SUMANAWATHIE

Vs.

ATTORNEY GENERAL AND OTHERS

COURT OF APPEAL
DE SILVA, J.
FERNANDO, J.
CA/994/2000(F)
DC MONARAGALA 1641/L
APRIL 30, 2019

Rei vindicatio action-Prescriptive title-Requirement of dispossession-State Lands (Recovery of Possession) Act, No. 7 of 1979, sections 12, 13-State reservation-State Lands Ordinance, section 52-Prescription Ordinance, sections 3, 4-Possessory action

The plaintiff filed this action in the District Court against the State naming inter alia the Attorney General and the Divisional Secretary as defendants seeking a declaration of title to the land in suit on the basis that he had acquired prescriptive title by having been in possession of the land for over 35 years, ejectment of the defendants therefrom and damages. The State had successfully filed an action against the plaintiff in the Magistrate's Court under the State Lands (Recovery of Possession) Act, No. 7 of 1979, to evict the plaintiff from the land. The defendant denied that the plaintiff had acquired prescriptive title to the land. After trial, the District Court dismissed the plaintiff's action, and the plaintiff appealed to the Court of Appeal.

Held:

1. While the State Lands (Recovery of Possession) Act provides the State with an expeditious method to recover possession of State land, the Act also provides a safeguard in sections 12 and 13 whereby a person ejected can file a rei vindicatio action against the State within six months from the date of the order of ejectment.

2. Dispossession is a requirement to maintain an actio rei vindicatio under the common law. However, section 12 of the State Lands (Recovery of Possession) Act modifies the requirement for dispossession as it applies to two classes of persons, namely (i) any person who has been ejected from a land under the Act or (ii) any person claiming to be the owner thereof, and also introduces a time limit to file the action.

3. The first part of section 12 of the Act is an attempt by the legislature to provide a person who is not the owner but who was in possession of the land from which he was dispossessed under the Act to institute an action. Such a person cannot file a possessory action, as section 4 of the Prescription Ordinance permitted a person dispossessed otherwise than by process of law to institute proceedings within one year of such dispossession. The eviction under the Act is by process of law.

4. Prescriptive title is a means of defeating paper title and, as such, great caution is required before recognising such title.

5. The Appellant could not have claimed prescriptive title to the subject land in terms of section 52 of the State Lands Ordinance, as no person can claim prescriptive title to a State reservation and the subject land is a reservation along Moragala Oya.

Cases referred to:

1. Latheef v. Mansoor [2010] 2 Sri LR 333 at 350
2. Terunnanse v. Dias 7 SCC 145
3. Pathirana v. Jayasundara 58 NLR 169 at 172
4. Theivandran v. Ramanathan Chettiar [1986] 2 Sri LR 219 at 222
5. Luwis Singha and others v. Ponnamperuma [1996) 2 Sri LR 320
6. Le Mesurier v. Attorney General 5 NLR 65
7. Re Cuno (1889) 43 Ch.D. 12 at 17
8. De Silva v. Goonetileke 32 NLR 217
9. Mansil v. Devaya [1985] 2 Sri LR 46
10. Edrick De Silva v. Chandradasa De Silva 70 NLR 169
11. Seyed Shahabdeen Najimuddin v. Thureiratnam Nageshwari nee Sunderalingam and others (SC/APPEAL/165/2010, SC Minutes of 17.07.2013)
12. Dehiwala-Mount Lavinia Municipal Council v. Fernando and others [2007] 1 Sri LR 293
13. Kirimudiyanse v. Attorney General 48 NLR 438
14. Senanayake v. Damunupola [1982] 2 Sri LR 621
15. Chelliah v. Wijenathan 54 NLR 337 at 342
16. Sirajudeen and two others v. Abbas [1994] 2 Sri LR 365
17. D.R. Kiriamma v. J.A. Podibanda and eight others [2005) BLR 9 at 11

APPEAL from the Judgment of the District Court of Monaragala.

K. Ashoka Fernando for the Plaintiff-Appellant.

Vikum De Abrew, Senior D.S.G., for the Defendant-Respondents.

cur. adv. vult.

Septemb