectly that a person who did not come in the pupillarysuccession of the first incumbent could not acquire the incum-bency by prescription. He distinguished the plaintiff’s claim bysaying that the plaintiff did not claim to be the incumbent butthe controlling Viharadipathi who had the right to possess theproperties belonging to the temple. De Silva, J. followedSumana Terunnanse vs. Somaratna Terunnanse (supra) andheld that the plaintiff was entitled to bring this action.
The other case relied upon was Algama vs. Buddharakkita,52 N.L.R. 150, where the expression “ controlling Viharadipathi”in section 32 of the Ordinance of 1931 was held to include thede facto Viharadipathi and not necessarily a de jure Viharadi-pathi. In this case Dias, S.P.J. no doubt, in the context of section32 of the Ordinance held that the term Viharadipathi in thatsection was wide enough to include persons who were onlyfunctioning as de facto Viharadipathi or who claimed to be theViharadipathis.
Before I deal with this case I would refer to the case ofBuddharakkita Thero vs. Public Trustee, 49 N. L. R. 325, byDias, J. The parties involved are the same Buddhist priests. Inthis case, there was a dispute to the Viharadipathiship of theKelaniya Raja Maha Vihara between the senior priest and thejunior priest of the deceased incumbent. While the junior priestclaimed the office on an alleged nomination by the last incum-bent, the senior priest challenged this nomination and claimedto Oe the lawful successor as senior pupil. The temple was notexempted from the operation of section 4 (1). The Public Trusteehad to ultimately make the appointment of a trustee undersection 11 (2). At the time an action was pending in the DistrictCourt between the two rival claimants for the Viharadipathishipof the temple. Under section 10 (1) the trustee had to benominated by the Viharadipathi of the temple and under section10 (2) the Public Trustee had to make the appointment. Thesenior pupil claiming to be the Viharadipathi nominated himselfwhile the junior pupil nominated himself. As the Viharadipathi-ship was in dispute the Public Trustee expressing no views onthe conflicting claims acting under section 10 (3) (B) appointed^a layman as the provisional trustee so that the temporalities ofthe temple might be safeguarded. This appointment waschallenged by the junior priest who claimed that he was thelawful Viharadipathi and moved for a writ of mandamus statingthat the Public Trustee has failed to perform’ his legal dutiesunder section 10 (2). Dias, J. in the context of the relevantsections stated :
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PATHIRANA, J.—-Dhammadaja Thero v. Wimalajothi Thero
“ The duty of the Public Trustee to issue a letter of appoint-ment can only arise “ whenever a nomination, is duly made ”under section 9 or 10. To decide which of the two nomina-tions was “ duly ” made, the Public Trustee must decide which?©f the two persons making the nomination was the Viharadi-j>athi, i.e., the de jure incumbent of the Kelaniya Temple. Ifthe Public Trustee honestly has a doubt on the point as towhether the nomination or nominations was or were “ duly ”made, I hold that his statutory duty to issue a letter of appoint-ment does not arise until such doubt is resolved. Section 11 (3)makes special provision for such a situation. Pending a “ Legalnomination ”, i.e., a nomination by a de jure Viharadhipathi,he can refuse to issue a letter of appointment, and if necessaryappoint as a provisional trustee some person duly qualified“ for the safe management of the property ” of the temple,while the priestly contestants have the question decided else-where as to who has the better rights. ”
A legal nomination is therefore a nomination by a de jureV iharadipathi.
I shall now consider Algama vs. Buddharakkita, 52 N.L.R. 150.This case concerned the same temple and involved the same-claimants to the incumbency. It was 5 judgment of Dias, S.P.J.consequent to the appointment of the provisional trustee utodersection 10(2) pending the action of the two rival claimants inthe District Court, that is, until the status of the person legallyentitled to the incumbency was decided by the Court. Theprovisional trustee was entitled under section 32(1) to call uponboth rival claimants to surrender to him all the temporalitieswhich were in their possession. Section 32 empowered the PublicTrustee or the provisional trustee in such a case to apply byway of summary procedure to the Court for a writ requiringthe Viharadipathi to deliver possession of such property to theprovisional trustee. The provisional trustee having failed toobtain possession of the temporalities or adequate informationconcerning them, moved the District Court under section 32naming both priests as respondents. The senior priest did notcontest the claim. The junior priest contended that either of therespondents did not come strictly within the definition ofViharadipathi in the Ordinance and that “ Viharadipathi ” meansthe de jure Viharadipathi in section 2, namely, “ the principalbhikku of a temple whether resident or not ”. He granted thatuntil the civil litigation pending between the two priests wasdecided it was not possible to say who the de jure Viharadipathiwas. While reiterating that under section 10(1) it is theduty of the Viharadipathi, that is, the de jure Viharadipathito nominate a trustee except in certain excepted cases he stated: —
160
PAHIRAJNA, J.—Dhammadaja Them v. Wimalajothi Them
“It is contended that definition of “Viharadipathi” insection 2 means the de jure Viharadhipathi. Section 2 does not ^say anything of the kind. What it says is that “ unless thecontext otherwise requires, “ Viharadipathi ” means the
principal bhikku of a templeI find it impossible
to interpret the word “ principal ” to mean “ de jure Thereare several sections in the Ordinance which indicate that,while there may be a “ principal bhikku ” in a temple, therecan also be a “ controlling viharadipathi ”—see sections 18,28(1), (2), 29 and 31. Furthermore, having regard to theaim, scope and purpose of the Buddhist TemporalitiesOrdinance—namely the preservation of the property of thetemple in the hands of a trustee who is accountable to thePublic Trustee, the object of the legislature would becompletely frustrated if, in a case like the present, the Courtis powerless to grant relief to the provisional trustee whoseobject is solely to preserve the valuable temporalities of thisfamous temple, until the question as to who is the personwho can lawfully nominate a trustee has been decided onceand for all.
The opening words of section 2 of the Ordinance says thatthe definitions contained in that section are to have effect“ unless the context otherwise requires The context inwhich the words “ any Viharadipathi ” is used in section 32shows that the object of the legislature would be defeatedby giving those words the narrow interpretation contendedfor by the first respondent.”
Quite rightly Dias, J. has pointed out that the object of theOrdinance will be defeated and a person who claims to be theViharadipathi who may in fact have no legal claims at all tothe temple and is an imposter can continue to occupy the templeand take the benefit of its temporalities. A reading of the twojudgements makes it clear that where the powers, rights andfunctions of a Viharadipathi are referred to in the Ordinanceit is the lawfdl Viharadipathi who is entitled to exercise thesepowers, rights and functions and not the de facto Viharadipathi.
I am, therefore, of the view that judgment of Dias, S.P.J. in 52N.L.R. 150 read with his judgment in 49 N.L.R. 325 makes itquite clear that a de facto Viharadipathi has no legal title orrights to a temple under the Ordinance of 1931.
Sumana Terunnanse vs, Somaratana Terunnanse and Chandra-tvimala Terunnanse vs. Siyadoris (supra) came up for consider-ation in Pemananda Thero vs. Thomas Perera, 56 N.L.R. 413.One Pemananda Thero who described himself as the ControllingViharadipathi of the Vihara in question with the written sanctioa
PAT1HRAJNA, J.—Dhammadaja Thero v. Wimalajothi Thero
1«1
of the Public Trustee leased certain lands belonging to theVihara to the plaintiff in 1946. The Vihara in. question wasexempted from the operation of section 4(1) of the Ordinance.He complained that while he was in possession as lessee hewas ousted by the defendant priest in 1948. The defendant priestclaimed to be the Viharadipathi since his tutor died in 1927.He claimed to be the controlling Viharadipathi and the properauthority to possess and lease the property belonging to theVihara. He said that the plaintiff’s lessor had been merely resi-dent in the temple and looking after it with his permission. Thelearned District Judge held that the defendant was the lawfulViharadipathi but that the plaintiff’s lessor functioned as defacto Viharadipathi from 1935 to 1948, while being in controlof the temple and its temporalities and was therefore theViharadipathi. He gave judgment for the plaintiff. The defendantappealed. In appeal the question for decision was whether theplaintiff’s lessor Pemananda Thero who was not the lawfulincumbent of the Vihara could rightly have claimed to be thecontrolling Viharadipathi as the term is defined in section 4(2)of the Ordinance. Sansoni, J. having referred to the definitionof “ Viharadipathi ” in section 4 (2) of the Ordinance said thatthe first qualification required of the controlling Viharadipathiis that he should be the Viharadipathi of the temple. He receivedthe statutory label “ controlling Viharadhipathi ” only becausethe temple was exempted from the operation of section 4(1) andthe management of its properties was vested in him as Viharadhi-pathi instead of in a duly appointed trustee. He then consideredtwo essential matters in the statutory definition of Viharadhi-pathi, namely (1) he must be the principal bhikku of thetemple ; and (2) he need not be resident in the temple. Hereferred to the definition of incumbent in section 2 of theOrdinance of 1905 as “ the chief resident priest of a temple ” andalso the definition of section 2 of an incumbent in 1889 Ordinance,“ the Chief resident priest of a Vihara ”. Having considered allthese definitions and the relevant provisions cf the threeOrdinances, Sansoni, J. finally expressed that view at page 416 :
“ At no time in the history of Buddhist temples in thisisland has a priest who had no right to the incumbency ofa temple been invested with the title to, or the power tomanage the temporalities of the temple. I am unable toaccept the suggestion that the Ordinance of 1931, Cap. 222,had the far reaching effect of conferring an ' importantlegal status on one who may not even claim to be, andwho is not in law, the chief priest of a temple. Instead ofthe words “ the chief ” in the earlier definitions of “ incum-bent ” the definition of “ Viharadhipathi ” contains the word*
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PATHIRANA, J.—Dhammadaja Thero v. Wmialajothi Then
“ the principal ” and the only other change effected is thata bhikku ‘could be a Viharadipathi whether he was resident»' in the temple or not—a change which was probably madebecause a priest can be an incumbent of more than onetemple. In effect, therefore, a Viharadipathi after 1931 isthe presiding priest who was known as an incumbent before1931, with the difference that he need not be resident in thetemple of which he claims to be the Viharadipathi. Bearingin mind that the expression “ chief priest (or bhikku) of atemple ” has always been the definition of the word“ incumbent ” and substantially the same expression hasbeen used to define the word “ Viharadhipathi ”, it seemsonly reasonable to assume that the legislature meant thenew expression to be the equivalent of the old expression“ incumbent ”.
Sansoni, J. did not follow Soertsz, J.’s judgment in SumanaTerunnanse vs. Somaratana Terunnanse and the judgment ofde Silva, J. in Chandrawimala Terunnanse vs. Siyadoris (supra).
I am of the view that Sansoni, J. was right when he said thatthe Viharadipathi contemplated in section 4 (1) and section 20of the Ordinance of 1931 is the de jure Viharadipathi and notthe de facto Viharadipathi. The whole purpose of the Ordi-nance of 1931 will be defeated if temple's and temporalitieswhich should be safeguarded by the lawfully appointedcustodian should be permitted to be in the hands of an impos-ter or one who had no legal claim and give such a person theprotection of the Ordinance.
Although I have thus rejected the basis on which Mr. Jaye-wardene built his main argument the problem still remains foran answer.
There are two answers suggested—one by Gratiaen, J. andthe other by Basnayake, C. J. Gratiaen, quite rightly statesthat although the operation of section 10 may destroy theremedy accruing over a particular denial the right or statusitself still subsists. But he states that there is much to be. said of the argument that a continuing invasion of a subsistingright constitutes in truth a continuing cause of action as theright of a true incumbent cannot be extinguished by prescrip-tion. The provisions of section 10 should not be converted intoa weapon for the extinguishing of a right which cannot in lawbe extinguished by prescription. Basnayake, C.J., however,seems to think that in view of the altered rights of a Viharadi-pathi under the 1931 Ordinance section 3 and not 10 of thePrescription Ordinance may be applicable.
PATHIRANA, J.—Dhammadaja Thero v. Wimalajolhi Then
163
I would prefer to approach the problem by asking the simple.question—What is the content and scope of an. action to bedeclared Viharadipathi of a temple. It is in fact and in subs-tance an action for the Viharadipathiship of the templealthough in form it appears to be an action to be entitled to thestatus of a Viharadipathi of the temple. To give a not un-familiar example by way of analogy it can be likened to amediaeval king asking for his kingdom. This leads to thequestion what are the rights associated with the Viharadipathi-ship of a temple exempted from the operation of section 4 (1)of the Ordinance after coming into operation of the 1931Ordinance. Apart from being entitled to the management andtitle of property movable and immovable belonging to thetemple there are other rights which Sansoni, J. has referred toas the lesser proprietary rights which he has ably summed upin the short passage in his judgment in Podiya vs. Suraangala,58 N.L.R. 29, at page 31. This case no doubt dealt with thequestion whether a pupil is a privy of his tutor for the purposeof res judicata but nevertheless the following passage isrelevant to the question at issue in this case.
“ I do not think that it is essential in order to consti-tute one person the privy of another that there should be aquestion of ownership of property arising; there are lesserrights in property which a Viharadipathi, by virtue of hisoffice, acquires. For instance, he is entitled to the unham-pered use of the Vihare for the purpose of maintaining thecustomary religious rites and ceremonies. He can claimfull possession of it even though the title in respect of itand of the other endowments of the Vihare is vested in atrustee. See Guneratne Nayake Thero vs. Punchi BandaKorale. Again, he is entitled to the control and manage-ment of the temple premises and might regulate its occupa-tion and use to the extent that no other priest can selectfor himself a particular place in the Vihare independentlyof him against his wishes. A*priest who is guilty of con-tumacy is liable to be ejected by him. See Piyadasa vs.Deevamitta. ”
The temple which is the symbol of the office of the Viharadi-pathi and its appurtenances which include the residentialquarters of bhikkus all stand on immovable property. Thequestion of title to all these is involved in an action for theViharadipathiship of a temple, not to mention that the titleto its temporalities all of which bv operation of law after theOrdinance of 1931 vests in the lawful Viharadipathi and in noneother be he an imposter or trespasser. Two concepts are there-fore associated with the office of Viharadhipathi of a temple
U4PATHIRANA, J.—Dhammadaga Then v. Wimabgoiki Then
• First; there is the holder of such an office. Secondly, by virtueof the office there are interests which are attached to such „office by operation of law. When an Usurper, imposter ortrespasser disputes the right of the lawful Viharadipathiof a temple this usually takes the form of occuping the templeand/or its temporalities. An action for declaration of title tothe office of Viharadhipathi though in form it may appear to bean action for an office or status is in substance an action for thetemple and all its temporalities. In the present case theplaintiff is not only asking for a declaration of title to theincumbency and its temporalities but is also asking for an orderof ejectment. To eject means to oust the defendant from thetemple and its temporalities and put the plaintiff in possessionthereof. Ejectment of the defendant cannot therefore be saidto be purely incidental to the claim to be the incumbent. Thetemple and the office of Viharadipathi are so inextricablyinterwoven that it is almost impossible to visualize one withoutthe other.
I would also refer to the definition of Viharadipathi in section2 of the present Ordinance as “ the principal bhikku of a templewhether resident or not The words “ whether resident or not ”are wide enough to cover the following two situations. A priestor bhikku may be the Viharadipathi of more them one temple,and the fact that he resides in one of the temples will not dis-qualify him from being the Viharadipathi of the others. It alsomeans that a lawful incumbent of a temple even if he was keptout of the temple by an imposter or trespasser remains the lawfulViharadipathi. No imposter can step into his shoes. By the opera-tion of section 4(2) and section 20 the management of and thetitle to the properties are vested in him and in none other. Hisrights cannot be extinguished by prescription nor. can an impos-ter acquire the rights to the incumbency of the temple by pres-cription, though his remedy to sue for the incumbency may bebarred by the laws of limitation. The decisions of Dias, S.P.J. inthe Kelaniya Temple cases have laid down very clearly thatunder the Ordinance of 1931 only a lawful Viharadipathi has therights and powers in regard to a temple exempted from theoperation of section 4 (1). I
I am not inclined to agree with the answer suggested byGratiaen, J. that a continuing invasion of a subsisting rightconstitutes a continuing cause of action and therefore the lawsof limitation cannot apply to such an action. As an argumenthe states that section 10 can be used as a weapon to extinguisha right which cannot in law be extinguished by prescription.Every cause of action has a period of limitation imposed underthe Prescription Ordinance and other statutes unless exceptions
PATHJRA NA, J.—Dhammadaja Thera v- Wimalajothi Thero
165
are made either by the Prescription Ordinance or by statute-Under the Prescription Ordinance section 10 oatches up thoseactions for which no express provision is made in the Ordinance.The Prescription Ordinance also exempts certain actions from theoperation of the C rdinance—uide section 15. The Ordinance alsomakes provision whereby the laws of limitation are in abeyancefor a period in certain circumstances. (Vide sections 13 and 14)The cause of action to sue for a declaration to the Viharadipathi-ship of a temple does not came under any one of these exceptions.Therefore once there is a denial of a right to the Viharadipathi-ship of a temple by a person the aggrieved party has a cause ofaction immediately and the laws of prescription will operatefrom the date of such denial. It only remains to find out whichsection of the Prescription Ordinance applies in such a case. I donot think one can escape the consequences of laws of limitationby resorting to the concept of continuing cause of action. Acontinuing cause of action may be a ground for a fresh action,vis-a-vis the law of res judicata. I do not think it can affect theoperation of the laws or limitation of an action.
Certain submissions were presented to us in relation to section34 and section 18 of the Buddhist Temporalities Ordinance. I mustat this stage observe that the present action by the plaintiff tobe declared entitled to the Viharadipathiship of the temple andits temporalities and the ejectment of the defendant, is not anaction under any remedy given by the Buddhist TemporalitiesOrdinance. I agree with Mr. Amerasinghe that this is a reivindicatio action under the Roman Dutch Law. It is not an actionto which section 18 of the Ordinance applies. Section 18 merelystates that it shall be lawful for the controlling Viharadipathi ofa temple to sue in the name and style of “ the trustees of (nameof temple) ” , for the recovery of any property vested in himunder the Ordinance or the possession thereof. I am also notinclined to think that the plaintiff can avail himself of section34 of the Ordinance which states that in the case of any claimfor the recovery of any property movable or immovable belong-ing or alleged to be belonging to any temple or for the assertionof title to any property the claim was not held to be barred orprejudiced by any provision of the Prescription Ordinance. I am,therefore, of the view that the rights attached to the office ofViharadipathi of a temple being in the main rights to immovableproperty and therefore an action to be declared entitled to theViharadipathiship of a temple involves title to such property. Inthe result section 3 of ‘the Prescription Ordinance applies andthe period of limitation is 10 years.
!••• A 41653 (79/05)
166
UDALAGAMA, J.—Dhammadaja Thero v. Wimalajothi Thero
I must at this stage hark back to the reasons given by Garvin, J.in Terunnanse vs. Terunnanse, 28 N.L.R. 477, which I havealready cited. This was a case decided when the 1905 Ordinancewas in operation, and it was held that an action for incumbencywas prescribed in three years. He gave the following reasons:
“ An incumbent is clearly not entitled to the immovableproperty of the temple, nor a right to the possession thereof.Apart from his ecclesiastical duties, an incumbent of a viharehas certain rights of administration and control of the viharaitself, but these are not such rights as are contemplated bysection 3. ”
As a corollary to this, if under any subsequent law an incum-bent is given title to immovable property of a temple or theright to possession thereof then these are rights contemplatedby section 3 of the Prescription Ordinance. The Ordinance of 1931by section 4 (2) and section 20 specifically gives the Viharadi-pathi these very rights- It therefore follows that an action forthe Viharadipathiship of a temple is in respect of rights contem-plated by section 3 of the Prescription Ordinance and this sectionis therefore applicable to such an action.
I would, therefore, hold that the plaintiff’s action is notprescribed in law.
On the other questions decided by the learned District JudgeI see no reason to interfere. My brother Gunasekera, J. has dealtwith these questions fully in the judgment he has prepared andI am in agreement with him. I also agree with his conclusionand reasons for allowing the cross-appeal of the plaintiff-respond-ent in regard to the temple Sunandharamaya. I,
I, therefore, dismiss the appeal with costs- The cross-appeal ofthe plaintiff-respondent is allowed .
Udalagama, J.
I have read the judgment of the President of the CourtPathirana, J. and I regret I cannot agree with his judgment.
The plaintiff, Rotumba Wimalajothi Thero, in this action, suedthe defendant Mapalane Dhammadaja Thero for a declarationthat he is the lawful Viharadhipathi of the five temples: —
Mapalane Gnanabiwansa Siri Dhammarakkithramaya ;
Sunandaramaya at Batuwita Udadamana ;
Saddarmavijayaramaya at Kiraniyawatta, Poltugoda in
Udadamana ;
Samaranayakaramaya at Kahagala in Akurugoda ;
Suddarmaramaya at Kahagala in Mapala ;
UDALAGAMA, J-—Dhammadaja Thero v. Wimalajothi Thero
167
and as the Viharadhipathi entitled to the lands and premisesset out in the schedule to the plaint. He also prayed that thedefendant be ejected from the said temples and temporalitiesand control of the said temporalities, and he be placed in peace-ful possession of the said temples and of the said lands andpremises. The defendant, Mapalane Dhammadaja Thero, by hisanswer, denied the claim of the plaintiff-respondent on thefollowing grounds : —
That he was lawfully appointed the Viharadhipathi of
the said temples by the admitted former Viharadhi-pathi, Pannalankara Maha Nayake Thero by DeedNo. 818 of 1.2.1959.
That the plaintiff and his co-pupils renounced and
abandoned their rights to the said temples.
That the plaintiff is precluded and estopped in law from
asserting any rights to the incumbency of the saidtemples and the temporalities appertaining theretoin consequence of the acts referred to in para. 8(a),8(b), and 8(d), of the amended answer.
That in any event the plaintiff’s cause of action is pres-
cribed in law.
The learned District Judge after trial held that Deed 818 of1.2.1959 (D 3) did not constitute a valid appointment of the defen-dant, that the plaintiff and his co-pupil by signing the said deed,did not abandon their rights to the Viharadhipathiship, that theplaintiff was not precluded or estopped from asserting his rightsto the Viharadhipathiship of the said temples, and that theplaintiff’s cause of action was not prescribed in law. In the resultjudgment was entered for the plaintiff—as prayed for, save andexcept to so much of the prayer as related to the incumbencyand the temporalities of Sunandaramaya and to the ejectmentof the defendant.
In view of certain views expressed in two cases of the SupremeCourt, namely, 55 N.L.R. 313 and 59 N.L.R. 289 on the questionwhether an action for an incumbency is prescribed in three years,the present case was referred to this Divisional Bench and so ithas come up before us for argument-
Although the plaintiff-respondent did not admit that the causeof action in the instant case arose immediately on the death ofthe former Viharadhipathi, the Rev. Pannalankara Maha NayakeThero. the main argument in regard to the limitation of theaction, was based on the assumption that the cause of actionarose on Pannalankara’s death in 1959 and at the date of thepresent action, a period of over 3 years had lapsed.
168
TJDALAGAMA, J.—Dhammadaja Thero v. Wimalajothi Thero
The learned counsel for the defendant-appellant, has arguedbefore us, citing a number of decided cases, extending over along period of time, that an action for a declaration of Viharadhi-pathiship is essentially an action for a declaration of status andis prescribed in three years. The learned counsel for theplaintiff-respondent on the other hand, has argued before us,that the cases referred to by counsel for the defendant-respon-dent were either cases decided before the Buddhist Temporal-ities Ordinance of 1931 or where this specific question had notbeen discussed.
Under the Buddhist Temporalities Ordinance of 1905 theproperty of a vihare, both movable and immovable was vestedin a trustee. The incumbent had no control over the movable orimmovable property of the temple nor a right to the possessionthereof. Apart from his ecclesiastical duty, the incumbent of avihara had certain rights of administration and control of thevihara itself, but these were not such rights as were contem-plated by section 3 of the Prescription Ordinance. Hence an actionfor an incumbency of a temple, being an action for a declar-ation of a pure status, was barred by the lapse of three yearsfrom the dale when the cause of action arose—Terunannse vs.T&runanse, (1927) 28 N.L.R. 477. Counsel for the plaintiff-respondent did not challenge the soundness of this principle, sofar as actions filed, for a incumbency prior to the BuddhistTemporalities Ordinance of 1931 were concerned. However,counsel submitted that after 1931 the status of an incumbent orViharadhipathi underwent a radical change with the cominginto operation of ’he Buddhist Temporalities Ordinance of 1931.The management of the property of any temple exempted fromthe operation of section 4 (1) but not exempted from the entireOrdinance was vested in the Viharadhipathi of the temple whowas designated the Controlling Viharadhipathi. Under section18, it was only he, who could sue and be sued. Section 20 vestedall property, movable and immovable, belonging or in any wiseappertaining to and appropriated to, the use of any temple inthe Controlling Viharadhipathi for the time being of such temple.Section 34 provided that in the case of any claim for the reco-very of any property, movable or immovable belonging or allegedto belong to any temple or for the assertion of title to any suchproperty, the claim shall not be held to be barred or prejudicedby any provision of the Prescription Ordinance. It was thereforeargued that an incumbency suit brought after the coming intooperation of the Buddhist Temporalities Ordinance of 1931 wasnot for a mere declaration of a status but also for recovery ofthe temporalities of the temple. The two were so inextricablytied together that one could not be separated from the other andhence section 10 of the Prescription Ordinance did not apply.
UDALAGAMA, J.—Dhammadaja Thero v. Wimaiajothi The.ro
169
Counsel for the defendant-appellant on the other hand sub-mitted to us that the Buddhist Temporalities Ordinance of 1931did not bring about any radical change in the status of an incum-bent from what it was before 1931 and that actions for incum-bencies were not affected and remained actions for a declarationof status.
It would be useful to consider who was an incumbent of atemple prior to 1931, and what this status was, and whether anychange took place after the passing of the 1931 Ordinance. TheOrdinance in force prior to the Buddhist Temporalities Ordin-ance, of 1931 was the Buddhist Temporalities Ordinance No. 8of 1905. Section 2 of that Ordinance defined “ Incumbent ” as thechief resident priest of a temple. Ordinance 8 of 1905 repealedand replaced 3 of 1889, which had been passed to provide for thebetter regulation and management of the Buddhist Temporali-ties. Section 2 of Ordinance 3 of 1889 defined “ Incumbent ” asthe chief resident priest of a Vihara. There was therefore onlyone meaning to be attached to the word “ Incumbent ” betweenthe years 1889 and 1931 : it stood for the chief resident priestof a temple. After 1931 Viharadhipathi or the incumbent of atemple came to be defined as “ principal bhikku of a templewhether resident or not.”
From these definitions it will be seen that the only changethat took place in the definition of a Viharadhipathi under the1931 Ordinance, was that the Viharadhipathi or incumbent couldbe resident or not.
Prior to the Buddhist Temporalities Ordinance, the propertydedicated to the Vihara or pansala was considered the propertyof the incumbent priest of the temple, for the purpose of hisoffice, including his own support and the maintenance of thetemple and its services, and on his death it passed by inheritanceto his sacerdotal heir See Rathanapala Unanse vs. KewitiyagalaUnnanse, (1379) 2 S. C C. 26. In Davarakkita vs. Dharmmaratane,(1919) 21 N.L.R. 255, it was held the presiding priest or incum-bent had the control and administration of the Vihara itself,although, after the passing of the Buddhist Temporalities Ordi-nance, the property of the Vihara vests in the trustees the rightto an incumbency is still a legal right and not purely an eccles-siastical matter. What was the position after the Ordinance of1931 ? In Sumana Therunnanse vs. SomarOtana Therunnanse,5 C.L.W. 37, decided in 1936 it was held that a bhikku who hasbeen resident in temple for forty years and who was during that
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UDALAGAMA, J-—Dhammadaja Thero v. Wimalajothi Thero
time in charge of its affairs comes within the expression of Con-trolling Viharddhipathi. Soertsz, A. J. in the course of his judg- 'ment stated : —
“ Now section 20 of the Buddhist Temporalities Ordinance,No. 19 of 1931, vests all movable and immovable propertyother than pudgalika offerings in “ the trustee or the controll-ing Viharadhipathi for the time being of such temple Itis not alleged—that there is a trustee for this temple. Section18 of the Ordinance provides that it shall be lawful for thetrustee or the controlling Viharadhipathi to sue for therecovery of property vested in him under this Ordinance.
The only question is whether the present plaintiff can besaid to be the controlling Viharadhipathi of the temple inquestion. The defining clause says that “ Viharadhipathimeans the principal bhikku of a temple other than a dewaleor kovila, whether resident or not ”.
The Commissioner held on the evidence in the case thatthe plaintiff who has for the last forty years been residentin this temple and in charge of its affairs was the properperson to bring this action. There is evidence oral and docu-mentary to show that the plaintiff is the controllingViharadhipathi. Rewata Terunnanse has lived away from thetemple for very many years and has exercised no controlover its affairs. In the circumstances I think the plaintiffsatisfies the requirements of section 18 of the Buddhist Tem-poralities Ordinance and is entitled to maintain thisaction. ”
There was no suggestion that Rewate Terunnanse hadrenounced or abandoned his rights to the temple in question.In Chandrawimala Terunnanse vs. Siyadoris, (1946) 47 N.L.R.304, following Sumana Terunnanse vs. Somaratana Terunnanse,(1936) 5 C.L.W. 37, it was held that the plaintiff priest who wasnot and did not claim to be the lawful incumbent of thetemple, but claimed to be its controlling Viharadhipathi and tohave the right to possess the properties belonging to the tem-ple, could maintain his action. These two cases in shortrecognised the existence of a de jure Viharadhipathi and a defacto Viharadhipathi. These two cases also clearly demonstratedthat the Viharadhipathi contemplated in the Buddhist Tempora-lities Ordinance of 1931 was not necessarily the de jureViharadhipathi.
However in Pemananda Thero vs. Thomas Per era, 56 N.L.R.413, Sansoni, J. (as he then was) stated “ At no time in thehistory of Buddhist temples in this Island has a priest who hadno right to the incumbency of a temple been invested
(JDAUAGAJHA, J–—Dhammadaja 1'hero v. Wimalajolhi Tltero
171
with the title to, or the power to manage, the temporalities of• the temple Wih all respect to the learned Judge I cannotagree with these observations. It is not uncommon in thevillages of this country where an elderly priest has beenaccepted by the dayakas as the de facto Viharadhipathi or thecontrolling Viharadhipathi of a temple, while the de jureViharadhipathi may be elsewhere and not heard of. InI. Podiya vs. Rev. E. Sumangala, 58 N.L.R. 29, decided afterPemananda Thero vs. Thomas Perera, 56 N.L.R. 413, Sansoni, J.in discussing whether the following settlement constituted anabandonment: —“ Of consent plaintiff is declared the con-trolling Viharadhipathi of the Manawala Vihara but this rightwill vest in him as from the date of the demise of the defendantwho is hereby declared entitled to reside in and officiate asViharadhipathi of the said temple during his lifetime, withoutany let or hindrance from the plaintiff. Each party will bearhis own costs ”, stated : —
“ I think the meaning of the settlement is clear enough.The matter in dispute was whether the plaintiff wasentitled to be declared the controlling Viharadhipathi, andthis declaration was granted to him. There was added thecondition that Rewata was entitled to reside in and officiateas Viharadhipathi during his lifetime. In effect, theplaintiff was declared de jure incumbent and Rewata wasto be de facto incumbent for life. I do not think that thislimitation imposed on the plaintiff’s title rendered thematter which was decided by the decree uncertain. I wouldsay that the very qualification which was introduced infavour of the defendant made it all the clearer as to whowas declared by the decree to be lawfully entitled to theoffice of controlling Viharadhipathi ”.
One could observe Sansoni, J. is here talking of a de jureViharadhipathi and a de facto Viharadhipathi. In Algama vs.Buddharakkita, (1951) 52 N.L.R. 150, Dias, S. P. J. in construingthe meaning of “ Viharadhipathi ” in section 2 of the Ordinancestated as follows : —
“ It is contended that the definition of “ Viharadhipathi ”in section 2 means the de jure Viharadhipahi. Section 2does not say anything of the kind. What it says is that“ unless the context otherwise requires, ‘ Viharadhipathi ’
means the principal bhikku of a temple” I find it
impossible to interpret the word “ principal ” to mean “ dejure ”, There are several sections in the Ordinance whichindicate that, while there may be a “ principal bhikku ” ina temple, there can also be a “ Controlling Viharadhipathi,”see sections 1& “*8. (1), (2), 29 and 31. Furthermore, having
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TJD ALAGAMA, J.—Dhammadaja Thero v. Wimalajothi Thcro
regard to the aim, scope and purpose of the BuddhistTemporalities Ordinance—namely, the preservation of theproperty of the temple in the hands of a trustee who isaccountable to the Public Trustee, the object of the legis-lature would be completely frustrated if, in a case like thepresent, the court is powerless to grant relief to the Pro-visional Trustee whose object is solely to preserve thevaluable temporalities of this famous temple, until thequestion as to who is the person who can lawfullynominate a trustee has been decided once and for all
I would in the result agree with the submission of learnedcounsel for the defendant-appellant, that the Viharadhipathireferred to in the Ordinance of 1931 need not necessarily meanthe de jure Viharadhipathi and that it could refer to a de factoViharadhipathi also. That being so, when the question as towho is the de jure Viharadhipathi of a temple arises, it has tobe decided outside the Ordinance and in a properly constituteddeclaratory action.
There is a further matter I would like to refer to. It will beobserved that in all incumbency cases, cited to us, where theaction had been barred by the lapse of three years, have beenbrought by the plaintiffs in their personal capacity, with aclaim for the recovery of the temple and its property added on.In the present case the plaintiff brought this action purely inhis personal capacity. In para (a) of the prayer of the plaint heis asking that he be declared the lawful Viharadhipathi of thetemples mentioned in para 2 of the plaint. In paras (b), (c) and
, of the prayer he is asking that as Viharadhipathi he bedeclared entitled to the land and premises set out in theschedule, the defendant be ejected from the said temples andtemporalities and control of the said temporalities and that hebe placed in peaceful possession of the said temples and thelands. Is such an action permissible ? Under section 18 of theBuddhist Temporalities Ordinance it is only the controllingViharadhipathi who can bring an action for the recovery of thetemple property. In Samarasinghe vs. Pannasara Thero, 53N.L.R. 271, two plaintiffs, Buddhist priests, sought to vindicatetitle to a land in their personal capacity on the footing thatit was their private pudgalika pronerty. During the trial, how-ever it appeared, that the land in question was the Sangikaproperty of the Vihare. The 2nd plaintiff was the Viharadhi-pathi of the temple. Counsel argued that as he, the 2ndplaintiff, the Viharadhipathi of the temple, was vested with thetemporalities, he had status to maintain the action. Dias,S. P. J. stated, “ The answer to this contention is that this isnot an action instituted in terms of section 18 of the Ordinance
(JDALAGAMA, J.—Dhammadaja Thera v. Wimalajothi Thero
1
by the “ Controlling Viharadhipathi ” who is siting under thename and style of “ The Trustee ” of the temple to recoverproperty vested in him in that capacity. It is only such aperson who can vindicate title to a land which belongs to oris appurtenant to a Buddhist temple. This action as framed isone by two monks suing in their personal capacity to vindicatetitle to a land which the plaint asserts belongs to them. Thatwas the case which the defendant had to meet InDheerananda Thero vs. Ratnasara Thero, 60 N.L.R. 7, theplaintiff-respondent brought an action against Konwewa Piya-ratana Thero alleging that the latter was unlawfully disputinghis right to the incumbency and obstructing him in the lawfulexercise of his right as incumbent. He prayed that he be declaredthe incumbent and that the defendant and his agent be ejectedfrom the temple. Piyaratana Thero, the defendant filed answerclaiming to be the incumbent of the temple and that the plain-tiff’s right of action, if any was prescribed. In the course of the-trial Piyaratana Thero died. The defendant was substituted inplace of Piyaratana Thero, and the case went to trial and thelearned District Judge declared the plaintiff to be the incumbentand ordered ejectment of the appellant. In appeal counsel forthe appellant contended that the judgement should not beallowed to stand as the action instituted by the plaintiff abatedon the death of Piyaratana Thero. He argued that the actionbeing one of a personal nature against the original defendant,the right to sue ceased on toe death of that defendant. T. S. Fer-nando, J. stated in reference to this argument “ To consider thesoundness of counsel’s contention, we must examine the natureof the action filed against Piyaratana Thero. As I have statedalready at the outset of this judgement the allegation withwhich the plaintiff invoked the assistance of the court was thatPiyaratana Thero was unlawfully disputing his rights, was dis-obedient and disrespectful to him and was obstructing him inthe exercise of his rights as incumbent. The action as so framedwas therefore undoubtedly of a personal nature and was limitedto seeking a declaration of his alleged status of incumbent. It istrue that the ejectment of the defendant and his agents wasalso claimed, but this claim was purely incidental to the claimto be the incumbent and was not a claim to eject the defendanton the ground of parajaka conduct of the latter ”. Further on,he quoted the following passage from Sinha, J. in the Indiancase of Ramsarup Das vs. Rameshwar Das, (1950) A.I.R. (Patna)184.
“ If a plaintiff is suing to establish his right to a certainproperty in his own rights and not by virtue of his officecertainly the cause of action for the suit will survive, and
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UDALAGAMA, J.—Dhammadaja Thero.v. Wimalajothi Thera
his legal representative can continue the suit on the deathof the original plaintiff, either during the pendency of thesuit or of the appeal. But where the plaintiff’s suit is pri-marily to establish his personal right to an office whichwould entitle him to possession of the property in question,on his death, either during the pendency of the suit orduring the pendency of the appeal, the right to sue wouldnot survive, and the suit will therefore abate. ”
It will therefore appear that a personal right to an officewhich would entitle a person to possession of property does notsurvive on death, because it is a declaration to a status- It isa common practice in incumbency cases, as in the present one,to tack on a claim for a declaration to the possession of thetemporalities of a temple in addition to the main cause of action,which has given rise to the plaintiff to come to court. It is thisirregularity which has confused the real issue in the presentaction. If the two causes of action are kept apart, the problemthat we are faced with in this case would never have arisen,that is to say, if a plaintiff’s claim to be de jure Viharadhipathiis counter claimed by a defendant, it is a must that this cause ofaction should be tried in a separate action and thereafter if thetemporalities are being possessed by a person who is notentitled to possess them, he be sued by the Controlling Viharadhi-pathi as provided for in section 18 of the Buddhist Temporali-ties Ordinance. No doubt it would mean bringing two actions,but that cannot be helped. If the learned District Judge hadapproached the present case on the lines indicated above, I haveno doubt he would have come to the conclusion that theplaintiff’s claim to the incumbency was barred by time.
In Rewata Unnanse vs. Ratnajothi Unnanse, (1916) 3 C.W.R.193, plaintiff, a Buddhist priest claimed a declaration that he wasthe rightful incumbent of the Pusulpitiya Vihare and that he wasentitled to reside in the Vihare. Schneider, A.J. dismissing theplaintiff’s action stated “ This is obviously an action for thedeclaration of a status namely that the plaintiff is the senior pupilof the deceased Medankara. If the action is not governed bysection 4 (Prescription Ordinance 22 of 1871) it must needs fallunder section 11, for it can fall under no other. The period oflimitation under section 11 is three years from the time the causeof action should have accrued ”. In Terrunanse vs. Terrunanse,(1927) 28 N.L.R. 477, it was held that an action to an incumbencyto a temple, being an action for a declaration of a status, wasbarred by the lapse of three years from the date when the causeof action arose. It will be observed that this case has been decidedprior to the Buddhist Temporalities Ordinance of 1931. In Prema-naratna vs. Indasara, 40 N.L.F. 235. it was held that an action for
UDAGAGAMA, J.—Dhammadaja (Thero v. Wimalajothi Thero
175
the declaration of a right to the incumbency of a Buddhist templeis barred in three year’s from the time the action.arose. Also seeDheerananda vs. Ratnasara, 67 N.L.R. 559. The latter two caseshave been decided after Buddhist Temporalities Ordinance of1931. It was contended by counsel that these cases were eitherdecided before the Ordinance of 1931 or it was conceded, withoutdiscussion, that an action for the declaration of a right to theincumbency of a Buddhist temple is barred in three years fromthe action arose. I have, however, been able to come across anunreported case, wnere this point was specifically taken and theSupreme Court ruled, that such an action is barred in three years.I refer to the case of Moratota Sobitha Thero of MenikkuburaVihare, Katugastota vs. Akwatte Dewamitta Thero and anotherof Talgaspitiya Vihare, Aranayake, S.C. 405 (F) 58 D.C. KegalleCase No. 10050. This case came up before Sansoni, J. and Sinne-tamby, J. The plaintiff sued the two defendants for a declarationthat he is the Viharadhipathi of Mediliya Vihare and devale andtheir endowments. The 1st defendant claimed to be the rightfulViharadhipathi as the senior pupil of one Ganegoda Piyaratana.The learned District Judge held that the plaintiff had failed toestablish that he was the Viharadhipathi and that in any eventhis action was barred by prescription. Sansoni, J. on the issue ofprescription stated : —
“ Another submission on the question of prescription wasbased on the view that under section 34 of the BuddhistTemporalities Ordinance, No. 10 of 1931, no length of time canprevent the plaintiff recovering judgment in this case if heis the lawful Viharadhipathi. I have already indicated thatthe plaintiff has not established his claim to be the lawfulholder of the office but, assuming that he had, the law still isthat the period of limitation in respect of an action to bedeclared Viharadhipathi of a temple is three years undersection 10 of the Prescription Ordinance—see SaranakaraThero vs. Medegama Dhammananda Thero, (1954) 55 N.L.R.314 and Amaraseeha Thero vs. Sasanatilake Thero, (1957)59 NL.R. 289. ”
Learned counsel for the plaintiff-respondent also submitted tous that the cause of action to sue the defendant arose really noton the death of the Rev. Pannalankara but towards the end of1963 or the beginning of 1964, when the plaintiff realised fromcertain acts of the defendant that the defendant was trying toset up a claim to the Viharadhipathiship. Some of these acts werethe robing of two pupils by the defendant and the plaintiff beingtreated as an outsider at the ceremony, cutting down of certainvaluable trees and removing a foundation laid by the late Rev.
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ISMAIL, J.—Dhammadaja Thero v. Wimaiajothi Thero
Pannalankara. The learned District Judge had held on the oraltestimony of the plaintiff, that the plaintiff was aware that thepurport of D3 was to confer on the defendant an alleged right tothe incumbency of the several vihares and that the defendantstarted asserting the said right soon after the execution of D3 andthat the cause of action arose after the execution of D3 or in anyevent on Pannalankara’s death. I agree with this conclusion ofthe learned District Judge. On the death of Rev. Pannalankaraon 16.4.1959, if the plaintiff was of the view that the deed D3 wasbad and it conveyed no rights to the Viharadipathiship of thetemple to the defendant, his right to claim the incumbency aroseon 16.4.1959. I cannot accept the view that as the defendant wasattending to certain functions of the Rev. Pannalankara duringhis lifetime, he was allowed by the plaintiff to continue thatarrangement, and no challenge to his right to the Viharadhipathi-ship arose till the end of 1963 or early 1964. The defendant’sclear position was that after Rev. Pannalankara’s death he wasofficiating as the Viharadhipathi not under the plaintiff or anyoneelse, but on his own right. I would accordingly hold that thecause of action of the plaintiff arose on the death of the Rev.Pannalankara, and as the plaintiff has brought this action threeyears after his cause of action arose, he is barred by limitation oftime from maintaining the action.
The further question, whether the plaintiff and his co-pupilshad renounced or abandoned their rights, by deed 818 of 1.2.59(D3) document D2 and answer D5 was argued before us, as thelearned District Judge had held against the defendant-appellanton this issue. In view of the conclusion I have arrived at, on theissue of prescription I would refrain from making a pronounce-ment on this issue, as it may have other repercussions on thefuture rights of the pupillary heirs of the Rev. PannalankaraThero, including the plaintiff-respondent.
I would allow the appeal with costs both here and below anddismiss the cross-appeal.
Ismail, J.
I have had the advantage of having read the judgmentsprepared by my brothers Pathirana, J. and Gunasekera, J. I findthat on the question of abandonment my views and conclusionsaccord with those of Gunasekera, J. I accordingly agree with thejudgment of Gunasekera, J. I also find that Pathirana, J. hasdealt comprehensively on the question of prescription whicharises in this matter. I am of the view “that his analysis and theconclusions reached on the question of prescription arising inthis case is correct and I therefore find that I am in agreementwith his judgment.
TITTAWEL«LA, J.—Dhammadaja Thero v. WimcUajothi Thero
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Tittawella, J.
I have read the judgements of my brothers Pathirana, J. andGunasekera, J. and I am in agreement with the conclusionsreached by Gunasekera, J. that the appeal of the defendant-appellant should be dismissed with costs and that the cross-appeal filed by the plaintiff-respondent should be allowed withcosts. I have, however, separately set down my reasons and con-clusions on the question of prescription which was one of themain matters argued at the hearing of these appeals. So muchof the facts pertaining to this matter appears in my judgment.
The late Pannalankara Maha Nayaka Thero was the controll-ing Viharadhipathi of the temples which are the subject matterof this appeal. The plaintiff is his senior pupil and the defendentis a co-pupil of Pannalankara. The rule of succession to theViharadhipathiship in this case is that known as sishyanu sishyaparamparawa. The temples were exempt from the provisions ofsection 4 (1) of the Buddhist Temporalities Ordinance.
By Deed No. 818 of the 1st February, 1959, Pannalankaraappointed his co-pupil the defendant as his “ successor and vihara-dhipathi ” of the said temples. The plaintiff and the other pupilsof Pannalankara had consented to this appointment and weresignatories to this deed. Pannalankara died on the 16th April,1959, and after this the defendant has assumed control of thetemples and at his request the plaintiff had exchanged residencewith the defendant. The defendant took up residence at thetemple called Dhammarakkitharamaya whilst the plaintiffresided at another temple called Sunandaramaya.
The late Pannalankara had a considerable amount of moneydeposited to his account at the Bank of Ceylon. It was his wishthat this money should be utilised for the construction of alibrary at Dhammarakkitharamaya. In order to carry out thewishes of his late benefactor the defendant had made an applica-tion to the bank to withdraw this sum of money. The plaintiffand the other pupils of the late Pannalankara had in writingconsented to the defendant withdrawing the money. The bankauthorities had however refused this application and advisedthe defendant to obtain an order of Court. Consequently on the28th March, 1962, the defendant instituted an action. No. 968/Z,in the District Court of Colombo. The plaintiff, his co-pupils,and the bank were made respondents. The plaintiff and his co-pupils did not object to this application but the Court after aconsideration of the merits dismissed it on 29.8.63.
The relationship between the plaintiff and the defendant tooka different turn thereafter. Each was trying to assert his claimto the control of the temples and the amity that had hitherto
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TITTAWEL.LA, J.—Dhammadaja Thero v. WimcUajothi Thero
prevailed turned into discord. There were many differencesbetween them and in January, 1965 an appeal had even beenmade by the plaintiff to the -VI aha Nayaka Thero of his sect inorder to bring about a settlement of the differences but nosatisfactory solution energed. Attempts by the plaintiff to takeup residence at Dhammarakkitharamaya during the “ vas ”season of 1965 were resisted by the defendant.
The action which has resulted in this appeal was institutedon the 15th October, 1965. The plaintiff sought against thedefendant inter alia : —
a declaration that he is the controlling Viharadhipathiof the temples in question ; and
ib) a declaration that as the controlling Viharadhipathithereof that he is entitled to the perquisites of thetemples.
The plaintiff’s claim was resisted on four grounds—
that deed No. 818 of the 1st February, 1959 constitutes a
valid appointment of the defendant as theViharadhipathi ;
that the act of the plaintiff and his co-pupils in signing
the said deed and agreeing to and approving of thedefendant’s appointment together with several otheracts are tantamount to a renunciation and an abandon-ment of their rights ;
that the plaintiff is precluded and estopped in law from
asserting any rights to the incumbency of thesetemples ;
that in any event the plaintiff’s right of action is
prescribed in law.
After trial the learned District, Judge held against the defen-dant on all ihe above four matters and granted the declarationsought by the plaintiff. The defendant has now appealed againstthe judgment and order of the learned District Judge.
One of the matters argued at length in this appeal was thequestion of prescription. At the trial the defendant raised thequestion of prescription. It was submitted that the cause of actiontook place on the execution of deed No. 818 of 1st February, 1959.The plaintiff’s action being one for a declaration of a status asViharadhipathi and under section 10 of the PrescriptionOrdinance (22 of 1871) no such action would, it was submittedbe maintainable after three years from the date when such cause
TITTAWBLJLA, J,—Dhammadaja Thero v. Wimalajothi Thero
17V
of action shall have accrued. Reliance was placed on a number ofdecided cases. They are, Rewata Unnanse vs. Ratnaiothi Unnanse3 C. W. R. 193, Terunnanse vs. Terunnanse 28 N. L. R. 477,
U.Dheerunanda Thero vs. D. Ratnasara Thero 67 N. L. R. 559.
The case of Rewata Unnanse vs. Ratnajothi Unnanse, was decid-ed in 1916 by 9naw, A.C.J., and Schnieder, A.J. The plaintiffBuddhist priest claimed a declaration that he was the rightfulincumbent of the Pusulpitiya Vihara and that he was entitledto reside in the Vihara. His claim was based on the ground thatthe succession to the incumbency to the Vihara was based on thesisyanu sisya paramparawa and that he as the senior pupil ofthe last incumbent Medankara Unnanse was entitled to thesuccession. Schneider, A.J. says as follows : —
‘‘ This is obviously an action for the declaration of astatus namely that the plaintiff is the senior pupil of thedeceased Medankara. If the action is not governed by section4 (Prescription Ordinance, 22 of 1871) it must needs fallunder section 11 for it can fall under no other. The periodof limitation under section 11 is three years from the timethe cause if action shall have a .crued ”.
(Section 4 and 11 of Ordinance 22 of. 1871 now correspondto sections 3 and 10 respectively of the Prescription Ordin-ance. Cap. 68, Vol. Ill, Legislative Enactments, 1956revision).
Terunnanse vs. Terunnanse, 28 N.L.R. -177 was a case decided byGarvin and Dalton. JJ. in 1927. It was an action by a Buddhistpriest to obtain a declaration that he was the rightful incumbentof a Vihara and that he was entitled as such to be placed inpossession thereof. The District Judge held that the plaintiffwould have been entitled to the relief that he claims but for thecircumstance that his right of action is barred by limitation. Itwas urged in appeal that an action to be declared the rightfulincumbent of a vihara is not barred in three years but is availableuntil ten years have expired from the date on which the rightaccrued. It was also urged that Rewata Unnanse vs. RatnajothiUnnanse was not a binding authority inasmuch as the opinionexpressed on this point was not necessary to the decision of thecase and that in any event it should be reconsidered. Garvin, J.at page 478 refers to the Buddhist Temporalities Ordinancewhich was in force at that time It was the Buddhi~t Tempora-lites Ordinance, No. 8 of 1905, enacted on the 25 h August. 1905He goes on to state—
“ By the Buddhist Temporalities Ordinance the property ofthe vihara both immovable and movable is vested in thetrustee. An incumbent clearly has no title to the immovable
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TIT1A WELL. A, J.—Dhamniadaja Tfit.ro v. Wimalajolhi Thero
property of the temple nor a right to the possession thereof.Apart from his ecclesiastical duties an incumbent of a viharahas certain rights of administration and control of the viharaitself but those are not such rights as are contemplated bysection 3 of the Prescription Ordinance. They spring fromand appertain to the office of incumbent and cannot existapart from it. The right to the plaintiff to the enjoymentand exercise of these rights is dependent upon his right tothe incumbency. It is manifest that in form and in substancethis is an action for a declaration of the plaintiff’s right tothe incumbency. In the absence of special provision in Ordi-nance No. 22 of 1871, section 11 of the Ordinance applies tothe case and the action is barred by limitation in three years. ”
For an understanding and an appreciation of these cases it isnecessary to examine the legal status of Buddhist temples. Thishas been done in the case of Ratnapala Unnanse vs. KevitigalaUnnanse, 2 S.C.C. 26, and in Gunananda vs. Deepalankara, 32N.L.R. 240. The view has also been expressed in the case ofSaddhananda vs. Sumanatissa, 36 N.L.R. 422, that aBuddhist temple is not a juristic person. The Vihara orthe Pansala does not cover any legal entity resemblingthe deity of a Hindu family or a temple in which caseany dedicated property belongs by law to the deity whois recognised by the civil courts as a perpetual corporation.The officiating priests and the others are only stewards or agentswith very limited powers of dealing with the property. On theother hand the property dedicated to a Vihara or a Pansalaappears originally to have been the property of the individualpriest who is incumbent of the foundation for the purpose ofhis office including his own support and the maintenance of thetemple and its own services. On his death it passes by inheritanceto an heir who is ascertained by a peculiar rule of succession orspecial law of inheritance. It is not generally the person whowould be by general law the deceased priest’s heir in respect ofsecular property. The sacerdotal heir is determined by the ruleof succession which applies to the particular Vihara. The rightto an incumbency carried with it the right to the possession andthe control of lands and other property. (Havley—The Laws andCustoms of the Sinhalese, 550). The incumbent priest was thesole owner of the Vihara property but he could not alienate orencumber it except for the benefit of the Vihara and on his deathit passed to his sacerdotal heir.
The Buddhist Temporalities Ordinance 1889 was enacted on the20th March. 1889. If was amended by Ordinance Nos. 17 of 1895and 3 of 1901. This Ordinance divested the incumbents of theirtitles to the temporalities of their viharas and vested them in the
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181
trustees of the temples. The incumbent could sue for a declara-tion of his right to the incumbency but any claim tb the temporalproperty must be brought by the trustee. On 25.8.1905 an Ordi-nance to consolidate and amend the law relating to Buddhisttemporalities bearing the short title “ The Buddhist Temporali-ties Ordinance 1905 ” was enacted. It repealed the Ordinancereferred to above but the position of an incumbent regardingtemple property remained more or less the same. This Ordinancewas amended by the Buddhist Temporalities (Amendment)Ordinance, No. 15 of 1919.
The Buddhist Temporalities Ordinance 1931 (No. 19 of 1931)was enacted on 26.6.1931 and brought into operation from1.11.1931. It repealed the Buddhist Temporalities Ordinance 1905and its amendments. The preamble to the 1931 Ordinance readsas follows : —
Whereas it has been found that the provisions of the “ Bud-dhist Temporalities Ordinance 1905 ” have failed to giveadequate protection to the Buddhist Temporalities andwhereas it is expedient to provide such a system of administration and control over such temporalities as will afford tothem such adequate protection, be it therefore enacted
The provisions of this Ordinance and its amendments all ofwhich are now consolidated as Chapter 318 of the LegislativeEnactments, Vol. X, p. 515 shall apply to every temple in Ceylon(section 2). Provided however except the Dalada Maligawa, theSri Padasthana, and the Atamasthana, any temple may by anOrder made by the Minister be exempted from the operation ofall or any of its provisions. The management of the property be-longing to any temple not exempted from the operation of section4 (1) shall be vested in a trustee appointed under the provisionsof the Ordinance. The management of the property of any templeexempted from the operation of section 4 (1) but not exemptedfrom the entire Ordinance shall be vested in the “ Viharadhi-pathi ” of such temple. Such a Viharadhipathi shall be designatedas a “ Controlling Viharadhipathi ”. Section 20 of the Ordinancereads as follows : —
All property movable and immovable belonging or in anywise appertaining to or appropriated to the use of any temple,together with all the issues, rents, moneys, and profits of thesame and all offerings made for the use of such temple otherthan the pudgalika offerings which are offered for the exclu-sive personal use of any individual bhikkhu shall vest in theControlling Viharadhipathi for the time being of such temple
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TITTAW ELL A, J.—Dhamtnadaja Thero v. Wimalajothi Thero
subject however to any leases and other tenancies, chargesand encumbrances already affecting any such immovableproperty.
The temples which are the subject matter of this appeal haveat the time of institution of the action been exempted from theoperation of Section 4 (1) of the Buddhist Temporalities Ordi-nance and the sections referred to above have immediaterelevance to this appeal. Under the old Ordinances the term“ incumbent ” was used and it was defined in the followingterms : —
“ incumbent ” shall mean the chief resident priest of a Vihara.
The word “ incumbent ” finds no place in the present Ordinancebut a new term “ Viharadhipathi ” has been defined as follows : —
“ Viharadhipathimeans the principal bhikku of a templewhether resident or not.
Originally as mentioned earlier the “incumbent ” was the soleowner of temple property subject to certain limitations. Theposition was changed in 1889 when the properties became vestedin a “ trustee ” a person different from the “ incumbent Thisposition continued until 1931 when thereafter the Viharadhi-pathi became vested with the property of the temple. He isthen designated the “ Controlling Viharadhipathi ”. It willthus be seen that the “ Controlling Viharadhipathi ” now is in adifferent position from that of the former “ incumbentBasnayake, C. J. in the case of Panditha Watugedera Amara-seeha Thero vs. Tittagalle Sasanatillelce Thero, 59 N.L.R. 289,decided in December 1957, had the following observation tomake on this matter at page 292—
“ The present Ordinance made a radical change in thisrespect and vested the management of the property belongingto every temple exempted from the operation of section 4 (1)but not exempted from the operation of the entire Ordinancein the viharadhipathi of the temple who is called the “con-trolling viharadhipathi ” for the purposes of the Ordinance.In the instant case the plaintiff states that Sanghatissaramais exempted from the operation of section 4 (1) of theOrdinance and that he is its controlling viharadhipathi.
As the learned District Judge has decided against the plain-tiff on the ground prescription I think I should say aword on the period of limitation. The earlier cases hold thatan action to have a person declared entitled to the incum-bency of a temple is barred by the lapse of three years on
TITTAWELliA, J.—Dhammadaja Thero v. Wimalajolhi Thero
183
the ground that such an action is an action for the declarationof a status, a class of action for which the PrescriptionOrdinance makes no express provision.
The plaintiff’s action is in effect an action, for not onlya declaration of status, but also for the recovery of the templeand its property, for, his prayer is that the defendant beejected 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 to estab-lish a claim in any other manner to land or property isgoverned by section 3 and not by section 10 of the PrescriptionOrdinance. The decisions of this Court which hold that anaction for an incumbency of a temple, being an action for adeclaration of a status, is barred by the lapse of three yearsfrom the date when the cause of action arose, may have to bere-examined in a suitable case in the light of the alteredrights of a viharadhipathi who is now empowered to sue andbe sued as the person in whom the management of theproperty belonging to a temple is vested ”.
Gratiaen, J. in the case of Kirikitta Saranankara Thero vs.Medegama Dhammananda Thero, 55 N.L.R. 313, a case decidedin 1954 said thus on this matter of incumbency andprescription : —
“ An action to be declared entitled to the incumbency ofa Buddhist temple is an action for a declaration of a status.As the cause of action in proceedings of this nature has notbeen “ otherwise provided for ” in the Ordinance, section10 applies, and the action must therefore be instituted“ within three years from the time when such cause ofaction shall have accrued ”—Rewatte Unnanse vs. Ratna-joti Unnanse and Terunanse vs. Terunanse. The “ causeof action ” is the “ denial ” of the plaintiff’s status becauseit constitutes either an actual or seriously threatenedinvasion of his vested rights.
The earlier authorities certainly seem to indicate that, if atrespasser who disputes the status of the true incumbent ofa temple continues thereafter to remain in adverse possessionwithout interruption for a period of three years, the dilatory
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TIT'I AWELLA, J.-—Dhammadaja Thero v. WimcUajothi Thero
incumbent’s right to relief in the form of a declaratory decreebecomes barred by limitation under section 10. We must, ofcourse, regard ourselves as bound by these decisions, but ’with 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 canthe rights of the true incumbent be extinugished by pres-cription. Although the operation of section 10 may destroythe remedy accruing from a particular “ denial ”, the rightor status itself still subsists. It is true that the lawfulincumbent can take no steps after three years to enforce hisremedy if it is based exclusively on that particular “ denial ”of his status, but there is much to be said for the argumentthat a continuing invasion of a subsisting right constitutesin truth a continuing cause of action. Indeed, the contraryview would indirectly produce the anomalous result of con-verting the provisions of section 10 into a weapon for theextinction of a right which cannot in law be extinguishedby prescription
A few months before Basnayake, J. expressed his views onthe question of incumbency and prescription in the case of 59N.L.R. 289, the case of Pitawela Sumangala vs. HurikaduweDhammananda, 59 C.L.W. 59, came up in appeal before him.The plaintiff claiming to be the Viharadhipathi of a templeexempted from the operation of the provisions of section 4 (1)of the Buddhist Temporalities Ordinance instituted an action in1955 alleging that from 1946 the defendant had disputed hisright to the incumbency. The plaintiff prayed—
for a declaration that he is the Viharadhipathi ;
for ejectment of the defendant from the Vihara property
and restoration to possession.
The defendant pleaded that the plaintiff’s cause of action wasprescribed on the basis of the plaintiff’s admission that his rightswere first disputed in 1946. The plea of prescription therefore wastried as a preliminary issue- Counsel for the defendant citedRevata Unnanse vs. Ratnajothi Unnanse 3 C.W.R. 193, andTerunnanse vs. Terunnanse, 28 N.L.R. 477, in support of his con-tention that the claim of the plaintiff was barred as more than 3years had lapsed after the cause of action arose. The learnedDistrict Judge however held in favour of the plaintiff and the
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185
appeal of the defendant was dismissed by Basnayake, J. and L- W.de Silva, A. J. No reasons were given but the order of the learnedDistrict Judge is reproduced in the law report at page 60. Someof the paragraphs in the learned District Judge’s order are asfollows : —
The two Supreme Court decisions, 3 C.W.R. 193 and 28N.L.R. 477—cited by counsel and which have not been over-ruled support his contention. They lay down the rule thata claim to an incumbency is a claim to a declaration of a statusand that such a claim would be prescribed in three years. Atthe time the Supreme Court made the decisions referred to,the Ordinance that governed Buddhist temporalities wasOrdinance No. 8 of 1905. That Ordinance did not vest theincumbent of a temple with the temporalities of that temple.The property belonging to a temple vested in the trusteesso that when a claim to incumbency was made it didnot involve the question of ownership of temple property. Aclaim to an incumbency was as indicated by their Lord-ships only a claim for a declaration of a status.
In November 1931 the new Buddhist Temporalities Ordi-nance came into operation The present case is governed bythis Ordinance. Under this Ordinance in certain circumstancesall the temple property would vest in the Viharadhipathi whowas known as the Controlling Viharadhipathi. An incum-bency action brought under the present Ordinance in respectof a temple where the temple property vests in the incumbentwould not be an action brought for the mere declaration ofa status but would also involve the question of title to thetemple lands.
I am of the view that the present action is a claim by theControlling Viharadhipathi of a temple to be declared entitledto the temple properties from which he has been kept outof possession by the defendants. In view of the provisions ofsection 34 of the present Ordinance such a claim could bemade at any time and would not be barred by the provisionsof the Prescription Ordinance- I would therefore answer thepreliminary issues in the negative.
The same matter, viz., incumbency and prescription came upfor decision in the case of U. Dheerananda Thero vs. D. RatnasaraThero, 67 N.L.R. 559. The earlier cases were not considered in
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TITTAWBLLA, J.—Dhammadaja Thero v. Wimalajothi The.ro
the light of the present Buddhist Temporalities Ordinance- Thematter appeared to have been conceded by the parties and thehead note to the case reads thus : —
“ The claim of a plaintiff to be declared that he is theViharadhipathi of a Buddhist temple is an action for thedeclaration to a status and is therefore barred unless it isbrought within 3 years of the accrual of the cause of action
In the result whilst there are a series of decisions, some underthe 1905 Ordinance and others under the 1931 Ordinance, to theeffect that an action for the incumbency of a Buddhist templeis barred by 3 years, there are also definite expresions of opinionsby Gratiaen, J. and Basnayake, C. J. to the effect that no suchperiod of limitation would apply to such actions.
In 55 N.L.R. 313 where Gratiaen, J. doubted the operation ofsection 10 of the Prescription Ordinance to bar incumbencyaction after a period of three years he stated that—
An action to be declared entitled to the incumbency of aBuddhist temple is an action for a declaration of status.Although the operation of section 10 of the PrescriptionOrdinance may destroy the remedy accruing from aparticular “ denial ” the right or status itself still subsists.It is true that the lawful incumbent can take no steps afterthree years to enforce his remedy if it is based exclusively onthat particular “ denial ” of his status but there is much tobe said for the argument that a continuing invasion of asubsisting right constitutes in truth a continuing cause ofaction.
As Gratiaen, J. has said “it is clear law that an imposter cannotacquire a right to an incumbency by prescription; nor can therights of a true incumbent be extinguished by prescription ”. Thisbeing the position, incumbency is a continuing right and acontinuing invasion of a subsisting right. An incumbency actionconstitutes a continuing cause of action not barred by any rulesof prescription. On this view of the matter it does not becomenecessary to consider the changed position of a Viharadhipathiunder the 1931 Ordinance vis a vis the position of an incumbentunder the 1905 Ordinance. On this line of reasoning neither anincumbent under the 1905 Ordinance nor a controlling Viharadhi-pathi would be barred by the operation of any sections of thePrescription Ordinance.
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187
Basnayake, C.J.’s approach to the matter is simpler and isintimately connected with the position of a controlling Vihara-dhipathi under the 1931 Ordinance which is the situation in thepresent appeal. The term “ Viharadhipathi ” has been definedin the Buddhist Temporalities Ordinance now in force as the—
“ principal bhikku of a temple whether resident or not.”
On a consideration of this definition two matters seem to arise,the first is that the Viharadhipathi must be the principal bhikkuand the second is that there must be a temple for a Viharadhipathito function. Indeed the ordinary meaning of the term Viharadhi-pathi also carries with it the two attributes referred to at above.By law the Viharadhipathi ij vested (in cases like the presentappeal) with all property movable and immovable belonging tothe temple. Any order declaring a person Viharadhipathi carrieswith it a declaration that the temporalities are also vested in him.Any assertion of title to property belonging to a temple mustalways be by the Viharadhipathi and by virtue of section 34 ofthe Buddhist Temporalities Ordinance the Prescription Ordi-nance will not bar such an action. A claim to be declaredViharadhipathi cannot therefore be considered to be a claimseeking a mere declaration of status. It carries with it an assertionto the title of the movable and immovable property belonging tothe temple and it cannot be barred by the lapse of time in viewof the express provisions of section 34 of the BuddhistTemporalities Ordinance.
It would therefore appear that whether one considers an actionto be declared to the incumbency of a Buddhist temple as anaction for a declaration of a status, viz ; that of a Viharadhipathior as something more than a mere declaration of a status theprovisions of the Prescription Ordinance would not apply.According to the former view there is in such an action acontinuing invasion of a subsisting right and according to thelatter position such an action carries with it an assertion to the“ title ” of the movable and immovable property belonging to thetemple. In the circumstances I would hold that such an action isnot barred by the lapse of time. In my view the conclusions ofthe learned District Judge on this matter are correct and theappeal must be dismissed with costs-
Gunasekeea, J.
This appeal has been referred to the decision of a bench offive Judges because the learned District Judge has in this caseheld, that the plaintiff-respondent’s action brought for a declara-tion that he is the lawful Viharadhipahi of five Viharas exemptedfrom the operation of section 4 (1) of the Buddhist Temporalities
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GTJNASEKE HA, J.—Dhammadaja Thero v. Wimalajothi Thero
Ordinance, No. 19 of 1931, Cap. 313, and that as the controllingViharadhipathi therefore, he is entitled to the possession of thetwenty-nine lands which are their temporalities, and for theejectment of the defendant-appellant therefrom, is not barredby the lapse of over three years since the defendant-appellantfirst claimed the Viharadhipathiship and took possession of thelands. The defendant-appellant, relying on several earlier deci-sions of this Court contended that the action was statute barredin three years in terms of section 10 of the PrescriptionOrdinance.
Although this is the question of Law that induced the referenceto this bench, the whole appeal is before this Court andMr. Jayewardene appearing for the appellant argued also thequestion of mixed fact and law that arose on the evidence ledat the trial, whether the respondent had abandoned his rightsto these Viharas and the Viharadhipathiship.
It will be more convenient to decide the question of fact first,and so I will consider first the question of abandonment.
It was admitted at the trial,
that the rule of succession to the Viharadhipathiship of
these Viharas is the sisyanu sisya paramparawa rule ofsuccession.
that one Pannalankara Maha Thero was the lawful Viha-
radipathi of the said Viharas and that he died on16. 4. 1959.
that the temporalities described in the schedule to the
plaint had vested in Pannalankara as controllingV iharadhipathi.
that the defendant-appellant was a co-pupil of
Pannalankara.
Although the appellant in his answer put the respondentto the proof of the fact that he was the senior pupil of Panna-lankara, this was not seriously contested at the trial, and thelearned Judge has held on the evidence that the respondentwas the senior pupil of Pannalankara and that he succeeded tothe Viharadipathiship of these Viharas on the death ofPannalankara. This finding was not canvassed by the appellantbefore us and so for the purpose of the appeal it may beconsidered now as established that the respondent is the de jureViharadipathi of these Viharas.
GUNASEKERA, J.—Dhammadaja Thero v. Wimalajolhi Thero
189
The evidence led in the case shows that by a Deed No. 818dated 1. 2. 1959 (P3/D3) Pannalankara purported to appointthe appellant as his successor as Viharadipachi of these Viharasand that the respondent and his five brother priests, being all thepupils of Pannalankara, signed that deed consenting to theappointment of the appellant and that on Pannalankara’s deaththe appellant on that deed, assumed the office of Viharadhipathiand took residence in the Dhammarakkitharamaya which wasapparently the main Vihara of this paramparawa, and that therespondent left that Vihara and took up residence in Sunandha-ramava Vihara. It also appears that there was a sum of Rs. 12,000lying to the credit of the account of Pannalankara in the Bankof Ceylon and that the appellant had applied to withdraw thismoney from the Bank and that the respondent gave a writing D2dated 24. 11. 1960 consenting to such withdrawal. As the Bankwas not satisfied about the appellant’s right to withdraw thismoney the appellant instituted action No. 968/Z in the DistrictCourt of Colombo on 28. 3. 1962 (journal entries marked P2 andplaint marked D4) making the respondent and his brother prieststhe 1st to 6th. defendants and the Bank of Ceylon the 7th Defen-dant in the action, and asked for a declaration that he was thelawful Viharadhipathi of the Viharas and that he was entitled towithdraw the sum of Rs. 12,000. The respondent along with fourof his brother priests filed a joint answer D5 on 30.11.1962 admitt-ing the appellant’s claim and praying that “ judgment be entereddeclaring that the plaintiff is the controlling Viharadhipathi ofthe said temples. ” The learned District Judge who heard thecase however dismissed the appellant’s action holding inter alia,
“ Mr. Amerasinghe submitted that the 1st defendant (i.e.,the present respondent) by signing PI has renounced hisrights to the Viharadhipathiship. I do not think that is acorrect view. It does not follow that because the 1st defendantin deference to the wishes of his tutor agreed to the courseproposed by the tutor he loses his rights if the proposedappointment turns out to be one that cannot be made in law.It appears clear that it is the 1st defendant who is entitled tobe the chief incumbent and controlling Viharadhipathi andis entitled to draw the money. It is a position whichMr. Jayamana appearing for the plaintiff (i.e., the presentAppellant) informed me he would not contest.”
That judgment was delivered on 29.3.1963 and the respondent’sevidence is that the appellant thereafter requested therespondent to withdraw the money from the bank for him andthat the respondent said that if he withdrew the money he wouldnot give it to the appellant and that therefore relations betweenthe parties became strained. The respondent sent a petition P4
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GUNASEKERA J.—Dhammadaja The.ro v. Wimaiajothi Thero
to the Mahanayake and the Sangha Sabha of his sect and as hewas not satisfied with the decision of the Sangha Sabha (D7)given on 7.1.1965 the respondent attempted to go into occupationof the Dhammarakkitharamaya in July 1965 and when he wasforcibly ejected by the appellant he filed this action on 15.10.1965.
This action was brought in respect of five Viharas of whichPannalankara was the Viharadhipathi on the basis that all fiveViharas were exempted from the operation of section 4(1) of theBuddhist Temporalities Ordinance, but in the course of the trialit was found that the Sunandharama Vihara had been subse-quently brought within the operation of that section.
Mr. Jayawardena’s submission that the respondent has re-nounced his rights and adandoned his claim to the Viharadi-pathiship of these five Viharas is based on the facts that,
In the deed P3/D3 it is stated :
“ AND WHEREAS MY young pupils RotubaWimaiajothi, Seevalgama Premaratne, UdapolaSumangala, Mapalane Kitthi, Kudaheelle Ratana andBatuwita Wimala, Six in number have agreed andapproved of my said decision to appoint the saidMAPALANE DHAMMADHAJA THERO as the Chiefincumbent and Viharadhipathi of the aforementionedsix Viharas and to the local Managership of the threeinstitutions mentioned above, as is evidenced by theirjoining in these presents.”
In writing D2 the Respondent had stated :
“ I hereby sign and give my consent to MapalaneDhammadaja Nayake Thero the present Viharadhi-pathi of Mapalane Gnanabhiwansa Siri Dhamma-rakkitharamaya to withdraw the said amount." andthat,
In their joint answer D5 the Respondent and his
brother priests stated :
“ Wherefore these defendants pray that judgmentbe entered declaring—
(a) that the plaintiff is the Controlling Viharadhi-pathi of the said temples.” and that,
After the three months alms giving after the death of
Pannalankara at the request of the appellant the res-pondent left the main Vihara, Dhammarakkitharamayaand took up residence at Sunandharamaya.
GONASBKERA, J.—Dhammadaja Thero v. Wimalajothi Thero
191
The learned Judge referred to the clause in the deed P3/D3which stated:
“ AND I also desire that after the demise of my said suc-cessor (i.e. the present appellant) my said pupils by mutualconsent, appoint any one of them to the Chief Incumbencyand Viharadhipathiship of the said six Vihares. ”
and held that this clearly showed that there was no renoun-cing or abandonment of rights by the respondent and his brotherpriests but rather that there was only an agreement
“ to suspend any claim of right to the incumbency tillafter Dhammadhaja’s death and to allow Dhammadhaja toofficiate as the Incumbent of the Vihares during his lifetime.The basis of abandonment is an intention to renounce. Anintention to renounce will not be inferred unless such inten-tion is clearly demonstrated by the facts and circumstances.If the facts and circumstances leave the matter in doubt theinference is that there is no renunciation or abandonment.Moreover the law does not recognize a qualified abandon-ment In the case under consideration on a reading of theDeed the only conclusion one could come to is that the latePannalankara’s pupils agreed not to assert any claim or rightto the incumbency during the lifetime of Dhammadhaja. Inthe circumstances the plea of abandonment and renunciationto my mind is not sustainable and fails. ”
I agree entirely with this view of the learned Judge that thereis no abandonment if the deed is considered in its entirety. Butthe circumstances surrounding the execution of this deed and therespondent’s evidence makes me doubt whether even the limitedrenunciation therein contained was at all voluntarily made.
The deed was signed at the hospital in Colombo where therespondent’s tutor had been ill for over three months and therespondent had been visiting him weekly from Matara. Therespondent’s evidence is :
“ Q. Did you sign it voluntarily ?
A. I signed it at the request of the Nayake Thero.
Q. But you signed voluntarily ?
A. I signed to please my teacher.
Q. You may have signed it to please others, but did you signit voluntarily ? (no answer)
Q. Did you sign it willingly or unwillingly ?
102GUNASEKLERA, J.—Dkammadaja Thero v. Wimalajothi Thero
A. Unwillingly.
Q. Please tell me why you were unwilling ?
A. Though I signed at the request of the Nayake Thero Iknew the rights should devolve on me on the demiseof the Nayake Thero.
I remember the time I was summoned to sign D3. Iwas apprised of the fact that such a deed was to beexecuted before it was actually executed. I was so in-formed after the operation on the Nayake Thero. Iwas so informed about two or three weeks prior tothe execution of the deed. I was asked whether I waswilling to have such a deed executed. The other co-pupils were not present at that time.
Q. What did you tell him when he asked whether you arewilling ?
A. The Nayake priest proposed the scheme and asked mewhether I liked it. I gave my consent.
Q. It is that scheme that was subsequently embodied in D3 ?
A. I cannot say exactly.
TO COURT:
Q. Why was that deed executed ?
A. The Nayake priest gave me the reason for the executionof such a deed. He wanted to please the defendantpriest. He also stated that by the execution of thisdeed our rights will not be affected. The Nayake priestalso mentioned that the defendant had been helpfulto him and to all of us. Therefore we agreed.”
Besides, the deed P3/D3 contains the further clause,
“ FINALLY IT IS MY WISH that if anyone of my pupilscontravenes the above mentioned provisions then and in thatevent, he or they will not be entitled to make any claim tomy properties movable or immovable and whatsoever situ-ate.”
In these circumstances I hold that the deed P3/D3 does notamount to a full and complete renunciation and that even thepartial renunciation contained in it was not so freely and volun-tarily given as to work any forfeiture against the respondent.
GTTNASEKERA, J.—Dhammadaja Thero v. Wimalajothi Thero
193
Mr. Jayewardene next submitted that in any event the respon-dent’s signing D2 and D4 and leaving the main Vihara werewillingly done by him and would amount to a renunciation ofhis rights, especially because the respondent was 32 years of ageand ten years an upasampadha priesL at the death of his tutor. Butin the context, these acts show only the continued acquiescence inthe partial renunciation contained in the deed P3/D3 and cannotamount to any further or fuller renunciation amounting to a newand complete abandonment.
Mr. Jayewardene also submitted that at least the respondenthad renounced his rights to officiate as viharadhipathi- But in myview the Buddhist Ecclesiastical Law does not recognize such arenunciation of the right to function as Viharadhipathi. Theoffice of Viharadhipathi is inalienable and a priest on whom this•office has devolved according to the sisyanu sisya paramparawarule of succession only holds it in his life time to pass it onaccording to law, to his senior pupil or such other pupil as he mayselect. The law as stated in Dhammarakkita Unnanse vs. Suman-gala Unnanse (1910) 14 N.L.R. p. 400, based on the opinion ofseveral learned priests, recorded for the purpose of deciding thatappeal, is that “ a right of pupillary succession will be forfeited ifthe pupil deserts his tutor and the temple the incumbency ofwhich he claims. ” In Pemananda vs. Welivitiye Soratha, (1950)51 N.L.R. p. 372, which is the only reported case of an abandon-ment being established, Hikkaduwe Sri Sumangala, who washeld to have abandoned his rights of pupillary succession to aVihara in Hikkaduwa, lived all his life at the Maliga-kanda Vihara in Colombo and expressly stated “ I do notwant these temples now, nor did I want them in the past either.Further I do not want them at all at present. ” The renunciationwas not of the right of functioning as Viharadhipathi but therewas the desertion of the Vihara which was said in Dhamma-rakkitha Unnanse vs. Sumangala Unnanse to constitute a forfei-ture. In the instant case the respondent did not desert the Viharabut remained in a Vihara of the paramparawa hoping, as he said,eventually to function as the Viharadhipathi and so, even if he didpermit the Appellant to officiate as Viharadhipathi such conductcannot constitute an “ abandonment ” of the office of Viharadhi-pathi which devolved on him in law, so as to deprive his pupilsalso of their rights of succession. I affirm therefore the finding ofthe learned District Judge that the respondent has not abandonedhis rights to the Viharadhipathiship of the five Viharas claimed inthis action.
We have next to consider the appellant’s main defence in thiscase, that as the right to claim the Viharadhipathiship vested inthe respondent on 16.4.1959 and as the respondent filed this action
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GUNASEKERA, J.—Dhammadaja Thero v. Wimalajothi Thf.ro
only on 15th October, 1965, this action was statute barred in termsof section 10 of the Prescription Ordinance. In support of thiscontention Mr. Jayewardene relied on the decisions in :
Revata Unnanse vs. Ratnajothi, 3 C.W-R. p. 193.
Terunnanse vs. Terunnanse, (1927) 28 N.L.R. p. 477.
Premaratne vs- Indasara, (1938) 40 N.L.R. 235.
Dheerananda Thero vs. Ratnasara Thero, (1964) 67 N.L.R.
p. 559.
Mr. Amerasinghe spent considerable time and effort in sub-mitting that the cause of action arose to the respondent only in1963 when relations got strained between the parties and therespondent’s claim to the Viharadipathiship was refuted by theappellant. He submitted that until then he had acquiesced to theappellant functioning in the office on account of the cordialrelationship that existed between them. In the plaint too therespondent pleaded that on the death of Pannalankara therespondent had come to a “ working arrangement ” with theappellant by virtue of which he functioned, but the learnedJudge quite rightly, in my view, has rejected this story of a“ working arrangement ” and held that the plaintiff’s right to suethe respondent arose on the date of death of Pannalankara.Mr. Amerasinghe had necessarily to admit that the respondent’sright accrued to him on 16.4.1959 and that the right to sue theappellant who claimed the office on P3/D3 arose on this day,but he says that nevertheless the cause of action arose on anexpress denial of the respondent’s right in 1963. There can beonly one Viharadhipathi in a Vihara and the appellant claimedon P3/D3 that office on the death of Pannalankara, and that claimwas inconsistent with the respondent’s rights and a clear refuta-tion of those rights. Therefore there can be no doubt whatsoeverthat the denial of the respondent’s right, which is the cause ofaction in this case, arose on 10.4.1959. The respondent’s acquie-scence may be the explanation for his inaction and his delay inmaking his claim but it is no excuse in law to prevent timerunning against him if the three year rule of prescription isapplicable to this case.
The learned District Judge has distinguished the cases reliedon by Mr. Jayewardene on the reasoning that is found expressedin the decision in Pitawela Sumangala vs. Hurikaduwe Dhamma-nanda, (1967) 59 C.L.W. p. 59, and in the observations ofBasnayake, C. J. in Panditha Watugedara Amaraseeha Thero vs.Tittagalla Sasanatilleke Thero, (1957) 59 N. L. R. p. 292, thatwhen a priest sues to be declared the controlling Viharadhipathiand to be quieted in possession of the temporalities of a Vihara,not within the operation of section 4(1) of the Buddhist
GT/NASEELERA, J.—Dhammadaja Thero v. Wimalajothi Thero
195
Temporalities Ordinance of 1931, he is not sueing merely for adeclaration of status but for possession of immdvable propertyand that such an action is not governed by section 10 of thePrescription Ordinance because an action for possession of im-movable property is governed by section 3 of that Ordinance.
With regard to the earlier decisions it is very relevant to notethat both the case reported in 3 C.W.R, p.193 and the case reportedin 28 N.L.R. were decided during the operation of the BuddhistTemporalities Ordinance, No. 8 of 1905, which vested all templelands in lay trustees and that these two actions for declarationof Viharadhipathiship filed during that period were necessarilyonly actions for declarations with regard to the office ofViharadhipathi simpliciter. In fact in the 28 N.L.R. case Garvin,J. specifically stated thus :
“ Counsel for the appellant suggests that provision ismade for the case by section 3 of the Ordinance. That sectionrelates to actions ‘ for the purpose of being quieted in hispossession of land or other immovable property or to preventencroachment or usurption thereof or to establish a claim inany other manner to such land or other property’ and declaresthat proof of undisturbed and uninterrupted possession fora period of ten years previous to the bringing of the actionshall entitle the person adducing such proof to a decree inhis favour. This is clearly not an action for the recovery ofimmovable property based on a right acquired by ten years ’adverse and uninterrupted possession thereof. Nor is it a casein which such an action based on title is being resisted on theground of such adverse and uninterrupted possession. By theBuddhist Temporalities Ordinance the property of theVihara both immovable and movable is vested in the trustee,who in this case is the second defendant. An incumbentclearly has no title to the immovable property of the templenor a right to the possession thereof- Apart from his ecclesi-astical duties, an incumbent of a vihara has certain rightsof administration and control of the Vihare itself, but theseare not such rights as are contemplated by section 3. Theyspring from and appertain to the office of incumbent, andcannot exist apart from it.
The right of the plaintiff to the enjoyment and exercise ofthose rights is dependent upon his right to the incumbency. Itis manifest that in form and in substance this is an action fora declaration of the plaintiff’s right to the incumbency. Inthe absence of special provision in Ordinance No. 22 of 1871,section 11 of the Ordinance applies to the case, and theaction is barred by limitation in three years. ”
19S
GUNASEK.ERA, J.—Dhammadaja Thero v WimaJajothi Thero
In the case reported in 40 N.L.R. p. 235 the question of posses-sion of temporalities was not raised or considered and in thecase reported in 67 N-L.B. p. 559 it is expressly stated that counselconceded that the claim in that case was barred in three years.
The Buddhist Temporalities Ordinance, No. 10 of 1931, (Cap.318) however has repealed and replaced the Buddhist Tempora-lities Ordinance of 1905, and now the temporalities of Viharaswhich have been exempted from section 4(1) of that Ordinancehave been vested in the Viharadhipathi, who is termed for thepurpose of the Ordinance, the controlling Viharadhipathi (seesections 4 and 20).
It is plain therefore on the reasoning of Garvin, J. in the verycase relied on by Mr. Jayewardene that when, after the 1931Ordinance, a priest files an action for a declaration that he iscontrolling Viharadhipathi of a Vihara and asks for possessionof its temporalities, his action is one for being “ quieted inpossession of lands or other immovable property ” (section 3)to which he has a title, and that such an action is not governedby section 10 of the Prescription Ordinance.
In the instant action the plaint was framed thus :
13. “ That in the premises a cause of action has accrued to the-plaintiff to sue the defendant for a declaration of titleto the Viharadhipathiship of the said temples and tothe said temporalities appertaining thereto and for theejectment of the defendant therefrom and for re-covery of possession of the said temples and the tem-poralities appertaining thereto. ”
and the prayer to the plaint asked, inter alia,
“ (d) That the plaintiff as Viharadhipathi as aforesaid beplaced in peaceful possession of the said temples andof the said land and premises set out in the Schedulehereto. ”
On these ^leadings this action is certainly not an action fora mere declaration of status as Viharadhipathi as in the casereported in 28 N.T..R. p. 477 ; this is also an action for declarationof title to immovable property vested in the respondent by theBuddhist Temporalities Ordinance.
Mr. Jayewardene submitted, however, that the BuddhistTemporalities Ordinance of 1931 has not in any way affected thisquestion and that when as in this case, the appellant denied therespondent’s claim to the Viharadhipathiship, he still had tobring his action for a declaration that he was the lawful holderof that office within three years in accordance with the earlierdecisions of this Court.
<HmA£tBH3rBA, 3.—mMmnadt& &hero v. WHmOafOthi Thera1M
Firstly, he submitted that the Buddhist ’Temporalities Ordi-nance of 1931 has not vested the temporalities in the appellantand that his present action still S’ one merely for a declaration"that he is the lawful Viharadhipathi only. He says that in theOrdinance the term Viharadhipathi is defined thus ;
“ Viharadhipathi means the principal bhikku of a templeother than a dewale or Kovila, whether resident or not. ”
He submits that it does not say ‘ the principal bhikku accordingto the Buddhist Ecclesiastical Law ’ and that the term “ principalbhikku ” must be given its plain and ordinary meaning, that is,the person de facto officiating as such, and that on that interpre-tation the temporalities have vested in terms of section 20 on theappellant who admittedly has functioned as the ‘ principalbhikku ’ of those Viharas since 16.4.1959. He relied strongly onthe decision of Soertsz, J. in Sumana Terunnanse vs. SomaratanaTerunnanse, (1938) 5 C.L.W. p. 37, and de Silva, J. in Chandra-•wimala Terunnanse vs. Siyadoris, (1946) 47 N.L.R. p. 304, andDias, J. in Algama vs. Buddharakkita, (1950) 52 N.L.R. p. 150.But as this very submission, based on these very three cases andby Mr. Jayewardene himself, was considered fully by Sansoni, J.in the case of Pemananda Thero vs- Thomas Perera, (1955) 56N.L.R. p. 413, I need only state that having considered the quest-ion myself, I am in respectful agreement with Sansoni, J. whenhe said :
“ These considerations lead me to the conclusion that acorrect construction to be placed on the provisions of theOrdinance is that it was intended, in the case of a templewhich was exempted from the operation of section 4 (1), tovest the management and the title to the property of such atemple in the priest who is the principal bhikku in the lineof pupillary succession from the first incumbent of thattemple. ”
Mr. Jayewardene submitted that the statement of Sansoni, J.i;hat,
“ at no time in the history of Budhist temples in this islandhas a priest who had no right to the incumbency of a templebeen invested with a title to, or the power to manage thetemporalities of the temple. ”
-was factually incorrect. He referred us to the case of SobhithaUnnanse vs. Ratnapala Unnanse, (1861) Beven and Siebels Re-ports p. 32, which he said was a case of our Courts having recog-nised the right of a de facto trustee to the possession, of tempor-alities. I have only been able to examine a summary of this ease
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GUNASEK.ERA, J.—Dhammadaja Thero v. Wimalajoihi Thero
in Woodhouse, ‘ Pupillary Succession ’ at p. 20 and I see that inthat case, the Court "held that neither the plaintiff who was onlythe executor of the deceased Viharadhipathi and was in posses-sion of the temporalities as such executor, nor the defendant whoclaimed upon a conveyance from the deceased testator, had titleto the land. Creasy, C.J. said :
“We have been strongly inclined to non-suit the plaintiffs on the maxim in pari delicto potior est conditio possidentis ;but, on the other hand there is the maxim interest reipublicaeut finis sit litum ; and, on the whole, we think it best notto make another action necessary, but to place at once thepossession of the property where it is clear it ought to be,that is, in the hands of the officiating priest- We do notadjudicate the plaintiff to be officiating de jure, but only de■facto. If the defendant, or any other persons have conflictingclaims to the priesthood (as has been suggested), this judg-ment is not to prejudice those claims which have not beeninvestigated in the present action. ”
Woodhouse himself has relied on this authority only for theproposition that,
“ A priest is entitled to be declared an incumbent defacto of a vihara, provided that his right thereto is superiorto the party or parties litigating with him and thatthe incumbent de jure does not intervene or otherwise asserthis title to such incumbency. ”
It will thus be seen that that case did not recognize any title orright to possession in a de facto Viharadhipathi. It only gave himpossession in the exigencies of the case.
But quite apart from the reasoning in the decision of Sansoni, J.this submission that the temporalities were vested in the appellanton 16.4.1959 when he started to function as the de facto Viharadhi-pathi, is demonstrably erroneous. If the Buddhist TemporalitiesOrdinance does vest the temporalities in a priest the moment hebegins to function as the de facto Viharadhipathi, then he mustbe considered to be in lawful possession of the temporalitieswhether he got into possession by fraud or force ; and beingthus in lawful possession, no Court will ever be able to orderhis ejectment because the temporalities have been vested in himby a statute and he will, on this submission, continue to be sovested as long as he, forcibly or otherwise, so functions. Butthis just cannot be the intention of any statute, and theBuddhist Temporalities Ordinance must therefore be interpretedso as to vest property in a priest who has a legal claim theretoand not in one who acts in defiance of legal rights.
GTTNA6EEJ5RA, J.—Dhamtnodaja Thero v. Wimatajoihi Thero199
Also Mr. Jayewardene says that if the respondent brought this.action within the three year period, being the senior pupil ofPannalankara Maha .Thero, he could have obtained a declarationthat he is the lawful Viharadhipathi, and that thereafter, hecould bring another action to get himself declared entitled to-the temporalities and obtain possession, from the appellant. Itneed hardly be said that if the Respondent can so obtainpossession once he is declared the de jure Viharadhipathi, thatis not because the Court has held that he is the de jure Viharadhi-pathi, but because being that de jure Viharadhipathi, thetemporalities have vested in him. The Court does not give theRespondent a new title ; it only declares that he had become thede jure Viharadhipathi on 16.4.1959 and if whether in the sameaction as it should be, or in a separate action as Mr. Jayewardenesays it can only be, the Court gives him possession of thetemporalities that also is because these temporalities becamevested in him in terms of section 2, 4 and 20 of the BuddhistTemporalities Ordinance on 16.4.1959 and because they nevervested in the appellant.
Mr. Jayewardene’s next submission was that section 18 of theBuddhist Temporalities Ordinance provides the only action -available for the recovery of vihara lands and that such an actioncaij only be brought by a trustee or controlling Viharadhipathiand that therefore when as in this instance, the Viharadhipathi-ship itself is being contested, the respondent had first to bring adeclaratory action to have himself declared the de jure Viharadhi-pathi and thereafter only can he, describing himself as the con-trolling Viharadhipathi, sue for the recpvery of the temporalities.But this is reading into section 18 many things that the sectiondoes not say or intend.
Firstly, this section does not say that the only action that can bebrought for the recovery of Vihara lands is in terms of thissection. In fact this section gives no right of action at all ; theright of a person vested with property to sue rei vindicatiowhen his right to that property is denied, is found only in theCommon Law and paragraph 13 of the plaint in this action(supra) shows that this action has been correctly brought onthat Common Law right. Section 18 merely says that when aperson entitled to do so, brings such a rei vindicatio action inrespect of Vihara lands, he may sue in the capacity of trustee orcontrolling Viharadhipathi and describe himself as such, andthereby escape personal liability for costs if he loses his action.If the respondent in this action wanted to avail himself of this.
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GTJNASEKERA, J.—Dhammadaja Thero v. WimaiajoUU Thero
statutory advantage he may have described himself a * ControllingViharadhipathi ’ and secured for himself immunity from personalliability for costs ; but if he choses to waive this privilege hisaction rei vindicatio cannot be bad for such waiver.
Secondly, this section does not say nor can it be inferredtherefrom that the trustee or controlling Viharadhipathi mustfirst get a declaration of his title from Court before he can aslrfor possession. The Buddhist Ecclesiastical Law provides forthe devolution of the office of Viharadhipathi and the BuddhistTemporalities Ordinance provides for the appointment of trusteesand if a person has a valid claim to either office this sectionenables him to sue in that capacity. If the defendant denies thatthe plaintiff is the holder of the office of trustee or controllingViharadhipathi, as in any rei vindicatio action the first issuein the trial will be whether the plaintiff is the trustee or controll-ing Viharadhipathi and able to maintain his action and if theplaintiff is successful, in the same action, the plaintiff will get hisdeclaration of title as well as restoration to possession. Indeed,the submission that two separate actions must be brought forobtaining the two reliefs arising from the denial of the plaintiff'sright to the temporalities is against the provisions of our law ofCivil Procedure and the rules of res judicate. Sections 34 and 207of the Civil Procedure Code make it mandatory that both theclaim of title to the temporalities and the claim for restorationto possession arising from the same cause of action, must becontained in one action.
I am therefore of the view that the respondent’s claim in respectof the four Vihares exempted from the operation of section 4(1)of the Buddhist Temporalities Ordinance is not prescribed andthat the judgment of the learned District Judge must be affirmedin relation to these four Viharas.
With regard to the Sunandharamaya Vihara the learnedDistrict Judge said :
“ I therefore hold that the provisions of the PrescriptionOrdinance are inapplicable to so much of the case underconsideration save and except that part of it that relatesto Sunandharamaya, which has subsequent to the institution?of this action been brought under the operation of Section4 (1) of the new Buddhist Temporalities Ordinance, and Ihold against the defendant on his plea of prescription. ”
He also answered issues 6, 7 and 13 with the saving words added* save and except Sunandharamaya. ’
GUN ASBKBRA, J.—Dhanvmadaja Thero v. Wimalajothi Thero
201
Mr. Amerasinghe submitted that he has filed a cross-appealagainst this finding of the learned judge in respect of Sunan-dharamaya and he contended that his claim to be declared dejure Viharadhipathi simpliciter of this Vihara, also was notbarred by section 10 of the Prescription Ordinance, because asargued by. him the cause of action to sue arose only in 1963.Although I do not accept that submission as correct, the rightsof parties must be determined as at the date of ^action and ifthis Vihara has been brought within the operation of section 4 (1)of the Buddhist Temporalities Ordinance only during the courseof this action, as at the date of the action the temporalities ofthat Vihara too were vested in the respondent and he wasentitled to file and maintain this action and his action was notprescribed in terms of section 10 of the Prescription Ordinancein respect of Sunandharamaya as well. I therefore, allow thecross-appeal of the plaintiff-respondent, and vary the answerto Issues 6 and 13 by deleting therefrom the words in issue 6“save and except Sunandharamaya ”, and in issue 13 “save andexcept the claim to the incumbency of Sunandharamaya ” andmake Order that decree be entered in favour of the plaintiff-respondent accordingly.
I will not vary the answer to issue 7 because if durjpg thecourse of the action Sunandharamaya has been brought withinthe operation of section 4 (1), a decree cannot now be enteredgiving the respondent possession of the temporalities ofSunandharamaya. See Eliashamy vs. Punchi Banda et. al, (1911)14 N.L.R. 113 (DB). But as the respondent has by this judgmentbeen declared the lawful Viharadhipathi of Sunandharamayahe will be entitled to nominate himself a trustee of thetemporalities of that Vihara in terms of section 10 (1) and assumepossession of those temporalities also on that right.
Accordingly subject to the variations made by me in thelearned Judge’s answers to issues 6 and 13, I affirm the judgmentof the learned District Judge and dismiss the defendant-appellant’s appeal with costs.
Appeal dismissed.Cross-appeal of plaintiff-respondent allowed.