Wednesday, April 4, 2012

REI VINDICATIO AND POSSOSSORY ACTIONS -SOURCE W.Rjapakse PC -some authorities can be viewed


Rei vindicatio or, reclame is the action which arises under the heading of the property law. It lies for the owner of anything movable or immovable, corporeal or incorporeal, against the possessor or any person who has mala-fide divested him of the possession to deliver it up to the owner with all its fruits then in existence and those which the mala-fide possessor has already enjoyed or might have enjoyed under the deduction, however, of the costs and charges of the possessor in the thing (V.d.L 1. 7. 3).
As Voet says this action arises from the right of dominium.
By this we claim specific recovery of property belonging to us put possessed by someone else (Voet. 6.1.2). The fact that the plaintiff never had the possession of the property is no bar to this action nor is it a bar that the plaintiff's vendor had no possession {Voet. 6.1. 3). This was accepted in the case of Punchi Hamy Vs. Aranolis (5 S.C.C. 160).
The execution and the delivery of a conveyance if the vendor had the title to the land conveyed, transfers the title thereto to the purchaser, and by virtue merely of the title so created, the purchaser may maintain an action seeking for a declaration of title against a third party in possession without title or under weaker title. This was adopted in the case of Appuhamy Vs. Appuhamy (3 S.C.C. 61).
As Voet says the claimant should have acquired dominium before the commencement of action (Voet. 6.1.4). If the claimant has the dominium at the commencement of the suit but loses it during its progress, the defendant is entitled to be absolved.
In the case of Mudalihamy V.?. Appuhamy (1 C.L.R. 67) Bernside C.J. held that in an action for ejectment where the plaintiff was proved to have been in bona-fide possession of the land at the time of ouster the burden lies on the defendant to prove that he is the owner of the land and in the absence of such proof the plaintiff is entitled to judgement without proof ofhis title.
Those were decisions before the enactment of the Evidence Ordinance No. 14 of 1895.
Section 110 thereof reads as follows:
"When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
2. Purchaser's right to bring a rei vindicatio action

A person who purchases a property is entitled to have the vacant possession of the property he purchased. The vendor is understood to deliver vacant possession when he makes such delivery of the things sold that it cannot be reclaimed by another person (Voet. 19.1.10). Under the Roman Dutch law full title is vested in the purchaser as soon as the conveyance is executed and delivered to him. As decided in Appuhamy Vs. Appuhamy (1880 (3) S.C.C. 61) delivery of the construed ve possession has been held to be a sufficient delivery of possession. The purchaser should first sue the party in possession; and it is only if he fails in that action, he has a cause of action against the vendor. A sale cannot be rescinded on the ground of failure to deliver possession.
The vendee can insist on getting effective possession and if the vendor is unable to give such possession an action lies against the vendor for rescission of the contract and for damages. The action de evictione only arises when the vendee is put in possession and he has been evicted by a third party. Van Leeuwan says that the vendor is bound to give possession of property free from all encumbrances to the bona fide purchaser. It applies whether the thing sold be movable or immovable.
As it was held in Don Andris Vj. Ilangakoon (1857 (2) Lor. Rep. 49) that the execution and delivery of a conveyance of land in conformity with of frauds the statute confers the dominium on the purchaser, and so gives him a title to maintain an action against a third party in possession without or under a weaker title. Voet says that the possession means the vacant possession unmolested by the claims of any other person in possession.
In Ratwatte Vs. Dullewe (10 N.L.R. 304) a full bench of the Supreme Court considered the legal position relating to the possession to be delivered to the purchaser in a sale transaction. In that the defendant who was the administrator of the estate of the late W.A. Dullewe Adigar, put up for sale by public auction in 1905, certain premises belongirtg to the estate. One of the conditions of the sale was that the purchaser should be placed in possession of the said premises on payment of the full purchase money. At the sale the plaintiff became the purchaser of the premises, and he paid to the defendant the whole of the purchase money and also the auctioneer's and notaries charges. One D. W. Dullewe, a nephew of the deceased was in possession of the premises claiming title under a verbal gift from the deceased, and the defendant was unable to put the plaintiff in possession of the premises. The plaintiff in 1906 instituted the action for rescission of the sale and for refund of the purchased money and other charges paid by him. The District Court held in favour of the plaintiff and the defendant appealed against the said judgement.
In that the Supreme Court decided that apart from any express agreement, a vendor of immovable property is bound to deliver vacant possession (i.e., possession unmolested by the claim of any other person in possession) of the property sold to the vendee; on his failure to do so, the vendee is entitled to a rescission of the sale and a refund of the purchased money. The vendee is not obliged, in such circumstances, to sue the party in possession before proceeding against his vendor. A vendee of immovable property is not bound to accept delivery of the deed of transfer as sufficient delivery of possession of the property; he is entitled to ask his vendor to place him in actual possession. Where the question is between a purchaser and a third party, the delivery of the deed of transfer is sufficient to entitle the purchaser to maintain an action, as owner, against such third party.
As laid down in the Censura Forensis the vendor in case of eviction is under an obligation to the purchaser, if the thing should be lawfully claimed by anyone, defend him, or see that he is defended, against the person coming and claiming his property. It further says that;
"In order, however, that the vendor should be liable to the purchaserin ease of eviction, whenever any one sues for the thing bought, the purchaser should give notice of the suit in time to his vendor, in order that the latter may defend and protect him. And if this notice is not given, no redress will be given him against his vendor, unless the right of the person claiming the thing is noticeable; and it appears that the vendor had no right, or the purchaser undertakes to prove this, in which case, even if notice is given, no redress is given the purchaser against the vendor."
In Babaihamy Vs. Danchihamy (16 N.L.R. 245) Wood Renton J. observed that if a vendor does not give vacant possession to the purchaser, the purchaser would not be under any obligation to take preliminary steps against the persons who had ousted him, or to give to his vendors notice to warrant and defend the title which they had purported to convey, but would have an immediate right of action against them for their failure to implement the primary obligation of the contract of sale. On the other hand, if vacant possession was given, the first duty of the purchaser who had been ousted by third parties would be avail himself of the remedy which the law gives him against such parties, and thereafter, when he had suffered judicial eviction, to call upon his vendors to warrant and defend title.
The acceptance by a purchaser of a compromise in an action brought by him against third parties who had ousted him would throw on the purchaser himself the burden of showing that the settlement arrived at was the best thing that could be done under the circumstances with which he had to deal.
In Silva Vs. Silva (16 N.L.R. 315) the land in question belonged to five persons, who by a deed, leased it to the defendant. Two of the owners, by a deed sold their two-fifths share to the plaintiff, but did not expressly assign to him their interests in the lease. The question involved in the case was whether the plaintiff is entitled to recover a two-fifths share of the damage sustained by the owners by reason of a breach by the defendant of ccrtain covenant in the lease.
The Court considered Roman Dutch law principle "hire goes before sale" (Gmt. 3.19.16; V.L 4.2/.7J Wille on "landlord and Tenant in South Africa" (page 221) says;
"A purchaser from a landlord of the property leased steps into the shoes of the landlord, and receives all his rights and becomes subject to all his rights, his obligation, so that he is bound to the tenant, and the tenant is bound to him, in relation of the landlord and tenant."
"Hire goes before sale" is a maxim of our law, and purchasers of, and persons succeeding to the possession of landed property are bound by the leases made by the vendors."
De Sampayo J. in recognizing the said concept of Roman Dutch law and South African law too went on to state that where a land is sold by a person who has already leased it, the vendee succeeds to all the rights of the vendor on the lease without a special assignment of it by the latter to the former.
In Balasuriya Vs. Appuhami (17 N.L.R. 404) Percira J. concluded that it is competent to a purchaser of land, although he has not been placed in possession of the land sold by the vendor, to sue a trespasser in ejectment calling upon the vendor to warrant and defend title, and if defeated in the action, to sue the vendor for damage. The damage might in such a case include the costs of the abortive action.
Where a defaulting debtor or obligor is not guilty of fraud, but his failure to perform his obligation is due to lack of caution or to imprudence, moderation should be exercised in the assessment of damages. Where a certain sum is claimed as damage against a certain number of defendants jointly, and as against some of them the claim is dismissed, the whole amount claimed cannot be recovered from the rest without at least an amendment of the claim.
In Siriattu Vs. Ran Menika (18N.L.R. 501) the defendants sold to plaintiff a field described in the plaint for sum of Rs.800/-, covenanting in their deed of agreement that the property was free from all encumbrances. It was, in point of fact, subject to a usufructuary mortgage, and the plaintiffs were unable to obtain a physical possession of the lands. They claimed the alternative that vacant possession should be given or that the purchasp nf money should be returned and damages paid. The District Judge ordered the defendant to give possession to the plaintiffs and to pay Rs.200/- as damages, and in default of giving possession, to repay the purchased money and pay Rs.200/- as damages. An appeal was brought against to the said judgement.
In the appeal Shaw J. coming to the conclusion that under the Roman Dutch law where a land is sold, even with a covenant against encumbrances, and a servitude is found to exist, it does not give to the purchaser a right of rescission of the contract, but a right of damages only as vendor is bound to make full and free delivery of the thing sold in order to do this the purchaser should be put in actual possession (Ratwatte Vs. Dullewe (10N.L.R. 304); Van Leeuwan 4, 19, 1; Voet 19. 1. 10; Maasdorp 152). According to Van Leeuwan, where an existing servitude or encumbrance has not been mentioned in the sale of the property the purchaser is not entitled to cancel the sale (V.L. 4. 19. 5; Voet 19. 1. 6).
Wood Renton C.J. and Shaw J. held (over-ruling the objection that the existence of such an encumbrance was not a defect in the thing sold, and constituted no ground for the rescission of the sale, but merely entitled that purchaser, on paying off the mortgage, to recover the amount and incidental expenses as compensation from his vendor), that the plaintiffs were entitled to a rescission of the sale.
In Ratnayake Vs. Asiyath Ummu (45 N.L.R. 463) plaintiff sold five allotments of land to the defendant by deed wherein she acknowledged receipt of the entire consideration. The evidence showed that the sale of the second and third lands was not dependant on the sale of the remaining lands and that an amount representing the purchase price of the second and third lands was retained in the hands of the vendee until the title to those is "cleared and peaceful possession delivered over." Wijeyawardena J. held that it was open to claim a rescission of the sale of the second and third lands alone on the ground that he had not been given vacant possession.
In Dharmasena Vs. Alles (1985 (2) S.L.R. 35) the plaintiff sued the Is* defendant for declaration of title to certain lots of a land partitioned by a final decree of Court. While conceding 'paper' title in the plaintiff, the 1" defendant's position was that his father had prescribed to the disputed lots. The 1" defendant did not claim title to these lots from his father.
G.P.S. de Silva J. said that a party to a suit cannot under section 3 of the Prescription Ordinance set up a title of a third
party who is not his predecessor in title and who has not been joined in the action. The judgement in a case must be declaratory of the right of the party to the suit not of a stranger.
In Luwis Singho Vs. Ponnamperuma (1996 (2)S.L.R. 320) it was raised in issue whether the plaintiff could maintain a rei vindication action in respect of a property which belongs to a third party who is not a party to the case .The Court dismissed the plaintiff's action for the reason that;
(a) die plaintiff in an action in a declaration of
title and ejectment must prove his title and his
right to possess.
(b)  the defendant need not to do so and if the plaintiff fails on balance of probabilities the defendant would succeed.
(c)   under the Roman Dutch law principle of jus tertii the plaintiff must not only prove a better title but also a title better than any known to the defendant. In Sri Lanka too by raising jus tertii the defendant could rebut the title set up by the plaintiff and assert that title is neither with the plaintiff nor defendant but with a third party.
In appeal to the Court of Appeal, Vigneswaran J. concluded by holding that,
1,                                   Action for declaration of title and ejectment and vindicatory actions are brougnt for die »aun, purpose of recovery of property. In a rei vindicatio action the cause of action is based on the sole ground of violation of the right of ownership, in such an action proof is required that;
(i) the plaintiff is the owner of the land in question i.e. he has the dominium and,
(i i) that the land is in the possession of the defendant.
Even if an owner never had possession it would not be
a bar to a vindicatory action.
2.                                   In action for declaration of title and ejectment the proof that a plaintiff had enjoyed an earlier peaceful possession and that subsequently he was ousted by the defendant would give rise to a rebuttable presumption of title in favour of the plaintiff and thus could be classified as an action where dominium need not be proved strictly.

"In an action for declaration of title and ejectment the plaintiff need not sue by right of ownership but would do so by right of possession and ouster. In fact in such a ease the plaintiff is laiming a possessory remedy other than the relief of vindication of ownership".
"While refusing to accept the submission that jus tertii as a defence in vindicatory actions is not available under our law, it must be admitted that jus tertii as a defence in cases filed for declaration of title and ejectment based on the provisions of section 3 of the Prescription Ordinance would not be available if the third party is not a predecessor in title or has not been joined in the action".
3.                                   Even if the principle of jus tertii be part of the law of this country in appropriate rei vindicatio actions it is not relevant in respect of cases filed in terms of latter part of section 3 of the Prescription Ordinance in the form of declaration of title and ejectment.
4.                                   It would appear that law permits a person who has possessed peacefully but cannot establish clear title or ownership to be restored to possession and be quieted in possession. This development of the law appears to have arisen due to the need to protect de-facto possession, it is different from the right of an owner recovering his possession through a
In Ghani Vs. Nadaraja (1997 (2) S.L.R. 337) one "A" had sold and conveyed the land in dispute by "PI", to the plaintiff for a sum of Rs.300,000/=. According to the attestation clause Rs.50,000 had been paid to the vendor and the balance was secured by a mortgage bond, "P3." On the same day the appellant and "A" entered into an agreement, "P2"; by which it was agreed that if the balance consideration was not paid on or before a certain date the deed shall be null and void, and it was further agreed that the premises which were sold to the appellant by "PI" shall revest in the vendor "A" absolutely.
The balance consideration was not paid. A conveyed "Dl" the land to "S", on who's death it devolved on his wife and children, and they by D2 conveyed the premises to the defendant. The District Judge held in favour of the defendant and dismissed the plaintiff's action on the ground that PI, P2, P3 formed one transaction and that the plaintiff did not have title to the land. On appeal the Court had considered Roman Dutch law authorities referred to below;
Maasdorp's "Institute of South African Law- Law of Things" Cvolume II, S"1 edition, page 185) says that,
"pactum commissarium is an agreement that if the debt is not paid within a certain time the creditor can retain as his own the thing pledged for the debt and that such an agreement has been held to be illegal."
Lee on "Roman Dutch Law" (5'h edition, page 200)
Says that; where it sets out that an agreement for forfeiture in the event of non payment is not permitted.
Wille on "Principles of South African Law" (7** edition, page 243) reads thus, "An agreement that on the mortgagor's default the mortgagee keeps" the mortgaged property known as pactum commissarium, is absolutely illegal, as been harsh and replete with injustice, but there is no objection to an agreement that mortgagees may take over property at a fair valuation."
The Court had relied upon the Privy Council decision of Saminathan Chetty Vs. Vander Poorten where the Privy Council observed that;
"the policy of the Roman Dutch law being the law which governs in Ceylon, so far at any rate as this case is concerned appears to be against allowing the mortgaged property to become the property of the creditor if the mortgage debt is not paid off within the specified time."
So far as Ceylon is concerned in the case of Siribohamy Vs. Rattaranhamy (1 C.L.R. 36) the Court has held that the benevolence of the Roman Dutch law towards the mortgagor is not less in Ceylon than it is in South Africa.
Edussuriya J. taking into consideration the said principles and decisions, held that; pactum commissarium is an agreement that if the debt be not paid within a certain time the creditor can retain as his own the thing pledged for the debt. Under the Roman Dutch law an agreement for forfeiture in the event of non-payment is not permitted. Therefore the agreement P2 is illegal and of no force or avail in law. Although P2 is illegal, the mortgage bond P3 has still not been discharged. Therefore deeds Dl, D2 do not operate as sales but as assignments of the mortgagee's rights under P3 firstly to S by Dl which also refers to the illegal agreement P2 and then to the defendant respondent and the plaintiff appellant is entitled to redeem the premises on the payment of the balance sum (without interest^

REI V1ND1CAT10 ACTIONS
3. Subsequent acquisition uf title

Under the Roman Dutch law a purchaser could defend his possession in a suit where he acquired title subsequently. Voet recognized this principle of plea de exceptio rei venditae et traditae (Voet 21. 3. 3). With reference to what was said by Voet Berwich's translation (at page 531) states that;
Section 1:- Since on the confirmation of the right of an alienation (which was defective at the time of the alienation) the originally defective right of the alienee becomes confirmed from the very moment that the vendor acquired the dominium; and therefore the dominium, from that time annexed to the original purchaser could not be taken away from him without his own act or consent; hence he has the right of sueing his vendor or a third party-possessor on account of the loss of his possession, and of defeating his opponent's plea by the replication of ownership.
Section 2:- But if the purchaser still possess the thing, and the same persons that are liable to be sued (by him) in respect of (its) eviction bring an action to evict the property from him, it is in his discretion, whether he will suffer eviction and afterwards, when it has been taken from him, sue the successful party by the action ex stipulatio in duplum, or by the action exempto for the id qod interest (damages), or whether he will prefer to keep the property and repel his vendor and other like persons seeking to evict him either by the exceptio rei venditae et traditae or by the exceptio doli.
Section 3:- This plea may be opposed, not only to original vendor, but to all those who claiming under him endeavour to evict a thing from the first purchaser; such as those to whom the vendor has again alienated the same thing, whether by an onerous or lucrative title after he became owner (i.e.; after he acquired the dominium which he did not have when he first ;;cld it).

This legal principle was considered by Ennis J. in Rajapaksa Vs. Fernando (20 N.L.R. 30J). It was a case where A without title sells to B, and A subsequently acquired title, the title enures to the benefit of B, without a further deed from the vendor. (Don Carolis Vs. James and Mohamed Bhoy Vs. Lebbe Maricar dissented from.) C, when he had no title (in 1909), sold a piece of land to M and S, through whom defendant acquired title in 1915 and went into possession. The deed of 1909 was registered in folio F 68/253. C obtained a Crown grant in 1912, and the property was sold in execution against him, and purchased in 1916 by plaintiff's predecessor in title. The Crown grant was registered in a different folio, without reference to the previous registration. The Court held that defendant's title was superior.
In Gunatilleake Vs. Fernando (21 N.L.R. 257) full bench of the Supreme Court has extensively considered the legal position in relation to exceptio rei venditae et traditae. It was a case where the plaintiff filed action for declaration of title to two contiguous allotments of land which admittedly belong to one Maria. She gifted the land to her son Swaris, subject to the following conditions namely;
2.                                   That if Maria was alive when Swaris attain 20 years of age, he was not to sell, mortgage, or alienate the property during her life time.
3.                                   That if Maria died before Swaris attain 25 years of age, then Swaris was not to sell, mortgage or alienate the property until he arrived at the age of 25 years.
4. That if Swaris dies without issues, the land was to devolve on his two brothers Stephen and Nicholas or their lawful issue, subject to the life interest in favour of Maria.
Maria and Swaris in 1893 sold the land to D.J. Fernando. Nicholas and Stephen sold the land to one Don Cornells, who by a deed of transfer, sold the land to Charles Ferera. Charles Perera died leaving a will by which he appointed James Perera as his heir and executor. James Perera died leaving a will by which he appointed the plaintiff as his executor.
The Plaintiff based her title on deed executed in 1923 by Nicholes and Stephens. Swaris had died in 1896, having attained 25 years of age in 1891. Maria died in 1916.
The defendant denied that Nicholas and Stephen had title to convey when they executed in favour of Don Caronelis and claimed title to the land by virtue of the deed executed by Nicholes and Stephens in his favour in 1913 and the deed executed by Maria and Swaris in favour of D.J. Fernando had under the deeds and devolved on the defendants.
Trial Judge had dismissed the plaintiff's action. In appeal to the Supreme Court the Court had cited Voet who says that the Roman Dutch law permits the sale of an expectancy (Voet 18.1.13). The pica of except rei venditae et traditae is not open to a plaintiff, it can only be set up by defendant.

As it was decided in Wakista Vs. Munasinghe (1913 (2) Matara Casesl56) it is not available to a person who is not in possession, and cannot be set up against a subsequent purchaser from the vendor (Voet 21, 3. I). This principle had been followed in the judgement of Mohammed Bhoy Vs. Lebbe Maricar (15 N.L.R. 466) and Rajapakshe Vs. Fernando (20 N.L.R. 301). Finally the full bench of the Supreme Court in considering the said judgment held that where a vendor sells without title, but subsequently acquires one, this title accrues to the benefit of the purchaser and those claiming through him from the moment of its acquisition by the vendor. This principle of the Roman Dutch law
(a)                                 Is not abrogated by Ordinance No. 7 of 1840
(b)                                 Is not available only as a dcfcncc, but can also be made the foundation of the action
(c)                                 Is not, in the latter case, limited to action brought for the recovery of a lost possession.
But De Sampayo J. held that what passes to the purchaser is not an actual title, but a right, if defendant, to protect himself by an equitable exception, or, if plaintiff, to recover the property by an action based on a legal fiction.
De Sampayo J. decided further that this principle cannot be asserted against a bona fide purchaser for value. (This question was reserved by Bertram C.J.).
Maria conveyed a property to her son Palis, subject to a fidei commissum in favour of her sons Stephen and Nicholes, if he died without issue, and subject to a life interest to herself. It was contemplated by the deed that, notwithstanding \he fidei commissum, Palis should have a free power of disposition of the property during his lifetime after attaining the age of 25, subject to his mother's life interest. Stephen and Nicholas, before their title as fidei commissaries accrued, sold the property to A. After their title accrued they gifted the same property to F. It was decided that F acquired no title <k those claiming through A. Bertram C.J. held that Maria having created a specific trust in favour of Stephen and Nicholas could not defeat their rights by joining with Palis in a conveyance of the property.
The said judgement was canvassed in the Privy Council and Lord Phillimore pronouncing the decision of the Privy Council (Gunatilleke Vs. Fernando, 22 N.LR. 385) went on to state that under the doctrine of Roman Dutch law, exceptio rei venditae el traditae, the purchaser who had got possession from a vendor, who at the time had no title, could rely upon a title subsequently acquired by the vendor; not only against the vendor, but against any one claiming under the vendor, and though delivery was a part of the defence, if the purchaser had acquired possession without force or fraud, he could use the exception, though he had never received actual delivery from the vendor. If he had oncc been in possession without force or fraud, and had since lost possession, he could recover it by the paulian action, using the exception as a replication to any defence set up by the vendor or those claiming title under him. Under the English doctrine of conveyance by estoppel, the estoppel is derived from the recitals of title contained in the conveyance, and it is these recitals, and these only, which the grantor has to make good, so that if he subsequently acquires the ownership of the property by some other title, the subsequently acquired interest does not feel the estoppel so as to make the original conveyance effective as against a third party. Though there is a considerable analogy between the doctrine of the English Law and the Roman Dutch law. the iwu doctrines are not identical, the Roman Dutch principle does not rest upon estoppel by recital, and is broader in its effect than the English rule. Under our law there need not be actual delivery, traditio, in the Roman or Roman Dutch sense for the consummation of the sale of immovable property. If, therefore, the earlier sale is accompanied, followed, or evidenced by certain acts which may be deemed equivalent to the Roman traditio, that sale will prevail though the first purchaser may never have been in possession. Section 48 of the Land Acquisition Ordinance, No. 44 of 1917, has no retrospective action. Under the Roman Dutch law a vested interest in remainder can be alienated. Similarly, an alienation of a contingent interest is not prohibited, and an instrument purporting to alienate such an interest is not null and void.
In Edoris Vs. Adrian (21 N.LR. 124) in 1906 the plaintiff not being owner sold to the first intervenient certain undivided shares in a field. The plaintiff described his title as by right of paternal inheritance and possession. In 1907 and 1914 the plaintiff acquired certain undivided shares in the field, which were nearly equivalent to what he had sold to first intervenient in 1906. The second intervenient claimed these shares by virtue of a Fiscal's sale (and transfer) on a writ against plaintiff in 1917. Schneider J. held that the first intervenient had better title, as the subsequent acquisition of title by the plaintiff enured to the benefit of the first
internment The kt tW \k vendor in tMs ease described the title he conveyed in 1906 as by inheritance and possession and his subsequent title as by purchase makes no difference in the operation of the deed to convey title.
An action of rei vindicacio cannot be instituted or maintained by a person who has no title to the subject matter of the action, but he could maintain an action for ejectment and damages provided that he can prove his rights to recover possession.
This question arisen in the case of Silva Vs. Hendrirk Appu (1 N.L.R. 13). In that a purchaser had bought a land at an execution sale and came into Court praying for declaration of title, without having a Fiscal's conveyancc in his favour at the time of the institution of the action, and undertook to procure and produce such conveyance at the trial of the case. Lawrie C.J. and Withers J. (dissentiente Brown J.), held that action was not maintainable.
In Ponnamma Vs. Weerasuriya (11 N.L.R. 217) was a case where the plaintiff sought to vindicate title to property conveyed to her by a person who had purchased it at a Fiscal's sale, but who at the date of
tion had not obtained a Fiscal's transfer, but obtained in nine days after the institution of the action. Wood Renton J. held that the plaintiff's title (apart from prescription) must fail, as her vendor had no title at the date of action in the absence of a Fiscal's transfer.
In Fernando Vs. Appuhamy (23 N.LR. 476) the plaintiff sued the defendant for declaration of title to a land referred to in the plaint and for ejectment of defendant therefrom and for damages, alleging that the defendant was in occupation of the same on a lease from plaintiff's vendor, and that the defendant was over holding the said lease. The defendant admitted the plaintiff's claim to one block of the land claimed by plaintiff, but denying die ull^g^d ©vor holing an Qccprfing rifle to one block which he alleged did not form part of the leased land. The plaintiff admitted in evidence that he executed a conveyance of the land claimed by him to one L, whereupon the defendant contended that the plaintiff could not maintain the action. Trial Judge held that the plaintiff could maintain the action and gave judgement for plaintiff. In appeal to the Supreme Court Ennis C.J. decided that after the sale to L he could not maintain the action for declaration of title, but that he could maintain the action for ejectment and damages.
In Silva Vs. Fernando (15 N.L.R. 499) was a ease where the Crown conveyed land to the plaintiff reserving to itself the right and title to the mines, minerals, etc., in or upon the said land, together, with full power of entry for the same, and whereafter the institution of an action by the plaintiff against the defendant for the value of the plumbago wrongfully removed from the land. The Crown by letter waived its rights to such plumbago. Privy Council held that no retrospective effect can be given to the letter so as to vest in the plaintiff a title at the commencement of the action. The rights of the parties to an action have to be ascertained as at the date of the commencement of the action.
In Talagune Vs. De Livera ( 1997 (1) S.L.R. 253) the plaintiff instituted action as the Executrix of the last will of late Mrs. Crowther for a declaration of title and for ejectment of the defendant from the premises in the suit. The defendant's position was that the property was vested in the Commissioner of National Housing by operation of law under section 15(2) of the Ceiling on Housing Property Law, and that by title paramount the plaintiff's title has been wiped out by statute. The District Court held in favour of the plaintiff. In appeal Senanayake J. held that;
1. The plaint was filed on 18. '3. 85, and under the Civil Procedure Code, there is no provision which permits a defendant to plead by way of defence, matter arising subsequent to the institution of action, the judgement must determine the rights of the parties as on the date of the institution of action. At the time of the institution of the action the matter had not vested in the Commissioner.

2. The owner had appealed against the vesting and the appeal is pending before the Board of Review. The Court of Appeal had also restrained the Commissioner from proceeding to vest or to take further steps. Therefore there is no finality and the plaintiff's title remains unimpeached.
5. Co-owner's right to bring a rei vindicatio action
A co-owner of an undivided share of a land is entitled to sue a trespasser to have his title to the undivided share declared and for ejectment of the trespasser from the whole land. The concept behind this is that the every co-owner of an undivided share has an interest in every part and portion of entire land. This principle was recognized in Unus Lebhe Vj. Zayee (1893 (3) S.C.R. 56).
In Hevawitarane Vs. Dangan Rubber Co. Ltd. (17N.LR. 49) Wood Renton C.J. held that the owner of an undivided share of land might sue a trespasser to have his title to the undivided share declared, and for ejectment of the trespasser from the whole land.
As it was held in the case of Sura Kr. Fernando (1 A.C.R. 95) a co-owner was allowed to maintain an action of rei vindicatio in respect of his share of property in dispute where the whole property was claimed by the defendant, and where it was found possible to decidc the action without interfering with or endangering the right of any other
6. Lessor's right to bring a rei vindicatio action
Under the Common law if a tenant is ejected by a third party, he cannot file rei vindicatio action. But he may seek possessory remedies. But under the Roman Dutch law, where a lease was for a substantial period, the tenant had the right to sue his lessor to compel him to give up the use of the premises during the term, and was not restricted to an action for damages for breach of contract (Voet 19. 2. /).
Under the Roman Dutch law a lessee was allowed to assert his right to the use of the land during the term, even against the purchaser, to whom their landlord had sold the property after granting the lease, although by the Roman law the purchaser was not bound by the lease, provided however, that the lease, was by deed (Voet 19. 1. 2).
As it was held by Bonser C.J. in Goonewardana Vs. Rajapakst(1 N.L.R. 217) a notarial lease is a pro tanto alienation, and gives the lessee during his term the legal remedies of an owner and possessor. A lease for terms of years under instrument and duly executed afid signed should have their tenure assured to them as if he had the civilis possessio of the Civil Law. The possessory action should be opened to them against whomsoever ejected them by force, be he stranger or landlord, or one claiming under the landlord. Such leases may be regarded as sales for the term of the jus possidendi, which the nature of the contract requires.
In Pinhamy Vs. Puran Appu (1 S.C.R. 145) Clarance J. said that a purchaser is allowed to maintain an action to eject from the land a party claiming adversely to his vendor, even though he himself has never had any possession under his purchase.
In Isaac Perera Vs. Baba Appu (3 N.L.R. 48) Lawrie C.J. held that, a lessee, under a notarial contract, not being put in possession by his lessor who has a valid title to the property leased, can recover from third parties in adverse possession the use of such property for the period of his lease.
It was held in Allis Vs. Endiris (3 S.C.R. 87) a lessor who has granted a lease of premises for a definite term may maintain the action rei vindicatio against a third person who has taken possession of the premises during the existence of the lease and claim the premises as his own by and adverse title.
In Appuhamy Vs. Dionis (12 N.L.R. 382) action was filed by a lessee of land for recovery of possession and damages against a person who has ejected him from the land; Hutchinson C.J. said that the Court has power, even after the filing of the plaint, to grant special leave to join and alternative claim against the lessor for damages and for the refund of purchase money. A lessee should be allowed to join in the same action a claim against the lessor for damages in case he does not defend the title.
In Alagiyawanna Gurunnanse Vs. Don Hendrick (13 N.L.R. 225) full bench of the Supreme Court held that a lessee who has been given vacant possession of the property leased cannot, in the absence of any expressed covenant in the lease empowering him to do so, make the lessor a party defendant to an action brought by him against trespassers for declaration of title as lessee and claim in the alternative damages against the lessor; the lessee has no cause of action against lessor unless and until he suffers eviction by due process of law.
In Ossen Lebbe Vs. Carder Lebbe (1899 (2) A.C.R. 175) the plaintiff sued for declaration of his title to land and to eject the defendant, and for damages, and for mesne profits. He never had possession, but claimed to have been entitled to it up to the time of the commencement of the action. His interest in the land had, during the pendency of action, been sold under a writ of execution against him. The District Judge dismissed the claim of ejectment, but gave the plaintiff mesne profits for the period before the sale. In appeal to the Supreme Court Lawrie J. dismissing the action stated that; "it seems to work injustice in this case, but I think that certainly the law is that to maintain an action for mesne profits founded on wrongful possession of land the plaintiff must have at the date of the decree for mesne profits a present possessory tide".
The said judgement was overruled by the full bench decision in Eliashamy Vs. Punchi Banda (14 N.L.R. 113). In that during the pendency of an action for declaration of title, ejectment, and damages consequent on the trespass and the wrongful removal of plumbago from the land in dispute, the plaintiff sold the land in dispute to a third party. Hutchinson C.J. held;
1.                                   that the vendees need not be added as plaintiffs;
2.                                   that plaintiff was not precluded from maintaining his claim for damages, though he could not get a decree for declaration of title and ejectment.
7. Rei vindicatio actions in respect of Crown grants
The question as to whether a rei vindicatio action lies in respect of a Crown grant arisen in several cases.

In Rodrigo Vs. Livera (2 N.L.R. 139) Withers J. in considering the requirements to be satisfied went on to state that, in an action rei vindicatio by a person deriving title from a grantee under the Crown, the plaintiff must prove some entry on, or exercise of right over, the land by his vendors "in addition to the bare fact of its being included in the Crown plan" attached to the grant.
In De Silva Vs. Mendorisa (8 S.C.C. 58) Court held that the Crown grant must be presumed to have passed a good title to the grantee.
In Wimalasekera Vs. Silva (3 N.LR. 61) Brown A.J. said that under our law there is no more sanctity attaching to a Crown grant than the presumption accorded to it under Ordinance No. 12 of 1840, and a person who claims title to a parcel of land is not precluded from instituting an action rei vindicatio in respect of it, merely by reason of the Crown having made a giam uf such pared to a third party. A Crnu/n grant is unavailing to pass title, unless the land granted be , at the date of grant, the land belonging to and at the disposal of the Crown.
In Saibo Vs. Andris (3 N.LR. 218) Lawrie J. said that a sale of land by Crown and the issue of the Crown grant to the purchaser do not of themselves raise a presumption that the land was one over which the Crown had disposing power. As to the presumption arising from the nature of the land, a swamp, waste, or uncultivated land, which is within the limits of or adjacent to cultivated land belonging to a private owner, will not be presumed to be the property of the Crown.
In Don Siman Vs. Johanis (4 N.LR. 343) Bonser C.J. expressed the opinion that a Crown grant give an indefeasible
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In Fernando Vs. Morgan (1872-76 Ram Rep. 57) in 1872 the Court has held that in conveyance of land from the Crown the purchaser is not entitled to any covenant of any title and, in the absence of express warranty must be taken to have purchased at his own risk. There can therefore be no room here for the application of section 114(e) of the Evidence Ordinance.
In Gunesekere Vs. Teberis (10 N.L.R. 18) a full bench of the Supreme Court held that where a certificate of sale is given by the Government Agent in respect of the property sold for non payment of grain tax, a presumption arises under section 114 of the Evidence Ordinance in favour of the person relying on the certificate that the sale was duly made under the Ordinance, and that the tax, for non payment of which the sale purported to be held, was in fact due and that default had been made in payment of it.
In Silva Vs. Bastian (15N.L.R. 132) Wood Kenton J. aner reviewing all the earlier authorities held that a Crown grant by itself creates no presumption of the title of the Crown to the land which it conveys.
In Mudalihamy Vs. Kirihamy (24 N.LR. 1) the full bench of the Supreme Court adopted the said principle laid down in Silva Vs. Bastian (15 N.LR. 132).
In Abeykoon Hamine Vs. Appuhamy (52 N.LR. 49) Dias J. said that in the Maritime Provinces a Crown grant does not raise a presumption that the grantee is vested with dominium. The plaintiff in an action rei vindicatio cannot, therefore, rely on a Crown grant alone to discharge the initial burden of proof
Where the trial Judge has made a cardinal error ab initio by placing the onus on the wrong party, it would not be proper for the Court of Appeal to try and ascertain whether, had the trial Judge placed the onus on the proper party, the result might have been different. In such a case it would not be proper for the Court of Appeal to re-write the judgement of the trial Judge.
As it was held by Gratiaen J. in Ahamadulevve Kaddubawa Vs. Sanmugam (54 N.L.R. 467) in a rei vindicatio action the plaintiff must possess at the date of the action the title which he asks the Court to declare to be his. The provision, therefore, of scction 88(1) of the Irrigation Ordinance that a land which has been sold for non payment of rates shall, upon the payment of the amount due from the defaulter, revest in the defaulter of his heir "as though such sale had never been made" will not avail the defaulter or his successor in title if, at the time he institutes an action against a third party for declaration of title to the land, the title is still vested in the Crown, although during the pendency of the action he obtains a cancellation of the Crown's title in his favour in terms of a section 88(1) of the Irrigation Ordinance.
In Palisena Vs. Perera (56 N. L R. 407) on 24 January, 1947 the Government Agent of the Sabaragamuwa Province issued in favour of the plaintiff a permit under the provisions of the Land Development Ordinance (Cap. 320), in respect of certain allotments of Crown land. The plaintiff has sued the defendant, whom he alleges to be a trespasser on the land, for ejectment and for consequential relief. The defendant raised a number of defences to his claim, including a plea that in any event a "permit-holder" under the Ordinance was not entitled, as against a third party, to relief of the kind asked for. The case went to trial on a number of issues but, after a consideration volume of evidence had been led, the learned District Judge decided the action against the plaintiff on the ground that the plaint did not, in his opinion, disclose a remedy against the defendant. The basis of the decision was that "a permit holder is only a licensee who is entitled to possess the land with the leave and licence of the Crown and at the will and pleasure of the Crown", and was therefore "not entitled to ask for a possessory decree or to ask that a (third party in possession) be ejected from the land."
Gratiaen J. held that'
"the Judge has misunderstood the scope of the remedy asked for by the plaintiff and failed to appreciate the nature of a permit holder's rights under the Land Developments Ordinance. This was not a possessory action in which a person complaining of dispossession can in certain circumstances, without proof of his title; obtain a decree for the ejectment of a person who has dispossessed him otherwise than by due process of law. This is a vindicatory action in which a person claims to be entitled to exclusive enjoyment of the land in dispute, and asks that, on proof of that title, he be placed in possession against an alleged trespasser."

"it is very clear from the language of the Ordinance and of the particular permit PI issued to the plaintiff that a permit holder who has complied with the conditions of his permit enjoys, during the period for which the permit is valid, a sufficient title which he can vindicate against a trespasser in civil proceedings. The fact that the alleged trespasser has prevented him from even entering upon the land does not afford a defence to the action; it serves only to increase the necessity for early judicial intervention." "I would set aside the judgement under appeal. If the averments in the plaint be established, the plaintiff is entitled in law to a decree of the kind asked for. It is indeed regrettable that, at the conclusion of the trial, the learned Judge did not record his Findings upon all the issues. Had that been done, it might well have been possible for us to give a final decision in an action which was instituted nearly 5 years ago. As things now stand, the record must be returned to the lower Court with a direction that the case be tried de novo before another Judge. The appellant is entitled to the costs of this appeal and of the abortive trial in the Court below."
8. Rei vindicatio actions against the State
Van Leeuwan in his "Commentaries" (page 11) says that the Sovereign State of Holland submitted themselves to the jurisdiction of their own Courts. In Simon Apppu Vs. The Queen's Advocate (9 Ap. Cases 571) Privy Council held that an action for breach of contract would lie against the Crown. Same principle was applicable to the cases for the recovery of specific properties.
In Sanford Vs. Waring (2 N.LR. 361) action was brought to establish the plaintiff's title to an undivided one third share of a large track of forest, some 5,000 acres in extent, of which the Crown is in possession and in his official capacity as Chief Residential Engineer of the Haputale Railway Extension. The plaintiff alleged that they are entitled to this land under a sannas made by the last King of Kandy in favour of their predecessor in title. The defendant disputed their title on various grounds, more particularly on the ground this forest was not included in the grant made by sannas. Bonser C.J. held that the land in the possession of the Crown cannot be recovered in a suit against the servant of the Crown who is in temporary occupation of it as such servant; the only way by which a subject can recover his land which he alleges to be in wrongful possession of the local Government of this Island is by an action brought against the Queen's Attorney-General of the Island. The proposition taken for granted in Simon Appu Vs. The Queen's Advocate (9 Ap. Cases, 571), that an action for tort would not lie against the Crown as represented by the Local Government of this island on the 'ground that the law with respect to the immunity of the Crown from being sued in such actions extends to his island, queried by Bonser C.J.
As it was held in the case of Le Mesurier Vj. Attorney-General (5 N.LR. 65) an action rei vindicatio may be brought against the Crown but not an action in tort. It was a case where the plaintiff claimed not only the land but also the damages and mesne profit arising from alleged wrongful possession on the part of the Crown. The plaintiff was allowed to strike out his claim for damages and mesne profit and proceed with his action for recovery of the land only. Presently in terms of section 456 (1) of the Civil Procedure Code all actions by or against the State can be instituted by or against the Attorney General. In the event an action to be instituted against the Attorney-General section 461 requires to give him one
onth noticc before the institution of the action. This procedure is applicable in respect of both movables and immovables.
9. Litis contestatio
Under Roman Dutch law the assignment of the rights of a party in a pending action after litis contestatio is not illegal and void. Even as a matter of procedure, such an assignment was prohibited by the Roman Dutch law in view of the concept of litis contestatio. Such prohibition is removed by the provisions of section 404 of the Civil Procedure Code. It was held in Pless Pol Vs. De Soysa (10 N.L.R. 252). This judgement was affirmed by the Privy Council. Pless Pol Vs. Lady de Soysa (15 N.LR. 57).
In Elisahamy Vs. Punchi Banda (14 N.L.R. 113) full bench of the Supreme Court held that where during the pendency of an action for declaration of title the plaintiff sells the land in dispute to a third party, he was not precluded from maintaining his action for damages, although he can't get a decree for declaration of title and ejectment.
In Thornton Vs. Velaithan Chetty(40N.LR. 157) Martenez J. Held that under section 404 of the Civil Procedure Code a succeeding administrator may continue an action brought by his predecessor in office. Where a person is summoned to defend an action as legal representative an objection that he is not the legal representative must be raised and determined in the first instance. An administrator is entitled to bring an action to vindicate tide to immovable property belonging to the estate without joining the heirs unless the Court so directs.
Silva Vs. Jayawardena (43 N.L.R. 551) was a case where after the institution of the action for declaration of title to 5 blocks of land, plaintiff transferred 3 blocks. Keuneman J. held that no decree for title can be entered in respect of the blocks sold. The right to claim damages up to the date of transfer is not affected by the sale.
In Daniel Silva Vs. Jayasekere (46 N.L.R. 316) Keuneman J. held that where a purchaser pendente lite of an interest sought to intervene and to be made a party defendant in the action relating to that interest. Court held that section 404 of the Civil Procedure Code vests in the Court discretion as to the persons to be admitted as parties plaintiff or defendant; the important and controlling words in the section are that the "leave of the Court" must be obtained.
In Ponnathurai Vs. Juhar(66 N.LR. 375) Sansoni J. held that if the plaintiff does not object, a third party should be allowed to intervene in a pending rei vindicatio action where he is not in possession of the land in dispute and seeks to obtain a declaration of title and consequential relief in his favour.
In Sheriff Vs. Beebi (69 N.LR. 215) Sri Skanda Raja J. held that where pending an action filed by the trustee of a mosque the trustee dies, the person who is subsequently appointed trustee under the Muslim Mosques and Charitable Wakfs Act No. 51 of 1956, is entitled to be substituted in place of the deceased plaintiff under section 404 of the Civil Procedure Code.
In Perera Vs. Ramiah (1997(1) S.L.R. 225) Ismail J. held that where a party to an action in respect of an immovable property gifts the same to an another party while the action is pending and died, the donee is entitled to be substituted under section 404 of the Civil Procedure Code.

In Brunswick Exports Ltd., Vs. Hatton National Bank Ltd (B.R.L. (Bar Journal) 1994 Vol.V, Part II, page 1) it was held that section 404 of the Civil Procedure Code makes provision for a person acquiring an interest in an action to continue with it having obtained leave of the Court. It does not provide that if he does not obtain leave of the Court to continue the action, the action should stand dismissed. The Court has the discretion to permit the application by the assignee to be substituted in place of the assignor as the plaintiff provided it was convenient and possible without prejudice to the defendant. A right of action can be assigned after "litis constcstatio." A "successors" of a mortgagee named in a mortgage bond would include "assigns" of the mortgagor also.
As Voet says non payment of purchase price is not a ground for cancellation of a conveyance (Voet 19. 1. 21). It has been held in Meyer Vs. Rudolph's Executors (S.A.L.R. 1918 A.D. 70) that the failure of consideration does not give rise to a claim for cancellation of the deed but only to claim to sue for unpaid consideration. This principle had been recognized in several local cases including the judgments by Lascelles C.J. in Jayawardene Vs. Amerasekera (15 N.LR. 280) and Pereira J. in Mohamadu Vs. Hussim (16N.L.R. 368). In that Pereira J. went on to state that where a person obtains a conveyance of property without fraud, but afterwards fraudulently refuses to pay the consideration stipulated for, the grantor is not entitled to claim a cancellation of the conveyance, but his remedy is an action for the recovery of the consideration.
This issue was raised in Nona Kumara Vs. Abdul Coder (47 N.LR. 457). In that the plaintiff when she was a minor, transferred certain lands to the first defendant by a deed which,
nn the face of it        11 frnncf^r fnr pnneiH(»Mh/\n Cho p/\nr»lif that her signature was obtained to it by undue influence, intimidation and threats. The District Judge held against the plaintiff on the questions of undue influence, intimidation and threats. He held however, although no specific issue was raised, that the deed was a donation, and therefore null and void, merely because the transferor did not receive the consideration mentioned in the deed. It was held that the deed which, on the face of it, was a transfer for consideration could not be held to be a donation merely because the transferor did not receive the consideration. The plaintiff's remedy was an action to recover the consideration and not to claim a cancellation of the conveyance.
Molagoda V.?. Molagoda (45 N.LR. 481) was a case where the plaintiff sued the defendant to recover the consideration due on a deed of transfer of property, which contained an express recital "that the transferor had received the purchase price in full." It was held that it was open to the defendant to prove by oral evidence that the deed of transfer was, in fact, a deed of gift.
As H.N.G. Fernando J. held in Kirigeris Appuhamy Vs. Nazir (58 N.L.R. 287) when immovable property is sold, the actio venditi for the purchase price would be available to the vendor only when delivery of the property has been made to the purchaser. The purchaser may, therefore, raise the issue of non-delivery even if it was not pleaded in the answer.
In Fonseka Vs. Anthony Appuhamy (1978/79 (2) S.L.R. 274) the respondent executed deed of transfer in favour of the appellants in respect of immovable property and the present action was brought by him to set aside the said deed of
State Mortgage Bank, to which the appellants had applied for a loan. When the Bank wrote to the respondent forwarding a cheque in respect of the sum due from the Bank with a covering letter (D5) for the respondent's acceptance and confirmation "that the full amount due" had been paid, the respondent returned the cheque through his lawyer informing the Bank that he had filed action in the District Court ofNegombo for rectification of this deed. Subsequently the Bank wrote that it was no longer prepared to lend this sum of money or any amount to the appellants and the sum remained unpaid. The question then was to whether there had been such payment as the law would recognize, of the agreed consideration so as to conclude the contract of sale contemplated in this deed.

Soza J. held that as a general rule payment means payment by money which is legal tender in Sri Lanka and a creditor cannot be compelled to accept payment by cheque. Yet payment by cheque in a particular mode may expressly or impliedly be authorized by the contract or a creditor may waive his right to insist on legal tender as in a case where he agrees to receive payment by cheque or receives payment by cheque without objection. In such event there will be absolute satisfaction of the original deed and the creditor's right of action on the deed will be extinguished, he being left with no remedy except upon the cheque. It is a question of fact whether the cheque has been so accepted as absolute payment or not. In this case the respondent had agreed to receive payment by cheque issued by the State Mortgage Bank which cheque was to be delivered not at the execution of the deed but only when the time was ripe for issue accordingly to the Bank rules. The Bank duly forwarded the cheque as agreed but the respondent returned it stating that he was taking action to rectify the deed of transfer although he was under no obligation to so return the cheque. The State Mortgage Bank was the agent of the appellants in ihe matter of payment and if ihe consideration was thwarted, it was the result of the respondent's own action in doing what he was legally not bound to do. In the eyes of the law therefore there was payment and the respondent's action must fail.
Wille in "Landlord and Tenant in South Africa" (4'h edition page 249) states that;
"if the subject matter of a lease is completely destroyed, without the fault of either the landlord or the tenant, the lease is at an end. In such a case the tenant is not liable for rent after the date of the destruction, but only for rent prior to that date; nor is he liable for damages. The landlord, again is not liable in damages for breach of contract. If, however, the subject matter of the lease is not completely destroyed, the lease is not at an end. In the case of a house being let, if that is completely burnt, the lease comes to an end, even though the land remains, but not where the tenant is still able to exercise many of his rights under the lease notwithstanding the complete destruction of the buildings.
If the destruction of the leased property is due to the default or negligence of the tenant, he remains liable for payment of the full rent for the unexpired period of the lease; he must in addition pay the actual value of the property destroyed, and the landlord need not wait until the expiration of the lease before claiming such damage "
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This principle of Roman Dutch law has been recognized in Sri Lanka in series of cases. Wecrasooriya J. in Tikiri Danda Vs. Pathuma Reebee (1998 (3) S.L.R. 46) has cited the following passage of Wille's "Principles of South African Law" by (J.T.R. Gibson, 7'h edition. Chapter XXV, page 377);
"Where performance of obligation by the debtor becomes impossible either physically or legally, after the contract was made, the debtor is discharged from the liability if he was prevented from performing his obligation by vis major or casus fortuitus but not if the impossibility was due to his own fault. For instance, if a house is let and it is destroyed by fire without the fault of the lessee, for example, by lightning, the lease is at an end and the lessee needs pay no further rent; but if the fire is due to the negligence of the lessee, the lease continued and he remains liable for rent accruing after the fire. In the present case the plaintiff instituted action seeking declaration of title to the land and ejectment of the defendant therefrom. The District Judge held that the plaintiff had set fire to the house in question and observing that the house that was burnt down was renovated subject to an order made by the Rent Board which was based on the premise that there existed a building which could be repaired, dismissed the action of the plaintiff appellant.
In appeal Weerasuriya J. held that where a building which is the subject matter is burnt down without the fault of the landlord or tenant the contract is at an end. The trial Judge on a preponderance of evidence led came to a finding that the plaintiff had set fire to the house. This is a finding of primary fact by a trial Judge who had seen and heard the witness based nnon rhp credibility of such witness, which is entitled to great

weight and utmost consideration. The order of the Rent Board was based on the premise that there existed a building which could be repaired. In the case of a house being let if that is completely burnt, the lease comcs to an end, but not where the tenant is liable to exercise, many of his rights under the lease notwithstanding the complete destruction of the buildings.
Giffry Vs. De Silva (69 N.LR. 281) was a case where a building which was the subject of a lease is burnt down without the fault of the landlord or the tenant. The premises fell within the Rent Restriction Act. It was argued that the tenant was entitled to remain in the premises and to exercise all the right of a statutory tenant. But Sansoni C.J. held that, the tenancy comes to an end even if it fell within the Rent Reliction Act. It was stated that by a contract the tenant is entitled to the use and occupation of the building, and if there is no building to use and occupy, there is no existing contract. He further stated that it is common ground that the tenancy was one which fell within the Rent Restriction Act. But makes no difference. The statutory tenancy was in respect of the building, when the building perished the statutory tenancy also ceased to exist. I do not think that the law in Ceylon is different from the English law in this respect. In neither country can there be a statutory tenancy in respect of bare land. I think the statement in Mr. R.E. Megarry's book on the "Rent Acts" (8"' Edition) that "the restrictions of the Acts do not in here in the land after the demolition of the dwelling house, but remain only so long as it is there," which was approved by Evershed M.R. in Morleys (Bermingham) Ltd. Vs. Slater (1950 (1) K.B. 506) is applicable to Ceylon.

This principle of Roman Dutch law has been recognized in Sri Lanka in series of cases. Weerasooriya J. in Tikiri Banda Vs. Fathuma Beebee (1998 (3) S.L.R 46) has cited the following passage of Wille's "Principles of South African Law" by (J.T.R. Gibson, 7lh edition, Chapter XXV, page 377);
"Where performance of obligation by the debtor becomes impossible either physically or legally, after the contract was made, the debtor is discharged from the liability if he was prevented from performing his obligation by vis major or casus fortuitus but not if the impossibility was due to his own fault. For instance, if a house is let and it is destroyed by fire without the fault of the lessee, for example, by lightning, the lease is at an end and the lessee needs pay no further rent; but if the fire is due to the negligence of the lessee, the lease continued and he remains liable for rent accruing after the fire. In the present case the plaintiff instituted action seeking declaration of title to the land and ejectment of the defendant therefrom. The District Judge held that the plaintiff had set fire to the house in question and observing that the house that was burnt down was renovated subject to an order made by the Rent Board which was based on the premise that there existed a building which could be repaired, dismissed the action of the plaintiff appellant.
In appeal Weerasuriya J. held that where a building which is the subject matter is burnt down without the fault of the landlord or tenant the contract is at an end. The trial Judge on a preponderance of evidence led came to a finding that the plaintiff had set fire to the house. This is a finding of primary fact by a trial Judge who had seen and heard the witness based upon the credibility of such witness, which is entitled to great weight and utmost consideration. The order of the Rent Board was based on the premise that there existed a building which could be repaired. In the case of a house being let if that is completely burnt, the lease comes to an end, but not where the tenant is liable to exercise, many of his rights under the lease notwithstanding the complete destruction of the buildings.
Giff'ry Vs. De Silva (69 N.L.R. 281) was a case where a building which was the subject of a lease is burnt down without the fault of the landlord or the tenant. The premises fell within the Rent Restriction Act. It was argued that the tenant was entitled to remain in the premises and to exercise all the right of a statutory tenant. But Sansoni C.J. held that, the tenancy comes to an end even if it fell within the Rent Restriction Act. It was stated that by a contract the tenant is entitled to the use and occupation of the building, and if there is no building to use and occupy, there is no existing contract. He further stated that it is common ground that the tenancy was one which fell within the Rent Restriction Act. But makes no difference. The statutory tenancy was in respect of the building, when the building perished the statutory tenancy also ceased to exist. I do not think that the law in Ceylon is different from the English law in this respect. In neither country can there be a statutory tenancy in respect of bare land. I think the statement in Mr. R.E. Megarry's book on the "Rent Acts" (8,h Edition) that "the restrictions of the Acts do not in here in the land after the demolition of the dwelling house, but remain only so long as it is there," which was approved by EvershedM.R. in Morleys (Bermingham) Ltd. Vs. Slater (1950 (1) K.B. 506) is applicable to Ceylon.
Saheed Vs. Gaiyoom (1998 (1) S.L.R. 144) was a case where the plaintiffs sued the defendant for a declaration of title to the premises in suit and ejectment of the defendant on the ground that the tenancy of the defendant terminated by the destruction of the building let to him during the civil riots in 1983. The District Judge held that the building had been completely destroyed. In terms of regulation 9 (1) of the Rehabilitation of Affected Property or Business or Industries Regulations, 1983, such premises, being "an affected property" within the ambit of Regulation 19, vested absolutely in the State. However, in order to enable the plaintiffs to assist rebuilding the premises, REPIA, the body empowered to rehabilitate affected properties, acting under Regulation 9(2) declared the premises to be not "an affected property", issue 7 at the trial was whether that declaration restored the premises to the plaintiffs. Amerasinghe J. held that upon the destruction of the premises, the contract of tenancy came to an end. irrespective of the question whether it also came to an end by reason of the premises being automatically vested in the State as an "affected Property", the declaration of REPIA under Regulation 9 (2) of the Regulations restored the premises to the plaintiffs.
Amerasinghe J. has cited the case of Mussamil Vs. REPIA (1984 (2) S.L.R. 197, Court of Appeal judgement) and Muzamil Vs. REPIA (1985 (2) S.LR. 310 Supreme Court judgement) with regard to the properties affected and fell within the REPIA regulations.
In Samuel Vs. Mohideen (71 N.LR. 451) Sirimane J. held that where a fire breaks out in a leased urban tenement and damage is so extensive that the tenement can no longer be __— f-- it was used, the oremises can
12. Construction of deeds
Large number of judgments in our law bears testimony that the Courts are compelled very often to give legal interpretations to various types of deeds. In Manks Vs. Whiteley (1912 (1) Ch. 735) House of Lords said that "where several deeds form part of one transaction and are contemporaneously executed, they have the same effect for all purposes such as are relevant to this case as if they were one deed. Each is executed on the faith of all the others also and is intended to speak only as part of the one transaction and if one is seeking to make equities apply to the parties there must be equities arising out of the transaction as a whole."
Nachiar Vs. Fernando (5 N.L.R. 56) was an action rei vindicatio, where plaintiff set up a chain of title, and defendant, admitting the execution of the title deeds pleaded by plaintiff, raised inter-alia the issues that one of the plaintiff's predecessors in title had bought the property for her out of funds supplied by her, but took the conveyance in his own name, and that she never was the tenant of such predecessor or other subsequent paper title holders. It was held that the only issue framed by the Court below as follows; "has the defendant acquired title to the property in dispute by adverse and uninterrupted possession for more than ten years previous to the date of action?" was too vague to permit the Courts to express its findings on the many questions of fact on which the parties were at variance, or its finding on law as to the effect of those facts. It was also held that the defendant was entitled to prove that she had supplied to plaintiff's prcdcccssors in title the funds ncccssary for the began her adverse possession. Browne A.J. said that the general purport of the decisions as to what exceptions can be allowed or not to the strict observance of our statute of frauds may be summarized as follows;
1.                                   When an agreement being verbal, cannot be enforced, moneys paid thereon for the ulterior objects of the agreement may be recovered as moneys had and received for plaintiff's use or as condictio indebitati.
2.                                   If, a title deed has been obtained by fraud, re-con­veyance by the fraudulent holder will be ordered.
3.                                   If, the deed was made in another's name, and the latter has possessed for years and died, and fraud is not proved, plaintiff will not be allowed to say that the property was bought with his money and to vindicate it from the deccascd's heirs.
If, on a verbal agreement to purchase joindy, the conveyance was made in defendant's name, and he fraudulently refused to allow plaintiff his share, plaintiff may vindicate his share, and defendant cannot set up the Ordinance.
In Guruhamy Ks. Subuseris (13 N.LR. 112) A obtained a conveyance from a person who had no title and sold it to B. After the sale to B, A bought the land from the real owner, and sued B for declaration of title and ejectment. Wood Renton J. held that B had an equitable claim as against A to have the title conferred upon him upheld.
Jeyasingham Vs. De Almeida (54 N.LR. 416) was a case where a deed purported to convey four contiguous allotments, each of which was described in the conveyance as corresponding to a site to which a particular assessment number was allotted by the local authority and as including not a part but the entirety of a building standing on it. In the case of each allotment, the purchaser was placed in possession of (a) the entire area to which the relevant assessment number had been allocated, and (b) the entire building which stood on it. The western boundary, however, in the deed of conveyance was subsequently discovered to cut through a part of the kitchen and other rooms of some of the allotments. In a claim made by the vendor for title to the fractional portion of the land and buildings falling within each assessment number; Gratiaen J. held that this was essentially a case for applying the rule that where different parts of a deed are inconsistent with each other, effect ought to be given to that part which is calculated to carry into effect the real intention of the parties, and that part which would defeat it should be rejected.
In Solomon Vs. Don William (54 N.LR. 512) the ownership of a certain land, called Kosgahawatta, was in dispute. The only evidence on which the Court accepted the contention that one L.V. was the original owner of the land was contained in the recitals of two deeds in which the alleged owners of the property lying immediately to the north of Kosgahawatta had described their Southern boundary (i.e. the land in dispute) as belonging to the heirs of L.V. Gratiaen J. held that the recitals in the deeds were at best hearsay evidence and were inadmissible to prove that L.V. was at any time lawful owner of Kosgahawatta.
In Theobald Vs. Arambepola (56 N.LR. 563) the defendants executed an agreement undertaking to sell to the plaintiffs fifty five acres and thirty eight perches of land the boundaries of which were specified in the schedule to the agreement. Shortly afterwards a surveyor was requested by the plaintiffs to prepare a plan of the land in question. Despite the fact the plan disclosed the extent as forty four odd acres only, the defendants executed a conveyance in favour of the plaintiffs and the description of the land conveyed was identical with that contained in the schedule to the agreement to sell, with the only difference that the extent was referred to as being "of about 55 acres." Plaintiffs took this conveyance although they were fully aware, from the plan that had been prepared, that the defendants were in no position to deliver possession of an estate of 55 acres. Subsequently the plaintiffs were actually able to obtain possession of only 38 acres 2 roods and 12 perches and, thereupon, sued the defendants in the present action to have themselves placed in possession of an extent of 16 odd acres to make up the 55 acres conveyed to them or, in the alternative, to recover the sum of Rs. 10,000/- as damages. Fernando J. held that in regard to the issue whether the sale was ad corpus or ad quantitatem the correct answer was that the sale was ad quantitatem, but in respect only of 44 odd acres. As the defendants were able to place the plaintiffs in possession only of 38 odd acres, the defendants were liable to compensate the plaintiffs for the value of the shortfall of 5 odd acres.

In Dingiri Naide Vs. Kirimenike (57 N.LR. 559) was a case where several deeds form part of one transaction and are contemporaneously executed each deed must speak only as part of the one transaction. While a conveyance by a Kandyan may be in the form of a gift not expressed to be irrevocable, yet it would be opened to the grantee to adduce evidence under the first proviso to section 92 of the Evidence Ordinance to establish the true consideration for the transfer. By deed P2, A, a Kandyan, conveyed to her fattier, B, certain property for a consideration in money paid by B, by a separate deed , P3, executed on the same day as deed P2, B purported to make a fidei commissary gift to A of the identical property which he obtained on deed P2. Pulle J. held that P2 and P3 constituted a single transaction and that, when they were read together, P3 did not fall within the definition of the word "gift" in section 2 of the Kandyan Law Declaration and Amendment Ordinance.
Murugesoe Vs. Chelliah (57 N.LR. 463) was a case where a transfer of immovable property contained a recital that the consideration was paid by the transferee "for" a specified Hindu temple. Gunasekara J. held that the transferee must be taken to have purchased the property with funds provided by, or held by him for, the religious charity represented by the temple. The transferee, therefore, held the property as trustee, and, on his death, the land devolved on his heirs subject to the same trust. It was held further that section 78 of the Trusts Ordinance is applicable to charitable trusts. On the death, therefore, of a co-trustee, the trust property passes to the other co-trustees and not to the heirs of the deceased trustee. Fernando A.J. said that the words "for the Temple" were not merely precatory but were sufficient to create a trust.
Francis Assisi Vs. Tampoe (61 N.LR. 73) was a case where, in a deed of sale of immovable property, the body of the deed conveyed no more than a lA share of the property but the schedule mentioned the generality of the interests of the vendor as the property conveyed. Sansoni J. held that the description in the body of the deed prevailed over the description in the schedule.
In Munasinghe Vj. Vidanage (69 N.L.R. 97) the jurisdiction of an appellate Court to review the record of the evidence in order to determine whether the conclusion reached by the trial Judge upon that evidence should stand has to be exercised with caution. "If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate Court will not hesitate so to decidc. But, if the evidence was a whole can reasonably be regarded as justifying the conclusion arrived 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 of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of the first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Court of Appeal) of having the witnesses before him and observing the manner in which their evidence is given" (Viscount Simon in Watt or Thomas Vs. Thomas (1947 A.C. 484 at p. 485-6).
The question at issue in the present case was whether, in an instrument which purported to be a deed of sale of immovable property, any consideration was received by the vendors. The first defendant appellant, who was one of the two vendors, claimed that there was no consideration for the deed and that no beneficial interest on the property passed to the vendee (plaintiff respondent). The deed stated that the property was sold for Rs. 20,500 "well and truly paid to the said vendors." The notary's attestation stated that the full consideration of Rs. 20,500 was acknowledged before him to have been previously received. The trial Judge, in accordance with his findings of fact, which involved assessment of the veracity of witnesses, held that no consideration passed but, the Supreme Court, on appeal, reserved the decision mainly on the basis of statements made by the notaries in their attestation of the deed in question and two other connected deeds. The Privy Council held that this was a case of rather complicated and difficult facts, and there was a good deal to be said on each side. The findings, however, of the District Judge were not unreasonable and, as he had had the advantage of seeing and hearing the witnesses giving their evidence, the Supreme Court should not have set aside his findings and consequently should not have reversed his decision. That the statement of the notary in the attestation clause of a deed of sale is admissible evidence, and may well be important evidence, regarding consideration, but are not conclusive.
In Jayawickrema Vs. David Silva (76 N.LR. 427) an agreement to sell certain immovable property provided that, within a month after the happening of an expected event, the vendor should convey the property to the vendee. Walgampaya J. held that, in such a case, time is not of the essence of the contract. Accordingly, the vendee was entitled to a conveyance of the property if, after the happening of the expected event, the purchase price was offered by him within a reasonable time after the expiry of a month.
In Ratnavale Vs. Appuhamy (1978 / 79 S.L.R. 389) the plaintiff paid the defendant Rs.5,000/- on an informal agreement to buy defendant's land for Rs.85,000/-. The sale fell through but plaintiff failed to repay the Rs.5,000/-. At the time of payment the sum of Rs.5,000/- was described as an advance but later as a deposit. In the issues it is described as a advance. At one stage the defendant agreed to repay the sum of Rs.5,000/- with an additional sum of Rs.250/- against expenses incurred by the plaintiff. Later the defendant resisted the claim for repayment. The Court held that there is a distinction between money paid as a deposit and money paid as an advance. Money paid as a deposit is an earnest, in Roman Dutch law called arrha, to bind the bargain and is forfeited to the seller if the buyer defaults in going through with the sale. If the seller defaults then the buyer is entitled to receive back his money. If, the sale goes through the deposit will be accountable as a part of the purchase price. Where the money has been paid as an advance or part of the price it must be refunded if the sale falls through no matter whose the default was and irrespective of the reason for the failure of the sale. If the sale goes through, the advance will be accountable as part of the purchase price. However, whether the money is deposit or advance, the agreed terms of the pact between the parties regarding its disposal will govern and be operative as to its disposal. Although the main agreement of sale is of no force or avail in law because it was not notarially executed still the subsidiary parts of the agreement that are severable from the agreement to sell the land can be considered and given effect to. Accordingly a claim for refund of an advance paid on an informal agreement to sell the land can be maintained.

In Punchi Menika Vs. Kirimudiyanse (1982 (l)S.LR. 39) one Kiri Banda by deed of gift D4 dated 16. 10. 64 gifted to the defendant the entirety of the interests he was entitled to in several contiguous allotments of land subject to his life interest. The defendants claimed that upon the death of K they entered into peaceful possession of these allotments (depicted as lot 3 in plan 3) and are in lawful possession. Plaintiff stated that by partition dccree dated 26. 11. 54 Kiri Banda was allotted divided lot 3 in P3 in lieu of his undivided interests in the larger lands. That by deed PI dated 19. 11.65. Kiri Banda for valuable consideration transferred the said lot 3 to them. In an action for declaration of title the Judge found that in executing D4 Kiri Banda intended to convey his interests in the 6 lands which had since been converted into lot 3 in P3 and that the entirety of lot 3 had passed to the defendants, that PI did not operate to convey any interests to the plaintiffs. Plaintiffs appealed against the judgement. The plaintiff argued that the final decree dated 26. 11. 54 wiped out all die interests in the undivided lands that K was entitled to and that the final decree vested in Kiri Banda a new title in respect of lot 3. The defendant argued that the intention of Kiri Banda when he executed D4 was unmistakably to gift to the donees the entirety of the interests he was entitled to in all the contiguous allotments of land, which were the subject matter of the partition action and which interests were now represented by divided lot 3 in plan 3. That as a mistake had been made in deed D4 in describing what was intended to be gifted the Court should in the exercise of its jurisdiction rectify or treat as rectified the deed D4 to bring it into line with the true intention of the parties to the deed D4 and that the Court should grant this relief even though it was not prayed for in the plaint. Ranasinghe J. held (following Girigoris Perera Vs. Rosaline Perera 53 N.LR. 536) that the deed of gift D4 should be rectified or treated as rectified in respect of the mutual mistake made in order to bring the deed D4 into line with the real intention of the parties.
In Nanayakkara Vs. Jayasooriya (1989(1) S.L.R. 366) the plaintiff Jayasooriya obtained the land in suit from the Crown on a permit issued under the Land development Ordinance. The land was a protected holding. To transfer such a land compliance was necessary with section 162 (1) which stipulated prior obtaining of the Government Agent's written consent, attaching of the consent to the deed and specific reference to the G.A's consent in the Notary's attestation. Under section 162 (2) non compliance made the deed of transfer null and void for all purposes. The plaintiff being in arrears in respect of monthly rentals agreed by notarial deed with the Is1 defendant Nanayakkara to transfer the land to the latter in return for the latter settling the arrears, paying some extra money to the plaintiff and being placed in possession. The 1" defendant paid Rs. 16,496 as arrears. Against and advance of Rs. 14,750/- the plaintiff transferred two acres of his residing land to the Is" defendant by way of security according to the plaintiff. Some time before obtaining the G.A's consent the plaintiffs retook possession. The police had to intervene and the Is1 defendant got back possession. The plaintiff then obtained the GA's consent and executed the impugned transfer. Giving credit for the arrears of rentals paid by the 1st defendant the plaintiff received in all Rs.22,206/- from 1" defendant but there was confusion as to the amounts received vis-a-vis the recitas reconsideration in the deeds. Nanayakkara the 1st defendant transferred the land to Dharmasena the 2°d defendant respondent.
The plaintiff contended his deed of transfer to Jayasooriya was null and void because the notary who attested had not made special reference to it in the attestation. Jameel J. held that the absence of the special reference to the G.A's consent in the attestation of the Notary was a non compliance with section 162 (1) of the LDO and therefore the deed of transfer was null and void under section 162 (2) for all purposes. Paper title was therefore in the plaintiff.
A reference to the G.A's consent in the recitals of the body of the deed and the notary's signature at the end of the body of the deed cannot be treated as compliance. The reference must be in the attestation clause.
The plaintiff had received Rs.22,206/- from the 1* defendant and therefore the latter being a bona fide possessor is entitled to a jus retentionis until this amount is paid back. As the deed of transfer is null and void for all purposes the 1" defendant cannot rely on the maxim allegans contraria non est audiendus to prevent plaintiff from impunging his own deed. Nor will the pleas of exceptio rei venditae et traditae or exceptio doli avail the isl defendant because the plaintiff had good title and the title never left him in view of section 162 (2) of the Land Development Ordinance.
In Siriwardene Vs. Wirawanthan (2001 (2) S.L.R. 288) Weerasooriya J. held that the plaintiff was 12 years of age at the time of the execution of the deed of gift. The Notary in the attestation clause made explicit reference to the fact that he had duly read over and explained the contents of the deed to the donee and thereafter she has placed her signature.
The proposition that acceptance by a minor, does not contribute valid acceptance cannot affect, the validity of a deed of gift. It is competent for a minor to accept a donation in his favour inasmuch as he is benefitted thereby.
"For the purpose of acceptance minors may be divided into two classes, those of tender years-children and those who have sufficient intelligence. One who may be said to be a child is taken to lack all material capacity or power to form a decision and so can enier into no transaction whatsoever. One of the 2nd class is deemed capable of thinking for himself has intellectus but since he is yet inexperienced and likely to act rashly, necessary auctoritas of his guardian must generally be interposed to make the transaction absolutely binding. Such a minor however can take the benefit of a contract and thus he can himself accept a gift."
It has been held by our Courts 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 tide. The plaintiff cannot ask for a declaration of tide 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 Wanigaratne Vs. Juwanis Appuhamy (65 N.LR. J 67) Supreme Court accepted the said principle and held that, in an action rei vindicatio the plaintiff must prove and establish his title.
In Abeykoon Hamine Vs. Appuhamy (52 N.LR. 49) Dias J. held that the plaintiff in an action rei vindicatio cannot rely on a Crown grant alone to discharge the initial burden of proof that rests on him to establish that he has dominium to the land in dispute. Where the trial Judge has made a cardinal error ab initio by placing the onus on the wrong party it would not be proper for the Appellate Court to try and ascertain whether, had the trial Judge placed the onus on the proper party, the result might have been different. In such a case it would not be proper for the Appellate Court to re-write the judgement of the trial Judge.
In Peeris Vs. Savunhamy (54 N.LR. 207) an action was instituted for declaration of title to the land in which the defendant was in possession. Dias J. said that the initial burden of proof rests upon the plaintiff to prove his title including 'L- nf the boundaries.
In Soothiratnam Vs. Annamma ( 57 N.LR. 515) section 403 of the Civil Procedure Code, which prohibits a fresh action being brought when an action has abated, directly affects only those persons who, while they are precluded from instituting separate proceedings on the same cause of action, nevertheless enjoy the alternative remedy of having the order of abatement vacated in order that the original action may be proceeded with.
A instituted against B an action for the recovery of certain property. The lis pendens was not registered. During the pendency of the action, A transferred the property in dispute to C. Subsequently A died, and, as his legal representatives took no steps to continue the proceedings, an order of abatement was made by Court under section 396 of the Civil Procedure Code. Before A's action had abated, C had instituted the present action in his own right to have the same defendant, B, ejected from the premises. Gratiaen J. held that, the provisions of section 403 of the Civil Procedure Code did not prevent the maintenance of the present action.
In Karunadasa Vs. Abdul Hameed(60N.L.R. 352) Sansoni J. held that in a rei vindicatio action it is highly dangerous to adjudicate an issue of prescription without first going into and examining the documentary title of the parties. The plea of exceptio rei venditae et traditae is available to a purchaser as against a vendor who obtains a settlement order under the Land Settlement Ordinance after the date of purchase.
In Wilisindahamy Vs. Karunawathi (1980 (2) S.LR. 136) action was filed for declaration of title and ejectment of defendants by the plaintiff as administratrix of the estate of her late husband. Various incidents which took place between 1955 and 1963 were averred in the plaint. The children and husband of the first defendant were made defendants. The dispute was originally for the house and thereafter for both the house and the land. Submission was made in appeal that the notary who executed the title deed of the plaintiff failed to comply with the provisions of section 31 (9) of the Notaries Ordinance. Victor Perera J. held that the District Judge had misdirected himself in holding that the averments in the plaint constituted several causes of action which were embodied in one action. The plaint refers to one cause of action against all the defendant respondents though various incidents which had taken place between 1955 and 1963 were mentioned. On the facts pleaded and proved in the case there was no misjoinder of parties and causes of action. The title deed was properly proved in terms of section 68 of the Evidence Ordinance. There was no issue as to whether the notary complied with the provisions of section 31 (9) of the Notaries Ordinance and no questions had been asked from him regarding that when he gave evidence
In Maniapillai Vs. Sivasamy (1980 (2) S.L.R. 214) the plaintiff claimed the land in dispute on the footing that he was the sole successor in title of one V, who's daughter P, died issueless. It was not in dispute that V was married to one Annamuttu and P was their issue. The first and third defendants claimed the land also from V, who they said had a son K, by an earlier marriage of V to one Analetchumi and they alleged that on the death of P issueless, they became entitled to die land as heirs of K. V's marriage to Analetchumi was in dispute and no certificate of marriage was produced. The defendants relied on Deed D3 of 1907 whereby V and his father S donated a land to K who was described as a son of V and a grandson of S; and on the certificate of marriage of K, D4 in which his father's name was given as V. As against these documents the certificate of marriage of V to

Annamuttu. P4 wherein V had declared his civil condition as bachelor representing thereby he was not married earlier was produced. It was argued for the defendants that by virtue of the provisions of sections 32 (5), 32 (6) and 50 of the Evidence Ordinance declarations in D3 and D4 raised a presumption that K was a legitimate child of V. Soza J. held that P4 is a more solemn document than D3 where the declarant was bound by statute to declare the truth. Sections 32 (5), 32 (6) and 50 of the Evidence Ordinance refer to relevance and admissibility and not to presumptions. But such evidence can always be countered by other evidence, as in this case, by evidence more convincing and cogent.
In Jayasinghe Vs. Samarawickrema (1982 (1) S.L.R. 349) the defendants were mother, son and daughter. By deed No. 4753 dated 12. 08. 75 the defendants transferred their ancestral home to Ajith, minor son of Mr. Kahatapitige, Attorney-at-Law and Notary Public, for a sum of Rs.3,500/- on condition that the property be transferred back to the defendant on the expiry of three years, on payment of Rs.3,500/- with 8% interest. By deed No. 4879 of 24. 03. 76 Ajith re-transferred the property to the defendants on payment of Rs.3,500/-. By deed 4880 of 24. 3. 76 the defendants sold the same land to the plaintiff for Rs.8,000/-. These two deeds too were attested by Mr. Kahatapitige, Attorney-at-Law and Notary Public. The defendants alleged that through the machinations of the Attorney-at-Law and Notary Public both deeds Nos. 4879 and 4880 of 24. 03. 76 were fraudulently executed by obtaining the signatures of the defendants by misrepresentation of facts and by obtaining their signatures and thumb impression on blank sheets of paper. They also alleged that no consideration passed and that the two attesting witnesses were not present at the time they placed their signature and thumb impression. Mr. Kahatapitige the Notary gave evidence but no attesting witnesses were called. Tambiah J. held that the circumstances of this case required that one of the two attesting witnesses be called to prove execution of the deed.
In Heenbanda Vs. Tikiri Banda (1984 (1) S.L.R. 69) the plaintiff instituted action against the first and second defendants for declaration of title in respect of certain lands and for ejectment and damages. The plaintiff produced the original of the deed by which he claimed title to the land whereas the defendants were unable to produce the original of the deed on which they relied nor even a certified copy of it and the trial Judge held in favour of the plaintiff. At the hearing in appeal it was argued that die substituted 1st defendant cannot be ejected because there was evidence that he was the tenant cultivator. G.P.S. de Silva J. held that the evidence called on behalf of the plaintiff was "more reliable" than the evidence called on behalf of the defendants since the plaintiff was able to produce the original deed on which he claimed the lands in question and also one of the attesting witnesses to prove the due execution of the deed whereas the defendants were unable to produce the original or a certified copy of their deed. Although the 1" defendant claimed to be a "tenant cultivator" of the fields and protection from eviction the question of his being a tenant cultivator is a mixed question of fact and law. It was neither pleaded nor raised in issue at the trial. Hence it cannot be raised for the first time in appeal.
In the case of Sirajudeen Vs. Abbas (1994 (2) S.L.R. 365) G.P.S. de Silva J. held that where the evidence of possession lacked consistency, the fact of occupation alone or the payment of municipal rates by itself is insufficient to establish nrpcrrinfive noscpssinn Where a nartv invokes the Drovisions of section 3 of the Prescription Ordinance in order to defeat the ownership of an adverse claimant to immovable property, the burden of proof rests squarely and fairly on him to establish a starting point for his or her acquisition of prescriptive rights. A facile story of walking into abandoned premises after the Japanese air raid constitutes material far too slender to found a claim based on prescriptive title. As regards the mode of proof ol 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 witnesses should speak to specific facts and the question of possession has to be dccided thereupon by Court. One of the essential elements of the plea of prescriptive title as provided for in section 3 of the Prescription Ordinance is proof of possession by a title adverse to or independent of that of the claimant or plaintiff. The occupation of the premises must be of such character as is incompatible with the title of the owner.
In Hariette Vs. Pathmasiri (1996 (l)S.L.R. 358) plaintiff produced title deeds to undivided shares in the land but her action being one for declaration of title to the entirety she cannot stop at adducing evidence of paper title to an undivided share. It was her burden to adduce evidence of exclusive possession and acquisition of prescriptive title by ouster. S.N. Silva J. held that our law recognizes the right of co-owner to sue a trespasser to have his title to an undivided share declared and for ejectment of the trespasser from the whole land because the owner of the undivided share has an interest in every part and portion of the entire land. But such was not the case formulated by plaintiff.
In Luwis Singho Vs. Ponnamperuma (1996 (2) S.L.R. 320) Wigneshwaran J. recognized the principle that in an action for declaration of title the plaintiff must discharge the burden of proving his title. In a rei vindicatio action the cause of action is based on the sole ground of violation of the right of ownership, in such an action proof is required that;
(i)     the plaintiff is the owner of the land in question i.e. he has the dominium and;
In lx>ku Menika Vs. Gunasekara (1997(2) S.L.R. 281) the plaintiff instituted action seeking a declaration of title to the corpus. The defendant himself claimed title on a chain of title set out in his answer. The District Court held in favour of the plaintiff. In the appeal, it was urged that the District Judge had failed to appreciate that in a declaratory action the plaintiff must strictly prove his title. Dr. Ranarajah J. held that the plaintiff must set out his title on the basis on which he claims a declaration of title to the land and must prove that title against the defendant. The Court cannot grant any relief to a plaintiff except on what he has pleaded and proved to the satisfaction of Court. A defendant should not be called upon to meet a new case or a new position taken by the plaintiff after he has already closed his case.
In Deeman Silva Vs. Silva (1997 (2) S.LR. 382) the plaintiff sued the defendant for a declaration of title and ejectment. The plaintiff based his claim on a grant from the Urban Council. Anuradhapura. G.RS. de Silva C.J. held that in a rei vindicatio action the burden is on the plaintiff to establish the title pleaded and relied on by him. The defendant need not prove anything. The grant relied upon by the plaintiff was invalid. Hence the plaintiff has failed to establish his title.

In Victor Vs. Cyril de Silva (1998(1) S.L.R. 41) the plaintiff instituted action praying for a declaration of title and for the ejectment of the defendants. It was the position of the plaintiff that lot 6 was allotted to his mother in an earlier partition case and that she was added as a party subsequent to the entering of the final decree, and the final decree was amended, allotting lot 6 to his mother, who had obtained rights prior to the partition action from the 7lh defendant, who had originally been allotted lot 6. The District Court held with the plaintiff. On appeal to the Court of Appeal Weerasuriya J. held that, failure to investigate title which could be a good ground for setting aside a decree on an appeal in the same action would not detract from the conclusive effect of section 9 of the Partition Ordinance No. 10 of 1863 when the decree is being considered in a separate action. On a party of reasoning the fact that lack of jurisdiction to amend a final decree may be sufficient ground for an Appellate Court acting in the same case to set aside decree, does not detract from the conclusive effcct of section 9 when the decree is being considered in an another case. The question whether the District Judge acted in excess of jurisdiction in amending the final decree should have been canvassed by the parties affected by way of an appeal to the Supreme Court in the same action. Weerasuriya J. further stated that the District Judge was in obvious error when she failed to evaluate the evidence, in terms of section 187, Civil Procedure Code , the failure to comply with the imperative provisions of section 187, has not substantially prejudiced the rights of the defendant-appellants or has not occasioned a failure of justice to the defendant-appellants, as it is evident on a close examination of the totality of the evidence that the District Judge is correct in pronouncing judgement in favour of the plaintiff respondent.
In Croos Vs. Sakuff(1998 (1) S.L.R. 68) the plaintiff filed action for declaration of title. It was her position that the premises in suit were let by her husband to one L.S. and after the latter's death it was alleged that defendant was in unlawful occupation. I"he defendant's position was that he was a brother of the original tenant and that he had succeeded to the tenancy after the death of L.S. in terms of section 36 (2) (a). Wigneshwaran J. held that at most the evidence shows that the defendant was a half brother or step brother of the deceased tenant. The relevant section docs not include half stepbrother into the category of a brother. There was no proof that the defendant was a member of the household of the original tenant during the period of 3 months preceding his deaLh as required by section 36 (ii).
In Banda Vs. Soysa (1998 (1) S.L.R. 255) plaintiff as the trustee of Ginikarawa Vihara sued the defendant for a declaration of title to 17A. 2R. 3 IP. of land depicted in plan P2 and for ejectment and damages. The plaintiff's claim was based on Royal Grant of Sannasa PI registered under the Temple Lands Registration Ordinance, 1856. As per the title plan P4 prepared by the Surveyor-General the total land covered by the Sannasa is 414 acres in extent. According to the Register prepared under the Scrvice Tenures Ordinance P3 approximately 126 acres of this land consisted of Paraveni lands. Such land vested in the Paraveni Nilakarayas whilst Bandara or Maruwena lands vested in the trustee of the temple. G.P.S. de Silva C. J. held that when a temple land is not entered in the list of Paraveni lands of the temple the neccssary inference, at any rate unless some adequate explanation is given for the omission, is that the Commissioner had determined that the tenure of such lands was not Paraveni but Maruwena. Accordingly the balance 288 acres of the entire extent of 414 acres shown in P4 were Bandara lands. The land dispute depicted in plan P2 fell within an extent of 300 acres more or less which had been leased to one Herat on a notarially executed lease bond in 1906 by the trustees of the Vihara at that time. There was thus sufficient evidence led on behalf of the plaintiff to prove the tide and identity of the land in dispute. G.P.S. de Silva C.J. stated further that in a case such as this the true question that a Court has to consider on the question of title is, who has the superior title?
In Beebi Joharu Vs. Warusavithana (1998 (3) S.L.R. 227) the plaintiff had leased the premises owned by her to the defendant for 4 years. She alleged that the defendant failed to hand over possession of the premises after the expiry of the lease. The defendant admitted the lease but pleaded that the premises were governed by the Rent Act and claimed to continue in occupation of the premises as a statutory tenant. But the document which the defendant produced in support of his claim was inadequate. G.P.S. de Silva C.J. held that the burden of proof is on the defendant to show that he is in lawful possession of the premises. The defendant failed to discharge the burden; hence, the plaintiff was entitled to judgement. Where the evidence is inadequate, the District Court is not required to ensure the production of relevant evidence before giving judgement. Neither section 134 of the Civil Procedure Code nor section 165 of the Evidence Ordinance was meant to fill in the gaps in the presentation of its case by a party to the action. While these sections confer a power upon the Court they do not place a burden upon the Court.
In Gunasekera Vs. Latiff (1999 (1) S.L.R. 365) the plaintiff instituted action seeking a declaration of title, ejectment of the defendants and damages. The defendants claimed to be the tenants of the premises. WecrasooriyaJ. held that ordinarily the plaintiff has the right to begin, but where the defendant admits plaintiffs story and contends on some point of law or additional facts to be alleged by him, that the plaintiff is not entitled to any part of the relief, he claims, the defendant has the right to begin. The question as to the party who should begin the case is linked to the question on whom the burden of proof lies in a suit. While section 101 Evidence Ordinance is concerned with the duty to prove a case as a whole, viz the overall burden of proof section 103 regulates the burden of proof as to a particular fact, however the devolution of the overall burden is governed by section 102 which declares that the burden of proof lies on that person who would fail if no such evidcncc at all were given on either side. When the legal title to the premises is admitted or proved to be in the plaintiff the burden of proof is on the defendant to show he is in lawful possession defendant must begin the case.
In Wijetunge Vs. Thangarajah (1999 (1) S.L.R. 53) Ismail J. held that in a vindicatory action when the legal title to the premises is admitted the burden of proof is on the defendant to show that he is in lawful occupation. The trial Judge erred in holding that the burden of proving that the defendant is in wrongful and unlawful possession is on the plaintiff. The defendant would have to begin her case.
In Ranchagoda Vs. Viola (1999 (2) S.L.R. 01) in an action for declaration of title to lots 1 and 2 of the survey plan filed of record, it was the case for the plaintiff that her father Pelis Appuhamy "asweddumized" and cultivated the said lots for a Continuous period of 40 years and acquired a prescriptive title thereto. Those lots which constituted the subject matter of the action were cultivated with cinnamon and vegetable. Lot 3 in the same plan was a paddy field cultivated by Pelis
Appuhamy as a tenant cultivator. The District Judge who dismissed the action stated "the petitioner's father was a tenant cultivator. A tenant cultivator cannot acquire title by prescription." G.P.S. de Silva C.J. held that the District Judge had failed to appreciate that according to the plaintiff, lots 1 and 2 which formed the subject matter of the action were not paddy lands. This was a serious misdirection on the primary facts which vitiates the judgement of the District Court. The interests of justice demand a fresh trial.
In Lalitha Padmini Vs. Jayathunga (1999 (2) S.L.R. 163) the defendant resisted the action on the basis that the land iii suit one rood in extent described in schedule 1 to the plaint was owned by his wife Swarna Jayanthi on a deed of transfer Dl executed in 1959 by the original owner Charles Appu. At the time of the execution of D1, Charles Appu did not have title to the land as he had executed a conditional transfer of the entirety of the land in favour of one Podi Appuhamy deed P7 of 14. 10. 1957. Podi Appuhamy by deed P8 of 15. 05. 1961 retransferred the same to Charles Appu. Thereafter, Charles Appu conveyed the entirety of the land to his wife Charlotte, by deed P3 of 19. 07. 1961. Subsequently, Charlotte donated her rights to her daughter the plaintiff. The plaintiff never got possession of the land. Anandacoomarasswamy J. held, that on the principle exceptio rei vendita et traditae, when Podi Appuhamy retransferred his title to Charles Appu, Charles Appu's title devolved on Swarna Jayanthi by operation of law. As such Charles Appu had no interests to convey to his wife Charlotte and consequently Charlotte could not have conveyed any interests to the plaintiff. The plaintiff had not established a title superior to that claimed by the defendant's wife.
In Appuhamy Vs. Men ike (2000 (2) S. I.. R. 40) the 151 to 7'h plaintiffs instituted action seeking declaration that they are entitled to Va share of the land and that the 1" plaintiff was entitled to possession of the entire land during Yala and Maha seasons in 1969. The position taken up by the 1" and 2nd appellants is that they are ande cultivators in respect of the % share. The V* share originally belonged to one S who in 1948 gave a usufructuary mortgage to one A who had assigned same to the 1M defendant and one MS had in 1966 transferred her share to H who had discharged the usufructuary mortgage. It was contended by the Is' defendant that, he was a tenant cultivator prior to taking of the usufructuary mortgage bond and the tenancy rights revived, upon the mortgage been redeemed. The District Court held with the plaintiff, observing that the 1" defendant was a usufructuary mortgagee.
U. De Z. Gunawardena J. held that there is no evidence to show that the Is defendant was a cultivator prior to taking of the usufructuary mortgage boYid. Even assuming that the 1" defendant had worked as a tenant cultivator under S after the assignment of the usufructuary mortgage in favour of the Is1 defendant, the tenancy rights (if any) had suffered extinction through surrender or through both "surrender and merger". Surrender takes place when parties to the contract of tenancy do some act which is so inconsistent with the subsisting relation of landlord and tenant. Usufructuary mortgage and a tenancy cannot co-exist. If the tenancy rights had continued and had not been surrendered, if not of volition at least by operation of law valid inception of a usufructuary mortgage would have been made impossible for the two rights mutually inconsistent and destructive and cannot exist side by side. Merger occurs when qualities of creditor and debtor or when two incompatible rights become united in the same person. A right that had suffered extinguishments through surrender or merger cannot be revived unless there was an agreement to that effect.

CHAPTER XV POSSESSION
As Walter Pereira says possession or interdicts is the actual retention or physical occupation of a thing with the intention of keeping it for oneself and not for another. Both these part of definitions are necessary to constitute possession. Simple possession without this intention is insufficient. Hence a lessee, borrower or depository cannot be said to posses, nor an attorney or agent or a person to whom anything is committed in charge. Nor docs the mere object or design to possess anything without actual definition thereof creates a right of possession (Grot. 2. 2. 23; V.d.L 1.13. 1; Pereira p540).
Walter Pereira
says that the possession is distinguished by the civil law as naturalis or civilis. A personis said to have the "Posses 10 naturalist, qui rem sibi tenet, sed alio jure quam dominii aut nullo jure." Thus, the person who holds property by way of pledge, or ex deposito or ex mandato, is said to hold it alio jure quam dominii, whilst those who hold it by a title which the law prohibits, or who have acquired it by vio­lence, possess nullo jure.
The possessio civilis is defined to be dententio animo dominii; when it proceeds exaliqua justa causa, that is, from some cause or title on which the dominium is usually transferred, as sale, donation, devise, descent etc; it is said to be possessio civilis justa; but i f the person to whom the property was sold enters upon it before it is delivered to him hf>
Possession could be acquired by persons who are capable of holding on their behalf or sometimes on behalf of others such as infants, insane etc. Sometimes it may be acquired by an agent for his principal without the knowledge of the latter and to be informed him subsequently.
There is no necessity a corporeal taking of each part of the particular property. Thus possession taken of a part of a farm, with the intention of taking possession of the whole is considered as possession of the whole.
There is only quasi possession of incorporeal things such as usufructs and servitudes. The possession of real or personal action is acquired by cession (Voet. 42. 2. II).
Once the possession is taken over it may continue in law although not in fact. In the absence of the possessor, if a third party secredy enters into the property the possessor's possession is not seized until he becomes aware that such third party claims adverse possession.
Neminem sibi ipsum causam possessionis mutare posse is a maxim of the civil law; that is, a person having possession of property by one right or title cannot, by his own act and without the intervention of some new tide, change the character or title by which he holds it (Pereira p451).
As Grotious says the possession and all its consequences, may be acquired through an agent, and may be preserved by intention alone so long as no other person has taken physical occupation of the thing (Grot. 2. 2. 4). Ownership resulting from possession may be acquired through an agent (Grot. 3. 1. 36). He further says that strictly speaking, possession can only obtain with respect to corporeal things, but the law has
As Grotious says everyone is entitled to retain whatever he has in his possession, to resist whoever attempts to deprive him of it and to continue in such possession until another person has judicially established his ownership in the thing (Grot. 2. 2. 6). No one without at previous judgement or decree may be dispossessed, and were he to be dispossessed on the ground of right in another he must first be restored to the possession before his title can be gone into (V.d.L. 1.13. 2) spoliatux ante omnia est restituendus. Possession thus exempts from the necessity of proving ownership (Grot. 2. 2. 7).
Grotious says pending the completion of the period of prescription the possessor has no right as against the owner, but as against third parties he has as much right as if he has already acquired ownership by prescription (Grot. 2. 7. 2).
The possession is of two kinds namely possession of bona-fide and possession of mala-fide (V.d.L. 1. 13. 2). The bona-fide possession is evidently under impression that the possessor has some ownership in the thing possessed. A mala-fide possessor is not under such an impression (Grot. 2. 2. 10).
"Possession of a thing is lost by death, so that it is not considered to pass to the heir unless physical possession follows. It may be lost by renunciation or the intention of ceasing to possess or by another person taking physical occupation; so that one ceases to have any command over it (Grot. 2. 2. 12)."
As Wille defined the possession means physical control by a person of a corporeal thing with the intention of keeping the control of it for his own benefit. Such possession can be established against the whole world. The physical element of possession is that the person who claims title had control or
CUStodv or nrrnnahnn TK» m—.-1 -i         -
Possession is terminated either upon the actual possession or the intention to possess is lost or abandoned.
In Roman law and Roman Dutch law it is necessary to establish that the possession was founded on justus titulus and that the possessor acted in good faith. But this requirement is no longer a part of Sri Lankan law relating to prescription. Any possessor who is aware that he has no legal right to possess, and that someone else is the lawful owner may acquire prescriptive title if requirement in section 3 of the Prescription Ordinance is satisfied.
The possession has to be by a title adverse to independent of that of the claimant or the party who seeks title in such action. Therefore it must be a possession adverse to the right of the true owner.
"Possession" of a land must be uninterrupted and undisturbed for a certain period. Withers J. in the case of Simon Appu Vs. Christian Appu (1 N.LR. 288) has held that,
"possession is "interrupted" if the continuity of possession is broken by disputant legitimately putting the possessor out of the land and keeping him out of it for a certain time, if the possessor is occupying it, or by occupying it himself for a certain time and using it for his own advantage, if the party preventing is not in occupation.'
Possession is "disturbed" either by an action intended to remove the possessor from the land,, or by acts which prevents the possessor from enjoying the free and full use of the land of which he is in the course of acquiring the dominion, and which convert his continuous user into a disconnected and divided user.1'
Lawrie A.C.J. in the same case held in the following manner.

"if the actual physical possession has never been interrupted, it matters not that the possessor has been troubled by law-suits or by claims in execution or by violence. If he has succeeded in holding possession, such attempts to oust him only make it the more certain that he held adversely to those who disputed with him."
In the case of Charles Vs. Ramaiya (2 N.L.R. 255) Lawrie J. in considering uninterrupted possession under section 3 of the Prescription Ordinance held;
"the defendant entered into possession of a parcel of land on an agreement with 'C' to purchase it. He pleaded that he paid the purchase money by installments, and that the last instalment was paid six years after he had commenced to possessed the land, but that 'C' failed to grant him a conveyance. Such a payment, if true, was an acknowledgement of a right existing in 'C', an interrupted possession under section 3."
An action for the recovery of land, which had ended in a non suit or other decree against the plaintiff, was not such an interruption of the defendant's adverse possession of the land as disentitled him to a decree in his favour in terms of section 3 of the Ordinance for the same land by the same plaintiff.
In Emanis Vs. Sadappu (2 N.LR. 261); "D donated a parcel of his land to his daughter immediately before her marriage. She accepted the deed, but handed it back to her father for safe keeping. She never entered into possession of the land donated, but her father let it to tenants, who paid him rent, and he repaired the buildings on it during the donee's life time, who continued to be on the best of terms with her father. Lawrie A.C.J, held that 'D' must be taken to have possessed the land in trust for his daughter, and not by a title adverse to her." Perera Vs. Perera (2 N.LR. 370).
2.                                   Possessory remedy
The provisions are made in section 4 of the Prescription Ordinance No. 22 of 1871 with regard to the remedies to be granted by Courts where a person has lost the possession of an immovable property unlawfully or forcibly. The legislature has taken into consideration rhe principle relating to possessory remedy recognized under the Roman Dutch law. Section 4 of the Ordinance reads as follows.
"it shall be lawful for any person who shall have been dispossessed of any immovable property otherwise than by process of law, to institute proceedings against the person dispossessing him at any time within one year of such dispossession. And on proof of such dispossession within one year before action brought, the plaintiff in such action shall be entitled to decree against the defendant for the restoration of such possession without proof of title:
Provided that nothing herein contained shall be held to affect the other requirements of the law in respects possessory cases."
3.                                   What is dispossession
Section 4 requires that any dispossession otherwise than by process of law comes within the unlawful dispossession. As Voet says, the plaintiff is entitled to damages occasioned by the ouster (Voet. 43. 16. 6). The title of the defendant is not a defence which could be raised in a possessory action.
4. Requisites of a possessory action
In Abdul Aziz Vs. Abdul Rahim (12 N.LR. 330) a full bench of the Supreme Court held that a person appointed by the congregation of a Muhammadun mosque as "trustee" for a term of years, whose duties and powers are defined by the rules framed by the congregation, and who is controlled in the exercise of his powers by an "assembly" elected by the congregation, is not entitled to maintain a possessory action. The Roman Dutch law requires the plaintiff in a possessory action to have had quiet and undisturbed possession for a year and a day; and the requisites of possession are the power to deal with the property as he pleases, to the exclusion of every other person, and the animus domini,i.e., the intention of holding it as his own.
In Perera Vs. Wijesuriya (59 N.LR. 529) Court held that, trespass without ouster may, in appropriate circumstances, amount to dispossession within the meaning of section 4 of the Prescription Ordinance. The land in dispute in this action was part of a larger land and had been in the possession of the plaintiff for over 25 years. On June 13, 1951, the defendants (husband and wife) entered the land after cutting down the live fcnce which formed one of its boundaries, When the plaintiff informed the police, he latter advised the rival parties to submit their dispute for adjudication by a Court of law and to abstain from the exercise of any rights in respect of the land in the meanwhile. On June 22, 1951, however, the 2nd defendant and several others entered the land and commenced to construct a hut thereon. They were again warned by the police against a breach of the peace and proceedings were instituted in the Magistrate's Court on the next day to have the wrongdoers bound over to keep the peace
The proceedings in the Magistrate's Court were withdrawn by the police on July 28, 1951, in consequence of an undertaking given to Court by the 2nd defendant not to enter the portion in dispute "pending the decision of this matter in a suitable action", which civil action was to be filed by the plaintiff within two months from July 28, 1951. Pending the proceedings in the Magistrate's Court, the plaintiff erected on June 23, 1951, two mud huts on the land and placed her agents therein. Subsequendy, in accordance with the undertaking given in the Magistrate's Court, the plaintiff instituted the present action on August 24, 1951, claiming a possessory decree to prevent the defendants from entering the land again. Basnayake C.J. held that, although the plaintiff was in possession of the land on the date of the institution of the action, the acts of the defendants on the 13lh and 22nd June, 1951, amounted to dispossession of the plaintiff within the meaning of section 4 of the Prescription Ordinance. The plaintiff, therefore, having been in possession of the land for over a year and a day prior to 13th June, 1951, was entitled to maintain a possessory action. Pattirigey Charles de Silva (1883 (5) S.C.C. 140) was not followed.
In Edirisuriya Vs. Edirisuriya (78 N.L.R. 388) Vythialingam J. held that the essence of the possessory action lies in unlawful dispossession committed against the will of the plaintiff and neither force nor fraud is necessary. Dispossession may be force or by not following the possessor to use at his discretion what he possesses. To succeed in a possessory action the plaintiff mast prove that he was in possession "«r dominus". This does not mean possession with the honest belief that the plaintiff was entitled to ownership. It is sufficient if the plaintiff possessed with the intention of holding and dealing with the property as his own.
In F.dirisuriya Vs. Jayawardene (1995 (2) S.L.R. 144) the plaintiff instituted possessory action against the defendants. The defendants denied that they were in unlawful possession. The District Judge dismissed the plaintiff's action, on the basis that, the plaintiff's possession was one of 'rare possession' or 'occasional possession' and not undisturbed possession. Dr. Ananda Grero J. held that the plaintiff need not himself have been in possession for the whole of the period of one year, and one day, he can be permitted to "tack, on" (i.e. to tag) his predecessor's possession to the period of his own possession. In the circumstances of this case, the possession of the plaintiff's father accraes to the benefit of the plaintiff, therefore his father's possession can also be added to his possession of the subject matter. There was no proper evaluation of the evidence led.
5. Predecessor's possession
As it was held in Silva Vs. Appuhamy (15 N.LR. 297) in a possessory action a plaintiff might take advantage of his predecessor's possession. It is not necessary that he should himself have had a year and a day's possession.
In Raymond Vj\ Wijewardena (40 N.LR. 307) Abrahams C.J. held that in a possessory action the plaintiff is entitled, in calculating the essential period of a year and a day to take advantage of the possession of his predecessor in title, even though the person dispossessing him happens to be his predecessor in title.
6.                                   Possessio civilis
A person dispossessed need not prove possessio civilis to be restored to possession. Wille on "Landlord and Tenant" (Chapter XV) says that if the landlord ejects the tenant either forcibly or illicitly he commits an act of spoliation against the tenant and the tenant is entided to a mandanumt van spolie or order replacing him in occupation or possession of the premises.
Professor R. W. Lee in "Introduction to Roman Dutch Law" (1946 Ed., pl65) states that it is given not merely to the possessor in the strict sense, but to a trustee or lessee and to any other person who holds by lawful title with the intention of securing some benefit for himself as against die owner, such as borrower and perhaps, to any other person in actual control.
In Sameem Vj. Dep(55 N.LR. 523) Pullc J. had considered the question of possessio civilis and held that a contractual or statutory tenant who has been forcibly ousted from his premises is entitled to maintain a possessory suit against the person dispossessing him. As against a spoliator the person dispossessed need not prove possessio civilis to be restored to possession.
7.                                   Possession ut dominus
The question arises as to whether the plaintiff is obliged to establish a possession ut dominus in seeking the possessory remedy. In Mc Carogher Vs. Baker (Wendt 253) the plaintiff had possessed the property merely as an agent and therefore the Court held that he was not entitled to a possessory decree in his favour. In Alim Saibu Vs. Cadersa Lebbe (9 S.C.C. 4)
as priest of a Mohammaden Mosque had received the contribution of the congregation, had administered the found of the mosque, had entered into contracts on behalf of the congregation and generally had the charge of the affairs of the rnosque as the religious head thereof. The Court held that his possession of the mosque and the premises was not in possession ut dominus, but the possession on behalf of the congregation and he could not therefore maintain a possessory action in respect of that property.
In the case of Changara Pillai Vs. Chelliah (5 N.LR. 270) Ronser C.J. goes on to say in die following manner.
"the only point agreed before us was to the competency of the plaintiff maintain the action. It was agreed that whatever his duties and rights were and whatever his powers were, he did not claim to be the owner of the property ut dominus and therefore he could not maintain the action."
After careful examination of previous judgements, the Court has held that sincc the plaintiff had the control of the fabric of the temple and the property, he was entided to maintain possessory suit.
In Abdul Azeez Vs. Abdul Rahiman (14. N.LR. 317) Privy Council held that under the Ordnance No. 2 of 1971 a trustee of a mosque in possession for more than the requisite year and a day is entitled to bring a possessory action as a remedy for forcible dispossession.
Voet says that a person who seeks such a remedy should have had the possessio civilis as distinguished from the pussesain nn turn! it in respect of the propcity sought to be
recovered (Voet. 6.1.29).
The question arises as to whether a co-owner can maintain a possessory action against another co-owner. In Rowel Appuhamy Vs. Moises Appu (4 N.LR. 225) it was held that a possessory action was inappropriate where the defendant was admittedly a co-owner and if co-owners could not agree as to the exercise of their common rights. The only appropriate remedy was an action for partition.
In Perera Vs. Fernando (1 S.C.R. 329) it was held that the possession of a co-owner was not such an exclusive possession as entitled him to a possessory action in the event of his being dispossessed. In Cassilebbe Vs. Baba (7 S.C.C. 97) it was held that one of the several part owners of immovable property was entitled to institute a possessory suit against a trespasser who was not entitled to any share of the land.
In Silva Vs. Sinno Appu (7 N.LR. 5) Supreme Court held that, the owner of an undivided share of land cannot maintain a possessory action in respect of such share, provided he joined the other co-owners as parlies either plaintiff or defendant, tt was followed in Fernando Vs. Fernando (13 N.LR. 164).
In Heen Hami Vs. Mohotii Hami (19 N.LR. 235) the full bench had decidcd that there is no rule of law that a co-owner cannot maintain an action against an another co-owner without joining all the other co-owners of the land. In Abeyarathne Vs. Seneveratne (1914 (3) Bal. N.C. 22) Lascclles C.J. held that a possessory action can be maintained by one owner against the other. In coming to the said conclusion the Court had cited the judgments of Silva Vs. Sinno Appu (7 N.LR. 5) and Fernando Vs. Fernando (13 N.L.R. 164). In Cooray Vs. Samarcmayake (47N.LR. 322) Howard C.J. held that a co-owner who has been in possession of the entire common property for a year and a day ut dominus can maintain a possessory action against another co-owner who thereafter ousts him.
9.                                   Possessory action against lessors
Fn the case of Perera Vs. Sohana (6S.C.C. 61) the question arisen was whether a lessee has a right to bring a possessory suit against the lessor on being forcibly dispossessed by the lessor during the continuance of the term of the lease. Bernside C.J. after examining the principles of Roman Dutch law held that such a lessee is entitled to bring an action of this nature.
In the case of Vingiriya Vs. Payne (11 N.L.R. 105) it was held that where a lease of immovable property who had been in possession of it had been disposed otherwise than by process of law by a purchaser of the property from the lessor, the lessee was entided to be restored to the possession even though such purchaser had a better title to the property.
In Fernando Vs. Fernando (13 N.L.R. 164) Court held that a lessee who had entered into possession of property of bona-fide under a lease was entitled to a possessory remedy, even though the lease might be technically defective. He had to prove possession ut dominus, that is he should have had "possession" not alieno nomina but with the intention of holding and dealing with the property as his own for the full term of the lease.
As far back as 1858 a question arose as to whether the Mohideen or principle manager or trustee of a mosque who had the management in the trust for the mosque could maintain an action of possessory suit. The Supreme Court held that such a person was entitled to maintain an action against who turned him out of possession (3 Lor. enz. Rep. 28). In the case of Tissera Vs. Costa (8 S.C.C. 193) it was held that a person called the Muppu of a Roman Catholic Church was not entitled to maintain an action. The reason was that the muppu has no control over the church but he was only a caretaker entrusted with the custody of ccrtain movables. He was a subordinate servant whose duty was to keep the church clean.
In the case of Changarapillai Vs. Chelliah (5 N.LR. 270) the plaintiff claiming to be the manager of the Kandaswamy Temple at Nallur and its property, complained that the defendant unlawfully kept him out of possession of a land. He prayed that, as Manager of the said temple he be declared entitled to possess tlie said land and that the defendant be ejected therefrom. It was revealed that the plaintiff as the manager had controlled of the fabric of the temple and of the property belonging to it. Even though he made no pretence of claiming beneficial interest of the temple or its property, but was only a trustee for the congregation who worship there. Bonser C. J. held that he was entitled to maintain such action.
In the case of Alim Saibo Vs. Cadersa Lebbe (9 S.C.C. 4) the plaintiff for many years had officiated as priest of a Mohammaden mosque and generally he had the charge of affairs of the mosque. But the Court held that his possession of the mosque and premises was not a ut dominus possession on behalf of the congregation and therefore he could not maintain a possessory action in respect of that property. In Abdul Azeez Vs. Abdul Rahiman (14 N.LR. 317; 1911 A.C. 746) the Privy Council held that under the Ordinance No. 22 of 1871 a trustee of a mosque in possession for more than the requisite year and a day is entitled to bring a possessory action as a remedy for forcible dispossession. The term "Trustee" as applied to the manager character of Moorish Mosque in Ceylon is a misnomer and it is doubtful that he can be said to have the possessio civilis that is to say the possession necessary to entitle a person to the possessory remedies under the Roman Dutch law. The authorities are practically agreed that those seeking the remedies with the exception of absent owners and certain officers of churches and religious bodies as mentioned by Voet should have had the possessio civilis as distinguished from the possessio naturalist in respect of the property sought to be restored.
Menika Vs. Dharnmananda (50 N.LR. 126) was a case where a field which did not form part of the property of a Vihare was possessed by the Viharadhipathi as part of the temporalities. The Court held that his possession was juristic possession and he was entitled to maintain a possessory action if ousted. Terunnanse Vs. Don Aron ( 34 N.LR. 348) and Dias Vs. Ratnapala Terunnanse (40N.LR. 41)distinguished.
11. Possessory actions in respect of State lands
A possessory action can be instituted without proof of title unlike in vindicatory actions. So far as the other requisites are fulfilled the party seeking possessory remedy need not prove any title.
In Attanayake Vs. Aladin (1997(3) S.L.R. 386) the plaintiff instituted this action for recovery of possession of a certain field, on the basis of it being granted to him on a yearly permit under the Land Development Ordinance; and that the defendant forcibly entered the field and commenced to cultivate. The District Judge dismissed the plaintiff's action, on the basis that where there was no declaratory relief asked the plaintiff must establish possession, for a year and a day and further the plaintiff in order to claim the relief should have established his rights to possess and sought a declaration of his tights to possess as a permit holder or as a lessee.Weerasekera J. held that the action is clearly not a possessory action. There is no averment of dispossession as required by section 4 of the Prescription Ordinance No.22 of 1871. The averments indicate non-possession by plaintiff for three years and the consequent dispossession. It is clear that the action is also not a rei vindicatio action. The plaintiff pleads no title to be declared entitled to the land but to be only a yearly permit holder. The plaintiff only stales that he came to possession on the permit but did not seek a declaration that he was entitled the land on the alleged yearly permit. The consequential relief of the ejectment of the alleged trespasser cannot therefore arise.
12. Possessory action against a mortgagor
In Banda Vs. Hendrick (1 A.C.R 81) it was held that a usufructuary mortgagee could maintain a possessory suit against his mortgagor the reason given being that his was a sufficient beneficiay interest in the property to constitute a possession ut dominus.
In the case of Perera Vs. Gunetilleke (4 N.LR. 181) the plaintiff was the owner of a piece of land which is almost surrounded by canals. It was not directly in communication with any public road. The nearest way to the public road was across the land of the defendants. The plaintiff had bought this land some forty years ago, and he had a house on it and a sawpit. His case is that during the whole of the time he and his workmen have been in the habit of taking a short cut across the defendant s land in a well defined track. He further contended that he had been in the habit of letting out part of this land for grazing purposes to a milkman, and that the milkman had been in the habit of bringing his cows to, and taking them away from, the grazing groutid across the defendants' land by that well defined track. The defendants put up a fence of bamboos and thorns and obstructed the path. The plaintiff filing this action claimed a declaration that he is entitled to the way for the purpose of a footpath and also for the purpose of driving cattle along it and prayed for an injunction. District Judge dismissed the plaintiff's action and he preferred this appeal against the same. Bonser C.J. held that where a person establishes that he has used a way as of right openly and continuously for a long period and is forcibly prevented from using a right of way which has been used openly and continuously for a long period also could resort to this action.
In an action for possessory remedy, the plaintiff is entitled to take advantage of the possession of the predecessor in the title in reckoning the period of one year and a day. It is not necessary that he himself should have had possession for a year and a day. This principle was accepted in Fernando Vs. Perera (4 N.LR. 195).
As held by Bonser C.J. in Goonewrdem VS. Pereira
P N.LR. 320) in a possessor action, the plaintiff may take the advantage of the possession of his predecessor in title It is not necessary that he himself should have had «                  a
day's possession.
In Silva Vs. Dingiri Menika (13 N.LR. 179) Hutchinson C.J. said that to succeed in a possessory action all that is necessary for the plaintiff to prove is that he was in possession and that he was dispossessed otherwise than by process of law. It is not necessary to prove possession for a year and a day before ouster.
In Silva Vs. Appuhamy (15 N.LR. 297) Wood Renton C.J. held that in a possessory action a plaintiff might take advantage of his predecessor's possession; it is not necessary that he should himself have had a year and a day's possession. In an action for declaration of title there is nothing to prevent the Court from granting a possessory decree ex mem motu when all the necessary evidence is before it.
In Silva Vs. Kindersley (18 N.LR. 85) Perera J. held the right asserted and claimed in a possessory suit is the right of perpetual possession of the land in claim as against the defendant. Owing to the impracticability of accurately valuing such a right, the course usually adopted is to regard the right as being equal in value to the value of the land itself. The value of the right of possession of the land for a year is a fallacious test.
As it was held in Lebbe Vs. Banda (20 N.LR. 343) the value of the subject matter of a possessory action for the purpose of jurisdiction when the suit is brought by a lessee is not the value of the unexpired term of the lease, but the value of the
Bastianappuhamy Vs. Haramanis Appuhay (46 N.LR. 505) was a case where the plaintiffs, as lessees of a certain land, brought a possessory action against the defendants who claimed to be on the land as the tenants of a different owner. The Court held that in a possessory action, whether brought by a plaintiff suo nomine or as lessee, the subject matter is the right to possess the whole land, without limitation in point of time, and the jurisdiction of the Court is determined by the value of that right.


2 comments:

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