PRASANTH AND ANOTHER

Vs.

DEVARAJAN AND ANOTHER

SUPREME COURT
ALUWIHARE, J.
WENGAPPULI, J.
SAMAYAWARDHENA, J.
SC/APPEAL/163/2019
SC/HCCA/LA/327/2019
WP/HCCA/COL/131/2015 (F)
DC COLOMBO DLM/00041/2013
FEBRUARY 17, 2021

Vindicatory action-Burden of proof-Adversarial and inquisitorial systems-"Subject to proof" objection-Permissive possession- Adverse possession-Prescription

The plaintiffs filed action in the District Court seeking a declaration of title to the property in suit and ejectment of the defendants therefrom. The defendants sought the dismissal of the plaintiffs' action and claimed prescriptive title to the property. The District Court held with the plaintiffs and on appeal the High Court held with the defendants. The plaintiffs appealed to the Supreme Court.

Held:

1. In a vindicatory action, the initial burden is on the plaintiff to prove title to the property. However, once the paper title to the property is accepted by the defendant or proved by the plaintiff, the burden shifts to the defendant to prove on what right he is in possession of the property.

2. The right to possession and the right to recover possession are essential attributes of ownership of immovable property. The owner is entitled to these as of right. The owner does not lose ownership of the property merely because he does not possess the property.

3. It is settled law that once issues are framed and accepted by court, the case of each party is crystallised in the issues, and the pleadings recede to the background.

4. The system of justice in Sri Lanka is adversarial, not inquisitorial.Hence the judge hearing a case shall be careful not to overstep his limits in the guise of the due administration of justice. The judge shall decide the case as it is presented before him by the two competing parties and not based on his own conception of justice and injustice, unless there is a compelling reason to deviate from this fundamental principle.

5. In a civil case, if the opposing party disputes a document, he must, at the time of marking the document, raise that objection and if necessary make an application to court to mark the document subject to proof. There is no necessity to call witnesses to prove all marked documents. This principle is applicable even to deeds, irrespective of section 68 of the Evidence Ordinance.

6. The judge shall not mechanically reject documents marked subject to proof and not technically proved by calling witnesses. The judge shall decide the question of proof at the end of the trial on the facts and circumstances of each individual case.

7. Permissive possession, however long it may be, is not prescriptive possession. When the relationship between the two parties is very close, the overt act manifesting the commencement of adverse possession and strong affirmative evidence for the continuation of such adverse possession for over ten years are all the more I important to successfully claim prescriptive title.

Cases referred to:

1. Siyaneris v. Udenis de Silva (1951) 52 NLR 289

2. Theivandran v. Ramanathan Chettiar [1986] 2 Sri LR 219 at 222

3. Beebi Johara v. Warusavithana [1998] 3 Sri LR 227 at 229

4. Candappa nee Bastian v. Ponnambalam Pillai [1993] 1 Sri LR 184 at 187

5. Wijetunge v. Thangarajah [1999] 1 Sri LR 53

6. Gunasekera v. Latiff [1999] 1 Sri LR 365 at 370

7. Jayasekera v. Bishop of Kandy [2002] 2 Sri LR 406

8. Loku Menika v. Gunasekera [1997] 2 Sri LR 281 at 282-283

9. Pathmawathie v. Jayasekara [1997] 1 Sri LR 248

10. Saravanamuthu v. Packiyam [2012] 1 Sri LR 298

11. Bandaranaike v. Premadasa [1978-79] 2 Sri LR 369 at 384

12. Siyadoris v. Danoris (1841) 42 NLR 311

13. Silva v. Kindersly (1914) 18 NLR 85

14. Seyed Mohomed v. Perera (1956) 58 NLR 246

15. Cinemas Ltd v. Sounderarajan [1998] 2 Sri LR 16 at 18

16. Hemapala v. Abeyratne [1978-79] 2 Sri LR 222

17. Wijewardena v. Ellawala [1991] 2 Sri LR 14 at 34-35

18. Kandasamy v. Sinnathamby [1985] 2 Sri LR 249