AZWER VS. SILVA AND OTHERS

AZWER VS. SILVA AND OTHERS

COURT OF APPEAL
H. N. J. PERERA, J.
CA 261/99(F)
DC 16769/L
JULY 23, 2013

Rei Vindicatio action - Prescription Ordinance, Section 3 - What is possession? - Proof of possession - Payment of rates?

Held:

(1) In a rei vindicatio action the burden is on the plaintiff to establish title pleaded and relied on by him. The defendant need not prove anything.

'An important feature of the action Rei Vindicatio is that, it has to necessarily fail if the plaintiff cannot clearly establish his title.

(2) mode of prescriptive possession - mere general statements of witnesses that the plaintiff possessed the land in dispute for a number of years exceeding the prescriptive period are not evidence of the uninterrupted and adverse possession necessary to support a title by prescription. It is necessary that the witness should speak to specific facts and the question of possession has to be decided thereupon by Court. The occupation of the premises must be such character as is incompatible with the title of the owner.

(3) mere statements of a witness - I possessed the land - we possessed the land - I planted bushes and vegetables are not sufficient to entitle him to a decree under Section 3. Nor is the fact of payments of rates by itself proof of possession.

(4) There must be proof that the defendant's occupation of the premises was such character as is incompatible with the title of the plaintiffs.

APPEAL from the judgment of the District Court of Colombo.

Cases referred to:-

(1) Wanigaratne vs. Juwanis Appuhamy - 65 NLR 168

(2) Leisa and another Vs. Simon and another - 2002 - Sri LR 148

(3) Pieris Vs. Savundahamy - 54 NLR 207

(4) Sirajudeen and others Vs. Abbas - 1994 2 Sri LR 365

(5) Hassan Vs. Romanishamy - 66 CLW 112

G. G. Arulpragasam for plaintiff-appellant.

C. Witharana for defendant - respondent.

September 05th, 2013

H.N.J. PERERA, J.

This was an action fled by the Plaintiff-Appellant in the District Court of Colombo for a declaration of title and ejectment of the 1st, 2nd and 3rd Defendants-Respondents from the premises described in the schedule to the plaint and for damages. By judgment delivered on 25.03.1999, learned District Judge dismissed plaintiff's action.

The case of the plaintiff was that the original owner of the property in the schedule was one S.M. Saleem and the plaintiff derived title from him as pleaded in the plaint. The original owner of the said property, namely S.M. Saleem, rented out the premises to Stephen Silva, the deceased father of the 1st and 2nd Respondents and father-in-law of the 3rd Respondent. In 1975 S.M. Saleem died and by last will and probate obtained from the District Court the said property was duly conveyed by the executrix to his son, S.M. Junaid, by deed marked P1. Although S.N. Junaid succeeded S.M. Saleem to the said property, Stephen Silva's widow failed to

attorn to him and did not pay rent. Subsequently legal action was instituted bearing No 6157/Re to eject Stephen Silva's widow but the action was dismissed for want of appearance by the plaintiff.

S.M. Junaid died intestate and subsequently on 30.03.1994 his heirs by deed of Gift No 173 gifted the said property to the Appellant. The Respondents fled answer and pleaded res-judicata and claimed prescriptive title to the land and premises in dispute.

In D.A. Wanigaratne Vs. Juwanis Appuhamy(1) it was held that in an action rei-vindicatio the plaintiff should set out his title on the basis on which he claims a declaration of title to the land and must, in court, prove that title against the defendant in the action. The defendant in a rei-vindicatio action need not prove anything, still less, his own title. The plaintiff cannot ask for a declaration of title in his favour merely on the strength that the defendant's title is poor or not established. The plaintiff must prove and establish his title.

In Leisa and Another V. Sim

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