065-NLR-NLR-V-15-SILVA-v.-FONSEKA.pdf
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Present: Middleton J. and Wood Benton J.
SILVA v. FONSEKA.375—D. C. Kalutara, 4,593.
Buddhist Temporalities Ordinance, No. 8 of 1905, 1 s. . 41—Temple mayacquire title to land by prescription.
Section 41 of the Buddhist Temporalities Ordinance (No. 8 of1905) does not preclude a temple, or any duly authorized represen-tative of the temple for that purpose, from- acquiring title to anyland by prescription.
The section is concerned with devises, grants, and conveyances, and doeanot apply to the acquisition of title by prescription.
fJpHE facta aro set out in the judgment.
De Sampayo, K.C., for the appellant.
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H. A. Jayewardene, for the respondent.
January 31, 1912. Middleton J.—
This was an action by the trustee of the Elaboda Vihare prayingfor a declaration to an undivided half share of an allotment of landcalled Maittawatta alias Sittawatta brought against the firstdefendant, who claimed to be the owner of. half of the land, andagainst the second defendant, who claimed to be the owner of theother half. The claim against the second defendant to the otherhalf was admitted, but the claim of the first defendant to the halfclaimed by the plaintiff was in issue. Various issues were settled,and the case really turns upon the question whether the first defend-ant or the plaintiff as trustee of the vihare has obtained a title byprescription to the land in question. The learned District Judge hasfound that the evidence is sufficient to establish that the temple has-acquired a title by prescription, and I have no doubt that theevidence on the record is sufficient to enable him .to arrive at thatconclusion.- The second defendant's evidence is entirely in favourof the contention put forward by the plaintiff, and it appears thatin 1898 Sartinu, who was claiming from a predecessor in title of thefirst defendant, was held not to be>ntitled to the half which the firstdefendant now claims. But upon a writ issued against Sartinu, itwas held by the Court that the property belonged to the heirs of thepriest called Indrajoty Terunnanse, who had purported to huy theland in question many years ago. From 1898 there is evidence that
1918.
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1912.
IbiwunoM
3.
jS&oa v:J?on*eka
the possession has been on behalf of the temple. There are writtendocuments, one in 1898, the other in 1900, and another in 1906,constituting one of them a sort of informal lease, the other a plantingvoucher, and the third a lease by the trustee and the priest. Theevidence put forward by the first defendant is doubted by theDistrict Judge, and I think, from the way in which it was given,these doubts were well founded. In my opinion the evidence issufficient for us to hold that the judgment is correct, and basedupon reasonable grounds, and that the appeal should be dismissedwith costs.
Wood Benton J.—
I concur, and I will only add a word in regard to the interestingpoint of law which was raised by Mr. de Sampayo for the first timein appeal under section 41 of the Buddhist Temporalities Ordinance,No. 8 of 1905. Mr. de Sampayo’s contention was that that sectionprecludes a temple, or any duly authorized representatives of thetemple for that purpose, from acquiring any land cr immovableproperty unless the licence of the Governor under the public sealof the Island be obtained. There is no doubt but that in th6 firstparagraph of the section the word “ acquire ” is used, but it seemsto me that the remaining paragraphs clearly show that the sectionis concerned with devises, grants, and conveyances, and does notapply to the acquisition of title by prescription. With theseobservations I agree that the appeal should be dismissed ..withcosts.
Appeal dismissed.