1951 Present : Dias S.P.J. and Gratiaen J.

PEERIS et al., Appellants, and SAVUNHAMY, Respondent.

S. C. 121-D. C. Chile, 2,596

Actio rei vindicatio-Burden of proof-Boundaries--Statements in deeds between third parties--Evidentiary value-Evidence Ordinance, s. 32-Finding of fact- Power of appellate Court to reverse it.

Where, in an action for declaration of title to land, the defendant is in possession of the land in dispute the burden is on the plaintiff to prove that he has dominium.

For the purpose of identifying the land in dispute, statements of boundaries in title deeds between third parties are not admissible under section 32 of the Evidence Ordinance.

A finding of fact may be reversed on appeal if the trial Judge has demonstrably misjudged the position.

APPEAL from a judgment of the District Court, Galle.

H. V. Perera, K.C., with H. W. Jayewardene and J. W. Subasinghe, for the defendants appellants.

A. L. Jayasuriya, with E. A. G. de Silva, for the plaintiff respondent.

Cur. adv. vult.

208

April 26, 1951. DIAS S.P.J.-

In this case the plaintiff seeks to vindicate title to an undivided 1/6th share of a land which she calls Godellewatta, or Godaparagahawatta, or Edogewatta, in extent about 2.5 acres. She has no title deeds for her share, and her claim is based entirely on prescriptive possession. She sued the three defendants who are brothers. The 1st defendant put the plaintiff to proof of her title, asserting that he and his predecessors in title had been in exclusive possession of the land in dispute for a period of over a century. He produced a deed 1D1 of 1842 and a deed 1D2 of 1945. The other defendants make no claim to the land.

In her plaint, dated July 8, 1946, the plaintiff asserted that she was ousted by the three defendants " about three months ago ", i.e., about April 8, 1946.

In the course of her evidence the plaintiff stated on oath : " The defendants disputed my title to this land about one and a half months before I filed plaint, but I cannot remember the exact date. Before this dispute the defendants did not possess this land ". It will be observed that this evidence is in the teeth of the ouster pleaded in the plaint. It is clear that the ousters pleaded by the plaintiff are fictitious. She produced two documents P6 and P6A.

P6 is an extract from the local headman's diary where the complaint made by the plaintiff of this alleged ouster has been recorded. P6 shows that on June 25, 1946, the plaintiff appeared before the headman and stated " that the above named defendants are in forcible possession of the land Godellewatta alias Godaparagahawatta . . . . for a period of about a year ". P6A is to the effect that the headman proceeded to the land and questioned the 1st defendant who denied the alleged ouster and claimed that he had been in possession of the land in dispute for ten years. There are two significant points which emerge from P6. In the first place, the ouster pleaded by the plaintiff is proved to be false from her own document. The alleged ouster did not take place in April, 1946, but for about one year prior to June 25, 1946, the defendants had been in forcible possession. In the second place, it will be observed that, while the plaintiff's whole case at the trial was that the land originally belonged to a man called Edo and the land was therefore called Edogewatta, she did not give that name to the headman in P6.

When these facts transpired the trial had proceeded for a considerable time. The plaintiff moved to amend her plaint for the second time paying costs. Accordingly, an amended plaint was filed on November 5, 1948, where it is asserted that the ouster took place " on or about the 25th day of June, 1945 ".

This being an action for declaration of title to land, and the defendants being in possession, the burden lay on the plaintiff to prove that she had dominium, to the land in dispute-see Abeykoon