PREMADASA

VS

RATHTHARANHAMY

COURT OF APPEAL
GAFFOR, J
JANAK DE SILVA, J
CA 597/97(F)
DC EMBILIPITIYA NO. 3555/L
MAY 18, 21, 2012
AUGUST 25,30,2017

State Lands Ordinance - Permit - Can a holder of a permit under the Land Development Ordinance maintain a Rei Vindicatio Action which is an action in Rem - Can a declaration that he is the owner be granted? Prescription Ordinance Section 53 - Possessory Action.

The Plaintiff claimed the land on a permit granted to him Under the State Lands Ordinance. He sought a declaration of title adverting ownership and contended that the Defendant is in unlawful occupation of a part of it. The Plaintiff based his claim to be restored to possession on the ownership of the land. The Defendant denied title of the Plaintiff and claimed the land on a permit - given by the State which antedated the permit of the Plaintiff.

The Trial Judge held that the permit to the Defendant is not a valid permit - as it has not been extended after 31.12.1983 - and after holding that, a declaration of title cannot be obtained to a land received from the State on an annual permit - but as the permit is of a permanent nature, granted the declaration sought by the Plaintiff.

on appeal by the Defendant,

The question arose as to whether the Plaintiffs action is a Rei Vindicatio Action and whether Palisena Vs. Perera case is the authority to maintain an action for a Declaration of Title to State Land given to a person in terms of a permit issued under the State Lands Ordinance.

Held:

[1] The action Rei Vindicatio is essentially an action in Rem for the recovery of property, as opposed to a mere action in personam founded on a contract or other obligation and directed against the Defendant personally, wherein it is sought to enforce a mere personal right (in personam) All actions in rem are called vindicatio, as opposed to personal action or conductions.

[2] The Plaintiff has asserted ownership to the land and contends that the Defendant is in unlawful occupation. This indicates that it is an action Rei Vindicatio. it is not a possessory action.

[3] The permit of the Plaintiff issued under the State Land Ordinance permit the permit holder to occupy the relevant state land. It does not transfer title of the state to the permit holder. The Trial Judge has erred in holding that the permit is of a permanent nature although it is referred to as an annual permit. The permit clearly shows that no title was transferred.

[4] An important feature of the action rei vindicatio is that it has to necessarily fail if the Plaintiff cannot clearly establish his title.

Per Janak de Silva

"It is clear that the Plaintiff cannot maintain the action as he has no title to the corpus"

Per Janak de Silva

"The Plaintiff in Palisena Vs. Perera was a permit holder under the land Development Ordinance. He sued the Defendant, whom he alleged as a trespasser for ejectment - Gratiaen J. characterized the action as a "Vindicatory action in which a person claims to be entitled to exclusive enjoyment of the land in dispute. There is no indication that the Plaintiff in that case sought a declaration of title as the Plaintiff in this case seeks to do. I am therefore of the view that the ratio decidendi in Palisena Vs. Perera case does not enable the Plaintiff in this case to maintain an action for declaration of title to the land given to him under a permit issued under the State Lands Ordinance".

Per Janakde Silva

"It was held in Attanayake Vs. Aladin by Weerasekera J." what was decided by Gratiaen J. was that in a vindicatory action the relief of ejectment would only be the consequent to a declaration or vindicatio of the right to possess"

[5] In a Rei Vindicatio action the burden is on the Plaintiff to establish the title pleaded and relied on by him - where he has failed to establish his title to the land sought to be vindicated, the action ought to be dismis