REV. MORAGOLLE SUMANGALA , Appellant, and REV. KIRIBAMUNE PIYADASSI, Respondent

076-NLR-NLR-V-56-REV.-MORAGOLLE-SUMANGALA-Appellant-and-REV.-KIRIBAMUNE-PIYADASSI-Respondent.pdf

322GRATIAEN J.—Moragolle Sumangala v. Kiribamune Piyadassi
Present: Gratiaen J. and SansonI J.
REV. MORAGOLLE SUMANGALA, Appellant, andREV. KIRIBAMUNE PIYADASSI, Respondent
S. C. 3—D. C. Kurunegala, 6,730
Buddhist ecclesiastical law—Incumbency of temple — Sisyanusisya paramparawa—Impostor cannot acquire right to incumbency by prescription— PrescriptionOrdinance (Cap. 60), s. 10—Rea judicata—Two important principles—Privity between pupil and tutor—Admission^—Weight to be attached to it—Evidence Ordinance (Cap. 11), ss. 17 (1), 18 (3) (6).
The status of the lawful incumbent of a Buddhist temple under the sisyanu-sisya paramparawa cannot be extinguished by prescription by a de facto.incumbent who is an impostor.
For the purpose of adjudicating upon a plea of res judicata raised in a disputeconcerning rights to the incumbency of a Buddhist temple no privity of estate orinterest can be assumed between a pupil and his tutor who is not proved to havebeen the lawful incumbent.
Two important test s must be applied whenever a plea of res judicata is raised :(1) whether the judicial decision in the earlier litigation was, or at least involved,a determination of the same question as that sought to be controverted in thelater litigation in which the estoppel is raised, and, if so, (2) whether the partiesto the later litigation are the parties or the privies of the parties to the earlierdecision.
An admission within the meaning of sections 17 (1) and 18 (3) (b) of the Evi-dence Ordinance does not create a conclusive estoppel; the weight to be attachedto it in any particular case depends on many considerations.
jA.PPEAL from a judgment of the District Court, Kurunegala.
H. V. Perera, Q.C., with C. V. Ranawake, for the plaintiff appellant.
A7. E. Weerasooria, Q.C., with Eardley Perera and B. S. C. Batwalle, forthe defendant respondent.
Cur. adv. vult.
February 23, 1955. Gratiaen J.—
The plaintiff claims a declaration in this action that he (and not thedefendant) is the lawful incumbent of the Kandowela Vihara. It iscommon ground that the rules of succession known as the sisyanusisyaparamparawa apply.
Certain admissions were recorded at the commencement of the trial.The plaintiff is a pupil of a Buddhist priest called Indajoti who himselfhad been a pupil of Waradala. The defendant is a pupil of Ratnajotiwho was in fact functioning as incumbent at the time of his death.
According to the plaintiff, the original incumbent of the temple wasthe “ Ganangamuwe High Priest ” who had three pupils namedDhammarakkita, Waradala (previously referred to) and Seelawantha ;Dhammarakkita, being the senior pupil, in due course succeeded to theincumbency and he was in turn succeeded by his own pupil Sobita ;
GKATJAKN J.—MoragoUe Samaajala v. Ki riba m ane Piyadasai
323
Sobita died leaving no pupils, and the incumbency accordingly passed,under the sisyanusisya paramparatca to Indajoti (previously referred to)and, on Indajoti’s death, to the plaintiff.
The defendant does not- oonoede the earlier stages of succession pleadedin the plaint, but it is at least common ground between the parties thatSobita bad at one stage been-the lawful incumbent, and that Sobita diedleaving no pupils. According to the defendant, Sobita duly appointedRetnapala (presumably a stranger to the normal line of succession) tosucceed him ; the incumbency in duo course passed from Ratnapala toDeela Guneratne and front' Deals Gnnaratne to the plaintiff’s tutorRatnajoti (previously referred to); the defendant then succeeded to theincumbency on Ratnajoti’s death, An important point for decisionconcerns the question as to who was entitled to succeed .to theincumbency when Sobita died leaving no pupils.-
There can be no doubt that the factual position was as stated bythe defendant—namely, 'that (lawfully or otherwise) Ratnapala, Deela-Guneratne and Ratnajoti bad in turn functioned successively as de factoincumbents ; similarly, the defendant was de facto incumbent when thisaction commenced. On the other hand, it- is settled law that “ an impostorcannot acquire a right to an incumbency by prescription; nor can therights of the true incumbent be extinguished by prescription ”. Althoughthe operation of Section 10 (of the Prescription Ordinance) may in certaincircumstances destroy a particular incumbent’s remedy against animpostor, his right or status itself still subsists. Kirikitta Saranan&araThao's case*. This latter proposition is of course subject to the exceptionthat a true incumbent’s status may he extinguished by other modesrecognised by Buddhist ecclesiastical law—for instance, by abandonment,of bis office. What follows in such an event calls for no solution for thepurposes of the present appeal.
Several issues were framed at the trial, hut, by agreement of parties,the following question of law was disposed of as a preliminary issue:—
“ 5. Is the decree in Case Kb. 5232 of this Court dated 27.11.14res judicata between the parties in regard to the subject matter ofthis action ?”
This issue was answered ly fixe learned trial judge in favour of thedefendant. Accordingly, file plaintiff’s action was' dismissed withoutconsi derati on of the other issues.
I shall now examine th ©scope of this earlier action No. 5232 which isclaimed to have operated as. res judicata between the parties to the presentdispute. On 12th June 1914 Indajoti (i.e., the present plaintiff s tutor)had claimed a declaration that he was the true incumbent of this templeas against the person who was actually functioning in that office at thetime (namely, the defendant’s tutor Ratnajoti). Indajoti’s action wasdismissed by the District- Judge of Kuronegala on 27th November 1914,and his appeal against- the judgment of the lower Court was dismissed on4th March 1915. One cannot but marvel at the admirable,manner inwhich a complicated litigation in former times could be finally disposed of
1 {1954) So N. If. S. 313 at 315.'
324
GKATIAEN J.—MoragoUe Sumangala v. Kiribamune Piyadasai
(in the origins 1 Court as -well as the Court of Appeal) within a period of only9 months. The present action, by way of lamentable contrast, wasinstituted on 18th August I960, and 4$ years later, this Court is onlydisposing of a preliminary issue of law. Having permitted myself thismelancholy reflection, I return to the immediate issue before us.
The diamiaaal of the action manifestly precluded Indajoti at any ratefrom re-agitating his claim to the incumbency against Ratnajoti. But agreat deal more must be established before we can accept it as a corollarythat this decree also operates as res judicata in respect of the disputebetween the present plaintiff and the preseht defendant.
This plea of res judicata would without doubt have succeeded if a de-cision that Ratnajoti was in truth the lawful incumbent of the templehad been implicit in the dismissal of Indajoti’s action. In that event, thepresent defendant’s claim to have succeeded to the incumbency (by reasonof the “ privity of estate or interest ” which exists under the sisyanusisyaparamparawa between a proved incumbent and his pupil) could not havebeen challenged by the plaintiff (claiming the office as Indajoti’s privy).A careful examination of the judgment of Walter Pereira J. (Shaw J.concurring) dated 4th March 1915 makes it clear, however, that thisCourt advisedly refrained from making, even by implication, anypronouncement as to the validity of Ratnajoti’s claim to the incumbency.
Two important tests must be applied whenever a plea of res judicatais raised (1) whether the judicial decision in the earlier litigation was, or atleast involved, a determination of the same question as that sought to becontroverted in the later litigation in which the estoppel was raised, andif so (2) whether the parties to the later litigation were the parties or theprivies of the parties to the earlier decision. Spencer Bower on Resjudicata, page 9.
As to the former test, let us first examine the grounds on which Indajotisought to oust Ratnajoti from the office of incumbent in Act ion No. 5232and also the grounds on which Ratnajoti challenged the validity of hisclaim. Finally, we must ascertain the particular grounds on whichIndajoti s claim was rejected,.
Indajoti admitted that Ratnapala did function as the incumbent of theKandewela Vihara ; he also conceded that Ratnapala was the lawfulholder of the office. Indeed, he claimed to succeed Ratnapala “ as theonly priest present at his death and as a co-pupil of the same tutor ”.Ratnajoti, on the other hand, took up the position that the original in-cumbent was not Ratnapala but Deela Guneratne whom he (Ratnajoti)lawfully succeeded as sole pupil.
In the lower Court the trial judge took the view that “ Indajoti’s claimcould not be sustained on either of the grounds he relied on no more thanRatnajoti’s claim could be sustained on the grounds he relied on ”. Hisultimate conclusions, however, were in favour of Ratnajoti’s claim on asomewhat different basis, namely :— 1
(1) that Sobita had been the lawfulincumbent and that he had, in theabsence of any pupils in the normal line of succession, validlyappointed Ratnapala as his successor ;
825
GRATIAEN 3 ^—.MaragoU? Sumangala v. Kiribomune Piyadaaai
that upon Ratnapala’s death the incumbency passed (in the ab-
sence of pupils) to Bftt^tapala's own tutor (somebody else named,
Indajoti) ;,■
that Deela Guneratnefn due course succeeded that “ other Indajoti ”
as incumbentMid
that eventually Batnajoti, who was Deela Guneratne’s pupil,
succeeded him as his “ lawful successor.
If these conclusions had been thfj baais of the final decision in Action No.5232, I am satisfied that^ie pleifcof res judicata ought to have succeededin the present litigations.' ‘ |Tbe$6waB a categorical pronouncement thatBatnajoti was the lawful inct«hbeij.t in preference to Indajoti, and themere omission of a fonn^ decree to that effect would not, I think, havealtered the position. As to the issue of privity, the presort plaintiff isIndajoti’s pupil claiming,jas such to succeed him as his privy while thepresent defendant is Rataajoti’s pupil claiming the office under Batnajoti.
But, unfortunately for the defendant, the trial judge's decision in ActionNo. 5232 did not constitute the final judicial pronouncement in those pro-ceedings. The Supreme Court admittedly affirmed the decree of thelower Court, but for entirely different reasons. The plea of res judicatamust therefore be considered solely by ascertaining the basiB of the de-cision of the appellate tribunal dated 4th March 1915. The judgment ofthe original Court was “replaced by the appellate decision, whichthenceforth holds the fielcP Spencer Bower (supra) at page 34. It wasin this respect that the judgment now appealed from has erred. Toomuch emphasis was plaeed on the terms of the superseded judgment ofthe original Court, and little or no consideration was paid to the narrowergrounds on which the decree was ultimately affirmed in appeal.
I shall now examine the judgment pronounced by this Court on 4thMarch 1915, in order to ascertain what precisely it did decide, either ex-pressly or by necessary Implication, in regard to the issues calling foradjudication in the present action. It at once becomes clear that therejection of Indajoti’s claim to oust Ratnajoti did not proceed (as was thecase in the superseded judgment) on a recognition of the validity of Ratnajoti’srights to the incumbency. For instance, Walter Pereira J.’s principaljudgment said :—..
“ The deed whereby Sobita instituted Ratnapala as his successor to theincumbency is of very doubtful validity, because Ratnapala was not a pupilof Sobita, and, as pointed out in Dhammajoti v. Sobita l, while an in-cumbent priest of a Buddhist temple may by means of a deed appoint• his successor, he must confine the selection to his own pupils. Anyway,Indajoti could not claim to be the successor of Ratnapala because hewas not a co-pupil with Ratnapala ”.
In the result, Indajoti’s action was dismissed because, whether or notRatndjoti’s rights of succession were valid, Indajoti at least had failed tofurnish evidence establishing that ho had a right to oust an alleged tres-passer. To that extent, Indajoti was of course precluded by the rule of%es judicata from re-asserting his own rights against Ratnajoti on anyground whatsoever. Bub the immediate parties to the litigation are now1 (1913) 16 N. L. It. lOt.
326
GRATIAKN J.—Moragolle SitmangaZd vx JCtribamufie Piyarlntwi
dead, and the issue as to whether the present plaintiff or the present de-fendant is the lawful incumbent is not embarrassed by the earlier decree.The defendant can only establish “ privity in estate or interest ” betweenhimself and Ratnajoti either on proof that Ratnajoti was in truth thelawful incumbent or on production of a judicial decision (binding on theplaintiff) that he was. As I have pointed out, there is no earlier judicialdecision, even by implication, to that effect. Accordingly, theplea of res judicata fails. For the purposes of a dispute concerning rightsto the incumbency of a Buddhist temple, no privity can be assumedbetween a pupil and his tutor who is not proved to be the true incumbent.
Indajoti’s concession in his pleadings that Ratnapala had at a certainstage lawfully succeeded to the incumbency has no bearing on the plea ofres judicata, but it does at least constitute an “ admission ” within themeaning of Section 17 (1) of the Evidence Ordinance. It can therefore beproved under Section 18 (3) (b) against the plaintiff who claims to havederived his “ interest ” from Indajoti. But an “ admission ” does notcreate a conclusive estoppel ; it merely “suggests an inference” which aCourt of trial may properly take into account, and the weight to beattached to it in any particular case depends on many considerations.
The true principle of res judicata where a decision dismissing an earlieraction is relied on as creating “ an estoppel by record ” in subsequentlitigation is thus explained by Spencer Bower (supra) at page 29
“ The answer to this inquiry depends upon whether, on reference to therecord and such other materials as may properly be resorted to, thedismissal itself is seen to have necessarily involved a determination onany particular issue or question of fact or law, in which case there is anadjudication on that question or issue ; if otherwise, the dismissal de-cides nothing, except that in fact the party has been refused the reliefthat he sought …. Prima facie, in the absence of materialson which such a necessary inference can be established, a dismissal is nota decision of any question of title without an express declaration of theCourt ”.
I have already explained why in my opinion the plea of res judicata fails.The judgment of Walter Pereira J. and Shaw J. decided only tha t Inda-joti had not furnished proof entitling him to the immediate relief which hesought against his adversary. On that narrow ground, the position ofRatnajoti (whether he was the true incumbent or merely a trespasserfunctioning as such) could not be disturbed by Indajoti. Under Budd-hist ecclesiastical law as judicially interpreted, Ratnajoti and those whoclaim under him could not however acquire a title to the office by mereprescriptive user. The issue as to who is now the present true incumbentis therefore at large.
I would allow the appeal and answer issue 5 in favour of the plaintiff.The record must now be returned to the lower court for a re trial on theoutstanding issues and on any other issues which may properly be raisedby the parties. The plaintiff is entitled to the costs of this appeal andof the abortive trial.
Sansoni J.—I agree.
Appeal allowed.