By Lakmal Sooriyagoda 

The Supreme Court has delivered a judgement in favour of the plaintiff party over a land dispute relating to a 90-perch plot of land in Kurunegala, which traversed the halls of the courts for 52 years.

This case was first instituted in 1972 by the original Plaintiff in the District Court of Kurunegala against the original Defendant for a declaration of title to the land called “Damunugahamulawatta”, ejectment of the original Defendant from the said land, restoration of possession and damages.

On March 29, 1976, the Kurunegala District Court delivered a judgement in favour of the Plaintiff. Subsequently, the Defendant filed an appeal in the Court of Appeal against the District Court judgement. On October 25, 1984, the Court of Appeal set aside the judgment of the District Court and sent the case back for a fresh trial (de-novo) on the basis that the District Court Judge had not taken into consideration the several documents in evidence. 

Following the second trial, the District Court, by judgement dated April 28, 1997, held in favour of the Plaintiff. The Substituted Defendant then preferred an appeal to the Court of Appeal. The Court of Appeal, by judgement dated December  02, 2011, set aside the District Court  judgement on the grounds that the Plaintiff had failed to properly discharge the burden of proof to establish title and identity of the land in dispute. Being aggrieved by the Court of Appeal judgement, the Substituted Plaintiff (replacing original plaintiff following his death) appealed to the Supreme Court. Leave to appeal was granted by the Supreme Court in this matter on May 6, 2013.

This land dispute case was relating to Roman Law action called “rei vindicatio action”. It is settled law that in order to succeed in a rei vindication action, the Plaintiff must, firstly, prove ownership of the property and, secondly, that the defendant is in possession of the property. The burden of proof is placed on the Plaintiff to prove ownership on a balance of probabilities.
The appeal was allowed by Supreme Court three-judge-bench comprising Justices S. Thurairaja, A.H.M.D. Nawaz and Achala Wengappuli delivered a judgement in favour of the substituted plaintiff.  “As the original Defendant did not claim for a declaration of title to the corpus and instead claimed for his rights as a lessee under the agreement executed between himself and the original owner, the Substituted Defendant cannot take up a position different to the original Defendant,” the Supreme Court held.