WASANTHA

Vs.

PREMAWATHIE AND OTHERS

SUPREME COURT
SURASENA, J.
KODAGODA, J.
SAMAYAWARDHENA J.
SC/APPEAL/176/2014
SC/HC/CALA/24/2013
WP/HCCA/AV/242/2008/F
DC HOMAGAMA 2673/L
FEBRUARY 2, 2021

Rei vindicatio action-Standard of proof-Meaning of strict proof of title-Proof of superior title or sufficient title adequate-Difference between declaration of title action and rei vindicatio action

The plaintiff became the owner of the land in suit by deed No. 7236 which was marked in evidence at the trial. He stated in the plaint that by deed No. 36988 he alienated the land to a third person on a conditional transfer, and that third person in turn retransferred the land to him by deed No. 38247. He filed action in the District Court seeking a declaration

of title to the land, ejectment of the defendant therefrom and damages. The defendant did not dispute the paper title of the plaintiff to the land but made a claim in reconvention that he (the defendant) had acquired the land by prescription. After trial the District Court entered judgment for the plaintiff and the High Court affirmed it. On appeal to the Supreme Court, the only argument advanced on behalf of the defendant was that since this is a rei vindicatio action and the plaintiff did not mark deed Nos. 36988 and 38247 in evidence in proof of his chain of title as pleaded in the plaint, the plaintiff's action must fail.

Held:

1. In a rei vindicatio action the burden is on the plaintiff to prove title to the land in suit irrespective of weaknesses in the defendant's case. The popular view is that in an action rei vindicatio, strict proof of the plaintiff's title is required. But this shall not be understood to mean that a plaintiff in a rei vindicatio action shall prove his title beyond reasonable doubt such as in a criminal case, or on a high degree of proof as in a partition case. The standard of proof of title is on a balance of probabilities as in any other civil suit. Stringent proof of chain of title, which is the norm in a partition action to prove the pedigree, is not required in a rei vindicatio action.

2. If the plaintiff in a rei vindicatio action has "sufficient title" or "superior title" to that of the defendant, the plaintiff shall succeed.

3. In a rei vindicatio action the court can take into consideration the evidence of the defendant in deciding whether or not the plaintiff has proved his title.

4. No rule of thumb can be laid down on the circumstances in which the court shall hold that the plaintiff has discharged his burden. Whether or not the plaintiff proved his title shall be decided upon a consideration of the totality of the evidence led in the case.

5. Failure to tender deed Nos. 36988 and 38247 is not fatal. When the totality of the evidence led in the case is considered, the plaintiff has proved title to the property on a balance of probabilities and the defendant's counter claim to the same on prescriptive title is bound to fail.

Held further:

6. There is a difference between a rei vindicatio action proper and a declaration of title action in terms of the burden of proof of title, notwithstanding that a declaration of title and ejectment of the defendant is the common relief sought in both actions.

7. In an action for declaration of title and ejectment, if the plaintiff can prove that the defendant came into possession as a licensee or lessee under him and that the license or lease was later terminated, the defendant cannot defeat the action of the plaintiff on the ground that the plaintiff is not the owner of the land. In such a situation, the plaintiff can automatically obtain a declaration of title through the operation of the rule of estoppel contained in section 116 of the Evidence Ordinance.

8. A licensor, lessor or landlord need not necessarily be the owner of the property to grant leave and license to, or lease or rent out the property. A person may let immovable property to another wi