Thursday 9 March 2017

Gajalakshmi Paramasivam
09 March 2017

Australia and Sri Lanka – Friends or Relatives?

[The President also met with the Australian Prime Minister Malcolm Turnbull. The Australian Prime Minister stated that Australia has been a long-term consistent friend to Sri Lanka and the frequent meetings between the leaders of the two countries further strengthen those relations.
During the meeting it was discussed regarding the development works of the energy sector of the country and the Australian Prime Minister pledged to provide required technical assistance to Sri Lanka in this regard.
He also said that the Australia is ready to move forward with Sri Lanka in the fields of the economic and trade. The Australian Prime Minister also extended an invitation to the President to visit Australia.] Sri Lankan President’s Website

As per the above release – friendship seems to be the basis for the proposal to assist in Energy Sector. Sri Lanka is in dire need of Democratic structures to uphold its dignity in the global community. To offer assistance outside that structure is to confirm that Australia is trying to takeover that part of Sri Lanka. Australia needs to be a senior relative to offer such assistance. Our Australian Prime Minister – the Hon Malcolm Turnbull does not have the mandate to offer assistance without taking a ‘position’ in the Development structure of Sri Lanka. These structures need to be strong enough to sustain themselves and to return reliable returns to Sri Lankans as well as strengthen Australia’s global status as part of global management. If funds are provided on welfare basis from Australian Government to Sri Lankan Government – then the relationship is that Australia is Big Brother to Sri Lanka. Hence Sri Lankans have the right to share in the Commonwealth of Australians through any avenue available to them – including via open waters – so long as it is acceptable to their social parallel in Australia. That is the way of karma / Natural Justice. The Citizen who believes in her/his Leader is entitled to use the same structure as the leader when dealing with her/his social parallel in the other country. Common Structures are therefore most important in showing the right-way to successful mind-mergers.

As a merged Sri Lankan-Australian, I do not need to think consciously about relationships. Giving one priority over another is for functional purposes only – as heart becomes more important than lungs or v.v. within the same body – as per the needs of the moment. On that basis – Sri Lanka’s need during the war was deep and yet Australia chose to be a distant relative / associate. Given that the current development work is post-war related – Australia needs to take its position appropriately.

Yesterday for example, we were presented with the following message from the President of Sri Lanka:

["We are in unanimous agreement that the sustainable existence of the humankind depends on the strength of the empowered women. That is why the sustainable development goals of the United Nations Organization prioritize the plan to empower all women and female children within the next 15 years," President Maithripala Sirisena in his message to mark the International Women's Day states.]

How does one recognize the empowered woman? I heard from fellow women. I was on my way to the Courts in Hultsdorf  carrying two heavy files. I was walking from our relative’s home in the Tamil suburb of Colombo 6 to catch the bus. A lady who was dressed as if she was going to work overtook me, turned around and smiled. I smiled back. I thought I must have met her somewhere. But she said in Tamil words to the effect ‘I admired your skirt from behind you and wanted to know whether it looked as good from the front’. That made my day! It is not often that I get such compliments about my dress-sense. I thanked and blessed the young lady from my heart. Hours later – after the court process – another working lady –– tapped on my hand, pointed to the hem area of  the skirt and said in Sinhalese words to the effect that the skirt was getting dirty by sweeping the floor of the bus. I thanked her and blessed her.

On the way – in the  bus, another working lady who already had a seat in the bus took my bag of files – so I could stand more comfortably. When a seat fell vacant across the isle and I moved to seat myself at the window – the guy who occupied the isle seat, dressed like an officer and looked about my age – said in English even before I could settle in words to the effect ‘Can you please move so I do not fall off!’ 

Later within the Courtroom – the young lawyer assisting President’s Counsel  Faiz Mustapha representing our other side - approached me and asked whether a certain date in July would suit me? On Monday – he rang me to inform me that Mr. Mustapha would  not be able to attend due to injury to his leg. I was upset by this but what could I – a lay litigant do?  I was like the women who fought for equal rights presented as follows by Wikipedia:

[On March 8, 1917, in the capital of the Russian EmpirePetrograd, a demonstration of women textile workers began, covering the whole city. This was the beginning of the Russian Revolution. Seven days later, the Emperor of Russia Nicholas II abdicated and the provisional Government granted women the right to vote. March 8 was declared a national holiday in Soviet Russia in 1917. The day was predominantly celebrated by the socialist movement and communist countries until it was adopted in 1975 by the United Nations.]

 Women had to fight to become Equal.  Likewise lay litigants in Court. When the young lawyer asked me I said I had asked for a date in May – and he was suggesting July?? Then the young lawyer said that Mr. Mustapha was going overseas and that he would be fasting and therefore July date was their preferred date and asked me whether that was ok with me?  I said ‘I don’t seem to have a choice – do I?’  When our matter was called – the Judge and the young lawyer discussed and fixed an August date. In my muddled mind – I did not register the date but only the month. Later I called the young lawyer and was informed that it was 27th.  It was their Court and I was a nobody there – even though I was a somebody to working women parallel to the above women textile workers.

The lower status allocated to me would have been due to a combination of reasons – including that I was a lay litigant and that I was a woman. It actually originated in Mr. Mustapha who was representing Mr. Gamini Wickremesinghe who as mentioned in my Arguments (Appendix) seems rich and influential.  If the original respondent Mr. Piyadasa who stated he was Chief Survey Assistant of Survey Department, had represented himself in that Court – my status as Chartered Accountant would have been higher than his. But the current team, due to the new and richer purchaser of that property  that was claimed by Mr. Piyadasa through Prescription Ordinance, as his, – shows legal status way above me.

The question I ask is – ‘Does a  Court that allocates higher status to its own members above a self-represented litigant, qualify as a just Court?’  More to the point – does such a court  and therefore its judges not earn the karma of lower status than say an Australian Court and its judges?

When women went to work back in 1917 -  they were paid less than their male counterparts and this would have been an easier system to work due to the women ‘accepting’ lower status in family structures. The ‘output’ would have been more but the structure would have been against the laws of nature.  For the same level of  work/input, an institution that invests strongly in structures – would show lesser profits/economic outcomes than one with weaker structural investments. The former would carry heritage value while the latter is not likely to.

The lay litigant in Court is the parallel of Tamils in Sri Lankan Politics. Like the above Russian women – Tamils claimed Equality through Vaddukoddai Resolution 1976. Natural Justice working through voters upheld this in 1977 and later in 2015 – by the leading Tamil Political party becoming the leading opposition in National Parliament. This benefited all minorities in Sri Lanka. As per recent email from Tamil Political party TELO – criticizing Mr. Sumanthiran and Mr. Sampanthan of TNA – for not opposing the Government’s request for 2 years’ extension to inquire into war-crimes.  TNA has the DUTY to oppose the Government in relation to such requests, as per the mandate on which they became representatives of Tamils in National Parliament. In my own way I opposed the request by Mr. Mustapha by filing the written version of my arguments that are now part of the official records – even though they may never be read by the Judges. I did likewise against Mr. Howard – former Prime Minister of Australia, and Natural Justice dethroned  Mr. Howard through voters. One who submits her/his complaint to the Court of Truth – after doing her/his best to win true outcomes through the official system available to her/him, will have the Experience of the bigger picture. It’s not done only by one person but also by that person who follows due process of the environment and thereby values the heritage available to her/him.

As I said to a Vaddukoddai Tamil after the case – the family elder who is most respected is the root of the family. One who demonstrates that respect genuinely is my inner relation. We would then intuitively know each other’s position for functional purposes and do so without damaging the external structures visible to the public. That is self-governance.

If foreign judges – especially from Australia are elevated above Sri Lankan judges the latter who are yet to pay their dues to their elders  would be easily taken over – by submission – as women who accepted lesser status at home  were taken over by men at the workplace.

Yesterday, my professional relative and friend Malar Fonseka rang to express appreciation for my contribution to society and said that she could not do what I was doing.  Our Common Mother is our Sri Lankan Profession. Our friendship helps us share freely without fear or desire. But the form is important to our Common Society – Sri Lankan Society and Beyond. To qualify as relatives we must see that Mother in each other and in all our relatives. The rest must be enjoyed in the beautiful privacy of friendship. 

Summary of Verbal Arguments

A.    This is an Appeal by the Plaintiffs in relation to  the Judgment delivered on 22 January 1999, in Colombo  District Court case 15866/L
B.     Address of property at the centre of the matter is: 163/7 Nawala Road;  Narahenpita; Colombo5

C.    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.

D.    Summary of Current Arguments – FACTS based
D.1.           Documentary Evidence Contradicting Verbal Evidence

(i)                 Facts  presented by the Defendants include the following at folio 291 of the Brief:

Deed of Declaration by the 1st Defendant which include the following:
AND whereas for the purpose or better manifestation and confirmation of my right title and interest in and to the said divided portion of land and premises marked Lot 1B and in the schedule hereto fully described it is necessary and expedient that I shall enter and execute These Presents.
NOW KNOW YE AND THESE PRESENTS WITNESS that I the said Hewagedarage Piyadasa do hereby declare that by long undisturbed uninterrupted and peaceful possession for the said long period and by right of prescription by a title adverse to and independent of any other person or party whomsoever I the said Hewagedarage Piyadasa as the absolute owner and proprietor of and legally entitled to all that divided allotment of land and premises marked Lot 1B aforesaid and fully described in the schedule hereto together with all and singular the rights and privileges easements and appurtenances thereto belonging or use or enjoyed therewith or regarded to be or known as part and parcel thereof.’

It is highlighted that the above declaration confirms that the property – the ownership to which was being claimed by the 1st Defendant was described as divided property. The details of this divided property are listed in the schedule which includes the following ‘fact’:

All the divided and defined allotment of land marked Lot 1B depicted in Plan No. 2332 dated 4th November 1971 made by S.R.Yappa Licensed Surveyor and leveller (being a divided and defined portion of the allotment of land called “RAMSAY GARDENS” ………………………

(ii)               Folios 106-110 of the Appeal Brief confirm that the large property known as Ramsay Gardens was partitioned as per decree delivered on 09 November 1973. Mr. Yapa’s map dated 24 October 1971 is at folio 337 of the Appeal Brief.
(iii)             We now draw the attention of the Court to folio 215 which is part of the record of the evidence under oath by the 1st Defendant – Mr. Hewa Gederage Piyadasa – who is described as Chief Survey Assistant of Survey Department 160/2 Metisuddhagara Road, Boralesgamuwa. The first Defendant states under oath:

I am the 01st Defendant in this case. The Assessment No. of the premises related to the case is 163/7, Nawala Road, Narahenpita, in extent 17.3 perches. I was married in March 1968. I got married when we were occupying that land.

(iv)             Argument & Submission of conclusion as per evidence before the Court: Given that the land in the Declaration refers to the partitioned portion – as per Mr. Yapa’s map – the above claim that the 1st Defendant occupied that land in 1968 is false or the description of the Land described in the Deed of Declaration is false. Given that the Deed refers to the divided portion and the verbal evidence confirms occupation before any partitioning, both cannot be true about the one place.  If after 1968 – the 1st Defendant had demarcated a particular plot – that vital ‘fact’ has not been presented to the Court. Hence it is argued that according to the information produced – the 1st Defendant either occupied the whole of Ramsay Gardens or did not occupy any part of it at all, but has come under the influence of someone manipulating the legal records by using the name of the 1st Defendant. 
(v)               It is submitted that the  Deed of Declaration is invalid due to contradictory statements. One is able to construct the picture of what happened through the evidence before the Court. As per that evidence, the picture that evolves, strongly  indicates collusion between the 1st Defendant and the occupiers of the adjoining property – 163/8, Nawala Road, Narahenpita.

D.2.     Strong Indication of Collusion with Neighbours

(i)                 The Court’s attention is drawn to the specific evidence of the 1st Plaintiff listed in folio 122 of the Appeal Brief, where the 1st Plaintiff gave evidence that this adjoining property was purchased by Ms Lakshmi Ramachandran:

Plaintiff :‘ Ms Lakshmi Ramachandran purchased the adjoining land. She and we surveyed the land to see the common boundary.’

(ii)               Folios 100 to 105 of the Appeal Brief are copies of Deed of Transfer 528 regarding the sale of the property 163/7, Nawala Road, Narahenpita, from the first Defendant to the 2nd Defendant. As per the certification of the Legal Attorney (at folio 104 of the Appeal Brief),  Heetige Don Jaliya Rohan (who signed as “R.Hettige”) – as  the 2nd Witness to the signature of the 1st Defendant(the alleged Vendor) was living at 163/8, Nawala Road, Narahenpita.
(iii)             If the evidence of the 1st Defendant is taken as true, then that Land he claims to have occupied was un-partitioned as per his observation and mind structure - and the occupation would effectively negate the legal title holders of ownership of 163/8, Nawala Road, Narahenpita.
(iv)             Given that the occupier of that adjoining property 163/8, Nawala Road, Narahenpita – is a witness to the above sale –  the Appellants submit that the Declaration of Ownership through Prescriptive Title is strongly linked to this sale and is not above board. That signature in evidence negates the claim of the 1st Defendant that he was in occupation of that Land – which was known as Ramsay Gardens which included the adjoining property - 163/8, Nawala Road, Narahenpita.
(v)               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 1st 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:
(vi)             The first witness for the Defendants,  attesting  the signature of   the 1st 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.
(vii)           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.
(viii)         As per the above document the 2nd 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).
(ix)             The 8th  heir  of the 2nd Defendant who is also the Attorney of the 3rd and  5th 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 2nd 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 2nd witness to the 1st 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 1st Defendant in  the transfer of title from the 1st Defendant to the 2nd 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 1st Defendant signed Deed of Transfer 528 or whether the signatory was acting as the Attorney of Mr. Heetige Don Jaliya Rohan.

D.3.     The Address of the 1st Defendant – as stated by him against other claimants who are confirmed by the 1st Defendant to have occupied the said land

(i)                 As per the oral evidence by the 1st Defendant, the map used by him was the  Map drawn up in 1968 by Mr. Abeygunawardhana (page 230 of the Appeal Brief) .
(ii)               The 1st Defendant Claimed  he occupied the said property from 1962 to 1992 (para 7 on page 4 of the Submission dated 16 May 2016 by the Substituted Defendants)
(iii)             The 1st Defendant claimed he did not witness any legal titleholders or their representatives physically entering the property during this period (folio 231-232)
(iv)             The 1st Defendant Claimed that he achieved to retain possession despite efforts by two others – one of whom was a Police Officer, to oust him in 1987-88 (folio 225-226)

(v)               The 1st 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.
(vi)             The 1st 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)
(vii)           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 the  records of matter 5812/ZL, the 1stDefendant in the matter under Appeal – Mr. Hewa Gederage Piyadasa was living at 28 Nawala Rd Colombo 5 – at that time.
(viii)          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. The Certificate of Registration of ownership is confirmed  by the Municipality to have been requested by lawyer Mr. A.H.T.Dayananda on 13 June 1991
(ix)             Matter 5812/ZL which as per records (folio 294-296) was concluded about 6 weeks prior to that,  on 29 April 1991, confirm that the 1st Defendant was represented by S.Gunasekera, Attorney at law on the instructions of Mr. S.W.Premaratne Attorney at law. Lawyer Mr. A.H.T.Dayananda who according to the records Administered  the Deed of  Declaration on 04 May 1988, suddenly appears after matter 5812/ZL was concluded – to carry on with the paper work.  Such discontinuity of Service confirms inconsistency and raises the possibility of disorder of  Administrative and Legal processes, due to lack of sincere commitment to the Official Process.  
(x)               It is submitted that the above confirm not only that the 1st Defendant vacated the said land well before Sale to the 2nd Defendant but also that there was strong leadership from his legal Attorney in registering the interest in Land Registry. It is highlighted that the Land Registry as per these records, did not seem to have carried out its own Due Diligence  checks to ensure the integrity of its own records.

D.4.           Argument and Submission on the basis of Erroneous Construction of Facts

It is argued that :
(a)  the picture constructed by the evidence provided by the  1st Defendant under oath – in Court – is that :
(i)                 he occupied all of Ramsay Gardens
(ii)               he sold that property to the 2nd Defendant

(b) The picture constructed by the documentary evidence provided by the Legal Team:
(iii)             The 1st Defendant occupied the divided portion of Ramsay Gardens. This divided portion carried the address 163/7, Nawala Road, Narahenpita
(iv)             The 1st Defendant’s signature on the sale document of 163/7, Nawala Road, Narahenpita was witnessed by a person residing within the section carrying the address 163/8, Nawala Road, Narahenpita.
(c ) The Common picture on the basis of the evidence of the 1st Defendant and the Legal Team – after eliminating the contradictory sections is that the sale was witnessed by a co-occupier of the land known as Ramsay Gardens. If this co-occupier is also the owner of the property 163/8, Nawala Road, Narahenpita – then the sale is effectively by one co-owner under the supervision of another. This invalidates the claim by the 1st Defendant that he was the sole occupier and possessor of Ramsay Gardens for a period in excess of 10 years prior to making the Declaration to claim Prescription.

E.     Summary of Current Arguments – Law  based

E.1.  Acceptance of Documentary Evidence pertaining to matter 5812/ZL
His honour in his judgment (page 22) states:
[The defendant to prove his long possession has further produced as documentary evidence the declaration of title deed executed in 1988 and the judgment in the case No. 5812/ZL filed by the 1st defendant against Mitchell in respect of this land whereby he the 1st defendant proves his long undisturbed and uninterrupted possession. ]
(i)                             Given that the above decision was made on the basis of the judgment in matter 5812/ZL – the facts in that matter produced voluntarily by the 1st Defendant Mr. Piyadasa – are also taken as accepted by his honour in constructing the picture relating to matter 15866/L – currently under Appeal. As per those ‘facts’ Mr. Piyadasa was living at No. 28 Nawala Road and Mr. S.Periyasamy was living at 163/7 Nawala Road Narahenpita. The conclusion of ‘undisturbed and uninterrupted possession’ therefore is made invalid by the facts produced by the 1st Defendant in whose mind the land he claims to have occupied was different to 163/7 Nawala Road Narahenpita or he was confessing to having vacated that land due to pressure in 1987:
 Q: One Muthalib was the Inspector of Police in the Narehenpita in 1987,88?
A: It was about 1987, 1988 that I came to know about Mr. Mithaach. Before that I did not know nor heard of him. (folio 216 of the Appeal Brief)

(ii)                           As per the final disposal by the honourable Justice Chandradasa Nanayakkara of the District Court of Colombo, the Respondents in the above mentioned case were not listed as legal owners of the Property and hence there was no issue in relation to proving ‘undisturbed and uninterrupted possession’. By his very admission – the 1st Defendant ruled out seeing any legal owners.
(iii)                         It is argued and submitted that if the Respondents listed in this matter 5812/ZL were considered to be the representatives of the Legal Owners about whose records the Applicant in matter 5812/ZL and 1st Defendant/Respondent in the current matter and/or his Attorney could have learnt from the records of the Land Registry (folio 302 of the Appeal Brief), then the evidence by the 1st Defendant Mr. Piyadasa that he did not see anyone nor know of anyone (folio 226 of the Appeal Brief) and that he did not consider Mr. Periyasamy and / or Mr. Mitchell to be the relations of the Plaintiffs who were the legal owners (folio 225 of the Appeal Brief) is proven false.
(iv)                         If the respondents in matter 5812/ZL were considered to be unlawful occupants – then the claim of Adverse Title fails due to both groups working towards Prescriptive Title and therefore there was no Legal Title-holder adverse to whose ownership the Declaration was made on 04 May 1988 by the 1st Defendant. The evidence is recorded as follows:
At folio 217 of the Appeal Brief:
Q: Why were you sought?
A: No other reason but to take over this land. Owing to the land there were threats from Mr. Mitchell. A case was instituted against Mr. Mitchell and Periyasamy. No 5812/ZL. The case was adjudged ex-parte. A copy of the ex-parte decision is included as 573 in the case record.

(v)                           As per the records, Deed 528 confirming the Sale by the 1st Defendant to the 2nd Defendant was drawn up on 12 March 1992. Case 5812/ZL was concluded on 23 April 1991 indicating strongly the core purpose was to profit from sale rather than to hold and to cherish.
(vi)                          Argument and Submission – If the core purpose of instituting Case 5812/ZL was to claim Prescriptive Rights – then the legal title holders ought to have been listed as Respondents. If the Police Officer and Mr. Periyasamy were considered to be representatives of the Legal Title holders – then that negates the claim that until the case 15866/L filed by the Plaintiffs – the 1st Respondent did not have any knowledge of such owners. If on the other hand the 1st Defendant  did recognize them as the representatives of the legal owners – then by listing Mr. Periyasamy as the person residing at 163/7, Nawala Road, Narahenpita, in  the case 5812/ZL, the 1st Defendant confirms that he vacated the said property or that he was referring to another part of Ramsay Gardens and not to 163/7 Nawala Road, Narahenpita – the address allocated by his lawyers. Given the evidence in relation to Case 5812/ZL where the 1st Defendant confirms to have accepted the occupation of 163/7 Nawala Road, Narahenpita by Mr. S.Periyasamy – the above conclusion by his honour leads to the picture that his honour did not recognize:
 (a) that the 1st Defendant did not occupy the said premises during the period but that his opponent did and
(b)  the 1st Defendant did not know the extent of the Land. His honour confirms also that the 1st Defendant did not know the Boundaries. The Boundaries known to him would have been the boundaries of Ramsay Gardens as specified by Mr.Abeygunawardene in 1968. This was before the partition in 1973 for which purpose – Mr. Yapa drew up the Plan in 1971 – which plan is mentioned by the legal team of the 1st Defendant  in all documents of Sale/Transfer.

E.2.   Development of the said land

(i)                 The true feelings of ownership of the 1st plaintiff are confirmed through her evidence that she  pawned her jewellery (folio 162 of the Brief). His honour confirms his interpretation of the evidence of the 1st Defendant as follows: (Pages 13-14 & 15 of the Judgment)

He said that he possessed this land by cultivating Keera and selling them and also the plantains he had planted. ….. (Pages 13-14)
He said that the defendant possessed the land from 1962 and after 92 the second Defendant is possessing the land.  He said that in 1962 he cleared this land and started planting Keera. He said that he did not know the extent of the land he possessed and thereafter he got a declaration of title executed. He said that he knew the boundaries of the land he possessed and in 1968 this land was surveyed and the defendant got a plan prepared. He said that then he came to know the extent of the land and the boundaries. He said that he got a deed of declaration executed on the said plan and that he did not know that the plaintiff bought this land. ….. (Page 15)

(ii)               Argument and Submission – The first Defendant revealed when taking oath before giving evidence – that he was Chief Survey Assistant of Survey Department  Boralesgamuwa. Keera was not his primary source of livelihood.

The 1st Plaintiff has on the other hand revealed that the purchase was made out of her income by working as an Accountant  and by pawning her jewellery. (folio 162 of the Appeal Brief).

In addition – the sale in 1992, of the property after the court matter in 1991 – confirms the motive of profit that the 1st Defendant was influenced by and needs to be taken one the face of  the pattern that has evolved until proven otherwise. On the other hand the 1st Plaintiff has continued to show that she means to preserve her ownership in the said land.

In terms of the current stage of the matter also – it is highlighted that the substituted respondents’ – 110/2, Lake Drive, Colombo 8 address indicates that they are financially well off and did not need to purchase a property the ownership of which was under dispute  at the time of their purchase in November 2001. They may have considered it a profitable investment but to the 1st Plaintiff  the property represented her hard earned and saved money in Sri Lanka and there is her Sri Lankan heritage.

It is submitted that the heritage value of the property is as per the sacrifices made by those who invest in it their time and earned money. Without sacrifice there is no heritage value. To the substituted respondents there is no direct connection through this property to such sacrifices.

By continuing to present herself in Court – the Appellant has further demonstrated her sincerity and respect for the Court process whereas in contrast the substituted Respondents have left it to their expensive lawyers to deal with the matter in court. It is submitted that the Court has the duty to consider these factors in determining the credibility of the parties concerned.

It is submitted that the depth of importance of the ownership could be tested by working out the challenges overcome when purchasing and/or by the way the investment is preserved after purchase. To occupy – the 1st Defendant did not demonstrate hardship anywhere near the difficulties that the 1st Plaintiff confirms to have undergone to purchase the property. A part of the challenges met successfully to qualify as an Accountant and to work and save to represent her earned social professional status are stronger sacrifices that the Plaintiff had to make to own this property through lawful process. The cost-benefit ratio  to develop the land by the 1st Defendant confirm excessive profit whereas for the 1st Plaintiff – there has been no benefits so far but ongoing costs as investment   - and these include the expenses relating to this legal matter under Appeal. These are of heritage value.

It is submitted that the Trust that one places in the lawful system would be seriously shattered if those who have demonstrated active use of the Administrative and Legal processes to suit their own immediate desires with very little commitment to respect the Administrative and Legal structures that we have inherited and invested in, are accommodated to dismiss such committed practitioners of  the lawful process even from far away places such as Australia.

E.3.  Disability Clause
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.   

It is highlighted that the opening section of the Deed of Declaration 334 – through which the 1st Defendant claimed Prescriptive Rights states as follows:

Whereas the said Hewagedera Piyadasa entered into possession and occupation of the divided and defined portion of the land marked lot 1B depicted in Plan 2332 dated 4th November 1971 made by S.R.Yapa Licensed Surveyor bearing assessment No. 163/7, Nawala Road, Narahenpita Colombo 5 and morefully described in the schedule hereto.

(i)     It is highlighted that even according to the above declaration by the 1st Defendant,  the land was divided only in 1971 and that the 1st Defendant’s claim that he was in possession from 1962 is clearly false. (Folio  216 of the Appeal Brief: ‘We went into residence on this premises in 1962.).
(ii)   If the facts produced before the Court through the above Deed of Declaration – are accepted as valid – then the period of 17 years from 1971 to 1988 – is well short of the 30 year period required by Section  3 of the Ordinance.

E.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’
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  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 to satisfy the requirements of the Law.

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 1st 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)             As discussed in relation to matter 5812/ZL the 1st Defendant considered the Police Officer and Mr. S.Periyasamy as his Respondents in claiming Prescriptive Ownership in Courts. The 1st Defendant clearly confessed to knowledge  that these two persons were not the true owners. According to his own evidence they were his competitors to ‘possess’ the said land. It is submitted that the answer to ‘why’ we take action would lead to the real intentions within. It is submitted that the real intention in filing matter 5812/ZL – based on which his honour determining the current matter 15866/L made the decision – was to eliminate others who tried to possess and by intent was not to confirm Prescriptive Title in Opposition to Legal Title. In fact if the 1st Defendant truly believed in his Prescriptive rights – he would not have sought confirmation of ownership through the legal process in matter 5812/ZL but simply upheld his Title and sought eviction orders against Mr. Periyasamy and punishment orders against Officer  Mitchell for aiding Mr. Periyasamy. By filing case 5812/ZL – the 1st Defendant effectively set aside his own declaration of belief. One who has inner belief does not need external endorsement. By using the judgment in matter 5812/ZL to confirm the 1st Defendant’s ownership through Prescriptive Title his honour in matter  15866/L failed to apply the test of Intention upheld through case law in FERNANDO v , WIJESOORIYA (1947) 48 N.L.R. 320 
(v)               It is submitted that by using the map of Mr. Yapa – prepared to satisfy the Legal Titleholders’ needs – the 1st 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.
(vi)             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 1st 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.
(vii)           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.

(viii)         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.
(ix)             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.
(x)               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.

(xi)             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. 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 1st Defendant out of his resources, to draw the map where boundaries are already visible or he himself could have drawn up a map.
(xii)           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.
(xiii)         His honour included the  Verbal Evidence by the 1st Defendant that the map used by the 1st Defendant was the  Map drawn up in 1968 by Mr. Abeygunawardhana. 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.
(xiv)         It is submitted that by including the map of Mr. Yapa, the legal team facilitated the 1st 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. One who owns the work owns the title. It is submitted that by including the map of Mr. Yapa, the legal team facilitated the 1st 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’. The work required of the Prescriptive Title claimant ought to have been done by himself and/or out of his earned resources.

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

In conclusion, it is submitted that the arguments have established that :
(i)     There is clear evidence that the 1st Defendant and/or his legal representatives knowingly or otherwise misled the Court about the definition of the Land.
(ii)   There is clear evidence that the 1st 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 1st 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 1st 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 1st and 2nd 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 1st 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

1st Plaintiff-Appellant - Court of Appeal Case No: 135/99 (Final); District Court of Colombo Case No: 15866/L

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