SOLOMON DIAS
VS.
WILLIAM SINGHO AND OTHERS

SUPREME COURT
CHANDRA EKANAYAKE, J.
ROHINI MARASINGHE.J
ANIL GOONERATNE.J
SC AP 155/2011
SC HCCA LA 224/2011
NWP/HCCA/KUR8/2005 (F)
DC Kuliyapitiya 3901/1
February 11, 2015

Rei Vindicatio Action - Burden on Plaintiff to prove the Title - Identification of the corpus - Investigation of title - Prescriptive rights claimed by the Defendant - Prescription Ordinance Section 3 - Essential elements of the plea of prescriptive title ? - Application to read Evidence in abortive trial - Applicability of Section 33 of Evidence Ordinance.

The plaintiff - Respondent filed action seeking a declaration to the property in question and ejectment of the Defendant from the premises. The Defendant contended that, he had prescribed to the corpus. This position was rejected by the District Judge and entered Judgment in favour of the Plaintiff-Respondent. On appeal to the High Court - the High Court dismissed the appeal.

On leave having been granted,

HELD:

(1) It is trite law that Plaintiff should set out his title on the basis on which he claims a declaration of title to the land. The burden rests on the Plaintiff to prove that title.

(2) In a Rei Vindicate action it is highly dangerous to adjudicate on an issue of prescription without first going into and examining the documentary evidence.

(3) There was no application by the substituted Defendant - Appellant to read in evidence as per Section 33 of the Evidence Ordinance - There is no objection vested in the Original Court to consider the evidence in the abortive trial. In fact, it would be misleading and unnecessarily confusing to select and apply items of evidence from the abortive trial merely to match and suit the Appellant's case.

(4) Where a party invokes the provisions of Section 3 of the Prescription Ordinance in order to defeat the ownership of an adverse claimant to immovable property, the burden of proof rests squarely and fairly on him to establish a starting point for his or her acquisition of prescriptive rights.

(5) Mere possession for a period of time cannot give rise to a plea of ouster.

APPEAL from the Judgment of the Civil Appellate High Court of Kurunegala.

Cases Referred to

(1) Wanigaratne Vs. Juwanis Appuhamy 65 NLR 167
(2) Karunadasa Vs. Abdul Hameed 60 NLR 352
(3) Fernando Vs. The Queen 55 NLR 392
(4) King Vs Sudu Banda 47 NLR 183
(5) The King Vs. Punchi Banda 47 NLR 203
(6) Rajapakse Vs. Hendrick Singho 61 NLR 32
(7) Navaratne Vs. Jayatunge 44 NLR 517
(8) Naguda Marikkar Vs Mohammedu 7 NLR 96
(9) Sirajudeen and 2 others Vs. Abbas 1994 2 SLR 365

W. Dayaratne, PC with D.N. Dayaratne for the 1K Substituted Defendant - Appellant - Appellant

Dr. Jayatissa De Costa. PC with Daya Guruge for the Substituted Plaintiff -Respondent - Respondent.

Cur.adv.vult.

April 02, 2015

ANIL GOONERATNE J.

This is an appeal from the judgment of the High Court (Civil Appeals) of the North Western Province. delivered on or about 19.05.2011. Leave to Appeal was granted by this court on 07.10.2011, on questions of law referred to in paragraphs 17 (a), (b), (c) and (i) of the petition of 1K Substituted - Defendant - Appellant - Petitioner, (reference to above paragraphs will be done subsequently) It would be necessary to briefly refer to the facts of the case and to the order made by the Court of Appeal on 02.10.1992, for a trial De Novo, prior to considering the judgment of the said High Court, and the Appellant's case.

The original Plaintiff was one Malani Ranasinghe who filed action in the District Court of Kuliyapitiya in case No. 3901/L for a declaration of title to the land described as lot 2 of "Meegahamulawatta" alias Kongahamulawatta in an extent of about 2 Roods, 37.5/.24 perches and for damages and ejectment of the Defendant - Respondent. Original -Plaintiff's position was that the land in dispute was partitioned on or about 1954 (Plaintiff's grand - father by