Gajalakshmi Paramasivam

5 October   2016

Why New Zealand & Not India?

Next week, we as a society would officially mourn the pain and suffering of Bali Bomb victims. The reason why it happened to us would be recognized  by each group as per their own mind-order. To the extent that mind-order is as per one’s Truth – the reasoning would naturally merge to lead us to the Common reason and the Common pathway. The real  solution would be developed through that Common pathway.

As a citizen of Coogee with high number of casualties – I had the experience with the direct victims of the Bombing. To many, including the victims’ families their loved ones were at the wrong place. But those to whom Coogee is ‘home’ would identify with the deeper reason. They would understand through their own feelings for the land. Mine was that we as a Community continued to carry the karma of displacing those to whom Coogee was ‘home’ as per their own rules which were/are different to the secular rules of  Westerners. Had I not been a victim of exercise of Subjective power – I am not likely to have connected to the pain of Aborigines to whom Coogee was home and who were removed from that place to accommodate the pleasure activities of migrants. The more I connected to the pain of the Land - the weaker that negative karma became. Towards this my own pain needed to be True and such that it was driving me to displace myself from the land that was already ‘home’ to me. Many times during my battles against the University of NSW and the Government, we went through the external thought process of selling our home-unit in Coogee. But Coogee kept preventing us from doing that. When our son recently stated that this home-unit was of heritage value to the family and stated that he would do his best to uphold that heritage – I felt deep peace.

This week we honored Gandhi and his commitment to Truth. Gandhi was killed by a Hindu. Even in death – Gandhi surfaced the mind-order of Hindus of his time at that place. The mind of one driven by Truth lives forever at that place. It would cure those who live through false values – to whom also that place is home.

Mr. Wigneswaran – the Chief Minister of Northern Province of Sri Lanka, has been genuinely speaking up on behalf of victims of war who have been displaced / evicted from their homes. The outer reasons could vary as per each person’s mind-order – but the deeper common Truth is that these folks have been displaced from their homes. Mr. Lacille de Silva, former Secretary to Presidential Commission on Serious Fraud and Corruption, in Sri Lanka asks in his Daily Mirror article ‘Do we have good leaders?’:

[Why is it that the Northern Chief Minister too, who was a highly respected public personality, made headlines these days? TNA Parliamentarian M.A. Sumanthiran in an interview with the BBC had told that they did not approve Northern Province Chief Minister launching – RISE UP TAMILS (ELUGA THAMIL), protests, particularly because they were currently holding talks with the Government with regard to new Constitutional arrangements.   

Sumanthiran, who is a respected professional, very rightly had said that the protest  march organised by the Tamil People’s Council  led by the Chief Minister would create undue misunderstandings in the southern community with the Tamil people. We must certainly salute the men of the calibre  of Sumanthiran, who had taken up an enlightened view with regard to ethnic question unlike many others - ‘fishing in troubled waters’.   ]

                             

Now that Mr. Lacelle de Silva is out of his uniform, Mr. Lacelle de Silva has the right to express his belief based reasons but not that which seems ‘right’ to him as per his mind-order influenced by policies. Whether it is Mr. Sumanthiran or others with leadership position in TNA – they have the duty to present the problem of Tamils as per their own experience based belief.  Mr. Wigneswaran, likewise, would use the language of his current position to express himself. They would both be right to a community that needs to preserve the value of sacrifices made by their leaders at various levels. Many such leaders would have been at family level – practicing the principles underpinning Thesawalamai.

The Sri Lankan Prime Minister’s expressions in New Zealand  is reported as follows by the Island :

[Addressing the Sri Lankan community in Auckland on Saturday, the Prime Minister  said that  a combination of the first-past-the-post and the proportional representation systems on a 60 to 40 percent basis would be introduced, making it better than the one being used in New Zealand through the allocation of six bonus seats to the winning party. "Having looked at the German model, we have decided that New Zealand’s electoral system coupled  with our proposal to provide the provinces more devolution would be ideal."

Wickremesinghe observed that it was interesting to be innovative and that was the way forward if Sri Lanka was to achieve its full potential.]

Election of leaders through Votes  must be such as to bring out the Belief of the voter. The makeup of majority in New Zealand is different to the makeup of majority in Australia. The former is the parallel of the current president of Sri Lanka and the latter is the parallel of the immediate past president of Sri Lanka. Within the Tamil Community – those living in multicultural areas are the parallels of the former and those living in Northern Sri Lanka are the parallels of the latter. If not for the Jaffna Tamil – minorities by ethnicity would be thought of as second and third classes in Sri Lanka. This is partially due to the proximity with Tamil Nadu whose politicians are known to usually act as opposition to Central Government. The strength of any minority is as per their Belief that they are a Sovereign Group with the capability of merging naturally and of their own accord, with wider world.

Those who use LTTE to attribute blame for the war while they cover-up their own side’s faults would develop those LTTE qualities in themselves. That is the law of nature. One has the moral authority of belief to criticize and punish another and one has the external authority of Common law to criticize and punish another but only after punishing her/himself first. When one punishes on the basis of belief – one punishes oneself when punishing the other. Those seeking internal inquiry into alleged war-crimes have the duty to acknowledge that LTTE about whom they went to wider world – was not part of themselves.

Commodore Ajith Boyagoda is reported to have shared his experience of war as follows:

[In Karainagar, everything had been broken open. It felt like 90% of the houses had been forced open by the marching troops. It was here I really saw the mentality of a Sinhala army walking through a Tamil village. Whatever they saw, they destroyed. Wardrobes had been opened, clothes pulled out, family photographs smashed. The cattle and the goats had been let loose. I saw cows inside houses. I think anyone returning to one of those homes would not have thought twice. If they were young, they would enlist with the LTTE.

Gradually, the soldiers began to vacate the island. We had a big issue with troops removing loot as they left. I told the officers in charge that they must take control of their troops.

The looting was systematic. The troops knew that the shrine rooms of houses generally contained the family safe. So, this was what they broke into, looking for gold. I had heard about looting of course. But this was the first time I saw it with my own eyes.

Just imagine: your house is intact today. Suddenly you’re told to vacate it; go to some place. After a week or so, when you return, you find a ransacked house. How would you feel? A life’s earnings maybe, gone at once. Maybe the work of generations, undone.

Take a family album: it doesn’t mean anything to a stranger. But to you it is a treasure. There can be a lot of memories kept safe inside. Now all those memories have been desecrated.

I remember some casual talk after dinner when I asked a few young officers why there was so much looting. Why did they let their troops do this? I asked. Weren’t they clearing the way for [Velupillai] Prabhakaran [the LTTE chief]? They told me a long story about how soldiers needed insurance in case they lost limbs to anti-personnel mines. I told them – “Look here, you don’t have to worry about your soldiers’ limbs. There is a government, there is a ministry. They are responsible people who will look after the welfare of your soldiers. You don’t have to rob civilian people.” Even to tell such a story was to set a bad example to their men and to one another.

They argue that in war these things happen. Maybe. But if we are trained and honest soldiers, we should at least correct the troops we each command. If some of us managed to do it, it wasn’t that it couldn’t be done – but that people didn’t want to. Was it that they benefited too? Or was it just the easier option?] A Long Watch

I identify with the above leader as a leader committed to his job. One who respects the position would strengthen the institution that s/he is part of. But those who are free and are outside the boundaries of their positions – need to be true to themselves to prevent abuse of power. When one who has been true to her/his home is hurt due to damage to that home and/or eviction from that home – it accumulates negative karma to the perpetrator – even one in uniform. If the officer in uniform carried out his duties – the karma is accumulated at the higher level – the highest being at policy level. Where laws are changed to accommodate such action – the law maker carries that karma. Even one person whose mind-structure relates at that policy level – can invoke the return of that karma. The opposition  from the Tamil Diaspora is stronger  for the Sri Lankan Government due to the ‘unknown’ but true cause of return.

The Sri Lankan voting system needs to be more on belief basis and less on conscious logic. The Administration would need to be the other way around – to show the world how civilized we are. Jaffna is not yet out of its mourning to think of ‘showing’ along with the Sri Lankan Government that we are over the war. We need to be facilitated to mourn in our privacy. The Southerner would soon ‘forget’ and would tend to carry on as usual – so long as s/he gets what s/he wants. The mind of Tamil leaders in National Parliament seems to have disconnected with the suffering of Tamils. Strictly speaking they ought to have produced their own proposals towards upholding the Equal position  of Tamils as a Community. The main parts of such proposals ought to show Adverse Title to the proposal by the Government. That is how the memory of the Sinhalese is kept active and alive as to what the Tamil is capable of when interfered with. Mr. Wignewaran did through belief - what the TNA leadership in National Parliament failed to do through logic.

The submission in Appendix would highlight to any genuine seeker the value of belief based Title.  In this instance the Land that was/is home to me called me back to restore the law and order in Colombo – the Prime Minister’s home area. That is also contribution to Good Governance at that level.

Our mind-order is restructured each time we recognize Belief.  The Hindu system of attributing to Parents, Guru and God – leads to the expansion of the mind to include others as part of ourselves. Relative to New Zealand, India has been close to Sri Lanka in development of Peace. One should openly attribute that credit to the elder to release oneself from the fear of loss of votes. Ultimately it is about us living with our mind. Hence a position that shrinks our mind is harmful to us. When we are true to the Land – the land will beckon beyond the seas.

APPENDIX

On this 20 ^th Day of September  2016,

TO HIS LORDSHIP THE HONOURABLE PRESIDENT OF THE COURT OF APPEAL AND THEIR LORDSHIPS THE OTHER HONOURABLE JUDGES OF THE COURT OF APPEAL OF THE DEMOCRATIC  SOCIALIST REPUBLIC  OF  SRI LANKA

1.      This is an Appeal by the Plaintiffs in relation to  the Judgment delivered on 22 January 1999, in Colombo  District Court case 15866/L

2.      Address of property at the centre of the matter is: 163/7 Nawala Road;  Narahenpita; Colombo5

3.      This Appeal in relation to the above Judgment  is constructed and argued on the following bases:

(i)                             Errors in  Fact

(ii)                           Errors in Law

4.      The particular legislation through which the matter was heard is Prescription Ordinance 1871.

5.      Experience v Theory

(i)                 The Base used for these Arguments is that the judgment is in breach of  the fundamental values underpinning Sections 3 & 13 of Prescription Ordinance 1871. It is submitted that the essence of the Law governing Prescriptive Rights is that Experience based Title is of higher value than Legal Title sans Experience. It is submitted that in a Court of Law,  legal Title ranks higher than Title by possession – except when the possessor satisfies the requirements of  Absolute Ownership Value with no recognition whatsoever of another’s title in any form through any pathway.  This kind of Absolute value is demonstrated by full physical possession and complete independence OR adversity/opposition of Equal value to any other form of Title. The Appellants argue that the  judgment appealed against FAILS to demonstrate that:

(a)   the Court had this expectation of the Defendants

(b)   the Defendants satisfied this requirement of complete OR Equally Opposite Experience through physical possession

(ii)                           The validity of this exception is highlighted as follows by Hon Justice Saleem Marsoof, P.C., J.  through  Storer Duraisamy Yogendra  &  Balasubramaniam Thavabalan  Vs. Velupillai Tharmaratnam:

[The decision of five judges of this Court in the Rajendran Chettiar case is not only binding on this Bench as it is presently constituted, but also reflects the practice of Court both in England as well as in Sri Lanka. As Lord Denning, M. R. observed in Salter Rex and Co. v. Ghosh [1971] 2 All ER 865 at page 866 – “Lord Alverstone CJ was right in logic but Lord Esher MR was right in experience. Lord Esher MR’s test has always been applied in practice.”]

(iii)                         It is argued and submitted that the above principle applies also in the case of Prescriptive Rights – where the Absolute value of Experience based Belief developed through an independent or adverse pathway, is respected and recognized as being of higher value than the legal title which often includes theory which may not be applicable to local environments. It is submitted that Logic is relative whereas Belief is Absolute in value. Where theory is practiced – the two would meet at the destination of ownership.

(iv)                         It is submitted that the Prescription Ordinance requires the claimant of Prescriptive title to have had this Experience through wholesome possession.

(v)                           To be accepted at that level – pure of legal logic – Experience based Belief needs to stand on its own rights and not be relative to the logic of any alternate system – in this instance legal title. It is submitted that to be entitled to ownership through the logic based legal pathway – one does not need Belief. Knowledge that one has satisfied the requirements of the legal pathway alone is enough.

(vi)                         To claim Prescriptive rights on the other hand, one needs Belief which is confirmed by wholesome possession – as in blind faith. One who Experiences has Belief. It is submitted that the  facts before the Court were not constructed by the Defendants to satisfy the above requirements of the law that that Ownership Experience was had by the 1^st Defendant and inherited by the 2^nd Defendant.

(vii)                       It is submitted that the Conflict between the Legal Title and the Prescriptive Title is addressed by the Prescriptive Ordinance by  requiring the claimant of Prescriptive Title to have completed the pathway of possession and have reached the Destination of  Realised  Ownership

(viii)                     It is submitted that one such requirement is to travel independent of the Legal Titleholder. Hence the Requirement of Independence or Adversity. Where the Claimant claims no knowledge whatsoever of the Legal Titleholder/s, the requirement of Independence needs to be satisfied. Where the Claimant does confirm knowledge of Legal Titleholder/s and their activities in relation to ownership of the property – the requirement of Adversity needs to be satisfied. It is submitted that the latter needs confirmation of Separation of Powers and Consciousness of Equal & Opposite status.

6.      Fundamental Values on which the Law is structured – as per the minds of the Plaintiff-Appeallants

(i)                 It is submitted that Time and Place define the boundaries  of such knowledge and therefore the criteria through which Diversity is confirmed.  It is submitted that such Diversity is essential to confirm Adverse Possession. It is submitted that to identify with the element of Adverse Possession either Time or Place needs to be fixed. Given that the legal place is fixed as 163/7 Nawala Road;  Narahenpita; Colombo5, the element through which Adversity needs to be proven is Time.

(ii)               It is submitted that in this instance, the Appellants will argue that the Time chosen by the Defendants - to define  ownership to themselves by themselves, was the same as the Time of physical possession by legal titleholders’ representatives - confirmed and validated   by the Courts. In other words, two owners adverse to each other could not have occupied the same place at the one point in time.

(iii)             It is submitted that by accepting  the deed of declaration as the confirmation of Prescriptive Title, the Court took upon itself the Responsibility to establish that such declaration was pure of any such falsity – the falsity  that both opposite parties were present at the same Place at the same Time. Co-owners could validly occupy at the same time different parts of the property. Independent  owners would have physically possessed / occupied at different times. Adverse owners would mentally dismiss  even observed occupation by Legal Titleholders  and hence the test of Adverse Title.

7.      The Arguments in support of the Plaintiff-Appellants are centred around the following conclusions by the Plaintiff-Appeallants:

FACTS

1)      That the Documentary evidence before the Court – coupled with the  Defendants’ verbal evidence in Court confirm that the 1^st Defendant consciously or otherwise, made false Claim of Ownership and gave false evidence in Court hearing this particular matter

2)      The facts that were manifested through the work of legal owners were used by the Defendants and/or their legal representatives whereas the facts required by law ought to have been produced independent of the legal titleholders or through a method adverse to that used by the legal titleholders

LAW

3)      The Rule of Balance of Probabilities was inappropriately applied in forming the Decision

4)      By using this Rule – the test of Adverse Possession was automatically set aside by the honourable Judge

5)      The test of True Belief on the part of  the claimant of Prescriptive Title was not applied but instead, the test of relative possession by majority rule was applied.

6)      Facts manifested by the legal titleholders were admitted in support of the prescriptive titleholders

8.      FACTS

1)      The commonly accepted  picture has been outlined by the Respondents in their submission dated 16 May 2016 – at paragraphs 1 & 2 headed RELEVANT FACTS of the said submission.

2)      Summary of the Chronology &  Facts as they were presented to the Court have been listed in three groups:

(i)     Attachment 1 - A summary of the Chronology for the purpose of giving Structure to the matter  is listed in Attachment 1

(ii)   Attachment 2 - The Evidence in relation to the Validity as claimed by the Defendants is in Attachment 2

(iii) Attachment 3 - Relevant Evidence in relation to the Map through which the Plaintiff-Appellants claim that the claim of Adversity as claimed by the Respondent-Defendants was lacking in substance -  is in Attachment 3

9.      Legal Process

Summary of Legal Process up to now

(i)                             Petition – On 01 June 1992 - the Plaintiffs applied to  the District Court of Colombo to uphold their Legal Rights to the said Property. Pages 47 – 53  of the Appeal Brief

(ii)                           Judgment – On 22 January 1999 - Judgment was delivered dismissing the Plaint by the Plaintiffs

(iii)                         Appeal – On 26 January 1999 – The Plaintiffs commenced their Appeal Process against the above judgment

(iv)                         Substituted Defendants – On 16 May 2016 – the Substituted Defendant-Respondents who are the current custodians of the said property outlined their stand and helped complete the picture, for legal purposes, through their written submission.

10.  Law, Facts & Evidence, Judgment and Arguments

Today’s arguments are submitted  under four headings:

1)      Undisturbed and Uninterrupted Possession by a Defendant

2)      Disability Clause

3)      A title Independent of that of the claimant or plaintiff  in an action & Elimination  of the claim of Independence by the Legal Team and the Judgment

4)      A title Adverse to that of the claimant or plaintiff  in an action & Lack of Substance in the  Defendants’ Legal Team’s Documentation in Confirmation of claim of ‘Adversity’

10.(1) Undisturbed and Uninterrupted Possession by a Defendant

10.(1).(A) The Law – through Section 3, Prescription Ordinance requires in terms of  Prescriptive Title :

‘ undisturbed and uninterrupted possession by a defendant’

10.(1).(B) Facts & Evidence -

The Evidence in this regard before the Court is summarized as follows:

(i)                 The  Property for which Title is under dispute came into existence through the Decree Awarded in D.C.Colombo Case No. 12462/P  - which was finalised  on 07 November 1973.

(ii)               Verbal Evidence by the 1^st Defendant that the map used by him was the  Map drawn up in 1968 by Mr. Abeygunawardhana (B (2) of Attachment 1)

(iii)             The 1^st Defendant Claimed  he occupied the said property from 1962 to 1992

(iv)             The 1^st Defendant claimed he did not witness any legal titleholders or their representatives physically entering the property during this period

(v)               The 1^st Defendant Claimed that he achieved this despite efforts by two others – one of whom was a Police Officer, to oust him in 1987-88

(vi)             The 1^st Defendant instituted legal action against those who tried to oust him in 1987-1988 – their names being Mr. S.Periyasamy and Mr. Fabian Mitchell, the latter being the OIC – Narahenpita Police at that time.

(vii)           The 1^st Defendant  publicly declared ownership by Prescriptive Title on 04 May 1988 and filed action against the above mentioned persons at Colombo District Court through matter 5812/ZL. The map included in this Deed of Declaration  was the Partition Plan 2332 – – included in D.C.Colombo Case No. 12462/P  of  1971 drawn up by Mr. S.R. Yapa Licensed Surveyor & Leveller (– P1(a) at folio 337 of the Appeal Brief)

(viii)         As per the Court  documents in the above matter 5812/ZL – . (folios 294-297 of the Appeal Brief ),  one Mr. S. Periyasamy was residing at 163/7, Nawala Road, Narehenpita, which specific property the Plaintiffs claim is theirs and the one mentioned in the Deed of Declaration dated 04 May 1988. (folios 290-293 of the Appeal Brief ). As per these records, the 1^stDefendant, was living at 28 Nawala Rd Colombo 5 – at that time.

(ix)              Folio 298 of the Appeal Brief confirms  that Mr. Piyadasa was living at 28 Nawala Rd Colombo 5 at the time of registering the Title with the Municipality and that this registration was done by his lawyer.

10.(1).(C) Judgment - The honourable judge states as follows on pages 18 & 19 of the judgment:

‘When the evidence for the plaintiff in this case is taken into consideration it appears that the plaintiff  has paper title to the property in suit.

The 1^st and 2^nd defendants do not contest the plaintiff’s rights to this land by a deed. But the defendants plead that the first defendant has undisturbed and uninterrupted possession adverse to all others for well over 10 years and thereby acquired prescriptive title. It is on the defendants to prove that on a balance of probability that 1^st and 2^nd defendants have been in undisturbed and uninterrupted possession adverse to all others of this land to acquire prescriptive title. When the evidence of the plaintiff is weighed it appears that the 1^st plaintiff or the 2^nd plaintiff has not possessed the land in suit

When the evidence of the defendant is weighed to prove the evidence of the 1^st defendant, the defendant has called another witness for the defendant called Ragavan to prove the evidence of the 1^st defendant. According to the evidence of the 1^st defendant he has been in possession of this land from about 1962 and that he possessed a marshy land he planted Keera and plantains on this land and made his living. In addition to that he has told that he occupied this land with his wife putting up a shed on this land.

According to the judgments reported in 59 New Law Report at page 546 and 61 New Law Report at pages 32 and 36 any party merely saying that he possessed the land it cannot be proved that he possessed the land. He should explain the manner he possessed the land.

The 1^st Defendant has sufficiently explained the manner he possessed the land in suit giving details.

Further when the evidence of the defendant is weighed it has been proved by the evidence of the defendant that the defendant has possessed the land in suit undisturbedly and uninterruptedly adverse to all others.’

10.(1).(D) Arguments

(i)                 Evidence at 10.(1).(B)  - (i) and (vii) confirm that this property acquired its particular identity  visibly in  1971  and legally in 1973. Hence the period from 1962 to 1971 has to be set aside as being irrelevant for the purpose of this matter - – which is about 163/7 Nawala Road;  Narahenpita; Colombo5 and not about the parent land known as Ramsay Gardens.

(ii)               As per Evidence pointed to at 10.(1).(B)  (viii) & (ix) above – Mr. Piyadasa, the 1^st Defendant was not living at the premises after he was threatened in 1987.

(iii)             Hence the period covered for the test of ‘possession’ needs to be worked out after eliminating the above two components from the block 1962-1992. 

(iv)             The relevant period of alleged occupation after setting aside the above two blocks  is therefore from 1972 to 1987.

10.(2).Disability Clause

10.(2).(A) THE LAW

Section 13 of the Prescription Ordinance provides as follows:

Provided nevertheless, that if at the time when the right of any person to sue for the recovery of any immovable property – shall have first accrued, such person shall have been under any other disabilities hereinafter mentioned, that is to say –

……………………………………..

e)Absence beyond the seas

then so long as such disability shall continue the possession of such immovable property by any other person shall not be taken as giving such person any right or title to the said immovable property, as against the person subject to such disability or those claiming under him,  but the period of ten years required by Section 3 of this Ordinance shall commence to be reckoned from the death of such last named person, or from the  termination of such disability whichever first shall happen; but no further time shall be allowed in respect of the disabilities of any other person;

Provided also that the adverse and undisturbed possession for thirty years of any immovable property by any person claiming the same, or by those under whom he claims, shall be taken as conclusive proof of title in manner provided by Section 3 of this Ordinance notwithstanding the disability of any adverse claimant. 

10.(2).(B) Facts & Evidence -

(i)                 The Plaintiff went overseas in 1982. (folio 128 of the Appeal Brief)

10.(2).(C) Judgment – At page 3 of the Judgment, his honour states:

‘She said that she went abroad to find money to put up a house on this land and that before she went she entrusted a relation of hers Sinnadorai and Sentilnathan and Balakrishnan to look after the land. ……She said that later in 1992 she carried on her business in Australia and at that time she informed her power of Attorney Balakrishnan to put up a building on the said land.  

10.(2).(D) Argument

(i)                 There is no evidence in the judgment - that  Section 13 (e ) Disability exemption has been applied to protect the Plaintiffs’ rights

(ii)               The facts standing on their own rights confirm that the period 1982 to 1987 from the above mentioned block 1972 to 1987 [10.(1) (D) (iv) above]also  qualify to be set aside from the time-block claimed as base for Prescriptive Title.

(iii)             The eligible period is therefore 1972 to 1981.

10.(3).  A title Independent of that of the claimant or plaintiff  in an action & Elimination  of the claim of Independence by the Legal Team and the Judgment

10.(3).  (A) The Law – through Section 3 the  Prescription Ordinance requires in terms of  Prescriptive Title, proof of possession :

‘by a title adverse to or independent of that of the claimant or plaintiff in such action’.

Under this section the Plaintiff-Appellants  would argue that the Defendants gave oral evidence towards the claim that they were Independent but the criterion of Independence was not satisfied by the documentary Evidence submitted by the Defendants

10.(3).  (B) Facts & Evidence -

The Evidence before the Court is as follows:

(i)                 as per 10.(1).(B)  above

(ii)               Signature “R.Hettige” 

In terms of physical confirmation the following discrepancies are highlighted as indicators of  the Defendants’ collusion which has the effect of negating the claims of the Land possessed to be the same as the Land ‘as it was’ during the early period of alleged possession as claimed  by the Defendants. This indicator raises the question as to whether the 1^st Defendant acted Independently / on his own as per his Belief or whether he was under the influence of the occupant at the adjoining Lot 1A carrying the address 163/8 Nawala Road, Narehenpita:

(iii)             The first witness for the Defendants,  attesting  the signature of   the 1^st Defendant - on Deed of Transfer 528 (folios 100-105 of the Appeal Brief) Mudaliyanse Hatarakoralegedera Kuda Banda (folio 259 of the Brief)  who signed as “K.Banda”, gave evidence in Court.

(iv)             As per this evidence the second witness Heetige Don Jaliya Rohan who is stated to have resided at 163/8 Nawala Road, Narehenpita (folio 104 of the Appeal Brief and folio 36 of the current Appeal file) – which is next door to the said Property under dispute - was not physically present at the time Mr. Piyadasa signed the Deed of Transfer.

(v)               As per the above document the 2^nd witness signed as “R.Hettige” and the signature’s style and spelling are clearly evident (folio 103 of the Appeal Brief and folio 35 of the current Appeal file).

(vi)             The 8^th  heir  of the 2^nd Defendant who is also the Attorney of the 3^rd and  5^th heirs in this instance - is named in the Deed of transfer 681 (folios 63-67 of the current Appeal file) as - Weerasinghe Arachchige Rohini Hettige nee Perera. The signature of this person who is reported to have signed as “RHettige” – is very similar to that of the signature of the 2^nd witness in the Deed of transfer 528 (folio 35 of the current Appeal file). The way the letter “t” has been formulated is unusual. The name of the 2^nd witness to the 1^st Defendant’s signature  in Deed of transfer 528 includes ‘Heetige’ which may have been a typing error – through which an additional ‘e’ has been picked up. But as per the signature – the name is clearly ‘Hettige’ who is claimed to have attested the signature of the 1^st Defendant in  the transfer of title from the 1^st Defendant to the 2^nd Defendant. Coupled with the ‘signature similarity’ it raises the question as to whether the integrity of the Legal Process has been compromised by Arachchige Rohini Hettige signing without being present when the 1^st Defendant signed Deed of Transfer 528 or whether the signatory was acting as the Attorney of Mr. Heetige Don Jaliya Rohan.

10.(3). (C) Judgment – As in 10.(1). (C) above

10.(3).  (D) Arguments

Defendant’s Confirmation of claim of Independence –

(i)                 As per the Evidence by the 1^st Defendant that he had no knowledge of the Legal Titleholders whatsoever (Attachment 3)– one could work out that he is claiming Independence and NOT Adversity to claim Prescriptive Title. To claim Adversity one needs to have conscious knowledge of the ‘other side’ but expressly reject that other side. This part of the argument is based on the fundamental value that any physical manifestation would have Equal & Opposite sides when viewed from the middle point of a flat plane. One who sees one side therefore would not be able to see the other side physically but only mentally. This understanding has been highlighted by the Defendant-Respondents as follows – at paragraph 8 on page 4 of their submission of 16 May 2016:

‘It is pertinent to submit that the 1^st Defendant’s adverse and prescriptive possession was not a secret’.

The evidence presented to Court by the 1^st Defendant however – claims that he had no knowledge of the Legal Titleholder. That satisfies the  claim of ‘secrecy’/ ‘no-knowledge’  in terms of the other party and therefore the ‘other side’. To claim adverse possession one needs to ‘see’ the other side in mind’s eye and reject it. Hence Transparency. No knowledge of the other side means they claim ‘Independence’.

(ii)               It is submitted that where the criterion used to claim Prescriptive Title,  is Independence– the credit points must relate to laws and principles independent of each other – as in Sovereignty – for example possession without any knowledge of the activities through the legal pathway and therefore like two diverse religions, the two never meet until they  complete their journeys to realize the goal of  ownership in Common.

(iii)             It is submitted that under those circumstances – one uses the property / facility without needing the endorsement of any other authority – including the officials of the government and/or the judiciary. It is submitted that the governing authorities need such owners to empower their own systems of Administration especially where there are wide gaps between theory of Law  and practice of Order. It is submitted that this is the reason why we have ‘user-pays’ facility  in the system of Democracy. Under this system one who has realized ownership as opposed to theoretical ownership has reached the destination of being one with the Institution / Nation / Land. Native Title Act 1993, came about in Australia under the leadership of Prime Minister the Hon Paul Keating after Mr. Eddie Mabo – an Indigenous Australian, fought to retain the Native Title to his Land on ‘Murray Island/Mer’ – overturning the previous conclusion that Australia was Terra Nullius. It is submitted that the parallel of Terra Nullius in Prescriptive Title cases is Abandonment of the Property by the legal Titleholder – which needs to be tested as per Legal pathway and not through ‘physical possession’ criterion.

(iv)             It is highlighted that the legal title of the Plaintiffs was accepted by the honorable Court - as having been established without any dispute. The question before the Court was / is whether it was proven that the Defendants acquired Title strong enough to extinguish that Legal Title of the Plaintiffs.  The honourable judge confirms this picture as follows on page 18 of the judgment:

‘When the evidence for the plaintiff in this case is taken into consideration it appears that the plaintiff has paper title to the property in suit.

The 1^st and 2^nd defendants do not contest the plaintiff’s rights to this land by a deed. But the defendants plead that the first defendant has undisturbed and uninterrupted possession adverse to all others for well over 10 years and thereby acquired prescriptive title. It is on the defendants to prove that on a balance of probability that 1^st and 2^nd defendants have been in undisturbed and uninterrupted possession adverse to all others of this land to acquire prescriptive title. When the evidence of the plaintiff is weighed it appears that the 1^st plaintiff or the 2^nd plaintiff has not possessed the land in suit ’

(v)               Elimination  of the claim of Independence by the Legal Team and the Judgment

It is submitted that as per the 1^st Defendant’s evidence – the claim is Independence but his honour has chosen the criterion ‘Adverse to’. It is submitted that by using the word ‘OR’  only – the law has made the two criteria mutually exclusive. It is submitted that this choice by his honour effectively sets aside the evidence of the 1^st Defendant in relation to ‘no  knowledge’ of the Legal Titleholders and/or  their activities. Hence the evidence by the 1st  Defendant and the 2^nd witness in support of the 1^st Defendant, are effectively set aside by this ruling by his honour. It is submitted that claim of Adversity, by the Defendants’ legal team – is not supported by evidence by the 1^st Defendant – who was claiming Independence. 

(iv)             The evidence in B) above in relation to the neighbour at 163/8, Nawala Road, Narahenpita goes towards confirmation of knowledge of legal owners of the block.

(vi)             It is submitted also that the law does not require the Plaintiff to prove possession. This has been recognized by his honour through his honour’s following statement mentioned above:

‘It is on the defendants to prove that on a balance of probability that 1^st and 2^nd defendants have been in undisturbed and uninterrupted possession adverse to all others of this land to acquire prescriptive title’

(vii)           It is submitted therefore that by accepting the Legal Title of the Plaintiffs and the documentations regarding maps/plans towards marking boundaries and construction of a home, the Court accepted that until 1982 when the Plaintiff went overseas – the Property was NOT Abandoned by the Plaintiffs – that work done on it was not disputed and hence the Land  was NOT Terra Nullius. This then confirms that the legal team of the Defendants and his honour eliminated ‘Independence’ by choosing ‘Adverse to’ criterion.

(viii)         In addition, Section 13 (e ) of the Prescription Ordinance requires the qualifying period of 10 years to commence from the death of the 1^st Plaintiff or her return from overseas whereto the Plaintiff went in 1982 (folio 128 of the Appeal Brief).

(ix)             The Substituted Defendants-Respondents confirm their acceptance of Plaintiffs’ Legal Title as follows:

‘The Plaintiffs had purchased the property in suit in November 1978’ [Para 2 b) on page 2 of the Submission made on 16 May 2016]

(x)               It is submitted that  ‘possession’ in the physical sense is an essential criterion for the Defendants to be entitled to Prescriptive Title.  It is submitted that Legal titleholders have the responsibility to satisfy ownership through the requirements of the Legal pathway which the honourable court has accepted as having been satisfied. Hence it is submitted that ‘possession’ in the above context needs to be taken to be for the direct purposes of ouster.  If  the Legal Titleholders are assessed through the same measure as the Prescriptive Titleholders then that would devalue the legal pathway and would be in breach of the Law that requires Adversity OR Independence. This is because of the Fundamental rule that to relate to something physical one needs to have ‘observed physically’. Hence the measure needs to be the same for one to be more or less than the other. Given that ‘physical possession’ is the measure needed to be used to measure ownership of the 1^st Defendant – one needs to use that measure to ‘relate’ to the Plaintiff in applying ‘majority rule’. When this is used, it automatically rules out ‘Adversity’ – which allocates Equal and Opposite status to the other side – to qualify for Adverse to Title. 

(xi)             In addition, it is submitted that if possession is required and therefore relativity is used through ‘Balance of Probability’ test – then it negates the requirement to show full physical possession. At least one physical entry by the Legal Titleholder is needed to be recognized, for the application of relativity that the rule of ‘Balance of Probability’ is based on. Where there was no entry recognized, it confirms Independent pathway. Where entry was recognized, but that was considered to be ‘out of order’ as per the mind of the Prescriptive Titleholder the claimant has the authority to credit points through ‘Adverse to’ requirement. Where there is denial of any such knowledge – the only avenue available to the claimant is ‘Independent of’ criterion. By using the ‘Adverse to’ criterion the Legal team of the Defendant as well as the honorable judge – have denied the Defendant the claim of Independent pathway.

(xii)           It is submitted that under the claim of Independent pathway two parties can occupy the same space at different times. Given that the 1^st Defendant claims to have occupied the space for the purpose of growing ‘Keera’ towards a livelihood – and his honour has accepted it – as per the principle underpinning ‘Native Title’ – both are allowed to  coexist – so long as the respective co-purposes are satisfied.

(xiii)         The moment the 1^st Defendant sold the property – that right was extinguished. There is no evidence before the Court that the said activity continued after 1973 when the big block was partitioned.

(xiv)         In terms of residential space – the 1^st Defendant’s address of  23, Nawala Road, Narahenpita is not far from  the property he claims to have occupied. This was the address he confirms to have held at the time he filed the case against Mr. S.Periyasamy and Mr. Fabian Mitchell – the OIC, Narahenpita Police. Hence during the 10 year period preceding the time of Plaintiffs’ action – he did not occupy the said premises for residential purposes either.

(xv)           It is submitted also – that the validity of the claim of the Defendant gets stronger if the Plaintiff  had ‘abandoned’ the said land. Physical possession by the Plaintiffs is only one way of confirming that the land was NOT abandoned. It is submitted that physical possession could be ‘observed’ but not included in ‘direct calculation’ to work out entitlement through majority rule. Under the legal pathway, the observation needs to be escalated  to the higher level – beyond the physical - to recognize confirmations of mental ownership. The evidence presented to Court confirms that the Plaintiffs ensured that the Land was taken care of during their absence from Sri Lanka. The validity of this has not been contested  by the Defendants. In fact it is through such instruments that the Defendants – including the Substituted Defendant-Respondents have claimed that the Plaintiffs did NOT possess: – evidence listed at paragraph 4 of the Respondents’ submission of 16 May 2016.

(xvi)         The Substituted Respondents have NOT disputed that Mr. T.Balakrishnan was the Plaintiffs’ General Attorney from 1989 and in particular in 1992 when the Trespass complaint to the Police was made by Mr. Balakrishnan. Their acceptance of  this arrangement is confirmed through their conclusions  5& 6 on pages 3 &4 of their submission dated 16 May 2016:

‘5. Therefore it is respectfully submitted that Balakrishnan’s evidence and the police statement marked “VI” clearly establish that no survey was done by Mr. Sinnathamby and the survey was drawn based upon the plan marked 2332 which was given to him.’

‘6. Therefore it is evidently clear that the Plaintiff has concocted evidence of Mr. Sinnathamby the Surveyor, to break the prescriptive possession of the Defendants’

(xvii)       It is submitted that without acceptance that Mr. Balakrishnan was legally representing the Plaintiffs – the above constructions do not have validity to be presented to Court. The above  therefore is taken as confirmation that the Defendants are not disputing that ‘the Plaintiffs ‘did not abandon’ the said property during the period under review’.

(xviii)     What was disputed was the claim of physical entry by the Representatives of the Plaintiffs. It is submitted that evidence of physical  entry / presence is essential only where ouster is claimed to have happened directly by the Plaintiffs through physical force. It is submitted that the above confirms yet again – that the Plaintiffs followed the legal pathway in protecting their ownership title, including through their complaint to the Police which is not disputed. It is submitted that this complaint indicates strongly that the OIC Narahenpita Police against whom the 1^st Defendant instituted Court Action was not acting unlawfully when he is alleged to have acted to evict the 1^st Defendant. Effectively, as per his actions - this officer of  Law & Order was acting to protect the rights of the legal title holders in the area of his responsibility. The request by the Plaintiffs to call this officer as a witness was objected to by the Defendants and the request was rejected by his honour. The case against this Officer through District Court Matter No. 5812/ZL – effectively confirms lack of respect for Law & Order in the mind of the 1^st Defendant. The 1^st Defendant who claims that he did not ‘vacate’ had the duty to stay within the property by the force of his own Belief. By seeking Court endorsement he confessed to ‘selective-use’ of the legal pathway. In other words – he chose the legal pathway to protect himself but the Physical  Possession pathway to claim Title to the Property. It is submitted that one who truly believed that the Land was his would have used Equal or higher protection for the Land relative to his physical body. On that basis – if he truly believed that the Land was his – he would have used the legal process to contest the title of the Plaintiffs and listed them as Defendants – the way he listed the Law enforcement officer as the Defendant in the   District Court Matter No. 5812/ZL. It is submitted that that case was to oust the occupier and therefore it confirms that the 1^st Defendant had vacated the land.

10.(4) A title Adverse to that of the claimant or plaintiff  in an action & Lack of Substance in the  Defendants’ Legal Team’s Documentation in Confirmation of claim of ‘Adversity’

10.(4) (A) The Law – through Section 3, the  Prescription Ordinance requires in terms of  Prescriptive Title, proof of possession :

‘by a title adverse to or independent of that of the claimant or plaintiff in such action’.

Under this section the Plaintiff-Appellants  would argue that the Defendants’ legal team and his honour received and processed the evidence towards the claim that the Defendant gained Prescriptive Title through Adversity, but that such evidence did not develop a claim sufficient enough to satisfy the requirements of the Law.

10.(4) (B)  Facts & Evidence -

The Evidence before the Court is as per 10.(1)(B) &  10.(3)(B) above

. 10.(4) (C)   Judgment - as per  10.(1) (C )  above

10.(4).(D) Arguments

Defendants’ Legal Team’s Documentation in Confirmation of claim of ‘Adversity’

(i)                 It is submitted that where the criterion used to claim prescription is Adversity to the legal title, the two titles are taken to be Equal and Opposite.

(ii)               It is submitted that in this instance, the Schedule in the Deed of Declaration dated 04 May 1988, confirms that the Time chosen by the Defendants - to define the borders of the property  for the purpose of declaring ownership to themselves by themselves was the same as the Time of physical possession by legal titleholders’ representatives - confirmed and validated   by the Courts through the map of Mr. Yapa.  The established ‘fact’ that Mr. Yapa drew up the map after physical measurements is not disputed. The 1^st Defendant’s claim that he did not see could be accepted in support of Independence claim. In other words, two owners adverse to each other could not have physically occupied the same place at the one point in time. As Independent owners they could have at different times. They could have occupied different parts of the same property as co-owners.

(iii)             At pages  20 and 21  of the Judgment his honour refers to FERNANDO v , WIJESOORIYA (1947) 48 N.L.R. 320 
The Learned Judges in that Appeal stated as follows:

“There must be a corporeal occupation of land attended with a manifest intention to hold and continue it and when the intent plainly is to hold the land against the claim of all other persons, the possession is hostile or adverse to the rights of the true owner. It is the intention to claim the title which makes the possession of the holder of the land adverse ; if it be clear that there is no such intention there can be no pretence of an adverse possession. It is necessary to inquire in what manner the person who had been in possession during the time held it, if he held in a character incompatible with the idea that the title remained in the claimant to the property it would follow that the possession in such character was adverse.”

(iv)             It is submitted that by using the map of Mr. Yapa – prepared to satisfy the Legal Titleholders’ needs – the 1^st Defendant revealed his intentions to be - to become another legal titleholder but without following all other Due Processes and without paying the due price at that time. The evidence confirms that the intention was to take over the work of the Legal titleholders without having contributed to that process that produced the Survey map. That is the parallel of taking over the property which reflects the work and sacrifices of the Legal titleholders but without contributing to the value derived. The sale of the property confirms ‘profiting’ from others’ work by abusing the legal system. It is submitted that to claim Title – through Independence criterion – the claimant should have not used any part of the legal titleholders’ work. By using the said MAP – the Defendants joined the legal pathway – as relatives and not as Independents. By failing to pay the due price for the MAP – they  established unlawful occupation.

(v)               It is submitted that to confirm Adverse Title – the two Titles need to be Equal & Opposite. It is submitted that the documentary evidence submitted by the Defendants confirm that the 1^st Defendant did not invest enough in the property to claim Equal status as the Legal Titleholders and that this part of the investment was not Independent of the Legal Titleholders’ work, for the status developed through such work  to qualify as being Adverse.

(vi)             The map of Legal Titleholders was used by the Defendants to claim Prescriptive Title. It is submitted that a Title is the consolidated value of work done. This is acquired as follows:

(a)    Directly by a person, who does the work but does not enjoy the benefits immediately – as in educational titles or one who builds her/his own home without enjoying other pleasures during that time.

(b)   Purchased laterally through payment of money to persons who have developed the asset as in (a) above

(c)    Inherits from a senior within a common group bound by faith.

(vii)           It is submitted that given that the basic unit of entitlement/Title  is work,  if work done by one is taken over by another – the Title from such transfer is either through (b) or (c ) above or is illegitimate.

(viii)         Prescriptive Title has to be as per (a) above or ought to have been through parts purchased from a party different to the one from whom the Legal Title holders purchased that work.

(ix)             Given that Mr. Yapa’s work was purchased and inherited by the Legal Titleholders, the use of that map that represents that work renders the Deed of Declaration illegitimate.

(x)               It is submitted that for Adversity in Title – the process needs to be independent of or be opposite of the process undertaken by the Legal Titleholders. Mr. Yapa’s Survey Plan was part of the Legal Process. (B 6) of  Attachment 3).  Given that Mr. Yapa’s map was used by the Legal Titleholders, it is part of the value of that property in the mind of the Legal titleholders. To match that, towards Adverse Title,  a ‘different pathway was needed. For example -  the work of another Independent surveyor could have been purchased by the 1^st Defendant out of his resources, to draw the map where boundaries are already visible or he himself could have drawn up a map.

(xi)             As per Mr. Yapa’s Plan – Mr. Yapa  included the work of his predecessors as follows:

‘plan No. 1075 by A.R.Dias Abeygunawardena, Licenced surveyor and lots of Plan 40A/1968 made  by H.S.Perera, Licensed Surveyor’. By including these maps Mr. Yapa confirmed that Mr. Abeygunawardena’s work was also included as part of the Legal Titleholders’ Title.

(xii)           His honour included the  Verbal Evidence by the 1^st Defendant that the map used by the 1^st Defendant was the  Map drawn up in 1968 by Mr. Abeygunawardhana (B (2) of Attachment 1). As per Documentary evidence before the Court – including the Deed of Declaration dated 04 May 1988 – the map used was that of Mr. Yapa – acting under instructions of the Court – during partitioning. No other map independent of the above was produced to the Court by the Defendants.

(xiii)         It is submitted that by including the map of Mr. Yapa, the legal team facilitated the 1^st Defendant to claim Prescriptive Title. The Title verified by the Survey Map was that of the Legal Titleholders and mere inclusion of it would not make it the Defendants’. One who does the work and/or pays for the work – owns the work. It is submitted that by including the map of Mr. Yapa, the legal team facilitated the 1^st Defendant to claim Prescriptive Title. The Title verified by the Survey Map was that of the Legal Titleholders and mere inclusion of it would not make it the Defendants’. One who does the work and/or pays for the work – owns the work. The work required of the Prescriptive Title claimant ought to have been done by himself.

(xiv)         It is submitted that by claiming the map as his – the 1^st Defendant lost his authority to claim fulfilment of ‘Adverse to’ Title.

CONCLUSION

In conclusion, it is submitted that the arguments have established that :

(i)     There is clear evidence that the 1^st Defendant knowingly or otherwise misled the Court about the definition of the Land.

(ii)   There is clear evidence that the 1^st Defendant made false statements of claim repeatedly of having occupied the property during a period which included  the year 1991 when through his own documents in Colombo District Court matter 5812/ZL the 1^st Defendant admits to have lived at a different address and one Mr. S.Periyasamy is stated to have lived at the address of this property to which the 1^st Defendant claims prescriptive ownership rights.

(iii) The above therefore makes him an unreliable witness whose evidence needs to be set aside if the Court were to deliver just judgment.

(iv) There are strong indicators of collusion between the 1^st and 2^nd Defendants

(v)   The Plaintiffs through their Truth have brought out most of the above evidence to clearly establish not only that the claim of uninterrupted, undisturbed possession was false but that the claim of Adverse Title,  failed the test of Equal & Opposite position but was made relative through the use of the map that came into existence through the Legal Title Holders’ work.

(vi) All of the above clearly extinguish the 1^st Defendant’s  claim to Prescriptive Title through  Section 3 of Prescription Ordinance :

(a)                As Plaintiff in Colombo District Court matter 5812/ZL:

‘when any plaintiff shall bring his action or any third party shall intervene in any action for the purpose of being quieted in his possession of lands or other immovable property , or to prevent encroachment or usurpation thereof, or to establish his claim in any other manner to such land or property proof of such undisturbed and uninterrupted possession as hereinbefore explained , by such plaintiff or intervenient, or by those under whom he claims , shall entitle such plaintiff or intervenient to a decree in his favour with costs.’

(b)               As Defendant in the Colombo District Court matter 15866/L

-          The current matter that led to this Appeal

‘Proof of the undisturbed and uninterrupted possession by a defendant in any action or by those under whom he claims, of lands or immovable property, by a title adverse to or independent of that of the claimant or plaintiff in such action (that is to say, a possession unaccompanied by payment  of rent or produce, or performance of service or duty, or by any other act by the possessor from which an acknowledgment of a right existing in another person would fairly and naturally be inferred) for ten years previous to the bringing of such action, shall entitle the defendant to a decree in his favour with costs’

It is therefore submitted that the Plaintiffs are entitled to a decree in their favour so they could enjoy their ownership of the property without further disturbance by the Defendants. Towards this the following Orders are pleaded to be included in the Judgment:

(i)                             Set aside the Judgments in matters 5812/ZL & 15866/L of the Colombo District Court

(ii)                           Decree in favour of the Plaintiff-Appellants with costs.

Gajalakshmi Paramasivam

Plaintiff-Appellant

Court of Appeal Case No: 135/99 (Final); District Court of Colombo Case No: 15866/L