061-NLR-NLR-V-25-ISSAN-APPU-v.-COORAY.pdf
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Present: Jayewardene A. J.
ISSAN APPU v. COORAY.173—C. B. Regatta, 17,986.
Agreement of parties not to call witnesses, except a surveyor, as to identityof land—Judgment based on admissions of parties, and documentsput in—Does appeal lie against judgment 9
At the trial parties made certain admissions, invited the Courtto inspect the land, and then agreed to put iD their documents andcall no witnesses except the surveyor. Then issues were framed,and counsel addressed the Court, and the surveyor was oalled toidentify certain lots. The Commissioner held that the lot inquestion was part of defendant’s land.
Held, that the parties had not constituted the Commissioner anarbitrator, and that plaintiff was entitled to appeal against thejudgment.
/j^H K facts appear from the judgment.
Keuneman, for plaintiff, appellant.
V. Perera, for defendant, respondent, raised the preliminaryobjection that no appeal lay as parties had constituted the Judge asit were their arbitrator. He was to decide on the documents.[Jayewardene A.J.—Evidence might be either oral or documentary.]Counsel referred to De Hoedt v. Jinasena1; Ameru v. Appusinno% ;Babun v. Andris Appu.z
The objection was over-ruled, and the case was argued on thefacts.
August 3,1923. Jayewardene A.J.—
This is an action rei vindicatio, and the lot in dispute is marked Bin plan No. 735 made by Mr. Nugapitiya, surveyor, and also inplan No. 913 made by Mr. Marcus, surveyor. The plaintiff’scontention is that lot B forms part of the land called Boraluwehenawhich was conveyed to him by the defendant on deed P 4 of 1920.The defendant says that what he conveyed to the plaintiff on thatdeed was the land to the south of B marked C in plan No. 735 andA in plan No. 913. The plaintiff says that Boraluwehena is a landwhich consists of three blocks indicated in these two plans, and thatC or A be acquired by inheritance and by right of purchase on P 1in the year 1920. At the trial the parties made certain admissions,invited the Court to inspect the land, and then agreed to put in theirdocuments and call no witnesses, except Mr. Marcus,- the surveyor.Then issues were framed raising the points in dispute, and the
1 {1919) 6 C. W. B. 178.* (1914) 4 Bal. N. C. 24.
* (1910) 5 Bal. 89.
xxv.12(60)29
1928.
( 258 )
1923.
Jaybwab-DHHE A.J.
Issan Appuv. Cooray
plaintiff also admitted that he has had no possession of lot B up todate. On these admissions and agreement the parties went to trial,counsel on each side addressed the Court at length, and Mr. Marcuswas called, and his evidence was directed to identify the land inplan D 1 with lots B and D in his plan No. 913. Thereafter thelearned Commissioner decided the case, holding that lot B formedpart of the defendant’s land, and that no portion of it was soldto the plaintiff. The plaintiff appeals against this decision, and thedefendant has taken a preliminary objection to the competency of theappeal. He relies upon certain cases, the last of which is the case ofDe Hoedl v. Jinasena (supra). There this Court, following the Judg-ments in 4 Balasingham’s Notes of Cases, p. 24, and two others, heldthat where the Judge had recorded that the parties wished him toinspect the land and give judgment on inspection of the land anddocuments, and where the Judge inspected the land and also inspectedsome of the documents and gave his judgment, that there was noappeal from such judgment. I do not think that the ratio decidendiof that case and the cases on which it is based applies to the presentcase. Here oral evidence was not called, because the possession ofthe defendant was admitted, and the plaintiff also admitted thathe had no possession, so that there was nothing for the parties to do,except to put in their documents and call Mr. Marcus to explain theapplication of D 1 to his plan. I do not think that in these circum-stances it can be said that the parties agreed to abide by the decisionof the Court and to give up their right to appeal. I accordinglyover-ruled the objection and heard the appeal. Counsel for theappellant has referred to various documents, P 1, P 2, P 4, and P 5.P 4 is the document granted by the defendant to the plaintiff, andthere the western boundary of the lot in dispute, which the plaintiffsays is C or A, is the high road and Boraluwehena. The Commis-sioner inspected the spot, and has marked the boralu pit, becauseit was evidently indicated to him by the defendant as being on thewest of A or C. There is no boralu pit as a boundary in the deed of1920 on the west of B. Purther, the southern boundary of the lotconveyed on P 4 is given as a ditch. There is a ditch both to thesouth of B and the south of A or C. I may also mention that theroad does not form the western boundary of lot B. There are otherboundaries in the other documents which, however, strongly supportthe appellant’s contention, but I think the document D 1, which hasbeen put in, practically decides the matter. That is a survey of theland Tuttiripitiwatta, which includes the whole of B and a portion tothe east of it marked D. This plan was made in 1884, that is thirty-nine years ago, andmadefor the purpose of some execution sale,as thefacts set out in D 1 show, so that in 1884 the portion B was describedon a survey as forming part of the land Tuttiripitiwatta. In viewof this strong piece of evidence upon which the learned Commissionerwas called upon to decide the case, it is idle to suggest that there are
various boundaries given in the documents P 1 to P 5 which showthat B is a part of Boraluwehena. Perhaps the plaintiff did notappreciate the strength and significance of the document D 1 at thetrial, but it is too late now to remedy his mistake. Me has agreedto take the decision of .the Court upon the documents, and on thedocuments the decision has been rightly given against him.
I dismiss the appeal, with costs.
1928.
Javuwab-DBNE A.J.
Ieean Appuv, Cooray
Appeal dismissed.