035-SLLR-SLLR-2003-1-WANASUNDARA-v.-PIYADSA-AND-OTHERS.pdf
sc
Wanasundera v. Piyadasa and others
(J.A.N. de Silva. J.)
301
WANASUNDARA
v
PIYADASA AND OTHERS
SUPREME COURTS.N. SILVA,CJ.
EDUSSURIYA J, ANDJ.A.N.DE SILVA, J.
SC APPEAL No. 61/2002WITH SC APPEAL No.66/2002C.A.No. 112/89(F)
DC RATNAPURA NO. 2129/L13 FEBRUARY, 2003
Declaratory Action – Shortcomings in the judgment of the District Court and theCourt of Appeal – Power of Supreme Court to finally decide the matter wherethe shortcomings are not material particularly in view of the inordinate lengthof the litigation.
The original plaintiff instituted action against the defendant for a declaration oftitle to and ejectment from the land in dispute on the ground that the defen-dants were licensees on the land and that the plaintiff owned an undivided 1/3thereof. The defendants claimed that the 2nd defendant has acquired a pre-scriptive title to the land. The District Judge rejected this claim and gave judg-ment for the plaintiff but in answering the relevant issue as regards the relief(viz., issue No 7 which referred to both declaration and ejectment) said “Asprayed for in the plaint, a declaration of title only to an undivided 1/3”
The defendants appealed. Notwithstanding the vagueness of the DistrictJudge’s answer as to the relief especially as regards ejectment, the Court ofAppeal held that the plaintiff was entitled to institute an action for declarationof title and ejectment and dismissed the appeal.
Thereafter the defendant’s counsel appearing before an AdministrativeTribunal urged that in terms of the Court of Appeal judgment the planintiff hadto file a separate action for a declaration of title and ejectment. On a joint appli-cation by the parties the Court of Appeal gave a “clarification” and also delet-ed the answer to issue 7 as it stood and proceeded to answer the entire issue
302
Sri Lanka Law Reports
[2003] 1 Sri L.R
in the affirmative . No appeal was lodged from that judgment of the Court ofAppeal; but both parties sought leave to appeal from the order of the Court ofAppeal in “clarification”. The defendant, in appeal No. 61/2002 has complainedthat whilst the parties sought a “clarification” the court had proceeded toamend the judgment.
Held:
The Court of Appeal has stepped into an area they ought not to have(by deleting the District Judge’s answer to issue 7) since only a “clar-ification” was sought.
In view of the fact that the litigation was 20 years old the SupremeCourt should consider the matter on its merits and set aside the orderof the Court of Appeal by way of clarfication.
The appeals are decided on the basis that the District Judge held thatthe plaintiff was entitled to a declaration of title to the undivded 1/3share of the land and ejectment of the defedants and costs; and thatjudgment was affirmed by the Court of Appeal.
APPEAL from certain orders made by the Court of Appeal by way of “clarifi-cation”.
R.C. Gunaratne with J.A. Salwature and A.J.M. Thahir for defendant appel-lants in SC 61/2002 and 3rd defendant respondent in SC 66/2002.
Gamini Marapana, P.C. with Champaka Ladduwahetty and Navin Marapanafor plaintiff-respondent in SC 61/2002 and plaintiff-appellant in SC 66/2002.
Cur.adv. vult.
March 28,2003
J.A.N.DE SILVA, J.
The original Plaintiff-Respondent (who died during the pen-dency of this action) by his amended plaint dated 24th February1983 sought (1) a declaration of title to an undivided 1/3 of the landdescribed in the schedule thereto depicted in Plan No. 388 dated16th October 1978 made by D.W. Ranatunge, Licensed Surveyorin extent 7A – 2R – 30P, (2) ejectment of the Defendants, theiragents and servants therefrom and damages.
sc
Wanasundera v. Piyadasa and others
(J.A.N. de Silva. J.)
303
The original Plaintiff had pleaded his title to an undivided 1/3share which had devolved on him on his parents’ death, stating thatthe original owner his father, derived title from a Crown Grant to anextent of 6 Acres – 1 Rood – 30 Perches. The original Plaintiff hadalso pleaded that the 2nd Defendant had come on the land underhis predecessor in title.
The Defendants by their amended answer filed in May 1983denied that they came on the land as licensees and claimed thatthe 2nd Defendant had acquired prescriptive title to lots 1,2,3 and4 in extent 7 Acres – 2 Roods – 30 Perches depicted in Plan No.388.
After trial the claim of prescriptive title was rejected by thelearned District Judge and the Defendants had lodged an appeal.
At the hearing of the appeal the attention of the Court hadbeen drawn amongst other things to the fact that issues Nos. 11and 12 had not been answered.
The failure to answer issue No. 11 was immaterial since it wasa follow up on issue No. 10. In the judgment of the Court of Appealthe learned Judge had dealt with and answered issue No. 12 infavour of the Plaintiff-Respondent. Thereafter, the Court of Appealin its judgment had dismissed the appeal of the Defendants statingthat “since the Defendants – Appellants have repudiated the tenan-cy under the Plaintiff-Respondent, the Plaintiff-Respondent has aright to institute an action for declaration of title to eject theDefendants-Appellants and for restoration of possession of thePlaintiff-Respondent”.
The Plaintiff-Respondent thereafter had sought a clarificationof the above mentioned passage in the Court of Appeal judgment,because the Counsel appearing for the Defendants-Appellants atan inquiry before the National Gem and Jewellery Authority hadtaken up the position that according to the Court of Appeal judg-ment the Plaintiff-Respondent had to institute another action toobtain a declaration of title and ejectment of the Defendants-Appellants and restoration of possession.
Thereafter the Court of Appeal had expressed a “clarificationand deleted the answer to issue No. 7 as it stood and answered it
304
Sri Lanka Law Reports
[2003] 1 Sri L.R
in the affirmative. Thereafter, both parties filed applications for spe-cial leave to appeal from the order made in “clarification”.
The Defendants-Appellants in appeal No. 61/2002 havetaken up the position that what was sought by the Plaintiff-Respondent was only a clarification but that the Court of Appealhad in effect amended its judgment. This Court granted specialleave in both appeals in order to arrive at a finality in this matterwhich has been pending for the past twenty years.
It is unfathomable as to how any serious submission could bemade, that what the Court of Appeal meant by the passage in ques-tion was that the Substituted Plaintiff-Respondent had to file anoth-er action for declaration of title to a 1/3 share of the land describedin the schedule to the Amended Plaint of 24th February 1983 andejectment in the face of the following facts, namely:
that the Plaintiff-Respondent had already filed such anaction namely, the present action, and that even if as con-tended by the Counsel for the Defendants-Appellants onewere to infer that the relief sought by the Plaintiff-Respondent relating to ejectment and restoration to pos-session had not been granted by the learned District Judge,the Substituted Plaintiff-Respondent had already obtained adeclaration of title to 1/3 of the land in dispute. If in fact theCourt of Appeal had stated that the Substituted Plaintiff-Respondent had to institute another action for ejectmentonly, this position may have been different, and
the passage in the judgment of the Court of Appeal whichsets out as follows:
“It is of relevance to note that in view of the averments 6, 7and 8 of the plaint and prayer (3) of the plaint which arebased on the contractual relationship of the Plaintiff-Respondent and the 2nd Defendant-Appellant and in viewof the aforementioned rule of estoppel, that this action is notonly an action for declaration of title but also takes the faceof an action that is based on the contractual relationship ofthe Plaintiff-Respondent and the Defendants-Appellants, bywhich the Plaintiff-Respondent is seeking his right torestoration of ownership and possession of the corpus.
sc
Wanasundera v. Piyadasa and others
(J.A.N. de Silva. J.)
305
Plaintiff-Respondent who was also lawfully in possession ofthe corpus was seeking to eject the Defendants-Appellantsas they were disturbing his possession. ”
It is as a follow up on this that the learned Judge of the Courtof Appeal stated that the Plaintiff-Respondent has a right to institutean action for declaration of title to eject the Defendants-Appellantsand for restoration of possession of the Plaintiff-Respondent, there-by referring to the present action, and as such it is clear the Courtof Appeal held that the Plaintiff-Respondent was entitled to eject-ment and restoration to possession. There is no appeal filed fromthat judgment;
It was also contended by the Counsel for the Defendants-Appellants that on a reading of the answer to issue No. 7 that it wasclear that the Plaintiff-Respondent had only been granted declara-tion of title and not ejectment of the Defendants-Appellants.
Issue No. 7 reads as follows:
“If the above mentioned issues are answered in favour of the
Plaintiff, is the Plaintiff entitled to the reliefs prayed for in the
Plaint”?
The reliefs prayed for in the amended plaint of 24th February1983 on which the trial proceeded are as follows:
That the Plaintiff be declared entitled to an undivided 1/3share of the land described in the schedule to the plaint,
damages
for ejectment of the Defendants, their agents, servants or allothers from the land and the Plaintiff be placed in posses-sion
costs.
The Answer to issue No. 7 reads as follows:
“As prayed for in the plaint, a declaration of title limited only
to an undivided 1/3”
Following the answer to issue No. 10 the judgment states asfollows:
“Judgment is entered in favour of the Plaintiff.”
306
Sri Lanka Law Reports
[2003] 1 Sri L.R
It was argued that the prayer for ejectment had not beengranted.
In examining this question it is important to refer to section187 of the Civil Procedure Code which states that “The judgmentshall contain a concise statement of the case, the points for deter-mination, the decision thereon, and reasons for such decision”.
The answers to issues are almost always monosyllabic andfollow up the matters in issue discussed and decided in the body ofthe judgment. When one examines the body of the judgment it isseen that although damages have not been awarded in as much asno evidence has been led on the same, there is not a single wordin the body of the judgment for disallowing the prayer for ejectmentand further the claim of prescriptive title by the Defendants-Appellants has been rejected by the learned District Judge in thebody of the judgment, and accordingly the Defendants-Appellantshave no right to remain in possession any longer.
Therefore on a reading of the body of the judgment it is clearthat though not included in the answer to issue No. 7, the Plaintiff-Respondent was entitled to ejectment of the Defendants-Appellants from the land in question. The Plaintiff-Respondent istherefore entitled to ejectment of the Defendants-Appellants on thebasis of the reasoning in both the District Court judgment as well asthe judgment of the Court of Appeal dated 10th May 2002. Besidesthe sole purpose behind the institution of this action was to recov-er possession following upon a declaration of title.
It was also contended that by the answer to issue No. 2 thelearned District Judge had held that the Plaintiff-Respondent wasonly entitled to lot 2 in plan No. 388.
It is obvious that the learned District Judge referred to lot 2 ofthe superimposed plan which was made up of an extent of 6A-1R-10P which the Plaintiff-Respondent’s father got on the CrownGrant, because issue No. 1 had been framed on the Crown Grantand also because he has stated in the judgment that “for the rea-sons set out above issues, 1,2,3 and 4 have to be answered in theaffirmative”, and lot 2 of the superimposed plan is 6 Acres -1 Rood- 10 Perches in extent. However the Plaintiff-Respondent and theother co-owners had possessed and prescribed to an extent of 7A-
sc
Wanasundera v. Piyadasa and others
(J.A.N. de Silva. J.)
307
2R-30P and this is obvious from the fact that there is a waterway(Ela) both on the Northern and Eastern boundaries,a Ridge on theSouth East, a Bank on the South separating the land in disputefrom Palm Garden Estate and a wire fence on the West enclosingan extent of 7A-2R-30P, which said extent the 2nd Defendant hadbeen placed in possession of by the Plaintiff’s mother according tothe Plaintiff. Though the Defendants-Appellants denied havingcome into possession of the land with the leave and license of thePlaintiff-Respondent’s mother, both Courts have rejected this posi-tion. Further, the Defendants-Appellants have not taken up theposition that the extent of 6A-1R-30P was another land to whichthey had also prescribed. Besides, the Defendants by their amend-ed answer of 18th May 1983 state quite categorically that the 2ndDefendant conveyed the land referred to in lots 1,2,3 and 4 in Plan388 of 23rd November 1978 to the 3rd Defendant, thereby admit-ting that they treated lots 1, 2, 3 and 4 as one land. In any event,the learned District Judge has held that the Plaintiff-Respondent isentitled to an undivided 1/3 of the land described in the schedule tothe plaint which is in extent 7A-2R-30P.
So that it is clear in the end, that there has been much adoover nothing and that it was the Defendants-Appellants’ Counsel atthe Gem and Jewellery Authority who caused confusion by trying to.give a wrong interpretation to the judgments of the District Court aswell as the Court of Appeal who has been responsible for causingthe Substituted-Plaintiff-Respondent to panic and seek a clarifica-tion.The Court of Appeal Judges have thereafter stepped into anarea they ought not to have, since only a clarification was sought.
Therefore I set aside the order made in clarification by theCourt of Appeal. Now, that this matter has been brought to ournotice it is our bounden duty as the highest Court not only to ensurethat we leave no room for anyone to cause confusion by makingfrivolous submissions but also to see an end to litigation that hasbeen pending for the past twenty years and therefore I repeat thatthe District Court of Ratnapura has held that the Plaintiff-Respondent was entitled to a (1) declaration of title to an undivided1/3 share of the land described in the schedule to the amendedplaint of 24th February 1983 and (2) ejectment of the Defendants-Appellants, their agents, servants, and all those holding under them
308
Sri Lanka Law Reports
[2003] 1 Sri L.R
from the land described in the schedule to the said amended plaintand costs and that, that judgment was affirmed by the Court ofAppeal and further, that the Court of Appeal has also held that thePlaintiff was entitled to maintain this action for declaration of titleand ejectment.
For the aforementioned reasons it is not necessary for thisCourt to deal with appeal No. 66/2002 and the said appeal is dis-missed.
Parties will bear their costs in both appeals.
S.N. SILVA, C.J.I agree.
EDUSSURIYA, J.I agree.
Appeal dismissed.