GUNASENA v. KANDAGE AND OTHERS

039-SLLR-SLLR-1997-V3-GUNASENA-v.-KANDAGE-AND-OTHERS.pdf


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Gunasena v. Kandage and Others
393
GUNASENA
v.
KANDAGE AND OTHERS
COURT OF APPEAL.
ISMAIL, J.
WEERASURIYA, J.
A. 653/91 (F).
C. PANADURA 231/LAUGUST 25, SEPTEMBER 15, 1997.
Civil Procedure Code – Sectbns 40. 187 – Pedigree not pleaded – Is the Plaintdefective? section 92 – Evidence Ordinance – Section 2 – Prevention of FraudsOrdinance – Could oral evidence be led to vary the terms of the duplicate of aDeed – Judgment Perfunctory as there is no evaluation of evidence? -Constitution Article 138(1) – Partition Act – Divided share of a larger land -Exclusive Possession.
Held:
The cause of action in a rei vindicatio arises out of the fact that the plaintiff isthe owner of the property in suit and therefore entitled to the possessionthereof, that is to an order for ejectment of the defendant. Upon a close perusedof the plaint it is clear that the plaintiff-respondents have pleaded the title in amanner which is sufficient to give notice of their ownership to the defendant-appellant. Infact the deed on which the 1st and 2nd plaintiffs-respondents basetheir title has been executed by the defendant-appellant himself.
It would appear that; parol evidence pertaining to any of the grounds of reliefset out in the proviso to Section 92 can be led only in cases where the validityof the document itself is challenged or where on Order or Decree is soughtrelating to the document itself. The Proviso does not apply if the effect of theDeed or written contract receives consideration only incidentally. Oralevidence could be led to establish the occurrence of a bona fide mistake inregard to the shares in the duplicate deed.
A lot separated off and intended as a permanent mode of possession ceasewith the lapse of time and exclusive possession to be common with the rest ofthe land.
Per Weerasuriya, J.
'The learned District Judge was in error for failing to adduce reasons for herfindings. Nevertheless the question that has to be examined is whether or notsuch failure on her part had prejudiced the substantial rights of the defendant-appellant or has occasioned a failure of justice. Having considered the totalityof the evidence, it seems to me that no prejudice has been caused to thesubstantial rights of the defendant-appellant or has occasioned a failure ofjustice by this error, defect or irregularity of the Judgment.'
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Sri Lanka Law Repons
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APPEAL from the judgment of the District Court of Panadura.
Cases referred to:
KSnapadian v. Pieters – 9 SCC Vol. ix No. 47-185.
Kiri Menika v, Duraya – 17 NLR 11.
DingiriAppu v. Mohottihamy – 68 NLR 40 at 43.
Girigoris Perera v. Rosalin Patera – 53 NLR 536.
Fernando v. Fernando – 23 NLR 266.
Nadaraja v. Ramatingam – 21 NLR 38.
Belgaswatte v. Ukkubanda – 43 NLR 281 at 283.
Velan Atvan v. Ponny- 41 NLR 106.
Obeysekera v. Endoris – 66 NLR 457.
J. IV Subasinghe PC., with D. J. C. Nilanduwa for defendant-appellant.Rohan Sahabandu for plaintiff-respondents.
Cur. adv. vult.
November 21, 1997.
WEERASURIYA, J.
The plaintiffs-respondents instituted action by plaint dated24.03.1988 in the District Court of Panadura against the defendant-appellant seeking a declaration that they are entitled to 3/4 share ofthe land called Kahatagahawatta more fully described in theschedule to the plaint, ejectment of the defendant-appellant anddamages. The defendant-appellant in his answer while admittingexecution of the deed referred to in the plaint, averred that the housestanding on this land was built by Kandage Luwis and was nevergifted to 1st and 2nd plaintiffs. The case proceeded to trial on 14issues. The learned District Judge entered judgment on 14.10.1994in favour of the plaintiffs-respondents. It is from the aforesaidjudgment that this appeal has been lodged.
The case of the defendant-appellant has been presented in thisappeal basically on the following contentions –
that the plaint is defective as no pedigree has been pleaded interms of section 40 of the Civil Procedure Code;
that the plaintiffs-respondents are not entitled to lead oralevidence to vary the terms of duplicate of the deed marked'D1' in terms of section 92 of the Evidence Ordinance readwith section 2 of the Prevention of Frauds Ordinance;
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that the plaintiffs-respondents cannot seek a declaration of titleto a divided portion of the land called Kahatagahawatta in theabsence of a valid partition in respect of the larger land; and
•
that in any event the judgment is perfunctory in that there hasbeen no evaluation of evidence.
I propose to consider these contentions in that order.
Section 40{d) of the Civil Procedure Code stipulates that the plaintshould consist of a plain and concise statement of the circumstancesconstituting each cause of action and where and when it arose.Learned president's Counsel for the defendant-appellant citedKanapadian v. Pieters™ where it was held that a defendant sued onthe strength of a plaintiff’s title to land, is entitled to have that titledisclosed so that he may know what case he has to meet. It is to beobserved that in that case, plaintiff sued the defendant to recoverpossession of an undivided share of land and the defendant deniedthe plaintiff's title and possession and set up a specific title in himself(defendant). Further, that plaint averred that the plaintiff had title inMay 1989 but did not disclose how that title arose. In thecircumstances, it was observed by Clarence J. that where title to landis a circumstance upon which the plaintiff bases his claim to relief, theIntention of the Code is that title should be disclosed in the plaint sothat the defendant may have notice of the case which he has to meet.
In the insant case, the plaint contains as averment that the originalowner of this land was Kandage Pabilis who by deed 'P1' executed aconditional transfer in favour of Caroline in 1962 and by deed ’P2’ thesaid Caroline and Pabilis transferred the property to KandagePiyasena (the defendant-appellant) who by deed ‘P3’ gifted the sameto 1st and 2nd plaintiffs-respondents reserving the life interest in the3rd plaintiff-respondent.
The cause of action in a rei vendicatio arises out of the fact that theplaintiff is the owner of the property in suit and therefore entitled tothe possession thereof, that is, to an order for ejectment of thedefendant. Upon a close perusal of the plaint, it is clear that theplaintiffs-respondents have pleaded the title in a manner which issufficient to give notice of their ownership to the defendant-appellant.It is to be noted that deed ‘P3’ on which 1st and 2nd plaintiffs-
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respondents base their title has been executed by the defendant-appellant himself.
It would be seen that encumbrance sheets ‘P9 and P10’ couldprovide more details, prior to Pabilis Kandage acquiring ownership ofthe land in suit in 1962 by deed ‘P8’. Nevertheless the title pleaded inthe plaint is sufficient for the defendant-appellant to take notice o< thecase he has to meet as he himself acquired rights by deed ‘P2' fromPabilis and Caroline.
Malini Weerasinghe, the Notary Public who attested the deed ‘P3‘by which 1st and 2nd plaintiffs got title testified that a mistake hasoccurred in the duplicate of the deed ‘D1' in regard to the share thatwas purported to be conveyed by the defendant-appellant. Herposition was that deed 'P3' which is the original and deed ‘P6’ theprotocol shows correctly the share as 3/4 but due to an inadvertenceduplicate ‘D1 ’ shows the share conveyed as 1/4.
Learned President’s Counsel drew our attention to Kiri Menika v.Duraya® where it was held that a duplicate cannot be treated as acopy of the original deed. However, it is significant to note that inDingiri Appu v. Mohottihamy0) Basnayake C. J. at 43 observed thatthere may be cases in which the correctness or genuineness of theduplicate is called in question and cases have come before Courtswhere there have been discrepancies between the original andduplicate of the same deed and that in such cases the court is free torefuse to treat the duplicate as a replica of the original and asstanding in the same place as the original deed.
However, Learned Counsel contended that in terms of theprovisions of section 92 of the Evidence Ordinance, plaintiffs-respondents are barred in law to lead oral evidence to vary the termsof the (duplicate deed 'D1'). it is to be noted that proviso 1 of section92 of the Evidence Ordinance provides that “any fact may be provedwhich would invalidate any document or which would entitle anyperson to any decree or order relating thereto, such as fraud,intimidation, illegality, want of due execution, want of capacity in anycontracting party, the fact that it is wrongly dated, want or failure ofconsideration or mistake in fact or law". Illustration II thereof refers toa situation wherein a mistake in a provision of a contract could be
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proved by parol evidence. On the analogy of the Illustration II inGirigoris Perera v. Rosalin Pereraw it was held that –
“Where deeds dealing with shares in an allotment of land puTportto convey undivided shares of a larger land of which the allotmenthad at one time formed a part, a Court administering equity haspower in a partition action relating to the allotment to rectify themutual mistake of the parties in the description of the propertyeven though no plea of mistake and no claim of rectification is setup in the suit”.
A similar principle was adopted in Fernando v. Fernando9*.However, relief under the proviso is not restricted to cases in whichthe mistake is admitted by both parties.
In regard to the grounds of relief spelt out by the 1st proviso tosection 92 Bertain C.J. in Nadaraja v. Ramalingamm observed that —
“The circumstances referred to are defences of an equitablenature. Fraud, intimidation, mistake of fact or law are all defencesof this nature. The words such as are an indication that theenumeration is not exhaustive”.
It would appear that parol evidence pertaining to any of thegrounds of relief set out in the proviso can be led only in cases wherethe validity of the document itself is challenged or where an order ordecree is sought relating to the document itself. The proviso does notapply if the effect of the deed or written contract receivesconsideration only incidentally. In Belgaswatte v. UkkubandamHoward C.J. at 283 in distinguishing the decision in Velan Alvan v.Ponny"> observed as follows:
“In Velan Alvan v. Ponny, Keuneman J, in his judgment held thatoral evidence is not allowed where the effect of the deed comesup for consideration incidentally. He states that the action in thatcase made no attempt to invalidate the document nor would thefact to be proved entitle any person to any decree or order relatingthereto. There was no claim relating to the document, I think thepresent case can be distinguished from Velan Alvan v. Ponny on
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the ground that decree or order is sought in relation to P4. There is
a claim relating to P4 the effect of which does not come up merely
incidentally in connection with the proof of the plaintiff’s title."
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In the present case, the claim of the plaintiffs-respondents isbased on the deed P3. In the circumstances, they are entitled to leadoral evidence to establish the occurrence of a bona fide mistake inregard to the shares in the duplicate ‘P2’ which was transmitted to theland registry.
The contention of learned president's Counsel that the plaintiffs-respondents cannot seek a declaration of title for a divided share ofthe land called Kahatagahawatta stems from the assumption thatland described in the schedule to the plaint was an undivided portionof the larger land called Kahatagahawatta. It is significant to note thatdeeds P1' – 'P4' refer to the land in suit as a divided portion ofKahatagahawatta about two roods in extent. The encumbrancesheets marked 'P9' and ‘P101 also reveal that land calledKahatagahawatta about two roods in extent has been registered in aseparate folio indicating that it is being registered in a separate folioindicating that it is being treated as a distinct portion of land as fromthe year 1924,
It is no doubt correct as pointed out by learned President’s Counselthat partition of a land could be brought about by a decree in apartition action or by way of an amicable partition followed byexecution of deeds. It often happens that co-owners possess specificportions of land in lieu of their undivided interests in a larger corpus.However, this type of possession is sufficient to prove an ouster only incases where the division is regarded as binding by all the co-ownersand is not looked upon solely as an arrangement of convenience.
In Obeysekera v. Endorism where the evidence indicated that anextent of about two roods possessed separately for over 20 yearswas not separated off for mere convenience of possession ortemporary arrangement, but was intended as a permanent mode ofpossession, it was held, that lot so separated off ceased with thelapse of time and exclusive possession to be held in common with therest of the land.
The documents 'P9' and 'P10' clearly demonstrate that as from theyear 1924, an extent of two roods of the land called Kahatagahawatta
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was registered in a different folio as a distinct portion ofKahatagahawatta. Kandage Pabilis by deed *P8’ in 1962 purchasedthis property from Mampa Vithanage Selohamy Perera. Therefore, thequestion that a declaration is sought for an undivided share of thelarger land of Kahatagahawatta does not arise,
The main submission of learned Counsel was that the judgment ofthe learned District Judge was not in conformity with imperativeprovisions of section 187 of the Civil Procedure Code. He describedthe judgment as perfunctory. However, there is a brief indication of anattempt at evaluation of evidence in the form of a statement to theeffect that 3rd plaintiff-respondent evidence is corroborated byDayawathie. This would be a clear manifestation that the learnedDistrict Judge has considered the evidence of the 3rd plaintiff-respondent along with the evidence of Dayawathie, Nevertheless, onthe whole the learned District Judge has failed in her legal duty toanalyse the evidence before answering the issues. It is apparent thatthe judgment is in effect a summary of the evidence led at the trial.
The 3rd plaintiff-respondent testified in court that the housestanding on the land in suit, was built by her deceased husbandPabilis and he permitted the defendant-appellant, who was hisyounger brother to stay in this house. It was her assertion that afterthe death of Pabilis. she left this house with the children with specificinstructions to the defendant-appellant to hand over the possessionwhenever she requires the house. Witness Dayawathie who was thewife of deceased Arlin, a brother of defendant-appellant,corroborated the testimony of the 3rd plaintiff-respondent. Hertestimony was that Kandage Luwis who was the father of deceasedPabilis and the defendant-appellant stayed in the ancestral house tothe North of this land. It seems to me that the evidence of 3rd plaintiff-respondent and Dayawathie was sufficient for one to come to adefinite finding that the house standing on this land was built byPabilis and the defendant-appellant was permitted to reside in thathouse. The fact that deeds ‘P2’ and ‘P3’ make no reference to thehouse would not pose a difficulty. The deed *D2' clearly demonstratethat Kandage Luwis had possessed the land described there whichis about 1/4 acre in extent as a separate and distinct portion ofKahatagahawatta. Therefore, the position adverted to by the 3rdplaintiff-respondent that 'P3' conveyed 3/4 shares of the land
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described in the schedule to the plaint has to be accepted. Thus, onthe basis of the evidence placed before the District Judge one isjustified in coming to a conclusion that the judgment in favour of theplaintiffs-respondents was inevitable.
Learned Counsel for the defendant-appellant drew our attentionto the fact that learned District Judge has not answered issues 12-14.It is relevant to note that learned Counsel who appeared forthe plaintiffs-respondents in the District Court has asked in his writtensubmissions that issues Nos. 12-14 relating to the issue of atrust need not be considered as the evidence has establishedthat the defendant-appellant has conveyed 3/4 shares of the land tothe plaintiffs-respondents. In the circumstances, one couldassert that the failure of the District Judge to answer issuesNos. 12-14, could have been due to this request by Counsel.Moreover, the defendant-appellant is not entitled to complain of anyprejudice to him as the issues in question were raised on behalf ofthe plaintiffs-respondents, who alone could be prejudiced bysuch failure.
Article 138(1) of the Constitution which deals with the jurisdictionof the Court of Appeal states as follows:
138(1) —
“The Court of Appeal shall have and exercise subject to theprovisions of the Constitution or any law, an appellate jurisdictionfor the correction of all errors in fact or in law which shall becommitted by any court of first instance … provided that nojudgment, decree or order of any court shall be reversed or variedon account of any error defect or irregularity which has notprejudiced the substantial rights of the parties or occasioned afailure of justice".
It is clear on a close examination of the totality of the evidence thatthe learned District Judge is correct in entering judgment for theplaintiffs-respondents as prayed for in the plaint. However, she was inerror for failing to adduce reasons for her findings. Nevertheless, thequestion that has to be examined is whether or not such failure on herpart had prejudiced the substantial rights of defendant-appellant or
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has occasioned a failure of justice, Having considered the totality ofthe evidence, it seems to me that no prejudice has been caused tothe substantial rights of the defendant-appellant or has occasioned afailure of justice by this error, defect or irregularity of the judgment.
For these reasons, I affirm the judgment of the learned Districtjudge and dismiss this appeal with costs.
ISMAIL, J. -1 agree.
Appeal dismissed.
Note by Editor:The Supreme Court in SCSP/LA No. 467/97 on 7.2.98 refused
Special Leave to the Supreme Court.