JAYALATH VS. KARUNATILAKA

COURT OF APPEAL
H.N.J. PERERA, J.
CA 331/96 [F]
DC KURUNEGALA 3792/L
FEBRUARY 20, 2013
MAY 14, 2013
JULY 25, 2013

Rei vindicatio action - Permit holder - Could a permit holder bring a vindicatory action to eject a trespasser? Issues - Admissions - Party cannot resile from admission of fact? - Subject matter admitted - Identification necessary? - Failure to object to documents?

The plaintiff-respondent filed action seeking declaration of title and ejectment of the defendant the plaintiff being a permit holder. The defendant -appellant contended that, he was in possession for a long period of time and claimed the land on long possession and sought the dismissal of the action. The trial Judge granted the reliefs prayed for by the plaintiff.

On appeal,

Held:

(1) The failure to object to the permit [P1] being received in evidence would amount to a waiver of the objection - defendant deems to have waived any objection to the permit.

(2) The holder of a valid permit is entitled to bring a vindicatory action to eject a trespasser.

(3) The purpose - to raise issues and record admissions in terms of the Civil Procedure Code is in one respect to identify each party's case. In a civil case the parties have the right to admit at any stage of the trial a fact which one has not specifically admitted or even denied in the pleadings.

(4) It is a well established principle of law that parties to a case cannot resile from admissions of fact. While it is some times permissible to withdraw admissions on questions of law, admissions of fact cannot be withdrawn.

(5) In a declaration of title or rei vindicatio action, if the subject matter is admitted no further proof of the identity of the corpus is required; for no party is burdened with adducing further proof of an admitted fact.

(6) If there is no evidence to support a particular conclusion the appellate Court will not hesitate so to decide - but the evidence as a whole can reasonably be regarded as justifying the conclusion at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the Appellate Court will bear in mind that it has not enjoyed this opportunity and that the view the trial Judge as to where credibility lies is entitled to great weight.

APPEAL from the judgment of the District Court of Kurunegala.

Cases referred to:

1. Wijewardane Vs. Ellawala 1991 2 Sri LR 14

2. Ports Authority and another Vs. Jugolinija Boat East 1981 1 Sri LR 18

3. D. P. Palisena Vs. K.K.D. Perera 1954 56 NLR 407

4. Bandaranayake Vs. Karunawathie 2003 3 Sri LR 29

5. Luwis Singho and others Vs. Ponnamperuma 1986 2 Sri LR 320

6. Leisa and another Vs. Simon and another 2002 1 Sri LR 148

7. Uvais Vs. Punyawathie 1993 2 Sri LR 46

8. Mariammai Vs. Pethrupillai 21 NLR 200

9. M. P. Munasinghe Vs. C. P. Vidanage 69 NLR 97

Jacob Joseph for substituted defendants-appellants.

Niranjan de Silva for plaintiff-respondent.

Cur.adv.vult

July 25, 2013
H.N. J, PERERA

The plaintiff-Respondent filed this action seeking declaration of title and ejectment of the defendant from the premises described in the schedule of the plaint. The plaintiff-respondent also prayed for an order of ejectment of the defendant from the corpus and damages.

According to plaintiff-respondent the property described in the schedule to the plaint was a state land, and the plain­ tiff was cultivating the said land since 1970.

The defendant married the plaintiff's sister in the year 1979 and in 1981 with the plaintiff's leave and license came to live in the property in suit and started carrying out a grocery business there. In 1984 the defendant was given a land in Wimalagama by the State and he went to live there. It is the plaintiff's position that in 1985 the defendant informed the plaintiff that he wants to return to the property in suit for a peri