K. Priyantha Fernando, J.(CA)

The Petitioners by petition dated 14th March 2023 have sought a Writ of Certiorari quashing the decision embodied in P10 and P16 and a Writ of Mandamus mandating the 1st to 6th Respondents to register the Deed of Gift (P9) in the relevant Volumes/Folios of Nikarawetiya Land Registry.

THE FACTUAL MATRIX:

The land in dispute which is described in the Schedules of the Petition was owned by the 1st Petitioner and it was given to the 2nd Petitioner by way of Deed of Gift (P9).

The Deed of Gift P9 has been refused to be registered by the 1st Respondent- Registrar of Lands and District Land Registry on the basis that a previous Deed of Declaration for a portion of the same land has been registered. The refusal to register P9 has been communicated to the Petitioners by the Letter P10 By letter dated 02.02.2023 (P16), the Registrar of Land of Nikaweratiya has informed the Petitioners’ Notary that the appeal of the petitioners has been refused by the Registrar General.

The Petitioner has later learnt that 7th Respondent-Kelum Priyankara, had registered a Deed of Declaration No. 015 dated 24.10.2021 (P11) declaring ownership for an undivided one acre of land as described in the 2nd schedule to the Petition which is an undivided portion of the land described in the 1st schedule.

Both P9 and P11 had been registered Nikarawetiya Land Registry on 29.10.2021. THE PETITIONERS’ POSITION:

The law requires the executor of a Deed to specify in the schedule of the instrument, a description of the land together with boundaries and extent. The Petitioners, having no knowledge of the Deed of Declaration P11, have specified the boundaries and extent of the land belong to the 1st Petitioner. By refusal to register Deed P9, the 1st Respondent has assumed that the Deed P11 is duly executed.

It was contended that if the Petitioner had the knowledge of existence of P11 and if the Deed of Gift P9 was presented with corrected extent as suggested by the 1st Respondent, excluding 1 acre indicated in P11, it would be an acceptance of title of the 7th respondent.

It was contended that there is no statutory power vested in the Registrar either to refuse registration based on the existence of another registered instrument concerning the same property, or to resolve disputes as to title.

THE POSITION OF THE 1st TO 6th RESPONDENTS:

The attention of the Court has been drawn to Section 38 of the Registration of Documents Ordinance where appeal procedure is provided as follows:

Section 38 (1)

“Any person aggrieved by an order of a Registrar refusing to register an instrument may, within thirty days from the date of the order being communicated to him, appeal to the Registrar General, who may vary or reverse the order.

(2) Any person aggrieved by the decision of the Registrar-General under this section may, within thirty days from the date of such decision being communicated to him, institute in the District Court a suit against the Registrar-General praying for the variation or reversal of the decision of the Registrar-General.

It was contended by the 7th Respondent that the Petitioner has failed to seek the proper remedy and hence they are not entitled to invoke jurisdiction of this Court.

Attention was drawn to observations drawn by Jayasuriya J. in Jayaweera vs. Commissioner of Agrarian Services (1996) 2 SLR 73, where it was held as follows:

“A Petitioner who is seeking relief in an application for the issue of a Writ of Certiorari is not entitled to relief as a matter of course, as a matter of right or as a matter of routine. Even he is entitled to relief, still the Court has a discretion to deny him relief having regard to his conduct, delay, laches, waiver, submission to jurisdiction – are all valid impediments which stand against the grant of relief”.

It was the counter argument of the learned President Counsel for the Petitioners that, in the case at hand, it is not only mere refusal to register but one-sided self-serving Deed of Declaration register