Equity aids the vigilant, not those who sleep on their property rights

By Lakmal Sooriyagoda
The Colombo District Court has delivered a judgment in favour of the defendant parties regarding a property in Colombo that was derived by right of 
long and prescriptive possession.

In this land dispute case, the counsel for the defendants argued that the plaintiff who claimed that he is entitled to the lawful ownership of a property by virtue of a deed of gift, had slept over his rights for 27 years, despite the defendants having been in possession of the said property during the whole ordeal.

The plaintiff instituted an action before the Colombo District Court against the four defendants to vindicate his rights pertaining to a property in Colombo, with the intention to eject the prescriptive landholders. 

The plaintiff claimed that he was entitled to the ownership of the said property by virtue of the deed of gift dated 23/07/1993, whereas the defendants claimed that they are entitled to the rightful and lawful ownership of the said property by right of long and prescriptive possession, having been in undisturbed and uninterrupted possession of the said property for well over 10 years in compliance with Section 3 of the Prescription Ordinance, which was subsequently declared upon by the fourth defendant by virtue of the deed of declaration dated 30/09/2005.

During the cross-examination, Senior Counsel Ian Fernando was able to draw the attention of the court to the fact that it was highly unusual of the plaintiff’s father to place his fingerprint in the deed of gift dated 23/07/1993, instead of his usual signature, especially considering that the plaintiff’s father was employed as a Superintendent at the Health Ministry before his retirement, who would have been almost certainly been well-aware of the importance of placing his signature in such salient documents.

Fernando further submitted to the court that it took the plaintiff well over 27 years to file a police complaint (2011), which could only lead to the assertion that the plaintiff was sleeping over his rights for 27 years, despite the defendants (and their predecessors) having been in possession of the said property during the whole ordeal.
The Colombo District Court determined that the plaintiff had failed to prove and establish the title pleaded and relied on by him and the plaint was dismissed accordingly.

The plaintiff was represented by President’s Counsel Jagath Wickramanayake, with his Junior Counsel Migara Dos, under the instructions of Senior Attorney-at-Law Sanjeewa Anthony. 

The second and third defendants were represented by Fernando, under the instructions of Senior Attorney-at-Law S. Bagirathan. The fourth defendant was represented by Senior Counsel Janaka Gamage, under the instructions of Senior Attorney-at-Law M.Y. Silva.