Property Law

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As a result of the civil war, many people were displaced including Tamil,
Muslim and Sinhalese, who have been housed in welfare camps for several years. With
the signing of the Ceasefire Agreement, several peoples returned to their homes. The
war, resulted the effected people who have been forced to leave their homes due to the war. up to
hundred thousand of people died during the civil war which ended with the lost of life, lost of
possession and lost of ownership of many properties , specifically in north and eastern provinces.
What is possession?
The physical control by a person of a corporeal thing with the intention of keeping the control of
it for his own benefit. the control or occupancy of a thing, most frequently land or personal
property by a person.
What is ownership?
One Who has certain rights and duties over the property from which one can possess ,alienate,
use and enjoy the property.
The possession has been a problem in the resettlement of conflict affected and may prove to be
an obstacle to the return of ownership title of the property. The problem of possession arises
when properties left vacant by original owners of the property. Upon the original owners return,
the problem arises when there is a possessor in their property.
Possession results in several practical difficulties, including:
Questions with regard to legal ownership that often necessitate judicial consideration
to establish legal property rights and original residency. This problem may be
exacerbated by the loss of legal documents establishing property ownership and the
inability to ascertain boundaries.
In removal of possessor also there will be number of problems arisen because under the
primary courts procedure act there is a safeguard given to the possessor to reoccupy the
possession. If the owner makes a claim on the property and a dispute results, the provisions of
the Primary Courts Procedure Act may come into operation. Sections 66 76 of the Primary
Courts Procedure Act deal with temporary order for possession and other rights in cases where a
breach of peace is threatened or is likely. In terms of Section 68, any person who has been in
possession for 2 months preceding the application or who has been dispossessed within two
months, is entitled to possession. The cases filed under this section should be solved within two
weeks. this section there is no any safeguard for owner and if owner face any problem regarding
this section he must file the case under civil law and Even a trespasser can benefit from this
provision.
Rei vindicatio action

In order to vindicate his title and eject the possessor, the owner will have to file a rei vindicatio
action in the civil courts. Under this action owner has the right to recover possession in
circumstances where the owner has been unlawfully deprived of possession of the property. for
that owner has to prove certain requirements, firstly, plaintiff has to proof that he is the owner of
the property and that the property is in the possession of the defendant. the burden of proof of the
title depend on the plaintiff but important requirement is that ,if the plaintiff files to prove title,
judgement in the vindicatory action will be given in favor of defendant.
De silva v goonatillake it was held that the parties claiming a declaration of title must have tittle
himself. Peeris v saunahamy. it was held in this case in an action for declaration title to land,
defendant is in possession of the and in dispute, the burden is in the plaintiff to prove that he has
dominum.
From these case decision that we can come to the conclusion that the person who must prove the
title for ownership for prove himself as the owner. owner can prove the title through the deed. If
there is no any deed, the owner has to prove by way of alternative ways. proof of ownership has
been identified as a common problem for returning refugees.
In Sri Lanka, the ownership of immovable property is evidenced by a document commonly
known as the deed. This is an instrument, which in terms of the Prevention of Frauds
Ordinance, Notaries Ordinance and Registration of Documents Ordinance, should be signed
by the transferor in the presence of two witnesses, and attested by a Notary Public. In terms
of Section 2 of the Prevention of Frauds Ordinance, any conveyance of an immovable
property is invalid if not notarially executed.
The ownership of an immovable property, called title to the land, passes to the Transferee on
the signing of the document. However Registration under the Registration of Documents
Ordinance gives an opportunity for the public to know whom the owner is. Hence a
registered document gains priority over an unregistered document even if the unregistered
document is prior in date. Therefore, if a properly registered notarial conveyance (the
deed) in favour of the owner is available with the owner, and the Land Registry Folios are
available too, there will be no problem in determining the title holder to that property.
In the event that both the registration folios at the Land Registry and the original notarial
conveyance are unavailable, one should look for the duplicate of such notarial document.
This would be held in the Land Registry, in which the attesting notary had practised/is
practising. (Section 31 Rule (26)(a) of the Notaries Ordinance makes it compulsory for a
Notary to transmit a duplicate copy of the deed to the Land Registry). If the duplicate copy
has not been submitted, or the Land Registry where the duplicate copy was preserved does
not hold it, one should look for the third copy (protocol) kept by the attesting Notary.
(Section 31 Rule (24) of the Notaries Ordinance makes it compulsory for a Notary to retain a
third copy of the deed).
However in this problematic question, owner is unable to prove the title, because of lacking the
above discussed requirements. So automatically owner will lose his claim in the court

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Rei vindicatio action

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