008-SLLR-SLLR-1985-V2-DHARMASENA-v.-ALLES-AND-OTHERS.pdf
CA
Lionel v. OIC. Meetryagoda Police (Bandaranayake, J)
35
DHARMASENA
v.
ALLES AND OTHERS
COURT OF APPEAL.
G.' P. S. OE SILVA. J. AND SIVA SELLIAH. J.
C.A. 341/78 (F) – D C. MATARA 3787/L.
AUGUST 9 AND OCTOBER 12. 1984.
Declaration of title – Defence of title, being in person not party to thesuit – Prescription – Prescription Ordinance, section 3.
The plaintiff sued the 1st defendant for declaration of title to certain lots of a landpartitioned by a final decree of court. While conceding 'paper' title in the plaintiff the 1 stdefendant’s position was that‘his father had prescribed to the disputed lots. The 1stdefendant did not claim title to these lots from his father.
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[1985] 2 SriL. R.
Held -.
A party to a suit cannot under s. 3 of the Prescription Ordinance set up the title of a thirdparty who is not his predecessor in title and who has not been joined in the action. Thejudgment in a case must be declaratory of the right of a party to the suit not of astranger.
Cases referred to-:
AttomeyJieneralv. Purtchirala (1919) 21 nLr 51. 57.
Temnnanse v. Menike (1895) 1 NLR 200.
Punchirala v. Andris Appuhamy 3 SCR 149.
Kirihamy Muhandirama v. DingiriAppu (1903) 6 NLR 197. 200.
Timothy David v. Ibrahim (19J0) 13 NLR 318.
APPEAL from a Judgment of the District Court of Matara.
P. A. D. Samarasekera for 1 st defendant-appellant.
N. R. M. Daluwatte with Mrs. A. Hegoda for plaintiff-respondent.
Cur. adv. writ.
December 3.1984.
P. S. DE SILVA, J.
The plaintiff instituted this action on 5.9.74 against the 1st defendantfor declaration of title to. and ejectment from lots 5B, 6B and 11Adepicted in Plan No. 273 of 17.3.75, marked P7. The plaintiffaverred that he ovvned an undivided 1/6 th share of the land in suit andtraced his title to the final decree in partition action D C. Matara caseNo. 15350 entered* in October 1948 (P 1). The plaintiff furtherpleaded that the 1st defendant without any right, title or interestunlawfully entered the said lots in November 1973.
The 1st defendant in his answer took up-the position that lots 5B,6B and .11A form part of lot 4 in the final partition plan (P 1 A) in thesaid 0:G. Matara Case No. 15350 and that these lots werepossessed-as part of lot 4 since 1948. The 1st defendant's fatherwas admittedly the owner of lot 4 under the final decree <P 1).
CA
37
Dharmasena v. Allas (G.P.S. Da Silva, J.)
At the trial the issues raised on behalf of the plaintiff read thus :
Is the plaintiff the owner of 1 /6th share of the land described inpara (2) of the plaint on the title set out therein ?
Is the said land shown as lots 5B, 6B and 11A in PlanNo. 273 ?
Is the 1st defendant in unlawful possession of the said lots 5B,6B and 11A since November 1973 7
If the said issues are answered in the plaintiff's favour is theplaintiff entitled—
To'the reliefs prayed for in paragraphs 1, 2 and 3 of theprayer to the amended plaint ?
r
Is the 1 st defendant liable to pay damages ?
Ori1 behalf of the 1st defendant,.; the. following two issues wereraised
Have the defendants been in possession of the said lots in PlanNo. 273 for a'period of over 10 years and thus acquired aprescriptive title thereto ?
If so, should the plaintiff's action be dismissed ?
After trial the District'Judge answered issues Nos. (1), (2), (3) and
in the affirmative and issue No. (5) in the negative. He accordinglyentered judgment for the plaintiff. The 1st defendant has nowappealed against this judgment and„decree.
At the hearing before us,. Mr. Samasekera, Counsel for the 1stdefendant-appellant, conceded,Jl) that the paper title to the lots indispute was in the plaintiff, (2),that.the 1 st defendant has not acquireda prescriptive title. However, counsei submitted,,that the, trial Judgewas in error in answering issues 1 and 3 in the plaintiff'sjayour for’thereason that the finding of the court was that the disputed lots werepossessed as a part of lot 4 in the final partition plan {PI A), over a longperiod of time and. that the defendant's father had acquired aprescriptive title to.these lots. .In view of,this finding, Mr.Samarasekera contended that the title was.,peither in the plaintiff nor inthe 1st defendant but" in the 1st defendant's father. Counsel urgedthat the court could oot have-given judgment for the plaintiff since the
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1st defendant's father had already acquired title to these lots byprescription. In short, the submission was that once the 1stdefendant's father had prescribed to the lots, the plaintiff ceased to bethe owner-and was not entitled to a declaration in his favour.
it is right to state here that Mr. Samarasekera conceded that on thefacts and circumstances of this case the 1st defendant was not aperson claiming under his father. In other words, the 1 st defendant’sfather was not a predecessor in title of the 1st defendant.. By 1 D 4 of1969. the 1st defendant's father gifted to the 1st defendant and hisbrothers lot 4 in the final partition plan, P 1 A. The schedule to 1 D 4clearly and unequivocally describes the said lot 4 and nothing more. Inother-words, no portion of the lots in dispute was conveyed on 1 D 4.The present action having been filed in 1974,. the 1st defendant couldnot possibly have acquired a prescriptive title as he has been inpossession only for 5 years., As stated earlier, this was conceded byMr. Samarasekera.
I find myself unable to agree with Mr. Samarasekera's submissionthat the court could not have given a decree in the.plaintiff's favour forthe reason that the plaintiff has lost title to the 1 st defendant's fatherwho had prescribed to the lots. There are two considerations which, inmy view, militate against the acceptance of this submission. Firstly, noissue was raised at the trial on this point, and secondly, the 1stdefendant's father (who was alive at the time of trial) was. never aparty to the action.
Relying on the dicta of de Sampayo. J. in Attorney-General v.Punchirala (1). Mr. Samarasekera contended that it was the duty ofthe District Judge to have raised the issue even at the stage ofjudgment. Counsel suggested that the relevant issue that ought tohave been raised by the Court itself wasv: 'Has the plaintiff lost title tothe defendant's father ?" It will be observed at once that this is anissue which involves primarily questions of fact and if the trial Judgewere to have raised such an issue at the stage of judgment, there islittle doubt that it would have gravely prejudiced the plaintiff. On theother hand, the issue which de Sampayo J. stated in Punchirala'$Case (supra) should have been framed by the Court before delivery ofjudgment was a pure issue of law. "The issue said to be necessarywould have reference merely to the construction of ah Ordinance, andno court should refuse to apply statute'law, even though there be noformal issue stated on the point", per de Sampayo J. Thus this case is
CA
Dharmasena v. Mas IG.P.S. De Silva, J.)
39
not of assistance to the 1st defendant in the appeals before us. .In theabsence of an issue, the finding that the 1 st defendant's father hadprescribed to the lots is not warranted.
As regards the second point-, namely, the failure to join the 1 stdefendant's father as a party to the action, the case'of Teruhnanse v.Menike (2) is .of relevance. In that case-, Boriser, CJ/J cited withapproval the case of Punchirala v. Andris Appuhamy, (3) wherein itwas held that 'it is not competent for a plaintiff or defendant to set upa third persons title under section 3 of'Ordinance No. 22’of 1871,but that the possession to be proved must be that of a party to the suitor of his predecessor in title, and that the judgment to be given underthat section must be declaratory of the right.of a party to the action,riot pf a strange^". The same1 view Was expressed ’by Moncreiff, J iiiKirifiamy Muhandirama v. Dingiri Appu,{4) 'It would appear-then that,in order that a person may avail himself of section 3 of the Prescription.Ordinance No. 22 of 187 i -—
(1)Possession requjred by the-section must,be shown on-the partof the party litigating or by those under whom he claims.
The possession of those under whom the party, claims meanspossession by his predecessors in title.
Judgment must be for a person who is a party to the action andnot for one who sets up the possession of another person, whois neither his predecessor in .title nor. a party to the action."
Seven years later Wood Renton. J. in Timothy David v. Ibrahim, (5)
. upheld the same view. That was a case where the plaintiff who hadpaper title to the land sued the defendant, a Muhammadan, fordeclaration of title and ejectment. Thec,d£fendant~pleaded aprescriptive title on the part of hjs wife and claimed that he was inpossession on behalf of his wife. However, he did normove to havehis wife added as a party to the action. Wood Renton J.‘ held that itwas for the defendahtto have got his wife added as a party to theaction if he wanted to'set up her prescriptive title.
On a consideration of the.principles set put.(in these decisions, l amof the opinion that the submission, that the plaintiff has no right to adeclaration in his favour as he has lost title, to the 1st defendant'sfather who has prescribed to the lots in dispute, is not well founded.*'
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Before I conclude it is right to add that Mr. Daluwatta. Counsel forthe plaintiff-respondent, submitted that our law provides only forlimitation of action and not for extinguishing the title of the true owneror for acquisition of title by adverse possession. Counsel maintainedthat under our law (which is different from the. Roman Dutch Law) aparty relying on adverse possession is only entitled to a decree undersection . 3 of the Prescription Ordinance. On the-.other hand, Mr.Samarasekera, strongly urged that the concept of acquisition of titleby prescription has been recognised as a part of our law for well oyer acentury. He pointed out that there is not a single rei vindicate action inwhich a plaintiff does not refer to his having acquired a prescriptivetitle too. Similarly, the plaintiff in every partition action having set outthe title of the parties, proceeds to state that the parties have alsoacquired a. title , to .the property-by prescription. .Mr. Samarasekerasubmitted that title is so recited because under our law acquisibqn oftitle by prescription has always been recognised and that it is too latein the day to contend the contrary.. However, having regard to the viewI have taken, it is not necessary to decide this larger question. '
For these reasons, the appeal fails and is .dismissed with costs fixedat Rs. 315.
SIVA SELLIAH, J. – I agree.'
Appeal dismissed.