CHANDRASENA

Vs.

BANDARA MENIKE

SUPREME COURT
JAYASURIYA, C.J.
SURASENA, J.
AMARASEKARA, J.
SC/APPEAL/20/2010
SC/HCCA/LA/321/09
HC ANURADHAPURA NCP/HCCA/ARP/07/2007
DC POLONNARUWA 2669/L
AUGUST 2, 2019

Ejectment of a trespasser by the permit holder-Land Development Ordinance, sections 2, 19(2), 42-47-Action for recovery of property on the right to possession on a permit-Rei vindicatio action-Cause of action-Civil Procedure Code, sections 5, 6, 35, 188, 217-lssuance and cancellation of a permit

The plaintiff filed this action in the District Court seeking a declaration of title to the land in suit, ejectment of the defendant therefrom and damages, based on a permit issued under the Land Development Ordinance. Although the defendant took up the position that the permit holder was another who had transferred her rights to the defendant, no such permit was produced in evidence. At the trial, neither party raised an issue on the title to the land. What was put in issue at the trial was who had a valid permit to possess and enjoy the land. The District Court held in favour of the plaintiff and on appeal the High Court affirmed it (whilst treating the plaintiff's action as a rei vindicatio action). The defendant appealed to the Supreme Court.

Held:

1. The plaintiffs action is not a rei vindicatio action proper. The Sinhala word found in the prayer is generally used to connote title or ownership to a thing or property, but on certain occasions it is used to connote an entitlement or right. The prayer to the plaint has to be understood in accordance with what has been pleaded in the body of the plaint.

2. In terms of section 2 of the Land Development Ordinance, a permit holder is considered the "owner" if he has paid all the sums he is

required to pay under section 19(2) and has complied with all the other conditions specified in the permit. Such owner can file a rei vindicatio action.

3. The ratio decidendi in Palisena v. Perera 56 NLR 407 is limited to the facts of that case. It is not an authority for the general proposition that any permit holder under the Land Development Ordinance is eligible to file a rei vindicatio action, because every permit holder does not automatically fall into the definition of "owner".

4. In terms of section 2 of the Land Development Ordinance, "permit" means a permit for the occupation of state land issued under chapter IV of the Ordinance; "permit holder" means any person to whom a permit is issued and includes a person who is in occupation of any land alienated to him on a permit although no permit has actually been issued to him.

5. If one gets his right to possession by a statutorily proclaimed process (such as a permit holder who cannot be considered the owner under section 2 of the Land Development Ordinance) and when that right is violated by someone who enjoys and possesses the property, even if it does not fall within the scope of a rel vindicatio action proper or possessory action, sections 5, 35, and 217 of the Civil Procedure Code are sufficient to recognise such violation as a cause of action for the recovery of property without the relief of declaration of title being sought.

6. If title to the property is proved by the plaintiff, the absence of a prayer for declaration of title does not prevent the court from granting the relief for ejectment of the defendant.

7. If an issue is raised on ejectment, the absence of such relief in the prayer to the plaint does not prevent the court from granting such relief (ejectment) against the defendant, provided the plaintiff proves his title to the land.

8. Unless the procedure laid down in chapter VI II of the Land Development Ordinance to cancel a permit is followed, the permit holder is the one who has the right to enjoy and possess the land.

Held further:

9. There is a difference between a rei vindicatio action proper and a declaratio