SRI LANKA INSURANCE CORPORATION

LUCKMANJEE VS. DIAS

COURT OF APPEAL
ABDUS SALAM. J.
CA 606/99[F]
DC COLOMBO 17396/L
MARCH 26, 2012

Rei Vindication action - Subject matter vested in Commissioner of National Housing? - Proof of same - Admission of ownership - Relevancy- Burden of proof? - Misdirection?

The plaintiff -appellant sought a declaration of title to the corpus and ejectment of the defendants there from. The defendant whilst denying the matters urged, pleaded that the subject matter was vested in the Commissioner of National Housing [CNH] in terms of a Gazette Notification and that the CNH has transferred the land in his favour. The trial Court held with the defendant, holding that the plaintiff had not established his title.

Held:

(1) The trial Judge has failed to take into consideration the 4th admission recorded which invariably should have led to the conclusion that the plaintiff was the owner of the premises in suit prior to 13.1.1974.

The trial Judge has totally disregarded the admission of ownership of the plaintiff.

(2) The defendant has failed to prove the documents on which he relied to establish that the property in question has vested in the Commissioner.

(3) In the teeth of the admission of ownership the plaintiff is entitled to obtain a declaration that she sought.

Per Abdus Salam. J

"It appears to me that the learned District Judge has misdirected him­self with regard to the burden of proof and such misdirection has ended

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up in a travesty of justice - since the misapplication of the law has culminated in such a miscarriage. I consider it a paramount duty. arising from the appellate jurisdiction of this Court to set aside the impugned
judgment..."

APPEAL from a judgment of the District Court of Colombo.

Case referred to :-

Siyaneris vs. Jayasinghe 52 NLR 289

Romesh de Silva PC with Geethaka Gunawartlane for plaintiff-appellant.

D.M.G. Dissanayake for defendant-respondent.

September 11,2013
ABDUS SALAM, J.

The plaintiff-appellant (hereinafter referred to as the "plaintiff") filed action against the defendant-respondent (hereinafter referred to as the "defendant") seeking inter alia a declaration of title to the property more fully described in schedule 2 to the plaint, ejectment of the defendant therefrom and damages as prayed for in prayer 'c' to the plaint. The defendant in his answer denied the averments in the plaint and pleaded that the subject matter of the action had vested ·in the Commissioner of National Housing by operation of the Ceiling on Housing Law No 1 of 1973, in terms of the Gazette notification referred to in the answer. He further averred that the Commissioner of National Housing by deed No 16540dated 14 0ctober 1995 transferred the land and premises in question in his favour. Nevertheless, the defendant did not seek a declaration of title in the answer. At the commencement of the trial the following admissions were recorded, to wit that. . .

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1. the defendant is in possession of the subject matter of the action more fully described and set out in schedule 2 to the plaint.

2. the defendant claims title to the said premises described in schedule 2 to the plaint.

3. the court is vested with jurisdiction to adjudicate on the dispute.

4. the plaintiff was the owner of the subject matter of the action prior to 13 January 1974.
 

The plaintiff gave evidence and closed her case producing two documents marked as Pl and P2. The defendant also testified in presenting his case and marked three documents as Dl, D2 and D3 subject to proof. When the case of the defendant was closed the learned President's Counsel for the plaintiff insisted on the proof of D1 to D3 which had been allowed to be produced subject to proof. Yet, the defendant took no steps to prove them. By judgment dated 23 July 1999 the learned Additional District Judge dismissed the plaintiff's action. This appeal has been sought by the plaintiff.

Noticeably, the d

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