015-SLLR-SLLR-2003-V-2-JANE-NONA-AND-ANOTHER-v.-PADUMAKUMMARA-AND-OTHERS.pdf
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JANE NONA AND ANOTHER
v
PADMAKUMARA AND OTHERS
COURT OF APPEALDISSANAYAKA, J. ANDSOMAWANSA, J.
A No. 982/93 (F)
C. TANGALLE 2282/LJANUARY 11, AndFEBRUARY 28, 2002
Rei vindicatio action – Absence of evidence of an amicable partition – Averredin plaint that a cause of action has accrued to obtain order of peaceful pos-session – Prayer for damages until possession is restored – Can ejectment beordered ? -No prayer for ejectment.
Held:
It is to be observed that there is no prayer for ejectment.
In paragraph 17 of the plaint it has been averred that a cause of actionhas accrued to the plaintiff to obtain an order of peaceful possessionand in prayer (c) the plaintiff-respondent had prayed that a sum of Rs.200/- per month be ordered as damages until possession is restored tothe plaintiff-respondent.
Per Dissanayake, J.
“a prayer for ejectment of the defendant-appellant is implicit in issue 10,as it encompasses paragraph 17 and prayer (c) of the plaint.
In the absence of evidence of an amicable partition, the plaintiff-respon-dent is entitled to maintain the action for declaration of title.
APPEAL from the judgment of the District Court of Tangalle.
Cases referred to:
1. Wanigasekera and others v Kiri Hamy and others(Distinguished) – 7 CLW 134
CA
Jane Nona and another v Padmadukara and Others
(Dissanavake. J.) „
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2. A. Jamaldeen Abdul Latheef and another v Abdul MajeedMohamed Maharoof- CA 37/96CAM 28.3 1996 – D.C. Anuradhapura 12862/L
J.A.D. Udawatta with Upali Gunaratne for 1 st and 2nd defendant-appellants
W.Dayaratne with Ranjika Jayawardena for plaintiff-respondent.
Cur.adv. vult.
May 17, 2002DISSANAYAKE, J.
The plaintiff-respondent by his plaint dated 27.01.1987 insti-tuted action against the 1st and 2nd defendant-appellants seekinga declaration of title to the land morefully described in schedule twoto the plaint which was described as a divided and defined portionof the larger land described in schedule one to the plaint.
The defendant-appellants by their joint answer dated22.08.1994 whilst denying the averments of the plaint prayed fordismissal of the plaintiff-respondent’s action.
The case proceeded to trial on twenty issues and at the con-clusion of the trial the learned District Judge by his judgment dated
entered judgment for the plaintiff-respondent as prayedfor in the plaint.
It is from the aforesaid judgment that this appeal is preferred.
Learned counsel for the defendants-appellants contended thatthe learned District Judge erred in entering judgment for the plain-tiff-respondent because he failed to consider the following matters:-
no deed or a plan was produced to establish an amicablepartition of land morefully described in schedule two tothe plaint;
failure of the plaintiff-respondent to plead for eviction ofthe defendants-appellants from the land described inschedule two to the plaint.
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It is common ground that the 1st and 2nd defendants-appel-lants are husband and wife and that the 1 st defendant-appellant isthe daughter of P.G. Podihamy the predecessor in title of the plain-tiff-respondent. It is also common ground that the defendants-appellants are in occupation of the premises in suit morefullydescribed in schedule two to the plaint.
The plaintiff-respondent in his testimony setting out his devo-lution of title asserted that A.K. Seemonhamy was the original 30owner of the land described in schedule one to the plaint, which isabout one acre in extent.
On the death of Seemonhamy, the property devolved on histwo children Thomashamy and Baba Nona who became entitledto 1/2 each of the land.
On the death of Baba Nona her children Sopi Nona andCharlis Appu became entitled to 1/4 share each of the land. SopiNona by deed No. 18 dated 30.01.1956 (P1) transferred her 1/4thshare to A. Odiris Appu. Odiris Appu by deed No. 24496 dated28.03.1959 (P2) transferred his share to D.S. Uparis Appu. Uparis 40Appu by deed No. 2718 dated 30.01.1930 (P3) retransferred hisshare to P.G. Podihamy.
Thereby P.G. Podihamy became entitled to 1/4 share of theland described in schedule one to the plaint.
P.G. Podihamy by deed No. 261 dated 09.05.1975 (P4)transferred 1 /8th share of the land to Almis. Almis by deed No. 1703dated 17.05.1979 (P5) retransferred the said share to P.G.Podihamy.
P.G. Podihamy who possessed the land described in sched-ule two to the plaint as a distinct and a separate entity transferred 50the said land to the plaintiff-respondent.
Despite the 1st defendant-appellant averring in her jointanswer filed along with the 2nd defendant-appellant and raisingissue No. 18 to the effect that she is entitled to a share to the landdescribed in schedule one to the plaint, however under cross-examination she conceded that she did not have any rights in theland in suit which is a portion of land described in schedule one tothe plaint. She conceded further that her mother was entitled to 1/4
CA
Jane Nona and another v Padmadukara and Others
(Dissanavake. J.)•
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share of the larger land and it was a defined and distinct portion ofland which has a fence.
She further conceded that her mother had sold her rights tothe plaintiff-respondent and that she and her husband did not haveany rights in the land. She further conceded that they were inforcible occupation of the premises in suit.
Therefore it is apparent that the plaintiff-respondent is enti-tled to maintain this action for declaration of title to the landdescribed in schedule two to the plaint in the absence of evidenceof an amicable partition of the land.
Despite the defendants-appellants raising issue No. 16 andthe 1st defendant-appellant adducing evidence with regard to thealleged insanity of her mother during the period she executed deedNo. 416 of 19.07.1985 (06), her evidence and the evidence of theAyurvedic physician P. Diyaneris in this regard was rejected by thelearned District Judge. In appeal before us learned counsel for thedefendants-appellants submitted that he was not seeking to can-vass the finding of the learned District Judge on that matter.
It is to be observed that there is no prayer for ejectmentincluded in the plaint. Learned counsel for the defendant-appellantcited the decision in Wanigasekera and others v. Kirihamy andanother 1 where it has been held that where a person obtains adeclaration of title to land without an order for ejectment he is notentitled to a writ for delivery of possession.
The facts of Wanigasekera and others v Kirihamy and anoth-er (supra) are different to the facts of the instant case. In that casethe plaintiff after he succeeded in the case decree was entered.About three months later the plaintiff’s proctor moved for notice onthe defendants to show cause why the decree should not beamended by entering an order for ejectment.
In this case no such application to amend the decree hasbeen made. Therefore the decision in Wanigasekera v. Kirihamy(supra) does not apply to the facts of this case.
It is to be observed that although there is no prayer for eject-ment of the defendant-appellant paragraph 17 had averred that acause of action has accrued to the plaintiff to obtain an order of
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peaceful possession of land and damages among other things. Inprayer (c) of the plaint the plaintiff-respondent has prayed that asum of Rs. 200/- per month be ordered as damages until posses-sion is restored to the plaintiff-respondent.
It is also relevant to observe that the plaintiff-respondent byraising issue No. 10 which is a consequential issue to the effect thatif the above issues (i.e. issue numbers one to nine) are answeredin the affirmative whether the plaintiff-respondent is entitled to thereliefs claimed in the plaint.
Therefore I am of the view that a prayer for ejectment of thedefendant-appellant is implicit in issue No. 10 as it encompassesparagraph 17 and prayer (c) of the plaint.
A similar question arose in the unreported case of JamaldeenAbdul Latheef and another v Abdul Majeed Mohamed Mansoor andanothei2 where it was held that even if there is no prayer for eject-ment however when there is an issue with regard to the question ofcontinuing damages to which plaintiff would be entitled until theplaintiff is restored to possession, there is implicit in that issue, aprayer for ejectment.
Therefore I am of the view that the learned District Judge hasrightly entered judgment for the plaintiff-respondent.
There is no basis to interfere with the judgment of the learnedDistrict Judge.
I dismiss the appeal of the defendant-appellant with costs.
SOMAWANSA, J.
Appeal dismissed
I agree.
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