JAMALDEEN ABDUL LATHEEF AND V. ABDUL MAJEED MOHAMED MANSOOR AND ANOTHER

JAMALDEEN ABDUL LATHEEF AND
V. ABDUL MAJEED MOHAMED MANSOOR AND ANOTHER

SUPREME COURT
J.A. N.DESIVLA, C.J.,
SALEEM MARSOOF, P.C., J., AND
P. A. RATNAYAKE, P. C. J.,
S.C. APPEAL NO. 104/2005
S.C. (SPL.) LA NO. 5/2005
C.A. NO. 908/94(F)
C. A. ANURADHAPURA CASE NO. 12863/L
MARCH 18TH,2 009
JULY 30TH,2009

Civil Procedure Code - Section 154(1) - Tender of documents in evidence - Wow a document marked subject to proof is to be proved. - admissibility of documents - explanation to Section 154(1) of the Civil Procedure Code - Evidence Ordinance - Section 85 - presumptions as to power of attorney - Sections 67 to 72 -proof of documents which are not required by law to be attested - Sections 45 to 51 opinion of third persons when relevant - Notaries  Ordinance - Section 31 and 33.

This appeal arises from an action for declaration of title filed in the District Court of Anuradhapura by the petitioner -  respondent respondents,  (Respodents) who claimed title to a four acre land named  Paluguhakumbara" descibed in the schedule to the joint petition filed  by the respondents. The Respondents sought a declaration of title in their favour and a permanent injunction to restrain the Appellants and their servants or agent from disturbing the Respondents and their agents, workers, servants etc. from working on the paddy field.

    The defendant -appellants - appellants (Appellants) disputed the title of the Respondents and attempted to prevent the Respondents and cultivators and servants or workers from working on the paddy fields which form part of the land in question. It is noteworthy to mention

that neither the Respondents nor the Appellants had sought any order of ejectment in their respective petition and answer.

    In the District Court, the Learned District Judge entered the judgment in favour of the Respondents. By its judgment dated 1.12.2004, the Court of Appeal has affirmed the decision of the District Court, observing that the land claimed by the dependents (defendant- appellants - appellants) is the same land which is described in the schedule to the plaint (petition).

The Supreme Court granted special leave to appeal on the following questions.

1. (a) Is the power of Attorney produced marked P7 proved ?

(b) Does the Deed produced marked PI operate to convey the title of Mohideen Abdul Cader, to the Respondents?

(c) If not, was the Court of Appeal err in holding that the Learned District Judge has correctly arrived at the finding that the Respondents has established title to the subject matter of the action?

2. Did the Court of Appeal err in failing to consider that the Learned District Judge had not duly evaluated the evidence on the question of prescription?

3. Has the issue regarding the validity of the Power of Attorney marked P7 and the deed produced marked PI, been raised for the first time in the Supreme Court at the stage of application for leave?

4. Are the Appellants entitled to take up the said issue at the stage of application for Special Leave to Appeal?

5. Is it mandatory to read the documents in evidence of the Respondents at the conclusion of the trial?

Held

(1)Applying the test of roof of document that was not required by law to be attested, as there was no prima-facie evidence to prove its authenticity, the question of its admissibility did not even arise.

(2) There is no provisions in the Civil Procedure Code that mandates the reading in of the marked documents at the close of a case of a particular party. However, the learned and experience Counsel who appeared in the original Civil Courts in Civil cases from time immemorial developed such a practice, which has received the recognition of Sri Lankan Courts.

    Saleem MarsooJ; J. cited with approval the following passage of Samarakoon, C.J., in Sri Lanka Ports Authority and another us. Jugolinija - Boat East 18 at 23 to 24.

    "if no

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