RANMENIKA AND OTHERS

Vs.

PERERA

COURT OF APPEAL
J. DE SILVA, J.
CA/858/97/F
DC KURUNEGALA 4292/L
JANUARY 25, 2019

Rei vindicatio-Proof of title-Identification of the land-Failure to answer issues-Civil Procedure Code, section 187-Proviso to Article 138(1) of the Constitution

The plaintiffs filed action in the District Court seeking a declaration of title and ejectment of the defendant from the land described in the schedule to the plaint and the demarcation of the boundaries-between the plaintiffs' land and the defendant's land. After trial, the District Court dismissed the plaintiffs' action on the ground that the plaintiffs had failed to prove title to the land and the identification of the land. On appeal, the main contention of the plaintiffs was that the District Judge failed to answer all the issues and therefore the judgment cannot be allowed to stand.

Held:

1. The action for declaration of title is the modern manifestation of the ancient rei vindicatio action. To succeed in an action rel vindicatio, the owner must prove on a balance of probabilities not only his

ownership of the property, but also that the property exists and is clearly identifiable. The plaintiffs have failed in both.

2. Even if a trial judge has failed to answer all the issues raised, the judgment need not be reversed if such error, defect or irregularity has not prejudiced the substantial rights of the parties or occasioned a failure of justice. One such instance is where, upon a close examination of the totality of the evidence, it is found that the District Judge is correct in pronouncing the judgment.

3. The constitutional provisions found in the proviso to Article 138(1) of the Constitution prevail over section 187 of the Civil Procedure Code.

Cases referred to:

1. Latheef v. Mansoor and another (2010] 2 Sri LR 333
2. De Silva v. Goonetileke 32 NLR 217 at 219
3. Pathirana v. Jayasundara 58 NLR 169 at 172
4. Mansil v. Devaya [1985] 2 Sri LR 46 at 51
5. Peeris v. Savunhamy 54 NLR 207
6. Abeykoon Hamine v. Appuhamy 52 NLR 49
7. Thirunayake v. Fernando (SC/APPEAL/188/2009, SC Minutes of 07.03.2014)
8. Dona Lucihamy v. Ciciliyanahamy 59 NLR 214
9. Warnakula v. Ramani Jayawardena [1990] 1 Sri LR 206
10. Suduwage Mulin and others v. Godallawattage Somawathie (SC/APPEAL/162/2012, SC Minutes of 29.06.2017)
11. Gunasena v. Kandage and others [1997] 3 Sri LR 393
12. Victor and another v. Cyril De Silva [1998] 1 Sri LR 41
13. Ponna v. Muthuwa 52 NLR 59 at 60
14. Leelawathie Hamine and another v. Gnanasiri [1989] 1 Sri LR 322
15. Jacolis Appu v. David Perera 69 NLR 548
16. Deeman Silva v. Silva and others [1997] 2 Sri LR 382
17. Alfred Fernando v. Julian Fernando [1987] 2 Sri LR 78
18. Ekanayake v. Ekanayake 63 NLR 188
19. Somawathie and others v. lllangakoon [2013] 1 Sri LR 94

APPEAL from the Judgment of the District Court of Kurunegala.

Anuradha N. Ponnamperuma for 1A to 1D, 2A to 2B and 3rd Plaintiff- Appellants.

Chula Bandara with Gayathri Kodagoda for the Defendant-Respondent.

cur. adv. vult.

May 3, 2019

J. DE SILVA, J.

This is an appeal against the judgment of the learned District Judge of Kurunegala dated 29.10.1997.

The original plaintiffs in the above styled action prayed for a declaration of title to the land more fully described in the schedule to the plaint referred to as Bambaragalawatta and Kumbura in extent one amuna and five lahas of paddy sowing and for the definition of boundaries between the lands owned by them and the Defendant-Respondent (Respondent).

The original plaintiffs claimed that they were the owners of the land in dispute having inherited it on the death of their father S.M. Kirimudiyanse. According to them it was earlier owned by S.M. Kirimudiyanse and his brother S.M. Herath Banda and later due to a family arrangement possessed in the entirety by the said S.M. Kirimudiyanse who became the owner of the whole corpus. They also alleged that the Respondent had removed the fence situated on