066-NLR-NLR-V-39-PIYARATNE-UNNANSE-v.-SONUTHTHARA-UNNANSE.pdf
236
FERNANDO A.J.—Piyaratne Unnanse v. Sonuththara Unnanse.
1937
Present: Poyser J. and Fernando A.J.
PIYARATNE UNNANSE v. SONUTHTHARA UNNANSE.76—D. C. Kandy 45,415.
Buddhist Temporalities—Residence in pansala attached to vihare—Possessionby pupils of incumbent-*—Prescriptive title.
Where the pupils of an incumbent resided in a pansala attached to thevihare, such possession cannot be regarded as adverse to create aprescriptive title,
T
HIS was an action brought by the first plaintiff as incumbent andthe second plaintiff as trustee of Degaldoruwa Vihare for a
declaration that the Meda Pansala situated in the premises of theMalwatta Vihare is part of the endowments of Degaldoruwa Vihare.The defendants claimed title by prescription to the pansala.
The learned District Judge held that the plaintiff’s claim was prescribed.Hayley, K.C. (with him E. B. Wikramanayake), for plaintiff, appellant.—This is not a claim to the right to an incumbency. It is an action fordeclaration of title to property belonging to the temple. One of theplaintiffs is the trustee. The pansala is a public charitable trust and assuch cannot be acquired by perscription. The law of trusts existed inCeylon before the Trusts Ordinance which merely codified it. PerBertram C.J. (Supramaniam v. Erampa Kurukal').—Section 111 ofthe Trusts Ordinance is applicable to Buddhist temples as well. Thedictum relied on by the trial Judge in Ratwatte v. The Public Trustee1 ismerely obiter.
H. V. Perera (with him Weerasooria and Amerasinghe), for defendants,respondents.—The Meda Pansala is a separate temple with a separateincumbent. This is an action for declaration of a right to an incumbency.As such it is prescribed. (Terunnanse v. Terunnanse ’.)
June 29, 1937. Fernando A.J.—
The first plaintiff-appellant is the incumbent of Degaldoruwa Vihare,and the second plaintiff is the trustee of that vihare, and they filedthis action against the four defendants praying that the land andbuilding referring to as Meda Pansala situated in the premises of theMalwatta Vihare in Kandy be declared to be a part'of the endowments ofthe Degaldoruwa Vihare, and as such vested in the first plaintiff asincumbent, • and in ' the second plaintiff as trustee, and that the firs'plaintiff be declared entitled to the possession thereof. The plaintiffs alsoclaim damages, and that the defendants be ejected from the pansala.
At the trial it was admitted that the first plaintiff was the AdikariBhikku or incumbent of Degaldoruwa Vihare, and the first and secondissues framed werje (1) Was Meda Pansala an appurtenant of DegaldoruwaVihare ?(2) .Was Moratota Mahanayake Unnanse the Adikari Bhikku
of the Degaldoruwa Vihare, and as such entitled to Meda Pansala. Thelearned District Judge'held on the first and second issues in the affirmative,
. &
Cur. adv. vult.
> S3 X. L. S. 424.
* 28 X. L. R. 477.
*12 Law Rec. 208:
FERNANDO A.J.—Piyaratne Unxianse v. Sonuththara Unnanse.
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that is to say, he held that Meda Pansala was all appurtenant of Degal-doruwa – Vihare, and that Moratota as incumbent of the vihare wasentitled to the Meda Pansala. He held, however, on issue 6 that theplaintiff’s action was prescribed in three years from the time the causeof action accrued to the plaintiffs, and that Parusella had been inpossession of the Meda Pansala for a long period, according to theevidence from about 1887.
It was proved in the course of the trial that Parusella had prolongedlitigation with one Pilawala Dhamadassi Unnanse, who claimed to be thesuccessor to Parnathela Ratnapala Unnanse, with regard to theincumbency of Degaldoruwa Vihare, Parusella claiming on the strength,of the deed of transfer by the previous incumbent in his favour. It washeld, however, that an incumbent for the time being had no right to divertthe succession from his own pupils and that the incumbency of the viharehad come to the pupillary successors, and that the deed was, therefore, ofno effect. The claim made by Parusella in that action was to thepossession of the vihare* and of the endowments thereof. See D. C.'Kandy, No. 81,630 dated March 27, 1878. In 1882 there was anotheraction (D. C. No. 90,099), and Parusella who was the plaintiff in that actionas well, still claimed to be the incumbent of Degaldoruwa Vihare and itsendowments, and there too his action was dismissed with costs, and itwas declared that the third defendant in the action, Amunugama Ratna-pala Unnanse, was entitled to the incumbency, and it was ordered that hebe quieted in the possession of the vihare and its endowments. Fromthese facts and from the finding of the learned District Judge that Meda.Pansala was an appurtenant of Degaldoruwa Vihare, it would followthat the rightful incumbent for the time being of Degaldoruwa Viharewould be entitled to the Meda Pansala, and the learned District Judge sofoun€ on issue 2.
Issue 7, however, suggests that Parusella was the Adikari Bhikku or ‘incumbent of Meda Pansala, and it was contended by Counsel for therespondent that Meda Pansala was a separate temple within the meaningof the Buddhist Temporalities Ordinance, and that, Parusella was theincumbent of the Meda Pansala. It will be noticed from deed P. 1 oTMay 7, 1849, that Parantala Ratnapala, the grantor, described himself asresiding at Malwatta Vihare, and as the incumbent of DegaldoruwaVihare, and that he purported to grant Degaldoruwa Vihare and the lands,houses and gardens appurtaining to it to four persons including Parusella.That deed is of importance, inasmuch as it refers to the Meda Pansala andcalls it the pansala which belonged to the Moratota Unnanse of MalwattaVihare, and provides that the four donees on P 1 shall improve thatpansala, and that any necessary work might be done through the tenantsof Degaldoruwa yihare, showing that the Meda Pansala was regarded asan appurtenance of the vihare. But P 1 is also important as showingthat the donor, although residing at Malwatta Vihare described himself asincumbent of Degaldoruwa. In P 2 and P 3, the pansala is described asbelonging to Moratota, priest of Malwatta Vihare. In D 5 of 1860,Parusella describes himself as of the Meda Pansala and chief priest ofDegaldoruwa Vihare, and the same description appears in D 7 of 1868.'In 1873, Parusella executed lease D 8 for certain lands which he says
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FERNANDO A.J.—Piyaratne Vnnanse v. Sonuththara Unnanse.
belonged to Degaldoruwa Vihare, and it seems obvious that he was dealingwith the lands as incumbent of that vihare although he describes himselfas resident in the Meda Pansala in Malwatta in Kandy.
Deeds D 9, D 10, D 11, D 12, and D 14 were all executed by Parusella,but not in one of these deeds does he describe himself as incumbent ofthe Meda Pansala. The witness Sri Deerananda who gave evidence forthe defendant, stated that he was the Secretary of the Chapter knownas the Malwatta College. His evidence is of some use, inasmuch as he. defines what is a vihare. “ The word, Vihare ”, he says, “ means amonastic establishment. A vihare also has a Budu-ge. There is also aPoye-ge, and a Dagoba containing relics. Within the vihare, there isalso a pansala. In the pansala lives the Adikari Bhikku and others inthe pupillary succession. The pansala itself is also called a Lebun-ge, andis the place where the priests live. Malwatta Vihare comprises everythingat Malwatta and is the Malwatta College. It contains 12 or 14 pansalas.Some of these pansalas are held in pupillary succession. The others areunder the control of the Chapter. The Malwatta Vihare itself has aPoye-ge and a Budu-ge. There is also a Dagoba and a sacred Bo-tree.”He then for the first time brought in the suggestion that Parusella wasthe Adikari Bhikku of Meda Pansala. In cross-examination he statedthat Moratota was a famous monk, but that he did not know of whatvihare he was Adikari Bhikku. He said that Rambukwelle Anunayakewas incumbent of Kundasale Vihare, that he was the Anunayake of theMalwatta Chapter, and that there was a temple at Malwatta called.Rambukwelle Pansala. He then added that the Kundasale Vihareshould be appurtenant to the Rambukwelle Pansala at Malwatta.
■“ Sumana – is the' Adikari Bhikku of Lankatileke Vihare. He has apansala at Malwatta. The Malwatta Pansala had been used by hispredecessors and a pupil of the pupillary line is in occupation. Sumanauses that pansala when he comes to Kandy. ” He was then asked if thatpansala was an appurtenant of Lankatileke Vihare, and his answer was,
I think Lankatileke is appurtenant to the Malwatta Temple. ” “ Someof the pansalas at Malwatta, ” he continued, “ are held in pupillarysuccession, and others belong to the priesthood. ”
On this evidence it seems clear to me that the witness’ statement thatParusella was Adikari Bhikku of Meda Pansala was clearly false, that theMeda Pansala was an appurtenant of Dagaldoruwa Vihare, and thatParusella first came to live there when he was claiming to be the incumbentof Degaldoruwa on the strength of the deed P 1 in favour of himself andthree others. Apparently there are pansalas in the premises of theMalwatta Vihare which are appurtenant to other vihares and theincumbent of each such vihare manages the pansala in Kandy whichhe occupies whenever he visits Kandy. When Moratota was madeAnunayake of Malwatta Vihare, it apparently became necessary for himto stay at Kandy whenever he came there on business, and the pansala inquestion appears to have been given to Moratota for that purpose. Hehowever, and his successors as incumbents of Degaldoruwa Vihareoccupied it in that capacity, and in the result the learned Judge wasright when he held that the Meda Pansala was an appurtenance of theDegaldoruwa Vihare.
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The only other important question is that of prescription. Thelearned District Judge held that if the action is regarded as one for adeclaration that first plaintiff is the Adikari Bhikshu of Med a Pansalathat claim would be prescribed in three years, but that is not the natureof the present action. This is an action in which the plaintiffs claim thatthe Meda Pansala is an appurtenance to the Degaldoruwa Vihare, that thetitle to the pansala in dispute vests in the trustee of the vihare, and thatthe first plaintiff is entitled to the possession of it. The question would,therefore, arise whether it is possible for any person to acquire title to theMeda Pansala by prescription, and if so whether the defendants have infact been in possession for such a period and under such circumstances asto enable them to acquire a title thereto by prescription. The learnedJudge has not discussed the evidence of possession led for the plaintiff.The first plaintiff himself stated that when he went to Kandy he went tothe Meda Pansala and had his meals there, and he also sent the tenants ofDegaldoruwa to repair the Meda Pansala when necessary.
The witness Ratnajoti Unnanse corroborated the plaintiff when hesaid he had seen the plaintiff at the Meda Pansala during the last 40 years.He also corroborated the plaintiff’s evidence when he said that he himselfhad a pansala at Malwatta .which he. visits about 15 times a month. Thesecond defendant who gave evidence did not state anything to thecontrary, and I see no reason to disbelieve the evidence of the first plaintiffwhen he says that on his visits to Kandy, he did reside at the MedaPansala, and that repairs to that pansala was effected by him throughthe tenants of Degaldoruwa. It is true that Parusella and his pupilslived for a number of years at Meda Pansala, but Parusella’s claim to theincumbency of Degaldoruwa Vihare was decided against him in 1887, andany acts of possession prior to 1887 cannot avail him or his pupils in thisaction. Since then the plaintiff and his predecessors in office must betaken to be entitled to the possession of the Meda Pansala. At the sametime a pansala is intended for the residence of priests, and the right toreside in a pansala vests not only in the incumbent of the Vihare, but inthe whole body of priests, or the Sanga, to whom the pansala is dedicated.The fact that Parusella or any of his pupils resided in the Meda Pansala ata time when the use of that particular portion of the building was notrequired by the incumbent of Degaldoruwa Vihare amounts to nothingmore than that they lived there under his control and with his permission.I do not think the incumbent of a vihare is entitled to eject any priestsfrom the pansala belonging to that vihare, unless of course, for somespecific reason, or perhaps because he disputed the right of the incumbent.In such circumstances, possession by the pupils of Parusella cannot beregarded as adverse possession so as to enable such pupils to acquire atitle by prescription.-
I do not think it necessary in this case to go into the question whether apansala as an appurtenance of a vihare is property, that is capable of beingacquired by prescription. On the evidence I would hold that the plaintiffand his predecessors in office have exercised the right of occupation whichthey had, and that the defendants and their predecessors have notacquired a title by prescription.
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FERNANDO A.J.—Piyaratne Unnanse v. Sonuththara UrVnanse.
Issues 9, 10, and 11, also raise' the question whether the defendants areentitled to compensation for improvements effected-by them, and whetherthey are entitled to a jus retentionis till such compensation is paid. Therecord shows that it was agreed that1 the question re the value of theimprovements was to be decided after the issues of fact have been decided,and the learned District Judge did not decide these issues in view of thefinding that the defendants have acquired a title by prescription. Iwould accordingly set aside the decree of the District Court and send thecase back for trial on these issues 9, 10, and 11. It will, however, be opento the parties if they so desire to raise the question whether the defendantsare in law entitled to claim compensation, and any issues necessary forthat purpose may also be raised at the trial. The defendants-respondentswill pay to the plaintiffs-appellants their costs of this appeal, and the costsof the action in the District Court will abide the final decision of the action.
Poyser J.—I agree.
Appeal allowed.