SUMANAWATHIE VS JAYATHILAKE

SUMANAWATHIE
VS
JAYATHILAKE

SUPREME COURT
WANASUNDERA, PC. J.
ALUWIHARE,PC. J.
SISIRA DE ABREW, J
SC AP27/2013
SCHCCALA 296/2012
CP/HCCA/KAN. 172/2008 (F)
DC KANDY 19585/L
NOVEMBER 24, 2014
DECEMBER 09, 2014
OCTOBER 26, 2015

Rei Vindication Action - Partition Act 16 of 1951 - Section 67 - Partition Law 21 of 1977 - Section 66 - Transfers pending partition - Validity - Proof of Title in a Rei Vindicatio action - Doctrine of Exceptio rei Venditae et traditiae.

Original Plaintiff sought declaration of title to the corpus relying on a Deed written by Sirisena and Welliya (P2) - Deed 933 of 12.02.1980 - where they nave transferred their rights, title and interest that may be allotted to them In Partition Case P/7445. It was further pleaded that one Sethuwa, the Defendant in P/7445 had transferred his right, title and interest that may be allotted to him in the final Decree by Deed 2621 (P1) on 04.08.1975 to the said Sirisena - In the final Decree Lot 4 was allotted to Sethuwa and he by Deed 10839 (D1) transferred same to the Defendant - Respondent and he was placed in possession by Sethuwa. The Plaintiffs also relied on the Doctrine of Exceptio rei venditatae et traditiae. The final Decree was entered on 09.05.1988. The District Court dismissed the Plaintiffs' action which was affirmed by the High Court (Civil Appeal).

On appeal to the Supreme Court,

Held:

(1) The final Decree was entered on 09.05.1988. Sirisena and Welliya executed Deed 933/12.02.1980 which was well before the entering of the Partition Decree, Sirisena had no title to the property.

(2) Sirisena and Welliya were not parties to the Partition Case 7445/P. By the Final Decree Sirisena and Welliya have not been allotted any share of the corpus. The original Plaintiff had not derived title to Lot 4 by Deed 2621 (P1) and Deed 933 (P2).

(3) In an action for Rei Vindicatio, the burden is on the Plaintiff to prove his title.

Held Further:

(4) The Doctrine of Exceptio rei venditae et traditiae cannot be applied to the transfer in Deed 933 (P2) because Sirisena and Welliya, by the said Deed transferred the share that may be allotted to them in 7445/P, as they are not parties to the said case, no share should or would bo allotted to them in the said Partition case - and in fact no share has been allotted to them in the final Decree.

Quarere

The decision in Jayathilake Vs. Somadasa and Sillie Fernando Vs. Silman Fernando?

APPEAL from the Judgement of the High Court of (Civil Appeal) Kandy.

Cases referred to:

1. M.W.A.P. Jayathilake Vs P.G. Somadasa - 70 NLR 25
2. B. Sillie Fernando Vs. W. Silman Fernando - 64 NLR 404
3. Luwis Singho and other Vs. Ponnamperuma - 1996 2 SLR 320
4. Loku Menika and others Vs Gunasekare - 1997 2 SLR 281

Hemasiri Withanachchi with Anuradha Weerakkody for the Substituted Plantiff - Appellant - Appellant.

Chandrasiri de Silva with Nadeera Weerasinghe for the Defendant -Respondent - Respondent

December 10, 2015

SISIRA J DE ABREW J.

The original plaintiff Hangidigedara Thilakaratne who is now dead instituted this action in the District Court of Kandy praying, inter alie, for

1. a declaration that he was the owner of the land described in the schedule B to the plaint.

2. eviction of the Defendant - Respondent - Respondent (hereinafter referred to as Defendant - Respondent) from the said land and damages.

Thilakaratne's wife Sumanawathi has been substituted in the room of Thilakaratne.

The learned District Judge after trial, by his judgment dated 3.3.2008, dismissed the plaintiff's action Being aggrieved by the said judgment of the learned District Judge the Substituted Plaintiff-Appellant-Appellant (hereinafter referred to as the Plaintiff-Appellant) appealed to the Civil Appellate High Court (Hereinafter referred to as the High Court) The High Court, by its judgement dated 14.6.2012, affirming the judgment of the learned District Judge dismissed the ap

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