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Friday, 18 February 2011

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SC sets aside District and appeal Court judgements

The Supreme Court set aside the judgements of the District Court and the Court of Appeal and made order dismissing the action filed by the respondents in the District Court.

Justice Saleem Marsoof PC in his judgement stated "I also award costs in a sum of Rs 25,000 payable to the Appellants jointly, by the Respondents jointly and severally.

Chief Justice Asoka de Silva with Justice PA Ratnayake PC agreeing in the judgment stated "in all the circumstances of this case, I allow the appeal answering the substantive question 1, 3, 4 and 5 on which special leave had been granted by this court, in favour of the Appellants.

I do not consider it necessary to answer substantive question 2. I would accordingly set aside the judgment of the District Court and the Court of Appeal."

Petitioners Jamaldeen Abdul Latheef and Koya Mohideen Nizardeen both of Nachchaduwa cited Abdul Majeed Mohamed Mansoor and Abdul Majeed Mohamed Nizar of Dharga Road, Govijana Mandiraya, Nachchaduwa as respondents. Justice Saleem Marsoof PC in his lengthy judgement stated that this appeal arises from an action for declaration of title filed in the District Court of Anuradhapura in December 1989 by the Respondents who claimed title to the four acre land named 'Palugahakumbura' situated in Mahawela (Pahalabaage) in the Pandiyankulam village, in Nachcha Tulana of Ulagalla Korale in Hurulu Palata in the Anuradhapura District, more fully described in the schedule to the joint petition filed by them.

They claimed title by virtue of the Deed bearing No.6165 dated February 9, 1987 and attested by Lionel P Dayarante, Notary Public. In the joint answer filed in the District Court by the Appellants, it was denied that they disturbed or obstructed the Respondents in the enjoyment of their land or cultivation carried out thereon.

From the said answer it appears that while the 2nd defendant-appellant did not make any claim to the land in question as owner. It is also stated therein that although the said property was gifted by the said appellant to his wife Noor Nisa, he had continued to be in uninterrupted possession thereof.

In the joint answer, the appellants prayed that the action be dismissed, and a sum of Rs 22,000 be awarded damages for the loss of 200 bushels of paddy, but they have not prayed for a declaration of title to the land claimed by them, or that they be placed in possession thereof. In view of my answers to the three sub-questions of substantive question one on which special leave has been granted by this court, it is unnecessary to decide question two which is whether the Court of Appeal erred in failing to consider that the District Judge has not duly evaluated the evidence on the question of prescription.

I therefore do not propose to go into this question in depth. In a REI VINDICATIO action, it is not necessary to consider whether the defendant has any title or right to possession, where the plaintiff has failed to establish his title to the land sought to be vindicated and the action ought to be dismissed without more, the judgment stated.

President's Counsel Faisz Musthapha with N M Shaheed appeared for the defendant-appellants. President's Counsel W Dayaratne with R Jayawardane appeared for the petitioner respondents.

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