Prescrition co-owners- pdf

Contents PONNAMBALAM V. VAITIALINGAM CO OWNERS PARTITION ACTION CLAIM BY DEFENDANTS THAT

CORPUS AMICABLY DIVIDED AND SO POSSESSED PRESCRIPTION PRINCIPLES APPLICABLE. ............. 4

COREA v. APPUHAMY et al.Prescription-Possession by one co-heir enures to

the benefit of the other co-heirs-Adverse possession. ................................................ 13

TILLEKERATNE et al. v. BASTIAN et al. Prescription-Long-continued exclusive

possession by one co-owner- Presumption - Lost grant - Dedication of highway

- Ouster - Adverse possession. ............................................................................................. 34

ABDUL MAJEED, APPELLANT, AND UMMU ZANEERA CO-OWNERS-PRESCRIPTIVE POSSESSION BY A

CO-HEIR-OUSTER-FIDEICOMMISSUM FOR FOUR NERATIONS-COMPUTATION OF PERIOD-

PRESCRIPTION AGAINST REMAINDER-MEN AND MINORS-BURDEN OF PROOF-PRESCRIPTION

ORDINANCE (CAP. 55), SS. 3, 13- EVIDENCE ORDINANCE, S. 114. .................................................... 60

HUSSAIMA Vs A. L. UMMU ZANEERA Respondents Co-owners-Prescriptive possession by a co-

owner-Adverse title-Burden of proof- Fideicommissum for four generations-Burden of proof

regarding termination of successive interests and of any disability-Prescription Ordinance, ss. 3,

13. ..................................................................................................................................................... 93

DANTON OBEYESEKERE vs ENDORIS Co-owners-Separate possession of a portion of the co-owned

land by one of the co-owners-Inference of prescriptive possession and title. .............................. 103

P. K. J. NONIS vs H. D. PETHTHA Co-owners-Informal partition of a number of

lands-Exclusive possession, by one co-owner, of a specified land thereunder-

Adverse possession-Prescription Ordinance (Cap. 68), s. 3 73 New Law

Reports Page No 1 ................................................................................................................... 119

U. G. JAYANERIS VS U. G. SOMAWATHIE Volume 76 New Law Reports Page No 206Partition

action-Claim to part of corpus by the contesting defendants on basis of prescriptive possession-

Possession by same person as agent of the contesting defendants and on behalf of some of the

co-owners-Adverse possession-Burden of proof ............................................................................ 126

Y. C. PERERA vs D. L. D. C. KULARATNE Partition action-A co-owner's claim to a portion of the

corpus exclusively-Evidence led, by him that a subsidy to replant rubber on that portion was

granted to him upon an application made by him under the Rubber Replanting Subsidy

Regulations, 1953- Weight of the evidence-Trusts Ordinance, s. 92-Rubber Replanting Subsidy Act

(Cap. 437). ....................................................................................................................................... 132

M. M. BELIN NONA, Appellant, and H. K. PETARA- Co-owners of two lands-Averment that both

lands were amalgamated and divided among the co-owners-Prescriptive possession thereafter of

the parts severally allotted-Proof. It is only rarely possible for a party successfully to maintain that

there had been an actual division of a land among co-owners and prescriptive possession

thereafter of the parts severally allotted. The difficulty of proving separate title is all the more

difficult when two lands are said to have been amalgamated and the same persons are not shown

to have owned the same shares in the two lands. ......................................................................... 142

HAMTOU LEBBE v. GANITHA. Co-owners-Prescriptive title-Long-continued exclusive possession-

Presumption of ouster. ................................................................................................................... 144

SIDERIS vs SIMON Prescription-Co-owners-Long continued and undisturbed possession-

Presumption of ouster-Question of fact. In an action between co-owners the question whether a

presumption of ouster may be made from long continued and undisturbed and uninterrupted

possession is one of fact, which depends on the circumstances of each case. .............................. 157

RAJAPAKSE vs HENDRICK SINGHO Co-owners-Exclusive possession of the common property by

some of the co-owners- Effect-Ouster- Prescription. Fresh evidence-Retrial-Permissibility. ........ 163

JAMIS PERERA AND ANOTHER v. CHARLES DIAS AND OTHERS Prescription - Prescription among co-

owners - Division and adverse possession of co-owned property. ................................................ 171

LEISA AND ANOTHER v. SIMON AND ANOTHER Rei Vindicatio - Prescriptive rights - Presumption

of right to possess - Difference between possession, occupation and dominium - Prescription

Ordinance, section 3 - Plaintiff claims paper title as well as by prescription - Should the plaintiff

prove prescription ........................................................................................................................... 175

FERNANDO v. FERNANDO New Law Reports Volume 44, Page No 65 Co-owners-Purchaser of

entire property from a Co-owner-Prescription- Ouster. ................................................................ 187

MARIA PERERA v. ALBERT PERERA Partition Amicable partition Ouster Prescription Sri Lanka Law

Reports 1983 - Volume 2 , Page No - 399 .......................................................................................... 194

BANDARA, Vs SINNAPPU 47 NLR 249 Where a Iand Panguwa consisted of gardens, deniyas and

chenas and it was established that these deniyas were assweddumized by the various co-owners

and possessed separately by them without interference by the other co-owners for a period of

over twenty years- .......................................................................................................................... 203

P. P. G. SEDIRIS, vs M. S. ROSLIN In considering whether or not a presumption of ouster should be

drawn by reason of long-continued possession alone of the property owned in common, it is

relevant to consider the following, among other matters: (a) The income derived from the

property. (b) The value of the property. (c) The relationship of the co-owners and where they

reside in relation to the situation of the property. (d) Documents executed on the basis of

exclusive owner ship. ...................................................................... 212

ANGELA FERNANDO VS. DEVADEEPTHI FERNANDO Partition Law, No. 21 of 1977, sections 2(1) and

25(1) -If land is not commonly owned is investigation of title necessary? - Ouster - Possession

becoming adverse - Long continued possession by a co - owner? - Counter presumption of ouster.

........................................................................................................................................................ 233

LESLIN JAYASINGHE VS ILLANGARATNE - Sri Lanka Law Reports - 2006 - Volume 2 , Page No – 39

Partition Action-Evidence Ordinance, section 103-Burden of proof-Prescription 'Ordinance, No. 22

of 1871-section 3-Symbolic Possession-section 31, section 33,-Notaries Ordinance-t: Due

Execution?-Notaries failure to observe his duties with regard to formalities 7- Registration of

Documents Ordinance section 7-Prior Registration-Can it be raised in appeal 7- Mixed question of

law and fact 7 - Co-ownersRights7-ouster vital. ............................................................................. 244

PUNCHI MENIKE v. APPUHAMY et at. Diga marriage of daughter-Re-acquiring binna rights-

Prescription among co-owners. A daughter married in diga can regain, even after her father's

death, binna rights during the lifetime of her husband and without any divorce from him, or re-

marriage in binna, by maintaining a close and constant connection with the mulgedara.There may

be prescription among co-heirs where there is an overt act of ouster or something equivalent to

ouster. But what might be acts of adverse possession against a stranger have, in questions arising

between co-heirs, to be regarded from the standpoint of their common ownership. New Law

Reports Volume 19, Page No 353 View - Volume 19 .................................................................... 257

J. M. DON HANNY ALEXANDRA, vs Thomas Jayamanna Prescription-Co-owners-Family

arrangement whereby property of deceased given to one of the heirs by the others-Oyster-

Evidence of adverse possession thereafter by such heir-Acquisition of title by prescription. ....... 269

WICKREMARATNE AND ANOTHER v. ALPENIS PERERA Prescription among co-owners- Proof of

ouster-Partition action. In a partition action for a lot of land claimed by the plaintiff to be a divided

portion of a larger land, he must adduce proof that the co owner who originated the division and

such co-owner's successors had prescribed to that divided portion by adverse possession for at

least ten years from the date of ouster or something equivalent to ouster. Where such co-owner

had himself executed deeds for undivided shares of the larger land after the year of the alleged

dividing off it will militate against the plea of prescription. Possession of divided portions by

different co-owners is in no way inconsistent with common possession. ..................................... 280

PIYADASAAND ANOTHER VS. BABANIS AND ANOTHER Partition Law, No. 21 of 1977 - Plea of

Prescription - Co-owner prescribing to entire land?-Presumption of ouster - Essentials of a

Kandyan Marriage - Special Law in derogation of the Common Law -Can a new point be raised for

the first time in appeal?-Can there be a valid Kandyan marriage by way of habit and repute -

Kandyan Marriage and Divorce Act, Section 3 - Presumption in favour of marriage under Roman

Dutch Law - Evidence Ordinance, section 103. 2006 - Volume 2 , Page No - 17 ............................ 294

1978-79 - Volume 2 , Page No - 166

Sri Lanka Law Reports - 166 - and another - COURT OF

APPEAL.

RANASINGHE, J. AND TAMBIAH, J.

C. A. (S.C.) 237/73 (I) D. C. JAFFNA 539/p.

MARCH 27, 30, 1979.

PONNAMBALAM V. VAITIALINGAM CO OWNERS PARTITION ACTION CLAIM BY

DEFENDANTS THAT CORPUS AMICABLY DIVIDED AND SO POSSESSED

PRESCRIPTION PRINCIPLES APPLICABLE.

Held

The question whether a co owner has prescribed to a divided

lot as against the other co owners is one of fact and is to be

detonated by the circumstances of each case. The mere

reference to undivided shares in deeds executed after the

alleged date of division does not have the effect of restoring

the common ownership of a land which has been dividedly

possessed and where such divided portions have become

distinct and separate entities. The learned trial Judge had in

this case correctly found that the corpus had been divided and

separately possessed to the exclusion of the other co owners

for about 30 to 40 years prior to this action and accordingly

dismissed the action holding that at the time of its institution

the corpus was not owned in common.

Cases referred to

(1) Corea v. Iseris Appuhamy, (1911) 15 N.L.R. 65; 1 C.A.C.

30.

(2) Tillekeratne v. Bastian, (1918) 21 N.L.R. 12 (F. B.).

(3) Abdul Majeed v. Ummu Zaneera, (1959) 61 N.L.R. 361 ; 58

C.L.W. 17.

(4) Hussaima v. Ummu Zaneera, (1961) 65 N.L.R. 125, 64

C.L.W.7

(5) Danton Obeysekera v. Endiris. (1962) 66 N.L.R. 457.

(6) Simon Perera v. Jayatunga, (1967) 71 N.L.R. 338.

(2) Nonis v. Petha, (1969) 73 N.L.R. 1 ; 78 C.L.W. 33.

(3) Jayaneris v. Somawathie, (1968) 76 N.L.R. 206.

(9) Perera v. Kularatne, (1972) 76 N.L.R. 511.

(10) Belin Nona v. Petara, (1972) 77 N.L.R. 270.

(11) Hamidu Lebbe v. Ganitha, (1925) 27 N.L.R. 33; 6 C. L.

Rec. 159: 3 Times L.R. 102.

(12) Sideris v. Simon, (1945) 46 N.L.R. 273.

(13) Mensi Nona v. Neimalhamy, (1927) 10 C. L. Rec. 159.

(14) Girigoris Appuhamy v. Mary Nona, (1956) 60 N.L.R.

330.

APPEAL from the District Court, Jaffna.

C. Thiagalingam, Q.C., with V. Arulampalam, for the plaintiffs

appel¬lants.

C. Ranganathan, Q.C., with K. Sivanathan, for the 2 (a), (b)

and (c) defendants respondents.

Cur. adv. vult

RANASINGHE, J.

The plaintiffs appellants (hereinafter referred to as plaintiffs)

who are husband and wife respectively instituted this action to

have the land called and known as Ella Silum and other

parcels, 20 Ims in extent and described in the schedule to the

plaint partitioned as between the plaintiffs and the 1st to 3rd

defendants.

The contesting defendants, who are the 2a 2c, and the 3rd

defendants appellants, have taken up the position that the

corpus had been amicably divided over 60 years ago, and has

ever since the said division been dividedly possessed and that

it is now not commonly owned, and that, therefore, the

plaintiffs' action Should be dismissed.

The learned trial judge has upheld the position taken up by the

contesting defendants and has accordingly dismissed the

plaintiffs' action.

This appeal therefore raises once again the question of

prescription among co owners, a question which has come up

over and over again before our Courts and has received careful

and exhaustive consideration both by the Supreme Court and

by Their Lordships of the Privy Council.

The co ownership of a land owned in common could be

terminated broadly in one of two ways either through Court or

out of Court. Common ownership could be brought to an end

by an action instituted in Court for a partition in terms of the

provisions of the Partition Act. The best evidence of such a

termination would be the Final Decree entered by Court.

Termination of common ownership without the intervention of

court could be in one of two ways either with the express

consent and the willing participation of all the co owners, or

without such common consent. An amicable division with the

common consent of all the co owners can take one of two

forms: a division given effect to by the execution of a deed of

partition or of cross conveyances which said notarial

documents would then be the best evidence of such a

termination or an internal division and the entry into separate

possession of the divided allotments by the respective co

owners to whom such lots were allotted at such division. In the

case of a partition by court and an amicable division by the

execution of the necessary deeds, the common ownership ends

forthwith. In the case, however, of an internal divisions

effected by the co-owners with the express common consent of

them all, the common ownership does not in law come to an

end immediately. In such a case common ownership would, in

law, end only upon the effluxion of a period of at least ten

years of undisturbed and interrupted separate possession of

such divided portions. Proof of such termination will depend on

evidence, direct and or circumstantial, and is a question of fact.

The termination of common ownership without the express

consent of all the co-owners could take place where one or

more parties either a complete stranger or even one who is in

the pedigree¬ claim that they have prescribed to either the

entirety or a specific portion of the common land. Such a

termination could take place only on the basis of unbroken and

uninterrupted adverse possession by such claimant or

claimants for at least a

period of ten years. Here too proof of such termination would

be a question of fact depending on evidence, direct and or

circumstantial.

I shall, before I proceed to deal with the facts and

circumstances of the case, set down the relevant principles of

law which are applicable to a case such as this.

Any discussion of the principles relating to prescription among

co owners must necessarily commence with the judgment of

Their Lordships of the Privy Council, delivered in 1911 in the

case of Corea v. Iseris Appuhamy (1)where it was clearly and

authoritatively laid down: that a co owner's possession is in law

the possession of other co owners : that every co owner is

pre¬sumed to be possessing in such capacity : that it is not

possible for such a co owner to put an end to such possession

by a secret intention in his mind: that nothing short of ouster

or something equivalent to ouster could bring about that result,

Thereafter in the year 1918, in the case of Tillekeratne v.

Bastian (2) a Full Bench of the Supreme Court was called upon

to apply the principles laid down in Corea v. Iseris Appuhamy

(supra) and con¬sider, inter alia, the meaning of the English

law principle of a "presumption of ouster ", and it was held:

that it is open to the Court, from lapse of time in conjunction

with the circumstances of the case, to presume that a

possession originally that of a co¬-owner has since become

adverse : that it is a question of fact, whenever long continued

exclusive possession by one co owner is proved to have

existed, whether it is not just and reasonable in all the

circumstances of the case that the parties should be treated as

though it had been proved that that separate and ex¬clusive

possession had become adverse at some date more than ten

years before the institution of the action. Thereafter the,

question has been considered over and over again by the

Supreme Court, and in the year 1959, in the case of Abdul

Majeed v. Umma Zaneera (3) in a very lucid and exhaustive

discussion of the principles relating to prescription among co

owners and the presumption of ouster, which had been laid

down up to that point of time by both the Privy Council and the

Supreme Court con¬cluded : that the inference of ouster could

only be drawn in favour of a co owner upon proof of

circumstances additional to mere long possession : that proof

of such additional circumstances has been regarded in our

Courts as a sine qua non where a co-owner sought to invoke

the presumption of ouster. This case thereafter went up in

appeal to the Privy Council, and the Judg¬ment of the Privy

Councli is reported (4). Although their

Lordships regretted having to advise Her Majesty to dismiss the

appeal, Their Lordships were nevertheless content to accept

the relevant principles of law, as expounded by the Supreme

Court.

I shall now refer to the judgments reported after the judgment

(4) referred to above which have dealt with the question.

In the case of Danton Obeysekera v. Endiris (5), Sansoni, J.

held that where an outsider bought a 2/3 share, about two

roods in extent of a co owned property, from two co owners

and sepa¬rated off such portion, not as a temporary

arrangement for conveniences of possession, but more likely as

a permanent mode of possession, and possessed it for over

twenty years, the lot so separated off ceased, with the lapse of

time and exclusive pos-session, to be held in common with the

rest of the land, and that those who so possessed it were

entitled to claim that they have prescribed to it. This decision

does not, in my opinion, in any way offend against the principle

referred to by (H. N. G.) Fernando, J. The additional

circumstance that was required was supplied by the 1st

defendant's prosecution of the 2nd defen¬dant for destroying

the barbed wire fence which had, been erected to separate off

the portion which was then being sepa¬rately possessed by the

1st defendant.

The subsequent Judgments of Siva Supramaniam, J. in Simon

Perera v. Jayatunga (6) at p. 431 of the Privy Council in the

case of Nonis v. Peththa (7), of Weeramantry, J. in Jayaneris v.

Somawathie (8), of Pathirana, J. in Perera v. Kularatne,(9),

and of H. N. G. Fernando, C.J. in Belin Nona v. Petara (10),

which have also dealt with the question of prescription among

co owners, have not expressed any views which in any way,

tend to deviate from the principles made explicit in the

judgments of the Supreme Court in the case of Abdul Majeed v.

Ummu Zaneera (supra) and approved by the Privy Council.

It has also been laid down that the question whether a co-

owner has prescribed to a particular divided lot as against the

other co owner is one of fact and has to be determined by the

circumstances of each case (2). (11.), (12), (3), (5), (6) at p.

343. It is also now settled law that the mere reference to

undivided shares in deeds executed after the alleged date of

division does not have the effect of restoring the common

owner¬ship of a land which has been dividedly possessed and

where such divided Portions have become distinct and separate

entities (13), (14) at p. 332; (6) at 343.

The principles applicable are, therefore, quite clear and

unambiguous and have been authoritatively laid down ; but, as

it very often happens, the real difficulty arises only in their

application to the facts and circumstances which are

established in a particular case.

I shall now proceed to consider whether, having regard to the

principles set out above, the learned trial judge's finding that

the corpus sought to be partitioned had been amicably divided

and, had been dividedly possessed for a long period of time

prior to the commencement of the proceedings and that the

corpus had, therefore ceased to be owned in common at the

time the plaintiff instituted this action.

As already stated, the position of the contesting defendants in

this case is that the amicable division had taken place about 60

years ago. No witness is available to them to give direct

evidence with regard to the said division which the contesting

defendants claim had taken place. They, therefore, rely on

circumstantial evidence to establish their claim.

The learned trial judge hag found that the parties, who are said

to be entitled to interests in the corpus, have in fact been

separately possessing the several lots depicted in the Plan X :

that the said parties have so possessed the several lots

dividedly to the exclusion of the other co owners ; that such

exclusive possession has gone on for about 30 40 years prier to

the institu¬tion of this action ; that the fences separating the

various lots are very old live. fences; that the said fences are

boundary fences and not " screen fences ". These findings of

the learned trial judge are supported by the evidence placed

before him at the trial and there does not seem to be any good

reason to interfere with the said findings of the learned trial

judge.

It is also clear that lot, 7 on which the well stands has been

separately fenced in, and that access has been Provided to this

lot from all the other lots 2, 4, 8. 10 and 11 along well defined

path ways.

The learned trial judge has also found that, prior to the

dis¬pute raised by the plaintiff, shortly before the

commencement of these proceedings, to the construction of a

kitchen by the contesting defendants on lot 4, substantial

buildings had been put up by the contesting defendants on lot

4 without any protest from the plaintiffs. The 1st defendant has

also thereafter constructed a building on lot 4. The 1st plaintiff

who has been in possession of lot 2 stated that he himself has

built a house on lot .2, and that before that house was

constructed by him, there was on that same lot an old house in

which his grandmother and also his parents had resided.

It also transpired in evidence that the 1st defendant, who is

said to have been allotted lot 11, had removed the southern

boundary fence of lot 11 and amalgamated lot 11 in Plan X

with lot 12, which is a portion of the land lying to the south of

lot 11 and which also belongs to the 1st defendant. The learned

trial judge has stated that, when the 1st defendant carried out

such amalgamation, there had been no protest from the

plain¬tiffs and that such silence on the part of the plaintiffs

was because they, considered lot 11 to be the exclusive

property of the 1st defendant.

The deeds P2 of 1917, 1 13 and P4 both of 1935, and P5

executed only a few days before the plaintiff came in to court

in June, 1961, deal with undivided shares in the corpus. Whilst

P2 has been executed as far back as 1917 which is the year in

which the amicable division referred to by the contesting

defendants is said to have taken place, P3, which has been

executed in 1935 is in the chain of title" of those who have

been in posses¬sion of lot 11 which, as already stated, had

been separately possessed by the 1st defendant. Even though

evidence was placed on behalf of the plaintiffs that other co

owners too had ,exercised acts of possession over lot 11, such

evidence has not been accepted by the learned trial judge. The

deed P4, like P5 referred to above, figure in the Pedigree of

those who have been in possession of lot 2. The learned trial

judge has taken the view that the references to undivided

shares in these deeds do not militate against the position put

forward by the contest¬ing defendants, and that such

descriptions have been made not with reference to the actual

mode of possession but as a result of the notaries merely

following the descriptions in the earlier title deeds. Having

regard to the circumstances of this case, I do not think that the

view taken by the learned trial judge could be said to be

untenable.

The additional circumstances which, according to the principles

referred, to earlier, is required in a case of this nature has also,

in my opinion, been established in this case by the contesting

defendants. The contesting defendants produced marked 2D1 a

certified copy of a complaint made by the 1st plaintiff in this

case, on 21.2.1958, against the deceased 2nd defendant to the

Rural Court of Chankani, in Case No. RC/C/CRM 1054, that the

said 2nd defendant has failed and neglected to fence the

southern boundary fence of the 1st plaintiff's dwelling land, in

breach of Rule 46 of the Village Committee Rules of 3.2.1928,

and the said 2nd defendant has therefore committed an offence

punishable under section 26 (1) Rural Courts Ordinance 12 of

1945. According to an entry dated 25.3.1958, appearing on the

face of the said document Dl itself, the 1st plaintiff had

thereafter informed court, that, as the said 2nd defendant had

erected the fence, he was withdrawing the case ; and that the

2nd defendant has then been discharged. According to the Plan

'X' the lot possessed by the 1st plaintiff and on which he

resides, is lot 2, and to the south of lot 2 is lot 4 which was

possessed by the said 2nd defendant. The southern boundary

of the 1st plaintiff's dwelling land would, therefore, be the

boundary between lots 2 and 4 in Plan 'X'. The 1st plaintiff, on

being questioned with regard to the said case, admitted having

filled it but denied that he described the fence in question as a

" boundary fence ". His position is that he himself called it a

"screen fence" but that the Chief Clerk, who had written out

the complaint (the original of 2Dl) had described it as a "

boundary fence " without his authority. The learned trial judge

has disbelieved the 1st plaintiff's evidence on this point. The

1st plaintiffs description of the fence which had been erected to

separate lot 2 from lot 4 in Plan X, shows that these lots have

been so separated off " not as a temporary arrange¬ment for

convenience of possession but more likely as a permanent

mode of possession ". As already stated, once the said 2nd

defendant re erected the fence in question, the 1st plaintiff had

withdrawn the case. It appears to me that the 1st plaintiff's

acts as embodied , 2D1, gives a clear indication of the nature

and the character of the possession of the various lots,

depicted in Plan 'X' by the respective co owners.

On a consideration of these facts and circumstances, I am of

opinion that the learned trial judge's finding that the corpus

was not, at the time of the institution of this action, owned in

common is correct and should be affirmed.

The appeal of the plaintiff s' appellants is accordingly dismissed

with costs.

TAMBIAH, J. I agree.

Appeal dismissed.

New Law Reports Volume 15, Page No 65

New Law Reports D.C. Chilaw, 3,934.

[PRIVY COUNCIL.]

Present: Lord MacNaghten, Lord Mersey, and Lord Robson.

COREA v. APPUHAMY et al.Prescription-Possession by

one co-heir enures to the benefit of the other co-heirs-

Adverse possession.

Possession by a co-heir ensures to the benefit of his co-heirs.

A co-owner's possession is in law the possession of his co-

owners. It is not possible for him to put an end to that

possession by any secret intention in his mind. Nothing short of

ouster or some thing equivalent to ouster could bring about

that result.

The whole law of limitation is now contained in Ordinance No.

22 of 1871.

THE facts of this case are fully set out in the judgment of the

learned District Judge (T. W. Roberts, Esq.): -

The plaintiff in the present action seeks a partition of the

fifteen lands mentioned in the schedule attached to his plaint

on the strength of his purchase in 1907 of two-thirds share

thereof from Balahami and her two nieces, Allina and

Nonnohami.

The plaintiff and his vendors say that they were at the date of

transfer under the impression that Balahami had married after

the Matrimonial Ordinance, and that her children had not on

their father's death become entitled to any part of Balahami's

share. It subsequently turned out, however, that Balahami's

marriage was dated before 1876, and was in community of

property. So her two children have intervened, and claimed

each one-third part of one-half of the share to which Balahami

was entitled. Their claim is admitted by the plaintiff.

In another point, too, the facts stated in the plaint are not

accurate. Therein all fifteen lands are asserted to have formed

part of the estate of one Elias, and so on his death to have

devolved in part on his sister Balahami and nieces and

nephews above mentioned. It was asserted, however, at the

trial that certain of these lands never formed part of Elias's

estate, and plaintiff thereupon disclaimed title to such of those

lands as, may appear on the title deeds to have been bought

originally in the name, not of Elias, but of first defendant,

Iseris.

The lands in question form a large and valuable estate of over

one hundred acres, mostly now in full bearing. The title deeds

thereto, on which both the contesting parties rely, convey title

to one Elias. Elias died in 1878. Since that date all the lands

have been in the occupation of the contesting defendant,

Iseris, the brother of Elias.

The plaintiff's vendors allege title by inheritance from Elias.

They say that Elias was a man from Baddegama, which is

situated in the Galle District, 120 miles distance from Chilaw;

that he migrated, and made a large fortune in Chilaw District

and died here. Their case is that Elias was one of a numerous

family, and had one brother, the first defendant. Iseris, and

three sisters, Babahami, Balahami, and Sinnatcho, Babahami,

according to the plaint, died childless. Balahami married, had

three children (the intervenients) by her first husband, and

another child, a bastard, by her second consort. She is still

alive. Sinnatcho died in Galle District, leaving two daughters,

Allina and Nonno.

The plaintiff led evidence to show that after the death of Elias

Balahami came to Chilaw District with her children and her

second consort to seek her patrimony on receipt of news that

Elias had died and left a big estate; that some years thereafter

Sinnatcho's husband and children also migrated to this district;

and that both have thereafter allowed first defendant, Iseris, as

the chief male member of their family, to manage and possess

their estate. They say that during the thirty years since their

migration the first defendant, Iseris, had up to 1907 all along

acknowledged their title as his co-heirs, and made them

continual advances of money and provisions pending final

settlement of the estate. They allege that Iseris deceived them

into the belief that he had taken out administration, and had to

pay all debts before the property could be divided among the

heirs.

To all this Iseris gives a total denial. He says that he was

partner with Elias, and that on Elias's death he took possession

of the estate as his own, and has all along possessed it as

such. He denies the allegations as to his kinship with plaintiff's

vendors, and says they are his cousins. During his de facto

possession for thirty years he has planted and leased,

mortgaged, and sold various of the lands, and generally dealt

with them as owner. He has, he says, been frequently liberal to

his cousins, and allowed Balahami to live on one of the lands in

question. But he denies that he thereby acknowledged their

title, and says that what he did was simply matter of charity.

The issues as to the pedigree and as to Iseris's alleged

partnership with Elias need not detain us long.

As to the pedigree, there is a considerable resemblance in

physiognomy between Iseris and Balahami; and two witnesses

from Baddegama, of a goodly age, have testified that the

plaintiff's account of the pedigree is the truth. Their

depositions, it is true, displayed a wonderful accuracy of

memory in regard to the names of many members of Elias's

family. Such accuracy in nomenclature could, in Sinhalese

village folk, only be the result of careful preparation. But the

drilling required to produce that exactitude may have been

their own effort. My impression, on the whole, was that these

two were honest witnesses, and their statement is confirmed

by facial resemblance above noted. I should have accepted that

evidence, even if it had stood alone. As it is, the plaintiff has

also filed a number of ola extracts of registration, which

conclusively prove the pedigree of his vendors. I accordingly

find for plaintiff on issues 4, 5, 6, and 8.

Similarly, I have no hesitation in finding for plaintiff on issue

10. The only proof that the title deeds, which stand in the

name of Elias represent purchases with partnership money,

consists in the ipse dixit of Iseris. Now, Iseris's evidence is

deeply interested, and worthless on that ground alone.

Moreover, Iseris is a convicted forger and thief. And his

deposition in the present case directly and categorically

contradicts on every possible point the evidence which he gave

in D. C. Chilaw, No. 3,855.

On the mere statement of such a witness, expert not only in

crime and incarceration, but also in perjury, I am not prepared

to find any fact proved in the absence of their corroboration

aliunde. On the contrary, I shall take steps to prosecute him for

his perjury.

There remains the crux of the case the question of prescription.

Iseris has admittedly had de facto possession for practically

thirty years, and it has to be decided whether that was

precarious possession or possession on an adverse and

independent title.

The law on this point was exhaustively discussed by the

plaintiff's proctor, but I find myself unable to agree with much

of his argument, endita as it was.

He argued, firstly-and this much, it seems to me, was clearly

sound-that no length of precarious possession, even if

unaccompanied by payment of rent or other such

acknowledgment, can found a valid prescriptive, title. Further,

non-enjoyment, for however long continued, will not by itself

destroy title to property precariously possessed by another.

To that extent it is manifest that the finding of the Privy

Council in Nagudu Marikar v. Mohamadu 1 has over-ruled the

decision reported at Vanderstraaten 44. But the plaintiff's

argument went further. Mr. C. A. Corea contended also that on

the over-ruling of the decision reported in Vanderstraaten 44

the law reverted to its condition as it stood under the more

ancient decision to be found in Morgan's Digest 21 and 273.

Now, this is clearly not the fact. While the Privy Council in

Nagudu Marikar v. Mohamadu did in fact over-rule any

previous decisions in so far as they may have held that a

precarious possession may give a prescriptive title, it over-

ruled nothing else, and nowhere has ruled that the law of

prescription is now the law laid down in the judgment in

Morgan's Digest, at page 273.

If the two decisions be examined, it will be found that they are

profoundly at variance. What was held in Nagudu Marikar v.

Mohamadu was that not even centuries of precarious

possession will found a valid prescriptive title. Whereas in the

decision reported in Morgan's Digest, it is clearly implied that

thirty years precarious possession will found and create a valid

title. The two decisions are therefore directly at variance on

that point, and it is a contradiction in terms to say that the

later re-establishes the earlier.

Again, it is now settled law that since the Ordinance of 1871

the Roman-Dutch law of prescription has been superseded

(vide l N. L. R. 200). This was a decision of the Full Court, and

there are others. There is nothing inNagudu Marikar v.

Mohamadu which over-rules this. But with this view of the law

it is impossible to reconcile the decision reported in Morgan's

Digest. The latter supports and defends the Roman-Dutch law,

the common law as it stood. Among other things, it decides

that a precarious possessor, in order to obtain a good title by

prescription, must transform the character of his possession,

not merely into an adverse possession, but into an adverse

possession based on a bona fide title. It also recognizes the

distinctions between prescription longi andlongissum temporis.

But our present law recognizes none of these distinctions.

Under the decision reported at lN. L. R. 200 and under many

others and clearly under the words of the statute, it matters

1 (1903) 7 N. L. R. 91.

not whether the prescriptive possession commences with a

bona fide title or otherwise. What is required, and all that is

required, is that there should be proof of ten years' unbroken

possession, or an adverse and independent title. It makes no

difference whether the title be just or unjust. It is necessary

only that it should be adverse and independent. To interpret

the word " title " in the statute as meaning only a Justus titulus

is unwarrantably to import in to it a meaning which is not

there. It is as if one were to agree that the abstract word "

colour " does not mean any colour but only blue, or the word "

triangle " refers only to the isosceles and not to the scalene

variety.

The law is, therefore, that one coheir, so long as he possesses

the property precariously on a derivative or dependent title

(which involves acknowledgment of the title of the other co-

heirs), cannot by such possession prescribe against his co-

heirs. It is not true that he can never, under any

circumstances, prescribe against them. If he sets up an

adverse title, and by overt acts to the knowledge of his co-

heirs defies their title and disclaims the precarious character of

his possession, and thereafter has the uninterrupted possession

on such adverse title for ten years without payment of rent or

other acknowledgment of their collateral title, he will thereby

acquire a good prescriptive title. To hold otherwise would be to

encourage the careless in his lack of care and the fool in his

folly, it would enable indolent co-parceners to rely on their own

laches and oust innocent purchasers for value of apparently

good prescriptive titles. The numbers of such purchasers are

great in Ceylon, and the view of the law which Mr. Corea

advocated would amount to a social revolution.

The burden, therefore, lay on plaintiff to prove that Iseris's

possession began or went on in a precarious or permissive

character. If he did so he would shift the burden on to Iseris,

who would have to prove how and when he converted this

dependent character of his title into one of independence.

I have come to the conclusion that plaintiff has wholly failed to

prove that Iseris's possession either began or went on in a

precarious character. He has equally failed to account for a

long series of overt acts ut dominus on Iseris's part, which

would long ago have transformed the character of his

possession from precarious to adverse, if it had ever stood in

need of such change. I have summarized above the

explanation which the plaintiff's vendors gave of the long

occupation by Iseris. When we come to consider the proof of

that story, its paucity and weakness are strikingly apparent.

Practically the only proof that Iseris possessed, not as owner

but as agent for his co-heirs, consists of the evidence of those

co-heirs. Their word deserves little credence. They are persons

neither of worth nor position. They stand to win or lose on this

litigation a large sum, in each case running into over Rs. 1,000.

With so large a stake involved, it is certain that persons of their

sort and position will depose to almost any falsehood. But I

consider at length their counsel's argument on the facts,

because the property involved is very large.

Mr. Corea appears to have recognized that his evidence on the

matter of possession was slender, and attempted by his

argument to show that the evidence for plaintiff was supported

by the balance of probability. He set out, in the first place, to

prove that Iseris had, on his brother's death, taken out

administration, and then got the record of administration

proceedings destroyed to cover up his track. Now, the record is

lost, and Iseris has, by document D 37, clearly demonstrated

that ha complained to His Excellency the Governor of its loss

and of other matter, and that on his complaint thirty years ago

a record keeper of this Court was dismissed. If Iseris had

wished to destroy it, and had got it destroyed, why should he

complain of its loss? And why should the Government of Ceylon

have on that complaint dismissed the record-keeper? These

facts are irreconcilable with the suggestion that Iseris procured

its destruction. That suggestion is evidently the merest

verbiage.

The proof of administration having been taken out by Iseris is

defective, and consists chiefly of a dubitant recollection of Mr.

Cooke's, of the general belief in and around Galmuruwa, and of

hearsay. It seems to me that the proof of that has failed, and

so I find on that issue. The argument of plaintiff's proctor was

to the following effect. Migrations of Sinhalese to distant

districts are rare, and never made without good reason. The

only reason why Balahami and her nieces could have come to

this district, he contended, was that they were seeking their

share of Elias's large estate. Having so come, they would, he

urged, be sure to demand that share and did so demand it. If

Iseris had then refused, litigation would have been, it was

argued, sure to have begun at once. Therefore, Iseris must, as

they say, have admitted their claim, and entered on and

thereafter continued his possession in the dependent title of

manager for his female relatives. Thereafter, it was natural,

and in accord with Sinhalese customs, that they should allow

him to manage as he pleased, as it was not inconsistent with

his position that he should give out the lands on planting

agreements; and leases, and mortgage them to meet

expenses. His sales were matter which they did not know or

understand to be sales of their shares. It will be seen at once

that this agreement begins with a daring petitio principii, and

continues along a road liberally paved with examples of the

fallacy of non sequitur.

In the first place, it is not true that the only reason why

Balahami and then Sinnatcho's children should have migrated

was that they came to demand share of Elias's estate. Any

number of equally natural reasons are possible and

conceivable. It may have been that Balahami found her own

village uncomfortable after her illicit relations with her second

consort. It may have been, and this was probably the case,

that they migrated in the simple hope of charity or

employment. With kinsfolk at the end of the journey, such

migrations are not in the least uncommon, because the people

of Ceylon invariably show the most admirable liberty to any of

their kinsfolk, at least any with whom they have not quarrelled.

The assertion that the object of their migration must have been

to demand a share of their dead brother's estate was the

coping stone of the whole argument. That assertion is not fact,

and consequently the whole argument crambles away. Not only

is it not true, there is on the record proof of facts which clearly

and firmly negative that suggestion. It is admitted that

Sinnatcho's children did not migrate till some years after

Balahami. But if the reason for migration had been to enter on

the estate of Elias, which they say had devolved on them, it

would have been most natural that they should migrate

simultaneously, or at any rate in quick succession one after the

other.

Again, it appears from the admission of plaintiff's own witness

that Elias's other sister, Babahami, did not die childless, as the

plaint avers she did. She left four children at her death. Neither

she nor her children, however, have ever migrated. Now, if the

statement of Balahami had been true, and if on the death of

Elias Iseris had apprised his kinsfolk in Baddegama of that

death, and their consequent title to Elias's estate, we may be

sure, with the same certainty with which we know that 2 plus 2

makes 4, that Balahami and the family would not have left that

fortune, which awaited them, to go a begging. It is, therefore,

beyond doubt that Balahami's evidence as to the object of her

migration is totally false.

In the next place, it is clear, since Iseris is not shown to have

been administrator, that at the date of his entry on Elias's

estate he did not ask, nor need to ask, the consent of his

sisters. Elias died in 1878. Iseris came out of jail at the end of

that year, or in 1879. Balahami, if we accept her own evidence

as given in 3,855, migrated five years after her father died,

and she was thirty or thirty-five years old when her father died.

She wag born in 1850. It follows that she was about thirty-five

when she migrated, and that fixes the date of migration at

1885, but almost certainly not earlier. Therefore, Iseris had

had seven years' possession before Balahami appeared on the

scene.

In the third place, supposing for the sake of argument that the

object of her migration was to claim share of Elias's estate, and

that she did so claim it does not in the least follow that Iseris

admitted her claim. She was a new arrival, and poor. Iseris

was a criminal, and had in his possession the title deeds.

Looking at his unsavoury past, it is infinitely more probable

that he did not admit her claim. His interest in the law as to co-

heirs was probably slight. It is far more natural to suppose that

his entry on the estate of Elias and his continuance therein was

based on nothing else than the ancient doctrine that he should

take who can, and he should keep who has the power.

That being so, supposing Balahami had demanded share of the

estate and Iseris had refused, it is not clear why litigation

should follow. He had seven years' possession behind him. He

had the title deeds. He had the money. Balahami had nothing;

what is more likely than that she accepted his bounty and

dropped her claim? She would buy her claim in those

circumstances? How could she fight the claim herself? That is a

double non sequitur,then, when it was argued that Balahami

must have demanded her share of the estate and must have

got it. These things were neither necessary nor probable.

Continuing further, the extraordinary temerity of the argument

and evidence for plaintiff reveals itself yet more glaringly.

According to Balahami-and the remark applies, mutalis

mutandis, to her nieces-she owned one-third share of the

estate, and Iseris admitted that. On Iseris's estimate in his

deed of gift the property is worth Rs. 70,000. On Balahami's

statement, of the value, Rs. 80,000 thirty years ago. According

to her present estimate of the crop (100,000 coconuts at a

plucking), it yields an income of Rs. 24,000 per annum, and

must be worth Rs. 240,000. Much of it has been in bearing for

many years. At the lowest estimate her share of the income for

the last twenty years ought to have been Rs. 3,000 per annum.

Nevertheless, she comes into Court in the garb of poverty. She

has admittedly remained poor, while Iseris has been rich. She

has given her sons and nieces in marriage without portions.

She has lived on Rs. 200 per annum, though the income should

have been Rs. 3,000, and had never complained about it. One

of the husbands of her nieces said that he used to come and

get Rs. 50 or Rs. 60 every other month from Iseris. Yet he,

too, showed no signs of wealth. On his statement of income

and expenditure he ought to have now in his possession Rs.

3,000 or Rs. 500 cash. He has not got it, and says he spent it

on vedaralas. To do so would take him over a century, I have

no doubt that his statement was false.

Finally, Balahami and the rest wish me to believe that for thirty

years they have believed Iseris's statement that he was still

administering the estate, though they received no notices as

heirs, and that they never suspected his intentions during that

long period, though he has leased and mortgaged the lands,

Sinhalese villagers may be ignorant, but they are not stupid in

this degree. The whole story, as the vendors to plaintiff told it,

appears to me be not only improbable, but hopelessly

incredible. I am of opinion that Iseris's possession began and

went on in defiance. He ejected the official receivers, and he

ejected the mistress of Elias. He continued in a long series of

overt acts, of which Balahami and his nieces were probably well

aware, to lease, mortgage, sell, and plant, and otherwise

dispose of the property as its sole owner. As he had entered in

the character of sole heir or plunderer, whichever it was, so he

continued, and acknowledged no title in any one else. He has

acquired a good prescriptive title.

The plaintiff's case must therefore fail, even if considered only

as an action in rei vindicatione. As an action for partition it

would fail even if his case had been true, because on his

witnesses evidence certain of the co-heirs, viz., Babahami's

descendants. remain unjoined , and because, doubtless, in the

long list of lands, many of which plaintiff and his witnesses

admittedly know little or nothing about, there are doubtless

some to which other strangers have or claim title; as, for

instance some of the persons who have planted them up.

Plaintiff has not proved a title as against the world, even if all

the witnesses evidence is true.

I have to discuss yet another point. Plaintiff's purchase was

criticized (1) as a speculative purchase, (2) as unprofessional

conduct and dishonourable conduct. With the first criticism I

agree. The deed recites a consideration of Rs. 18,000 as

received before its execution. In fact, plaintiff and his vendors

admit that the whole has not yet been paid. Up to date the

vendors have received about Rs. 8,000, partly and mostly in

cash, and partly in rice, kurakkan, legal advice, and such

curious though valuable equivalents of the solid rupee. For the

payment of the unpaid balance the vendors obtained no

security. The plaintiff was aware that his purchase was of a

disputed title, and that he could not lay his grasp on what he

bought except by process of expensive litigation. Certainly it

was a speculative purchase.

It does not follow that it was dishonest, and Mr. Bawa in

arguing at one and the same time that the purchase was a

speculative purchase of a bad title, and also that the purchaser

behaved unprofessionally in taking from his clients credit for

the large unpaid balance, clearly fell into the fallacy known to

the schoolmen under the name of circulus in arguendo. If the

purchase was a speculative purchase of a bad title, the vendors

have lost nothing, but gained considerably at the expense of

their legal adviser. In that there was no dishonour. They, i.e.,

the vendors, confirm plaintiff's statement that he has paid

them Rs. 8.000 of the consideration, and they make no

complaint against him. It was argued that plaintiff's statement

as to payment should be disbelieved. Reference was made to

his vivacious past in the matter of litigation and to his cases

with the present defendant. While, however, it is true that

plaintiff is addicted to the habit of buying disputed titles, and

has consequently been involved in plenty of litigation, both

criminal and civil, he has never been found to have done

anything dishonest or dishonourable. The criticism directed

against him in the Privy Council decision in Corea v. Pieris1

bore reference to a case wrongly laid in Chilaw Court, but was

based on a misapprehension of fact. And what is most material

of all the defendant in the present case ought easily to have

been able to show, if he seriously thought so. that the plaintiff

has not paid Rs. 8,000 to his vendors. If in fact he* has not

paid that sum, his vendors doubtless have not got it in their

possession, and would probably have been unable to explain

where it has gone to if they had been cross-examined on that

point. They were not so cross-examined, and I conclude that

defendant did not at all firmly believe that that sum had not

been paid.

Anyway, the plaintiff is an advocate of this Court and a

gentleman of wealth and position. His demeanour in the

witness box was perfectly honest. Nor do I see any good

reason, either in this case or in his some what lively and

litigous past, why I should believe him to be anything but an

entirely truthful witness. I cannot then agree that he has

swindled his clients, or sought to deal with them improperly in

omitting to secure them the unpaid balance of the

consideration in the deed. He admits he owes that still. If he

had denied it his conduct would have been unprofessional. If

theirs had been a good title, the same criticism may perhaps

have applied. In fact, it was a bad title; and his clients have

gained Rs. 8,000 at his expense. It is certainly a matter of

surprise that an advocate should indulge in such purchases of

disputed titles. Such is not, I am sure, the ideal; nor, as I

believe, or rather hope, the practice of his profession. But at

the same time it does not appear that plaintiff had done

anything dishonourable.

For the reasons given above, the plaintiff's action must be

dismissed with costs. I refrain from making an order that he

should pay double costs, because, while I am anxious to

discourage gambling in purchase of title to land and the

application of the Partition Ordinance to such, the plaintiff has

suffered enough in his loss or damage of loss of Rs. 8,000.

Plaintiff appealed.

H. A. Jayewardene (with him Chitty), for the appellant.

Bawa (with him Wadsworth), for the respondent.

The following judgment was delivered by the Supreme Court: -

May 26, 1910. HUTCHINSON C.J.-

This action was brought for partition of certain lands which the

plaintiff alleged had been the property of Elias Appuhamy, who

died unmarried and intestate in 1878 possessed of the said

lands; and the plaintiff claimed an undivided share by purchase

from some of the heirs of Elias. The first defendant, Iseris,

denied the plaintiff's

1 (1909) 12 N. L. R. 147.

claim; he alleged that some of the lands were bought in the

name of Elias with the money of Iseris and Elias. and that

others of them were partly bought in the name of Elias with the

money of Iseris and Elias, and partly bought by Iseris after

Elias's death; and he said that on the death of Elias he, as

Elias's sole heir, entered into possession of all the lands, and

has been in undisturbed and uninterrupted possession of them

for ten years by a title adverse to and independent of the

plaintiff and all others. The District Court held that Iseris had

acquired a title by prescription, and dismissed the action.

The contest is as to whether Iseris has proved his prescriptive

title. The appellant contends that the District Judge went wrong

in thinking that, when it was once proved that Iseris had had

de facto possession for more than ten years, the burden lay on

the plaintiff to prove that Iseris's possession began or went on

in a " precarious " or permissive character; he contends that if

the Judge had not made that mistake, he might have come to a

different conclusion upon the evidence; and that the evidence

raises in fact a presumption that Iseris took possession as one

of the heirs, and not as sole heir, and that that presumption

had not been rebutted.

The remarks of the learned Judge about the burden of proof

were mistaken. The burden lay on Iseris that he had such

possession as is explained in section 3 of Ordinance No. 22 of

1871. But the Judge finds that Iseris's possession "began and

went on in defiance"; that he acted from the time of his first

entry in 1879 onwards as sole owner; and that "as he had

entered in the character of sole heir or plunderer, whichever it

was, so he continued, and acknowledged no title in any one

else. He finds that Iseris had had at least seven years'

possession before Balahami, the first of the alleged coheirs,

appeared on the scene; he thinks it beyond doubt that

Balahami's statement that she went there in order to claim her

share is totally false; and that even if she did make a claim, it

is infinitely more probable that Iseris did not admit it. It

appears, therefore, that he was clearly of opinion that Iseris

had proved such possession as section 3 required by a title

adverse to that of the plaintiff and of those through whom the

plaintiff claims; and that his opinion as to the burden of proof

had no effect on his finding, for he finds that the evidence

establishes that Iseris had proved that which he had to prove.

With what intention did Iseris take possession on Elias's death?

Did he mean to take possession as sole owner (whether as sole

heir or otherwise), or only as one of the heirs? That is a

question of fact on which I think that, upon the evidence, the

Judge might fairly find as he did. Then, was his possession

unaccompanied by any act from which an acknowledgement of

a right in any other person would fairly and naturally be

inferred? That is again a question of fact, and I think that again

the finding of the District Court on it was supported by the

evidence.

I think that the appeal should be dismissed with costs.

VAN LANGENBERG A.J.-

This is an action brought under the Partition Ordinance. The

plaintiff, claiming to be entitled to two-thirds of certain lauds,

allots the remaining one-third to the first defendant.

According to the title deeds the lands belonged to one Elias,

who was born in the Southern Province, and migrated many

years ago, when a young man, to the Chilaw District, where he

traded successfully and amassed wealth. He died on July 23,

1878, leaving, according to the plaintiff, three sisters,

Babahami, Sinnatcho, and Balahami, and one brother, the

defendant, as his heirs.

The plaintiff says that about twenty years ago Babahami died

without leaving issue, and that Sinnatcho died about 1899

leaving two children. Allina and Nonno.

By deed No. 1,181 dated December 5, 1907, the plaintiff

acquired the right of Allina, Nonno, and Balahami. The first

defendant claimed the whole land by prescription, and stated

he had conveyed the lands in question to his son and the

second defendant, reserving a life interest for himself. The

second defendant was accordingly made a party in this action?

The intervenients are the three children of Balahami. They say

that their mother was married in community of property to

their father Ovinis Appu, who had died prior to the execution of

the deed in favour of the plaintiffs, and that therefore their

mother could not convey more than one-sixth. They claim the

remaining one-sixth for themselves. It has been proved that

Babahami had married and left children, all of whom, it is said,

are now dead. Who their legal representatives are has not been

ascertained and there is nobody in this case to represent them.

Further, it has been established that Elias lived with a woman

called Kittoria, who claimed to be his wife.; she is no party to

this action. I think our judgment should bind only those who

are parties to this case. I accepted the learned Judge's finding

as regards the pedigree.

The first defendant states that he joined his brother Elias and

traded with him in partnership but the lands which were bought

with the profits of the partnership were purchased in the name

of Elias alone; that when Elias died he was in jail, and when he

came out soon afterwards he found two headmen in

possession; that he turned them out and entered into

possession himself and remained in possession ever since; and

that he had dealt with the property for over thirty years as his

own.

Plaintiff, on the other hand, asserts that Balahami and her

children and Sinnatcho's children left their village on hearing of

the death of Elias and came to first defendant, who

acknowledged their rights to share the inheritance from Elias

by giving them from time to time sums of money, and by

allowing Balahami to live on Medawatta, a land which formed

part of that estate. First defendant, however, says that

whatever he did for his sisters and nephews

75

and nieces be did it out of charity, and that us a matter of fact

not one of them ever asserted title to any portion of Elias's

estate.

The learned Judge has gone very fully into the facts, and it is

enough for me to say that I agree with his conclusion, that

whatever may have been the first defendant's reasons for

doing so, the first defendant at the earliest possible moment,

i.e., directly he came out of jail, took possession of Elias's

property on his own behalf and for his own benefit, and that he

has done nothing since showing that he has acknowledged a

right in anybody else.

The Judge points out that for seven years not one of the family

raised any questions as regards the first defendant's right to

possession, and he does not accept the evidence led to show

that first defendant in any way altered his position after the

other members of the family appeared on the scene.

Under our law there can be no doubt that one co-owner can

acquire a prescriptive title as against his co-owners, though our

Courts insist on strict proof of adverse possession. On the facts

as found by the learned Judge, is the plaintiff in law entitled to

a declaration that he has acquired prescriptive titles as against

his co-owners?

I understood Mr. Jayewardene to say, in answer to a question

from me, that his contention was that when the owner of

undivided share of land entered into the possession of the

entirety, he must be presumed in law to have entered on

behalf of himself and his co-owners, and that the onus was on

him to show the starting of an adverse possession against

them by proof of some overt act. I asked for some authority in

support of this contention, but was referred to none. In the

absence of any authority, I am unable to say that the

contention is sound.

It seems to me that the facts in each case must be considered

before it can be inferred that one co-owner is in possession as

agent of another. In this case, holding, as I do, that the first

defendant entered in his own right and for his own benefit, I

find that his possession became adverse at once, and

continued so up to the date of the action.

I would dismiss the appeal with costs.

December 14, 1911. Delivered by LORD MACNAGHTEN: -

This seems to be a very plain case. The action out of which the

appeal has arisen was an action for partition of certain lands,

part of the estate of one Elias Appuhamy of Galmuruwa, in the

District of Chilaw.

Elias died in July, 1878. He was never married, and he died

intestate. His heirs were his brother Iseris and three sisters.

Taking by descent the heirs took as tenants in common in

accordance with the provisions of section 18 of the Partition

Ordinance of 1863.

76

Elias came originally from Baddegama, in Galle District, about

120 miles from Chilaw. His father and mother and the rest of

his family lived there, apparently in somewhat humble

circumstances. Elias prospered in Chilaw. After a time he was

joined by his brother Iseris, who says that he left home alone

when he was ten years old, though he was probably three or

four years older at the time. The two brothers kept a shop or

store in Chilaw, in which they seem to have been jointly

interested. But it is admitted that the lands in question in this

action were the separate property of Elias.

At the time when Elias died Iseris was in jail, under sentence of

imprisonment for assault and robbery.

The property being thus left derelict, possession was taken by

officials of the District Court. It must be presumed that such

possession was taken for the benefit of the persons rightfully

entitled.

Iseris came out of jail in December, 1878. Thereupon, or soon

afterwards, he entered into possession of the intestate's lands.

The circumstances under which the officials of the Court

relinquished possession in his favour do not appear in

evidence. It seems, however, to be immaterial whether there

was an order of the Court on the subject, or whether the

officials, who must have known who Iseris was, and must have

been aware of his relationship to the intestate, retired in his

favour without any specific directions. The Trial Judge says that

they were " ejected " by Iseris, but no statement or suggestion

to that effect is to be found in the evidence.

Some time after the death of Elias, two of his sisters made

their way to Chilaw. They seem to have been kindly treated by

Iseris, who gave them small sums of money from time to time,

and allowed them to obtain provisions from his shop without

payment. Indeed, one of the sisters, named Balahami, lived for

a long time in a house on Medawatta, which was one of the

plots or parcels of land belonging to Elias, and part of his

estate.

In 1907 Iseris by deed settled the intestate's land on his son,

reserving a life estate. This action on the part of Iseris was the

talk of the neighbourhood. Balahami, who was then the only

survivor of the three sisters, became alarmed. Lawyers were

consulted. Under their advice Balahami brought an action for

partition against Iseris. The action was confined to Medawatta,

on the score, it was said, of expense, in order to save the

stamp or fee which would have been payable if the whole

estate had been the subject of the action. Then Iseris turned

her out of her home. Being without means Balahami and other

co-proprietors in the same interest sold their rights or claims to

the plaintiff Corea, who was Balahami's legal adviser and

advocate. He brought this action against Iseris. Iseris's son was

afterwards made a party to the action.

Iseris in his defence claimed, the benefit of Ordinance No. 22 of

1871, entitled " An Ordinance to amend the Laws regulating

the

77

Prescription of Action." It is not disputed that by that

Ordinance, or by an earlier Ordinance of 1834, which was

repealed by the Ordinance of 1871, the old law was swept

away. The whole law of limitation is now contained in the

Ordinance of 1871. Section 3 enacts that " proof of the

undisturbed and uninterrupted possession by a defendant in

any action of lands or immovable property by a title adverse to

or independent of that of the claimant or plaintiff in such

action. ..... for ten years previous

to the bringing of such action shall entitle the defendant to a

decree in his favour with costs." The section explains what is

meant by undisturbed and uninterrupted possession. It is "

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 acknowledgement of a right existing

in another person would fairly and naturally be inferred. " Then

follows an analogous provision in favour of a plaintiff claiming

to be quieted in possession of lands or other immovable

property under similar circumstances.

In the present action the plaintiff, Corea, offered some

evidence tending to prove that Iseris took out administration to

Elias. There certainly was a testamentary case in the District

Court relating to the intestate's estate. But the record of the

case is missing, and it is not clear whether the case was

concerned with an application by officials of the Court, or with

an application by Iseris for administration. The District Judge

held that it was not proved that Iseris took out administration

to his brother's estate.

The plaintiffals also endeavoured to prove that Iseris had

acknowledged the title of his co-proprietors within ten years of

the commencement of the action. On this point also the District

Judge was against the plaintiff.

Their Lordships accept the decision of the District Judge on

these two points. In their Lordship's opinion they are not

material to the real question at issue. Assuming that the

possession of Iseris has been undisturbed and uninterrupted

since the date of his entry, the question remains, Has he given

proof, as he was bound to do, of adverse or independent title?

His title certainly was not independent. The title was common

to Iseris and to his three sisters. On the death of Elias, his

heirs had unity of title as well as unity of possession. Then

comes the question, Was the possession of Iseris adverse? The

District Judge held that Iseris " entered in the character of sole

heir or plunderer." " Whichever it was," says the learned Judge,

"so he continued, and acknowledge no title in any one else. He

has acquired a good prescriptive title " It is difficult to

understand why it should be suggested that Iseris may have

entered as " plunderer." He was not without his faults. He is

described by the learned Judge, who decided in his favour, as "

a convicted forger and thief," and " expert not only in crime

and incarceration, but also in perjury." But is perhaps going too

far

78

to hold that he was so fond of crooked ways and so bent on

doing wrong that he may have scorned to take advantage of a

good legal title, and may have preferred to masquerade as a

robber or a bandit and to drive away the officers of the Court in

that character. It is not a likely story. But would such conduct,

were it conceivable, have profited him? Entering into

possession, and having a lawful title to enter, he could not

divest himself of that title by pretending that he had no title at

all. His title must have enured for the benefit of his co-

proprietors. The principle recognized by Wood V.C., in Thomas

v. Thomas,1 holds good: " Possession is never considered

adverse if it can be referred to a lawful title."

The two learned Judges in the Court of Appeal did not adopt in

its entirety the suggestion of the Trial Judge. They both held

that Iseris entered as " sole heir," and that his title has been

adverse ever since he entered. They held that he entered as "

sole heir," apparently because he had it in his mind from the

first to cheat his sisters. But is such a conclusion possible in

law? His possession was in law the possession of his co-

owners. It was not possible for him to put an end to that

possession by any secret intention in his mind. Nothing short of

ouster or something equivalent to ouster could bring about that

result. There is no provision in the Ordinance of 1871

analagous to the enactment contained in section 12 of the

Statute of Limitations, 3 & 4 Will. IV. c. 27, which makes the

title of persons '' entitled as co-perceners joint tenants or

tenants in common " separate from the date of entry. Before

the Act was passed it was a settled rule of law that the

possession of any one of such persons was the possession of

the other or others of the co-proprietors. It was not disputed at

the Bar that such is now the law in Ceylon.

The learned counsel for the respondent, who argued the case

with perfect candour, and said all that could be said on behalf

of his client, did not, of curse, question the principle on which

Wood V. C. relied in Thomas v. Thomas. His submission was

that the Court might presume from Iseris's long-continued

possession, undisturbed and uninterrupted as it was that there

had been an ouster or something equivalent to ouster. No

doubt in former times, before the statute of William IV., when

the justice of the case seemed to require it, juries were

sometimes directed that they might presume an ouster. But in

the present case the learned Judge did not make any

presumption of that sort. Nor, indeed, did Iseris before this

action was brought attempt to rely on adverse possession. His

pretence was that he was sole heir. In the first partition action

he swore that he did not know the name of his father or that of

his mother. He swore that Balahami was only a cousin; he

knew nothing, he said, about his family, except that he was the

only brother of Elias. For this audacious statement he was

indicted

1 2 K. and I. 83.

79

for perjury at the instance of the Judge. He was convicted, and

sentenced to fine and imprisonment. The Judge who

pronounced sentence observed: "It is clear that he was

determined to prove that he was the sole heir, and strenuously

to deny anything that might count against him." Be that as it

may. this is not a case in which the circumstances could justify

the presumption of ouster in favour of such a man as Iseris.

Their Lordships will therefore humbly advise His Majesty that

the appeal should be allowed, the judgment of the Supreme

Court and the judgment of the District Judge set aside, with

costs in both Courts, and a decree made for partition of the

lands which on the death of Elias passed by descent to his

heirs. The respondents will pay the costs of the appeal.

Appeal allowed.

TILLEKERATNE et al. v. BASTIAN et al. Prescription-Long-continued

exclusive possession by one co-owner- Presumption -

Lost grant - Dedication of highway - Ouster - Adverse

possession.

It is open to the Court, from lapse of time in conjunction with

the circumstances of the case, to presume that a possession

originally that of a co-owner has since become adverse.

"It is a question of fact, wherever long-continued exclusive

possession by one co-owner is proved to have existed, whether

it is not just and reasonable in all the circumstances of the case

that the parties should be treated as though it had been proved

that that separate and exclusive possession had become

adverse at some date more than ten years before action

brought. "

THE facts appear from the judgment.

Bawa, K.C., and De Zoysa, for appellants.-A co-owner cannot

prescribe against other co-owners unless he has actually

ousted them, or has by some overt act intimated to them that

he is no longer possessing on their behalf but is possessing

adversely to them.

[SHAW J.-Even if a co-owner possess for 150 years, is he

supposed to be possessing on behalf of the other co-owners?]

That would not make any difference. Law is not founded on

relationship.

[DE SAMPAYO J.-Must not lapse of time shift the burden?] No.

See Corea v. Appuhamy.1 None of the co-owners can prevent

the possession of the whole land by one co-owner.

[SHAW J.-The. only question is whether a presumption of

ouster can be gathered from the length of time.] There is no

room for the presumption of ouster here. If an ouster took

place it can be proved, as the persons interested are alive and

can give positive evidence of ouster. Counsel cited 2 Leader

74; Morgan Digest 21, 169, 273; 7 N. L. R. 91; 10 N. R. 183

(at 186); 3 N. L. R. 213, 137; 7 N. L. R. 91; 1 Cowp. 217; 3 A.

C. R. 84; Koch 61 and 42; 1 S C. R. 64; Lightworn on Time

Limit of Action 161; Indian Limitation Act 9 of 1908, s. 127; I.

L. R. 33 Bom. 317; I. L. R. 35 Cal. 961. The Prescription

Ordinance has completely repealed the Roman-Dutch law on

the subject. Before Corea v. Appuhamy 1[1 (1911) 15 N. L. R.

65. ] was decided there is no reference in our cases to a

presumption of ouster. If there be evidence of exclusive

possession for a very long time, and evidence of something

which ought to have put the

13

co-owner who is out of possession on his guard, and if he is

guilty of gross laches, then there may be

prescription. The evidence must be strong and convincing,

and that is not the case here. See Brito v. Muthunayagam.1

[1(1915) 19 N. L. R. 38. ] If we introduce the theory of

fictitious ouster, the decisions become valueless.

E. W. Jayawardene (with him Batuwantudawa), for defendants,

respondents.-Whether possession was adverse or not must be

judged by the circumstances of each case. In 1893, when

Tillekeratne bought the property, he did not enter into

possession, nor was the property included in the inventory of

Tillekeratne's properties when he declared himself an insolvent.

We were allowed to have exclusive and notorious use of this

land for forty years, and to take plumbago from it. In 2 S. C. C.

166 it was held that a co-owner cannot dig plumbago without

the consent of the other co-owners. Counsel cited also S. C. A.

C. 8 and 1 C. W. R. 92 and 175.

Ouster can be presumed from long and continued possession

(2 Thorn. 188; 15 C. D. 87). Counsel also cited 29 Bom. 300;

33 Bom. 317, at 322; 1 S.C. R. 64; Koch 62; 13 N. L. R. 309; 1

Bal. Notes 88; 2 Bal., 40 and 70.

Bawa, in reply.

Cur. adv. vult.

December 16, 1918. BERTRAM C.J.-

The facts of this case seem to raise in a very clear and succinct

form a question which was discussed, but not decided, in the

case of Corea v. Appuhamy. 2 [ 2 (1912) A. C 230 ; (1911) 15

N. L. R. 65.]The decision in that case had a very far-reaching

effect. It laid down for the first time, in clear and authoritative

terms, the principles that the possession of one co-owner was

in law the possession of the others; that every co-owner must

be presumed to be possessing in that capacity; that it was not

possible for such a co-owner to put an end to that title, and to

initiate a prescriptive title by any secret intention in his own

mind; and that nothing short of "an ouster or something

equivalent to an ouster " could bring about that result. The

question was raised in the argument in that case, and

discussed in the judgment, whether in the circumstances of the

case, even admitting these principles, an ouster should be

presumed from the long-continued possession of the co-owner

in question. The Privy Council, without negativing the

possibility of a presumption of ouster, held that this was not a

case in which the facts would justify such a presumption. The

questions, therefore, to be decided for the purposes of the

present case are:-

(1) What is the meaning of the principle of the English law

referred to under the expression " presumption of ouster "?

(2) How far is it to be considered as being in force in this

Colony?

(3) Do the facts justify its application in the present case?

The question of the conversion of a possession which in its

origin is not adverse into an adverse possession has been the

subject of prolonged, controversy in our Courts. The case with

which our authorities mainly deal is that of the possession of a

person occupy¬ing by the permission or license of the true

owner. That case is, however, so closely akin to that now under

consideration, namely, that of one co-owner possessing the

common property, that the two cases may be conveniently

discussed together. The principles governing them are

identical.

The problem before us is simply a problem of interpretation.

What we have to do is to interpret and to apply to these two

cases certain words which occur in section 3 of the Prescription

Ordinance, No. 22 of 1871, namely, " 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) ..."

Before addressing ourselves to this question, it would be

con¬venient to ascertain what was the common law" applicable

to it before this enactment, or those which it replaced, came to

be enacted. The principles of the Roman-Dutch law with regard

to these two cases, were as a matter of fact, not the same.

With regard to possession by permission or license, a person

who so possesses is said to possess precario. This form of

possession will be found discussed in Voet XLIII., 26. A person

who is in possession of property precario cannot prescribe

against the owner, however long his possession may be. A

restitutory action in such a case can never be extinguished: Sic

ut ne immemorialis quidem temporis prescription cesset (Voet

XLIII., 26, 3.) In order to initiate a prescriptive title, it is

necessary to show a change in the nature of the possession (

Cf Voet XLI, 2, 13.) It is otherwise with regard to possession

by a co-owner. If one co-owner is in exclusive occupation of

any part of the common property, or even of the whole' of it,

for a period of thirty years, the claim of other co-owners for a

partition of the property is absolutely prescribed, without the

necessity of showing any change in the nature of the

possession.

" Si tamen unus coheredum res hereditarias totis triginta annis

solus suo nomine proprio tanquam suas possederit ; magis est,

ut in univeraum deciceps hoc cesaet indicium. " (Voet X., 2,

33.)

See also Struvious X., 2,14; " Si autem unus ex coheredibus

tantum possidet res hereditarias communes; tunc alter, qui

non possidet, pest triginta annorum cursum actionem hanc

movere nequit. "

This distinction is recognized in French law, which in this

respect follows the principles enunciated by Pothier.

See Planiol, Droit Civil; vol. III., 2342.

These are the principles of the Roman and Roman-Dutch

law. Tillekeratne They are, however, only of historical

interest, as it is recognized that our Prescription Ordinance

constitutes a complete code; and though no doubt we have to

consider any statutory enactments in the light of the principles

of the common law, it will be seen that the terms of our own

Ordinance are so positive that the principles of the common

law-do not require to be* taken into account. Let us,

therefore, consider the terms of our own Ordinance.

In the first place, it will be convenient to put aside one part of

the enactment which at one time caused considerable

confusion, namely, the words enclosed in the parenthesis: ("

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.")

It was originally thought that these words, which appear for

the first time in Ordinance No. 8 of 1834, were inserted in

order to explain by way of an illustration the words " by a title

adverse to, or independent of, that of the claimant or plaintiff

in such action." This was so declared by the High Court of

Appeal (see Vand. 45); and this appears to be the view taken

by Chief Justice Marshall (see Marshall's Judgments 519).

Subsequently, how¬ever, the words were held to constitute a

complete definition. See Thompson's Institutes, vol. II., 189:-

" Sir C. Marshall looked upon the words added in the Ordinance

as a partial and incomplete explanation of the words ' adverse

title, 'leaving it open to the law, as found in English reports and

former decisions, to complete the explanation when

required. But, in 1844, the Supreme Court enunciated

that the words in the paren-thesis were not only ' some

explanation,' but a declaration of what an adverse title is

under the Ordinance. The Court, after repelling certain

decisions, on the ground that they were unfortu-nately found

on the general law independent of the express provisions of

the Ordinance, went on to say: ' the Ordinance of

prescription has not simply declared that a possession of ten

years adverse to, or independent of, that of the

claimant shall give a prescriptive title, leaving it to the Court

to say what is, in the law, an adverse possession; but in the

parenthesis in the second clause of the Ordinance it is also

declared what shall be considered such an adverse possession

under that Ordinance.' " See 6,587, C. E. Colombo, No. 4,

August 6, 1844.

The same interpretation was also enunciated in the judgment

of the Full Court in C. R. Batticaloa, No. 9,653, in the year

1870, reported in Vand. 44. So late as 1892 this

interpretation was adopted in its most unqualified form by

Burnside C.J. in the case of Carim v. Dholl l: "In the present

case the evidence leads to no other conclusion than that

the defendant's mother entered into possession of the

tenement out of the charity of the owner, her brother; that

she possessed it by residing in it with her family

alone, without interruption or disturbance from him, for long

over the prescriptive period, perhaps out of sheer benevolence,

which he might have terminated at his pleasure, and during

that period she never paid rent, nor performed service to him,

nor did she do any act by which his ownership was

acknowledged. I take it as beyond doubt that she acquired

prescriptive title as against him and those claiming under him.

"

Lawrie J., however, in that case refrained from basing his

judg¬ment on that ground. Thompson in his Institutes further

records that this principle was applied in the very question

since decided in Corea v. Appuhamy. 2Speaking with reference

to the definition of " adverse title " given by the Supreme

Court, he says on page 190: " It will be seen from the last of

these definitions that, as joint tenants have a unity of title,

time, interest, and possession, if one joint tenant obtains his

legal possession of his co-tenant's share, he cannot be said at

any time to have a possession inconsistent with the probability

of any just right or title on the part of his co-tenant; and thus,

under this old definition, which is that of the general law, no

joint tenant could prescribe against his co-tenant. But the

Ordinance is held to introduce a new definition, namely, that to

found adverse title, all that is sufficient is that the possession

should be unaccompanied with any acknowledgment of a right

existing in another person. A definition which allows a collateral

or joint tenant to prescribe as well as any other person.

Accordingly, in all recent cases the Court has uniformly held

that under that parenthesis there can be no exception drawn in

favour of the possession of one co-heir, joint tenant, or tenant

in common, not being adverse to the other, from the tenure of

their estates alone; and, looking to the evil arising from the

extreme subdivision of land in the Colony under the existing

law of succession, it may be reasonably presumed that the

Legislature intended to annul all distinctions in law between the

possession of such persons and others."

All this must now be considered as superseded by the decision

of the Privy Council in Corea v. Appuhamy (supra), which gave

the coup de grace, if a coup de grace was needed (see per

Wendt J. in Joseph v. Annapillai 3) to the theory that the words

in the paren¬thesis in section 3 were intended as a definition

of " adverse title. " It is only necessary carefully to scrutinize

the terms of the section to see that that interpretation was

untenable. The phrase upon which the parenthesis follows is

not " adverse title," but "by. a

1 (1892) 2 C. L. R. 118. 2(1911) 15 N. L. R. 65. 3

(1904) 5 Tomb. 20.

17

title adverse to or independent of." It is impossible to refer

the parenthesis purely to the words " adverse to," it

must also be referred to the words " independent of ";and

though the parenthesis might conceivably have been construed

as a possible definition of one of the alternatives, it cannot

possibly be construed as a definition of both.

The true explanation of this parenthesis appears to have been

first suggested by the late Mr. Justice Walter Pereira on page

388 of his Laws of Ceylon (1913 edition), namely, that the

parenthesis was intended to be explanatory of the expression "

undisturbed and uninterrupted possession " occurring earlier in

the section. This suggestion gives an explanation to the

parenthesis which is grammatically intelligible, and it may be

noted that it has been expressly adopted by the Privy Council

in Corea v. Appuhamy at 15 N. L. R. 77: " The section explains

what is meant by ' undisturbed and uninterrupted possession.'

It is ' possession un-accompanied 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.' " It is clear, therefore, that the parenthesis has no

bearing on the question of the meaning of the words " adverse

title "; it may henceforth be left out of account in the

discussion of the question.

The ground being cleared in this manner, it would be seen that

all we have to ask ourselves in this case is, what is the

meaning of the word " adverse "? And that the only question

we have to consider in any particular case is whether the

possession in question was " adverse," or, if it was not

originally adverse, at what point it may be taken to have

become so. It appears to me to a certain extent unfortunate

that the Privy Council in discussing this question should have

adopted the technical terms of certain rules of the English law

of real property which have now, in effect, been extinguished

by Statute; the more so, as these rules belonged to a

department of the English law which was recognized as being

involved in the greatest obscurity. It was in connection with

this subject that Lord Mansfield said: " The more we read,

unless we are very careful to distinguish, the more we shall be

confounded." See Taylor Atkyns v. Horde 1[1(1757) 2 Burr. 60.

] and 2 S. L. C. (11th ed.), at page 629.

The phrase " adverse possession " was not a statutory term in

the English law at all, nor was the word " ouster." The Statute

of Limitations passed in the twenty-first year of King James I.

did not contain either phrase. The material part of section 1 of

that Statute (21 James I., c. 16) simply said that " no person

or persons shall at any time hereafter make any entry into any

lands, tenements, or hereditaments but within twenty years

next after his or their right or title which shall hereafter

descend or accrue to the same."

On this it was held that the Statute only ran against a true

owner in cases in which at common law he was reduced to

what was known as his " right of entry "-a highly technical

question. No occasion to assert a right of entry arose unless

there has been an " ouster." The term " ouster " is itself highly

technical. Those who are curious on the subject will find it

explained" in Wood Renton's Encyclopaedia of the Laws of

England, vol. X., 214. It was considered and treated in old text

books under the heads of disseisin, abatement, discontinuance,

deforcement, and intrusion, terms which are no longer in

common use. See 2 8. L. C. (11th edition) 651.

The whole subject will be found explained in Mr. William

Smith's note to Taylor v. Horde in Smith's Leading Gases, from

which I will quote the following passage: -

" In order to determine whether the claimant had been out of

possession under circumstances which would turn his estate to

a right of entry, it was necessary to inquire in what manner the

person who had been in the possession during that time held.

If he held in a character incompatible with the idea that the

freehold remained vested in the claimant, then .... it followed

that the possession in such character was adverse. But it was

otherwise if he held in a character compatible with the

claimant's title."

As I have said, it would probably have been better if in Ceylon

we had been relieved of this technical and antiquated

phraseology. The word " ouster " is unknown to our local law,

and does not spontaneously convey any idea to the mind. It

would be well, I think, that we should drop the word " ouster,"

and that, instead of asking whether there has been an "

ouster," we should ask ourselves simply whether the

possession in question was or has become adverse. And it will

be sufficient for this purpose to adopt the definition given in

Smith's Leading Cases that " adverse possession " is "

possession held in a character incompatible with the claimant's

title."

What, then, is the real effect "of the decision in Corea v.

Appuhamy (supra) upon the interpretation of the word "

adverse " with reference to cases of co-ownership? It is, as I

understand it, that for the purpose of these cases the word "

adverse "must, in its application to any particular case, be

interpreted in the light of three principles of law: -

(i.) Every co-owner having a right to possess and

enjoy the whole property and every part of it, the possession of

one co-owner in that capacity is in law the possession of all.

(ii.) Where the circumstances are such that a man's

possession may be referable either to an unlawful act or to a

lawful title, he is presumed to possess by virtue of the lawful

title.

(iii.) A person who has entered into possession of land

in one capacity is presumed to continue to possess it in the

same capacity.

19

It will be seen that the first of these principles is a principle of

substantive law; it is established by numerous authorities in

the law of England. See Ford v. Grey,1 Culley v. Doe.2 There

is also adequate, though not very extensive, authority for the

principle in our own reports. See the cases cited in the

argument in Corea v. Appuhamy before the Privy Council.3 The

principle is not peculiar to the law of England, and may be

found in Pothier. See Planiol, Droit Civil, vol. III., s. 2342.

The second and third of the above principles are presumptions,

i.e., they are principles of the law of evidence. It is the third of

these principles, namely, that a person who has entered into

the possession of land in one capacity is presumed to continue

to possess it in the same capacity, which has been the basis of

our local decisions on this subject, both as regards tenants in

common and as regards possession by licensees. Thus, it was

the foundation of the judgment of Lawrie J. in Jain Carim v.

Pakeer 4 where he said: " . . . . . the party claiming adversely

to the possessor must allege and prove that the possession

was not ut dominus. If he succeeds in proving that the

possession began otherwise than ut dominus, then the burden

of proof is shifted, for, to use the words of Rough C.J., which

have often been quoted with approval in this Court: ' It being

shown that the possession commenced by virtue of some other

title such as tenant or planter, the possessor is to be presumed

to have continued to hold on the same terms until he distinctly

proves that his title has changed.' "

It has been enunciated in a series of judgments of Wendt J.,

which are often quoted as authorities for the proposition, e.g.,

Orloof v. Grebe, 5 Joseph v. Annapillai,6 Perera v. Menchi

'Nona,7 and it was recognized by the decision of the Privy

Council in Naguda Marikar v. Mohammadu.8 The same principle

is embodied in the oft-quoted Roman law maxim: neminem sibi

ipsum causam possessionis muturce posse (Voet XLI., 3, 13).

It is also embodied in Art. 2240 of the Code Napoleon: " On ne

peut point se changer a soi-meme la cause et le principe de so

possession "; and in a further Article, viz., 2231: Quand on a

commence a posseder pour autrui, on est toujours presume

posseder au meme "titre, s'iln'y a preuve du contraire."

The effect of this principle is that, where any person's

possession was originally not adverse, and he claims that it has

become adverse, the onus is on him to prove it. And what must

he prove? He must prove not only an intention on his part to

possess adversely, but a manifestation of that intention to the

true owner against whom he sets up his possession. The

burden he must assume is, in

1 1 Salk . 285 2 (1840) 11 Ad. & E. 1008. 3 (1912) A. C. 230.

4 (1892) 1 S. C. R. 282. 5 (1907) 10 N. L. R. 83. 6 (1904) 5

Tomb. 20. 7 (1908) 3 A. C. R. 84. 8 (1903) 7 N. L. R. 91.

20

fact, both definite and heavy, and the authorities have been

accustomed to emphasize its severe nature. Thus, it is

sometimes said that he must prove an " overt unequivocal act "

(per Wendt J. in Perera v. Menchi Nona 1). I do not think that

this principle is put anywhere more forcibly than in the Indian

case of Jogendra Nath Rai v. Baladeo Das.2 The whole

judgment is one of great interest, but appears, perhaps to

allow somewhat undue emphasis to the American authorities

on the subject. I quote from page 969: -

" Much stronger evidence, however, is required to show an

adverse possession held by a tenant in common than by a

stranger; a co-tenant will not be permitted to claim the

protection of the Statute of Limitations unless it clearly appears

that he has repudiated the title of his co-tenant and is holding

adversely to him; it must further be established that the fact of

adverse holding was brought home to the co-owner, either by

information to that effect given by the tenant in common

asserting the adverse right, or there must be outward acts of

exclusive ownership of such a nature as to give notice to the

co-tenant that an adverse possession and disseisin are

intended to be asserted; in other words, in the language of

Chief Justice Marshall in MacClung v. Ross 3: A silent

possession, accompanied with no act which can amount to an

ouster or give notice to his co-tenant that his possession is

adverse, ought not to be construed into an adverse possession

'; mere possession, however exclusive or long-continued, if

silent, cannot give one co-tenant in possession title as against

the other co-tenant; see Clymer v. Dawkins, 4 in which it was

ruled that the entry and possession of one tenant in common is

ordinarily deemed to be the entry and possession of all the

tenants, and this presumption will prevail in favour of all, until

some notorious act of ouster or adverse possession by the

party so entering is brought home to the knowledge or notice

of the others; when this occurs, the possession is from that

period treated as adverse to the other tenants."

One cannot read this statement of the law without being

impressed with the artificial nature of the position which it

embodies, if its principle is accepted without qualification. The

presumptions of the law of evidence should be regarded as

guides to the reasoning faculty, and not as fetters upon its

exercise. Otherwise, by an argumentative process based upon

these presumptions, we may in any particular case be brought

to a conclusion which, though logically unimpeachable, is

contrary to common sense. It is the reverse of reasonable to

impute a character to a man's possession which his whole

behaviour has long repudiated. If it is found that one co-owner

and his predecessors in interest have been in possession of the

whole property for a period as far back as reasonable memory

reaches; that he and they have done nothing to

recognize the

1 (1908) 3 A. C. R. 84.

2 (1907) I. L. R. 35 Cal. 961.

3 (1820) 5 Wheaton 116.

4(1845) 3 Howard 674.

21

claims of the other co-owners; that he and they have taken the

whole produce of the property for themselves; and that these

co-owners have never done anything to assert a claim to any

share of the produce, it is artificial in the highest degree to say

that such a person and his predecessors in interest must be

presumed to be v.Bastian possessing all this time in the

capacity of co-owners, and that they can never be regarded as

having possessed adversely, simply because no definite

positive act can be pointed to as originating or demon-strating

the adverse possession. Where it is found that presumptions of

law lead to such an artificial result, it will generally be found

that the law itself provides a remedy for such a situation by

means of counter-presumptions. If such a thing were not

possible, law would in many cases become out of harmony with

justice and good sense.

In this very instance the English law provided a corrective of

the principles which it has developed by means of a counter-

presumption, that is to say, a " presumption of ouster." The

leading case on this point is Doe v. Prosser,1 [ 1 (1774) 1

Cowp. 217.] where Lord Mansfield said: -

"It is very true that I told the jury they were warranted by the

length of time in this case to presume an adverse possession

and ouster by one of the tenants in common of his companion;

and I still continue of the same opinion .... The possession of

one tenant in common, eo nomine, as tenant in common, can

never bar his companion; because such possession is not

adverse to the right of his companion, but in support of their

common title; and by paying him his share, he acknowledges

him co-tenant. But if, upon demand by the co-tenant of his

moiety, the other denies to pay and denies his title, saying he

claims the whole and will not pay, and continues in possession,

such possession is adverse and ouster enough .... In this case

no evidence whatever appears of any account demanded, or of

any payment of rents and profits, or of any claim by the lessors

of the plaintiff, or of any acknowledgment of the title in them,

or in those under whom they would now set up a right.

Therefore, I am clearly of opinion, as I was at the trial, that an

undisturbed and quiet possession for such a length of time is a

sufficient ground for the jury to presume an actual ouster .

. . . "

The same principle was expounded by Lord Kenyon in another

case, in which it was held, nevertheless, that the facts did not

warrant the application of the principle: Peaceable v. Read 2:-

[ 2 (1801) 1 East 569, at page 574.]

" I have no hesitation in saying where the line of adverse

possession begins and where it ends. Prima facie, the

possession of

one tenant in common is that of another; every case and

dictum in the books is to that effect. But you may show that

one of them

has been in possession and received the rents and profits to his

22

own sole use without account to the other and that the other

has acquiesced in this for such a length of time as may induce

a jury under all the circumstances to presume an actual ouster

of his companion. And there the line of presumption

ends............... "

The only real question that we have to decide in this case,

apart from the question of fact, is whether the principle of this

counter-presumption is in force in Ceylon. As I have said, the

judgment of the Privy Council in Corea v. Appuhamy (supra)

referred to this principle, but did not definitely declare that it

must be considered in force in Ceylon, as a corollary of the

general principle which that case enunciated. It does not

appear to me that there can be any reasonable doubt on

the subject. The case for declaring this principle to be

part of the law of Ceylon is indeed, overwhelming. It was

referred to before the decision in Corea v. Appuhamy by

Middleton J. in the Full Court case of Odris v. Mendis.1 It has

been recognized and applied in a series of the judgments of

this Court since that decision, namely, William Singho v. Ram

Naide,2Mailvaganam v. Kandiya,3 A. S. P. v. Cassim,4

and Samara v. Duraya,.5 It has been adopted in India. See

Gangadhar v. Parashram,6 Amrita Ravji Rao v. Shridhar

Narayan.7 It is also supported by various passages in

the old Roman-Dutch law authorities. These passages

all relate to a special sort of adverse possession.

Adverse possession as between co-owners may arise

either by absolute exclusion of one of the co-owners or by the

conversion of undivided shares into divided shares. The

principles governing the two cases are the same. One co-

owner who takes part of the property as his share from

that moment possesses that share adversely to the co-

owners. There are numerous references to be found in the

Roman-Dutch law authorities to the effect that where co-

owners are thus found to have occupied the land

during a prolonged period, some mutual arrangement for

this purpose must be presumed from lapse of time. For

example: -

(i) " Observandum tamen proesumi inter fratres

divisionem factam eo casu, quo res hereditarias aut communes

diutino tempore posseder-unt, fructus percipiendo, tributa

consueta solvendo, sumptusque alios faciendo suo nomine.

Idque ex proesumpta voluntate, ratione tanti tem-poris, quod

facit proesumi intervenisse divisionem." Perez, III, 37, 4.

(ii) "Posset hic quoeri, An Saltern possit divisio

proesumi inter fratres, qui longo tempore res hereditarias aut

communes separatim possederunt, fructus percipendo,

sumptus impendendo suo nomine? Recte id aliqui affirmant,

idque ex proesumpta voluntate, ratione tanti temporis quod

facit praesumi intervenisse requista." Zoesius, X.t 3, 3.

(iii) Cf. also Sande Dec, Fris. IV., 11, 3.

1 (1910) 13 N. L. R. 309.

2(1915) 1 C.W.R.92.

3 (1915) I C. W. R. 175

4 (1914) 2 Bal. Notes 40.

5 (1913) 2 Bal. Notes 70.

6 (1905) I. L. R. 29 Bom. 300.

7 (1908) I. L. R. 33 Bom. 317.

23

It may be taken, therefore, that this principle is part of the law

of the Colony, and that it is open to the Court, from lapse of

time in conjunction with the circumstances of the case, to

presume that a possession originally that of a co-owner has

since become adverse.

What does such a presumption mean ? Does it mean that

the Court must find as a fact that some definite transaction

took place between the parties by which the claim of the

person now setting up the adverse possession was recognized,

or. that some formal intimation was made by him to the other

party, or that some unequivocal and notorious act on his part

brought the claim palpably to the notice of the other ? I do not

think so. The presumption based upon lapse of time was a

benevolent presump¬tion, and often assumed the character of

a legal fiction. The best known applications of the principle are

the presumption of a lost grant and the presumption of the

dedication of a highway. Lord Mansfield, speaking generally of

presumptions of this character in Eldridge v. Knoot,1 says:

"There are many cases not within the statute where from a

principle of quieting possession the Court has thought that a

jury should presume anything to support a length of

possession." (See also Taylor on Evidence, paragraph 313

(a).

With regard to presumptions of lost grants, the English Courts

went to most extraordinary lengths. See the judgment of

Cockburn C.J. in Angus v. Dalton,2 where it was said, at page

105: -

" The boldness of judicial decision stepped in to make up

defects in the law which the supineness of the Legislature left

uncared for ; . . . . but after the Statute of James, user for

twenty years was-here, again, without any warrant of

legislative authority-held to be sufficient to raise this

presumption of a lost grant, and juries were directed so to find

in cases in which no one had ever existed, and where the

presumption was known to be a mere fiction."

Cockburn C.J., indeed, declares that the Prescription Act was

introduced to put an end to the "scandal on the administration

of justice which arose from this forcing the conscience of

juries." Similarly, with regard to the presumption of the

dedication of a highway. Long user of a highway by the public

was considered evidence of an intention to dedicate by the

owner, but it was not necessarily thought that he had really

intended to dedicate it. He was considered to have acted in

such a way that it was proper to treat him as though he had so

intended. See per Lord Ellenborough in Rex v. Lloyd 3; " If the

owner of the soil throws open a passage, and neither marks by

any visible distinction that he means to preserve all his rights

from passing through it by positive prohibition, he shall be

presumed to have dedicated it to the public. Although

1 (1774) 1 Cowp. 215.

2 (1877) 3 Q. B. D. 85

3 (1808) 1 Camp. 260.

24

the passage in question was originally intended only for private

convenience, the public are not now to be excluded from it,

after being allowed to use it so long without any interruption."

In applying this principle to-Ceylon, therefore (though it is not

necessary to go to the lengths which Cockburn C.J. criticised in

Angus v. Dalton (supra)), I would apply it in the same spirit,

and I think that the principle enunciated by Lord Mansfield in

Doe v. Prosser (supra) should be interpreted in this sense. It is,

in short, a question of fact, wherever long-continued exclusive

possession by one co-owner is proved to have existed, whether

it is not just and reasonable in all the circumstances of the case

that the parties should be treated as though it had been proved

that that separate and exclusive possession had become

adverse at some date more than ten years before action

brought.

I will now proceed to apply these principles to the fact of the

present case. The claim under consideration is a claim by the

plaintiffs to a one-eigth share of certain lands which belong to

a family descending from one Simon de Silva. Simon de Silva

had five sons: one admittedly died without issue; three-juwanis

Andris, and Selenchi -are represented by the defendants; and

the plaintiffs claim to have acquired the interest of the fourth,

one Allis. Allis is said to have married a woman called

Abohamy, and to have had one son, Babappu, who in 1893

purported to sell his interest to Don Nadoris Tillekeratne.

Tillekeratne died in 1901, and the plaintiffs claim by inheritance

from him.

The question turns on the relationship of Babappu to the

family. His paternity is not denied, but his legitimacy is put in

question. Allis and Juanis, another of the sons of Simon de

Silva, are said by the plaintiffs to .have married sisters. It is

asserted by the defend-ants on the other hand, that the

connection of Allis with Abohamy was an irregular one. After

the death of Allis, Abohamy left the locality and married a man

in another village, where she settled, her child Babappu being

at that time about eight years old. The date of the birth of

Babappu is not definitely fixed, but it may be conjectured that

he was born about the year 1856, and that this migration to

the other village consequently took place about 1864.

The learned District Judge has come to the conclusion that

although the evidence of a lawful marriage is not wholly

satisfactory, yet it may be taken that Babappu was the lawful

son of Allis, though he adds that "it is extremely doubtful

whether he was recognized as a legitimate son." He is said at

one time to have stayed with his uncle Juanis, who had married

his mother's sister. This visit is consistent with the connection

between his mother and Allis having been an irregular one, but

it is difficult to reconcile the visit with the finding of the District

Judge that he was a legiti¬mate son, whose legitimacy was not

recognized by the family. In the Year 1885 he was associated

with another member of the family,

25

namely, the first defendant, a son of Juanis, as a recipient of a

Crown grant. There is a presumption in favour of marriage, and

though, as I have said, there are difficulties in the view taken

by the District Judge, I think, on the whole, his conclusion

should be accepted, namely, that though Babappu was the

legitimate son of Allis. he was not accorded this status by the

family.

The property in question was plumbago land. From the year

1877 until the present time it has been worked only

intermittently and through the medium of lessees. But the only

branches of Simon de Silva's family who have dealt with the

land have been those connected with- the three sons of Simon

de Silva above mentioned: Juanis, Andris, and Selenchi. The

extent to which the land was worked is not very clearly

defined; but Babappu, who is still alive, says that at all times

be received his ground share, and that after his sale to

Tillekeratne in 1893 he continued to receive that share, with

the acquiescence of Tillekeratne, or at any rate, without any

objection on his part. This evidence the learned District Judge

rejected. He does not believe that Babappu's claim to the share

was ever recognized by the other branches of the family, or,

indeed, that it was ever made. We must take it, therefore, that

Babappu was a person whose status in the family was, to say

the least, doubtful, and that from the year 1864 he lived in

another locality, and neither asserted nor received any

recognition of any claim to a share of the land in dispute.

Accepting the supposition that he was born in 1856, he would

have attained his majority in 1877. The period, therefore, for

which the claim now asserted has been dormant is no less than

forty years; and it is a very significant fact that Tillekeratne,

who purported to have acquired his share in 1893, became

insolvent in 1897, and did not include this land in the schedule

of his assets.

These being the facts, it is very difficult to say that any proof

has been given of any overt unequivocal act manifesting to

Babappu the fact that the possession of his uncles, and those

through whom they claim, was adverse to his claim. Their

attitude was a negative one; they ignored him, and according

to their own evidence, they were barely aware of his existence,

if aware of it at all. On the other hand, it would be doing

violence to the ordinary ideas of mankind to say that the

possession of these branches of the family must be presumed

to have been that of co-owners with Babappu, because no

definite positive act can be pointed to as initiating or bringing

home to him a repudiation of the claim which he now makes. It

would, moreover, be contrary to equity that a person

possessing a doubtful status in the family, who has lived apart

from it for over a generation in another locality, should be

permitted through the medium of a sale to a speculative

purchaser to revive his obsolete pretensions, and to assist

those claiming through that purchaser to invade the family

inheritance. The case is one in

26

which in my opinion, the Court ought to presume that the

posses¬sion of the three branches of Simon de Silva's family,

who actually dealt with the land, became adverse to the claim

of Babappu at some point more than ten years prior to the

institution of this action. I would, therefore, affirm the decision

of the learned District Judge, and dismiss the appeal, with

costs.

SHAW J. -

The Judge has found that Babappu, under whom the appellant

claims, was the legitimate son of Allis, who was admittedly a

co-owner of the land. The appellants are, therefore, entitled to

a share in the land, unless Babappu's co-owners have

prescribed against him and his successors in interest.

The precise time when Allis died, and Babappu succeeded to

his interest, does not appear from the evidence; but it must

have been over fifty years ago, and the Judge has found as a

fact that neither Babappu, his vendee Tillekeratne, nor the

appellants have ever had any possession of Allis's share, which

has, since the death of Allis, always been possessed by his co-

owners and their successors. These findings of fact appear to

be justified by the evidence, and I see no reason why we

should differ from them on appeal.

The Judge has also decided that Babappu's co-owners have

prescribed against him and his successors in interest, and has

accordingly dismissed the plaintiff's action. The nature of the

holding of a co-owner of land and the circumstances under

which a co-owner can commence to acquire a prescriptive title

against other owners under Ordinance No. 22 of 1871 is

authoritatively laid down by the Privy Council in the case of

Corea v. Appuhamy.1[1 (1911) 15 N. L. R. 65. ] That case

shows that the possession of one co-owner is in law the

possession of all, and that a person who has entered into

possession in his capacity of co-owner must be considered to

continue to possess in the same capacity until he has by some

ouster of his co-owners, or by something equivalent to an

ouster of them changed the character of his possession and

commenced to hold adversely to them. In effect, the case

appears to decide that the position of a co-owner in Ceylon is

the same as it was in England prior to the Statute 3 & 4 W. 4.

c. 27.

The question for our consideration in the present case is

whether, from the uninterrupted sole possession of certain co-

owners extending over a large number of years, and the

conduct of the other co-owners in not asserting any right to

possess, a presumption of an ouster by the co-owners in

possession and the commencement of an adverse holding by

them can be presumed, and if so, whether in the present case

such a presumption should be drawn. The judgment in Corea

27

v. Appuhamy 1 does not pretend to lay down any rule as to

the manner in which the " ouster or something equivalent to an

ouster

may be established by evidence.

In England, under the previously existing law, it was held that

juries might properly be directed that they could presume an

ouster of the other co-owners after an uninterrupted

possession for a number of years. An example of this is found

in Doe v. Prosser, 2 where uninterrupted possession for thirty-

six years was held to justify such a presumption, and that an

ouster might have been so presumed is recognized in the

judgment in Corea v. Appuhamy.1

I see no reason why similar presumption should not be made in

suitable cases in Ceylon.

That such a presumption may be made appears to have been

recognized by the Court in Appuhamy v. Ran Naide,3 and by

Middleton J. in his judgment in the Full Court case of Odris v.

Mendis,4 and it has also been recognized in India in the case of

Bahavant v. Bhal Chandra.5 Presumptions of this character

seem to be authorized by section 114 of the Evidence

Ordinance of 1895. In the present case, although. Babappu,

according to his own evidence, knew that his co-owners had

during his minority granted a mining lease in respect of the

land, he never, when he attained majority, attempted to assert

any right to his share, and, although he purported to sell to

Tillekeratne in 1895, his vendee never possessed, nor was the

land included in the inventory of his estate on his death in

1901, and his heirs, the present appellants, made no attempt

to assert any right to possess until the year 1916.

It appears to me that the correct presumption to draw from the

long uninterrupted possession of Babappu's co-owners, and the

conduct of himself and his vendee, is that Babappu and his

vendee knew that Babappu's co-owners were holding adversely

to him, and that they had, in fact, ousted him from possession.

I would therefore dismiss the appeal, with costs.

DE SAMPAYO J.-

I have had the advantage of perusing the judgment of the

Chief Justice, and I agree with his conclusions of law and fact.

A pre¬sumption of adverse possession may, I think, be drawn

from the fact of exclusive possession by one co-owner

extending over such a long period as to render non-possession

by the other co-owner inexplicable, except upon the theory of

acquiescence in an adverse claim. In the present case the

circumstances appear to me to amount to something more

than presumption. Babappu, from whom the plaintiffs claimed

title, appears not to have been really recognized as a legitimate

son of Allis by the rest of the family.

1 (1911) 15 N. L. R. 65.

2 (1774) 1 Cowper 217.

3 (1915) 1 C. W. R. 92.

4 (1910) 13 N. L. R. 309.

5. L. B. 24 Bom. 300.

28

He must have known that he was being intentionally excluded

from possession. He was not so well of as to make a share of

the produce of the land of no importance to him, and yet,

according to the finding of the District Judge, which there is no

reason to question, he never did at any time claim or take his

alleged share. Moreover, the nature of the possession is

significant.. The land had no plantation worth considering; it

was plumbabo land, and the defendants dug plumbago therein

both by themselves and through lessees all throughout. While a

co-owner may without any inference of acquiescence in an

adverse claim allow such natural produce as the fruits of trees

to be taken by the other co-owners, the aspect of things will

not be the same in the case where valuable minerals are taken

for a long series of years without any division in kind of money.

The effect of this becomes still more pronounced where the co-

owner, being also a co-heir, has alienated his share to a

stranger, and the stranger, too, is kept out. Babappu sold his

alleged share in 1893 to one D. N. Tillekeratne, whose widow

and children the plaintiffs are, and it is proved that Tillekeratne

never possessed the share he purported to buy. He appears to

have owned and worked a plumbago pit on another land in the

neighbourhood, and it is remarkable that, a plumbago

merchant as he was, he never claimed or took a share of the

plumbago, which to his knowledge was being dug from this

land by the defendants and their lessees. The plaintiffs

perceived the force of this circumstance, and un¬successfully

attempted to prove that Babappu had with the consent of

Tillekeratne taken a share of the produce of a few plantain

bushes and trees on the land.

I think that the circumstances sufficiently justify the inference

of what was alluded to by the Privy Council inCorea v. Iseris

Appuhamy1 [1(1912) A .C. 230 ]as " something equivalent to

an ouster, " and that this change, even if it did not take place

in the time of Babappu, must be regarded as having occurred

at all events in 1893, when he sold to Tillekeratne. In my

opinion the defendants have succeeded in establishing their

claim to the whole land by prescription, and I agree that the

appeal should be dismissed, with costs.

Appeal dismissed.

Volume 61, Page No 361

View - Volume 61

ABDUL MAJEED, APPELLANT, AND UMMU ZANEERA CO-OWNERS-PRESCRIPTIVE

POSSESSION BY A CO-HEIR-OUSTER-FIDEICOMMISSUM FOR FOUR NERATIONS-

COMPUTATION OF PERIOD-PRESCRIPTION AGAINST REMAINDER-MEN AND

MINORS-BURDEN OF PROOF-PRESCRIPTION ORDINANCE (CAP. 55), SS. 3, 13-

EVIDENCE ORDINANCE, S. 114.

et al., Respondents New Law Reports 361

1959 Present: Basnayake, C. J., K. D. de Silva, J., and

H. N. G. Fernando, J.

S. C. 260-D. C. Colombo, 6970/M

On an issue of prescriptive title raised between co-heirs in

respect of a property valued at Rs. 75,000 (land 12.61 perches

in extent and a building covering practically the whole land)-

Held, by DE SILVA, J., and H. N. G. FERNANDO, J.

(BASNAYAKE, C.J., dissenting), that proof that one of the co-

heirs let out the premises and appropriated to himself the

entire rent (which was not much) for thirty-seven years was

insufficient, by itself, .to bring the case within section 3 of the

Prescription Ordinance.

Per DE SILVA, J.-" In considering whether or not a presumption

of ouster should be drawn by reason of long-continued

possession alone, of the property owned in common, it is

relevant to consider the following, among other matters :-

(a) The income derived from the property.

(b) The value of the property.

(c) The relationship of the co-owners and where they reside in

relation to the situation of the property.

(d) Documents executed on the basis of exclusive ownership ".

Per H. N. G;. FERNANDO, J.-" Firstly, section 3 (of the

Prescription Ordinance) imposes two requirements:

'undisturbed and uninterrupted possession' and 'possession by

a title adverse or independent'; secondly the question whether

the second of these requirements are satisfied does not arise

unless the first of them has been proved. It is clear from the

judgment of the Privy Council in Corea's case (15 N. L. R. 65)

that a co-owner in possession can satisfy the second

requirement in two different modes :-

(a) by proving that his entry was not by virtue of his title as a

co-owner, but rather of some other claim of title; in fact Their

Lordships, in Corea's case, rejected the finding of the Supreme

Court that the possessor had entered as sole heir of the former

owner;

(b) by proving that, although his entry was by virtue of his

lawful title as a co-owner, nevertheless he had put an end to

his possession in that capacity by ouster or something

equivalent to ouster, and that therefore and thereafter his

possession had been by an adverse or independent title ".

Considered also :-(i) Duration of a fideicommissum lasting for

four generations. It would be only the fifth generation of

fideicommissary heirs Who would inherit the property free of

the fideicommissum, (ii) Burden of proof in cases falling under

the proviso to section 3 and section 13 of the Prescription

Ordinance in relation to the issue of prescription against

remainder,

Men and minors.

362

APPEAL from a judgment of the District Court, Colombo. The

facts appear from the judgment of de Silva, J.

H. V. Perera, Q.C., with H. Ismail, for 13th Substituted

Defendant- Appellant.

M. S. M. Nazeem, with M. T. M. Sivardeen, for Plaintiff-

Respondent.

S. Sharvananda, with M. Shanmugalingam, for 4th to 8th

Defendants- Respondents.

H. W. Jayewardene, Q.C., with M. Rafeek and L. O.

Seneviratne, for 9th Defendant-Respondent and for 10th

Substituted Defendant- Respondent.

H. Mohideen, with S. M. Uvais, for 12th Defendant-Respondent

Cur. adv. vult.

December 11, 1959. BASNAYAKE, C.J.-

This is an action under the Partition Act, No. 16 of 1951,

instituted on 17th September 1953. The main contest at the

trial was whether deed No. 260 dated 16th July 1872 attested

by J. W. Vanderstraaten created a fideicommissum which

endured for four generations. The learned District Judge held

that the deed created a fideicommissum and learned counsel

for the 13th defendant-appellant, who may conveniently be

referred to hereinafter as the appellant, does not challenge that

finding. The appellant had also claimed that he was entitled to

a decree in his favor under section 3 of the Prescription

Ordinance as he had possessed the entire land since the year

1916.

The learned District Judge while in effect holding that the

appellant had continuous and exclusive possession of the

premises since 1916 rejected his claim for a decree in his

favour under section 3 of the Prescription Ordinance on the

ground that he had failed to prove that the proviso to section 3

and section 13 of the Ordinance did not apply to his claim. The

decision that the burden of proving the exceptions rests on the

appellant is canvassed in appeal. It is submitted that the

learned District Judge has wrongly cast on the appellant the

burden of proving matters which in. law he is not bound to

prove. The portion of the learned District Judge's judgment to

which objection is taken runs as follows:-

"In fact the burden is on the 13th defendant to prove that he

had acquired a title by prescriptive possession to the interests

or all the parties to this action, who are the descendants of

Muttu Natchia.

His prescriptive possession has been interrupted always with

the death of a fiduciary. It is for him to produce the death

certificates of the successive fiduciaries and the birth

certificates of the several fidei commissarii. Ansa Umma, one of

the daughters of Muttu Natchia, died leaving three children, the

9th and 10th defendants and one Mohamed Razeen. Ansa

Umma was a fiduciary. It is not known when she died. It is only

after her death that the 13th defendant would start to possess

adversely against the 9th and 10th defendants and Mohamed

Razeen. There is no evidence as to the age of the 9th and 10th

defendants. Similarly in the case of all the other defendants it

cannot be held that the 13th defendant acquired a prescriptive

title to their interests. I hold that the 13th defendant has not

acquired prescriptive title to the interests of the plaintiff or any

other defendants ".

The plaintiff and the other defendants claim the benefit of the

proviso to section 3 and section 13. Those provisions read-

"Provided that the said period of ten years shall only begin to

run against parties claiming estates in remainder or reversion

from the time when the parties so claiming acquired a right of

possession to the property in dispute.

"13. 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

of the disabilities hereinafter mentioned, that is to say-

(a) infancy,

(b) idiocy,

(c) unsoundness of mind,

(d) lunacy, or

(e) absence beyond the seas,

then and 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, not with standing the disability of any adverse

claimant."

Learned counsel's contention that the learned District Judge

has wrongly cast on the appellant the burden of proving the

exception is sound. The rule of evidence is that whoever

desires any court to give judgment as to any legal right or

liability dependent on the existence of facts which he asserts,

must prove that those facts Exist. Those who assert that the

period of ten years began to run as against them only after a

certain date in view of the proviso to section 3 or section 13

must produce evidence of facts which bring their case within

those provisions. Learned counsel's submission is supported by

the decision of the Privy Council in the case of Mohamed

Adamjee v. Hadad Sadeen 1[1 (1956) 58 N.L.R. 217 at 227] to

which he has referred us. In that case the Board made the

following observations:-

"Looking at the matter first as a question of constructing on

they think that once parties relying upon prescription have

brought themselves within the body of section 3 the onus rests

on anyone relying upon the proviso to establish their claim to

an estate in remainder or reversion at some relevant date and

they cannot discharge this onus unless they establish that their

right fell into possession at some time within the period of ten

years."

In the instant case except in regard to the plaintiff, and the 1st

and 2nd defendants, the parties have produced no evidence

which brings their claims within the proviso to section 3 or

section 13. But it is contended on behalf of the 9th and 10th

defendants-respondents that the appellant is a co-heir and that

proof that he collected the entire rent since the year 1916 is

insufficient to bring his case within section 3[3 (1938) 40

N.L.R. 392 at 396.]. It is therefore necessary to deal with that

aspect of the case with which the learned District Judge has not

dealt especially though an argument in regard to it appears to

have been addressed to him.

It has been laid down by the Privy Council in the case of Corea

v. Appuhamy 2[ 2 (1911) 15 N.L.R. 65.] that the possession of

a co-owner is in law possession of the other co-owners; that it

is not possible for a co-owner to put an end to his possession

qua co-owner by any secret intention in his mind; that nothing

short of ouster or something equivalent to ouster could bring

about that result.

In the case of Cadija Umma v. Don Manis 3 in dealing with the

case of an agent's possession the Privy Council said

"Ouster apart, a man's possession by his agent is not

dispossession by his agent. The like is true between co-owners,

in Ceylon, and is the ground of decision in Corea's case."

It is therefore necessary first to understand what the Privy

Council meant by the words "his possession was in law the

possession of his co-owners ". What is the kind of possession

contemplated by these words?

Is it a possession in which the rights of the other co-owners are

recognized or is it a possession in which they are not? For the

answers to these questions we have to look to the English Law,

as section 3 of the Prescription Ordinance is based on concepts

of English and not on those of Roman- Dutch law. The English

law on the subject is nowhere better expressed than in Don v.

Prosser! Wherein Lord Mansfield and Justice Acton have

explained what is meant by adverse possession and ouster.

The former explains the law thus:-

"So in the case of tenants in common the possession of one

tenant in common, eo nomine, as tenant in common, can never

bar his companion; because such possession is not adverse to

the right of his companion, but in support of their common

title; and by paying him his share, he acknowledges him co-

tenant. Nor indeed is a refusal to pay of it sufficient, without

denying his title. But if, upon demand by the co-tenant of his

moiety, the other denies to pay, and denies his title, saying he

claims the whole and will not pay, and continues in possession;

such possession is adverse and ouster enough."

Justice Acton's words are pithy and to the point. He says:-

"There have been frequent disputes as to how far the

possession of one tenant in common shall be said to be the

possession of the other, and what acts of the one shall amount

to an actual ouster of his companion.. As to the first, I think it

is only where the one holds possession as such, and receives

the rents and profits on account of both. With respect to the

second, if no actual ouster is proved, yet it may be inferred

from circumstances, which circumstances are matter of

evidence to be left to a jury. "

It would appear therefore that on the facts of the instant case

the co-owners cannot claim the benefit of the appellant's

possession as he has possessed not on their behalf but for

himself without giving them their share of the rent.

Next let me consider whether in the instant case there is

evidence of "ouster" or "something equivalent to ouster ". The

meaning of "ouster " an expression which is not discussed in

our reports must first be ascertained. Now" ouster" is a concept

of English law. It is defined thus in Sweet's Law Dictionary:

"To oust a person from land is to take the possession from him

so as to deprive him of the freehold. An ouster may be either

rightful or wrongful. A wrongful ouster is a disseisin. "

According to Blackstone-

" Ouster, or dispossession, is a wrong or injury that carries with

it the amotion of possession: for thereby the wrong-doer gets

into the actual occupation of the land or hereditament, and

obliges him that has a right to seek his legal remedy, in order

to gain possession, and damages for the injury sustained. And

such ouster, or dispossession,

may either be of the freehold, or of chattels real; 'a distinction

which was formerly of the utmost importance, as the remedies

for an ouster of the freehold were not only peculiar in their

nature, but were confine in their use to that species of

property; while those which the law afforded for recovery of

the possession of chattels real were totally inapplicable to all

estates of freehold. We shall see afterwards ho' the action of

ejectment has come to supply the place of nearly a these

remedies'. "

"Ouster of the freehold then' was, and in theory may still be

affected by one of the following methods: I. Abatement; 2.

Intrusion 3. Disseisin; 4. Discontinuance; 5. Deforcement'.

"(Blackstone Vol. ill p. 176-Kerr's edition 1862).

The last named is the form of ouster that applies to the case of

co-owner who decides to keep out the other co-owners.

Blackstone describes it thus-(ibid, p. 182).

"The fifth and last species of injuries by ouster or privation of

the freehold, where the entry of the present tenant or

possessor w originally lawful, but his detainer has now become

unlawful, was that by deforcement. This, in its most extensive

sense, is nomen generalissimum ; a much larger and more

comprehensive expression than at of the former; it then

signifying the holding of any lands or tenements to which

another person has a right. "

Blackstone gives many examples of deforcement and the only

one germane to the subject under discussion is the following-

(ibid, p. 182).

"Another species of deforcement is, where two persons have t

same title to land, and one of them enters and keeps

possession against the other, as where the ancestor dies seized

of an estate in fee-simple, which descends to two sisters as co-

parceners, and one of them enter before the other, and will not

suffer her sister to enter and enjoy 11 moiety; this is also a

deforcement."

In the instant case there is evidence of " ouster" in the sense

stat in the passage from Blackstone last cited and the English

cases I shall refer to later in this judgment. The appellant came

into possession the land in 1916 on the death of his father,

who himself had been possession of it, and has continued to

take the entire rent from that dl The plaintiff and the 1st and

2nd defendants are the great-great-grand children of the

author of the fideicommissum. Several generations his

descendants have been content to allow the appellant and his

fat] to collect the entire rent. There is no evidence that till the

date of t action in September 1953 anyone has even

questioned the appellant's right to take the rent during these

thirty-seven years;

Apart from actual ouster in the sense stated above English]

recognizes a presumption of ouster. The cases of Doe v. Posser

(supra)

Hornblower v. Read1[1 1 East 568.] decide that ouster may be

presumed in a case where uninterrupted possession for thirty-

six years is established. In the former case Lord Mansfield

stated-

"It is very true that I told the Jury, they were warranted by the

length of time in this case, to presume an adverse possession

and ouster by one of the tenants in common, of his companion;

and I continue still of the same opinion-Some ambiguity seems

to have arisen from the term 'actual ouster', as if it meant

some act accompanied by real force, and as if a turning out by

the shoulders were necessary. But that is not so. A man may

come in by a rightful possession, and yet hold over adversely

without a title. If he does, such holding over, under

circumstances, will be equivalent to an actual ouster. "

After enunciating the rule that the possession of one tenant in

common, eo nomine, as a tenant in common, can never bar his

companion; because such possession is not adverse to the

right of his companion, but in support of their common title,

Lord Mansfield adds-

but in this case no evidence whatsoever appears of any

account demanded, or of any payment of rents and profits, or

of any claim by the lessors of the plaintiff, or of any

acknowledgment of the title in them, or in those under whom

they would now set up a right. Therefore I am clearly of

opinion, as I was at the trial, that an un- disturbed and quiet

possession for such a length of time is a sufficient ground for

the jury to presume an actual ouster, and that they did right in

so doing.

Justice Acton in the same case puts the proposition thus:

"Now in this case, there has been a sole and quiet possession

for 40 years, by one tenant in common only, without any

demand or claim of any account by the other, and without any

payment to him during that time. What is adverse possession

or ouster, if the uninterrupted receipt of the rents and profits

without account for near 40 years is not?"

Justice Willes in agreeing with Lord Mansfield and Justice Acton

states-

"The possession is a possession of 16 years above the 20

prescribed by the Statute of Limitations, without any claim,

demand, or interruption whatsoever; and therefore, after a

peaceable possession for such a length of time, I think it would

be dangerous now to admit a claim to defeat such possession.

However strict the notion of actual ouster may formerly have

been, I think adverse possession is now evidence of actual

ouster. "

In the latter case Lord Kenyon C. J. observes-

"I have no hesitation in saying where the line of adverse

possessio begins and where it ends. Prima facie the possession

of one tenant in common is that of another: every case and

dictum in the book is to that effect. But you may shew that one

of them has been in possessio and received the rents and

profits to his own sole use, without account to the other, and

that the other has acquiesced in this for such length of time as

may induce a jury under all the circumstances 1 presume an

actual ouster of his companion. And there the line presumption

ends."

In this discussion it is important to bear in mind the words of

Lord Mansfield quoted above that actual ouster is not some act

accompanied by force. The expression is defined in Black's Law

Dictionary thus:

"Actual ouster does not mean a physical eviction, but a

possessio attended with such circumstances as to evince a

claim of exclusive, right and title, and a denial of the right of

the other tenant 1 participates in the profits."

The presumption of ouster referred to in the cases cited by me

is or. that a court may draw under section 114 of the Evidence

Ordinance, which provides that the court may presume the

existence of any fact which it thinks likely to have happened,

regard being had to the common course of natural events,

human conduct, and public and private business in their

relation to the facts of the particular case.

The facts of the instant case fall within the ambit of Lord

Kenyon words. Here the appellant has been in possession and

received the rent to his own use without accounting to the

others and those others ha, acquiesced in it for such a length

of time as will enable the court 1 presume under all the

circumstances an actual ouster of the others more than ten

years before the institution of this action.

Before I part with this judgment I wish to add that in counting

the number of generations for the purpose of a

fideicommissum which endures for four generations the person

who has been expressly named and is the immediate done is

not taken into account. This is what Van Leeuwe says:

"It has been received as a general rule, that a, fideicommissum

of this or a similar kind in a case of doubt and when the

prohibition difficult to be understood, is not perpetual, but Only

extends to the fourth degree of succession, counting from him

to whom after the death of the first heir the inheritance has

come saddled with such burden, up to the fourth degree

beyond him inclusive, for the person who has been burdened

expressly and by name does not form a degree, but his

successor is the first to do so." (Censura Forensics, Part1, Book

III, Ch. VII, S. 14, Ford's Translation, p. 92.)

For the reasons stated above the appellant is entitled to a

decree in his favour declaring him entitled to all the shares

excluding those of the plaintiff and the 1st and 2nd defendants.

In regard to costs the appellant is entitled to the costs of the

contested trial as against the plaintiff who alone resisted his

claim. The other costs will be borne by the parties declared

entitled to the land pro rata. The appellant would also be

entitled to the costs of appeal payable by the 9th and 10th

defendants.

DE SILVA, J.-

The plaintiff instituted this action under the Partition Act, No.

16 of 1951 praying for a sale of the premises described in the

schedule to the plaint. Admittedly the property in question

belonged to one Ibrahim Lebbe Ahamado Lebbe. He by deed

No. 260 dated the 16th July, 1872 (P2) gifted it to his wife

Muttu Natchia subject to certain conditions. The plaintiff and

certain defendants contended that this deed created a valid

fideicommissum in favor of the children and the remoter

descendants of the donor and donee binding on four

generations. Muttu Natchia and her husband died leaving two

daughters and one son. The daughters were Candumma and

Ansa Umma while the son was Abdul Rahaman. Abdul Majeed

the 13th defendant is the only child of Abdul Rahaman. The

plaintiff and the other defendants are the successors in title of

the two daughters of Muttu Natchia. The 13th defendant took

up the position that P2 did not create a valid fideicommissum.

He also averred in his answer that Muttu Natchia had "put him

in complete possession " of the property and that thereafter he

had been in sole and exclusive possession of it and had

acquired a prescriptive title to the entire property or at least to

the shares claimed by the plaintiff and 1,2,5,6,7,8, 11 and 12th

defendants and the rights which the 9th and 10th defendants

derived from one Noor Lahira the grand-child of Ansa Umma.

The learned District Judge held that P2 created a valid

fideicommissum which endured for four generations and

rejected the claim of the 13th defendant based on prescription.

He allotted shares according to the devolution of title as set out

in the plaint and entered a decree for sale. This appeal is by

the 13th defendant against the judgment and

decree.

At the hearing of this appeal the finding of the learned District

Judge that the deed P2 created a valid fideicommissum binding

on four generations was not challenged. The learned counsel

for the appellant, however, contended that his client had

established a prescriptive title to the half share which devolved

on the 2nd to 9th defendants and Noor Lahira. That is the main

question for decision on this appeal.

At the trial the counsel for the plaintiff made an admission

regarding the possession of this land. It is recorded in the

following terms. "Mr. Weerasinghe admits that the 13th

defendant's father has been in possession from prior to 1916."

The only persons who gave evidence were the 2nd defendant

and the 11th defendant. The 13th defendant neither gave

evidence nor called any witness on his own behalf. The 2nd

defendant was called on behalf of his sister the plaintiff while

the 11th defendant did not give any evidence whatsoever in

regard to possession. However, it was elicited from the 2nd

defendant in examination that from the time he became aware

of things the defendant had been collecting the rent of this

property. It is significant to observe that the age of the 2nd

defendant when he gave evidence was 32. After the plaintiff's

case was closed the following admission also recorded.

"Plaintiff admits that from 1916 the 13th defendant collected

the rents."

Thus the prescriptive title set up by the appellant rests solely c

two admissions I have quoted above and the statement of the

defendant that from the time he came to know things the 13th

deft had been collecting the rent of the building which stands

on this which is 12.61 perches in extent. The plan PI reveals

that practically the whole land is covered by this building. It is

rather remarkable although it was elicited from the 2nd

defendant in cross-examination that the 13th defendant

collected the rent yet no attempt was m obtain any admission

from him that the entire rent collected WI appropriated by the

13th defendant. I do not think for a moment when the counsel

for the plaintiff admitted that from the year 1916 the 13th

defendant was in possession and before that the latter's fat]]

been in possession he meant to concede that the possession

they h of the character contemplated by section 3 of the

Prescription Ordinance. The word "possession" was obviously

used by him in a loose and sense. Probably he meant merely

physical possession and this is made clearer by the 2nd

admission which only conceded that the 13th defendant

collected the rent. If he admitted that these two person

possession in the sense the word is used in that section there

purpose in going on with the trial thereafter. From the evidence

2nd defendant and the two admissions referred to, one cannot

real say that anything more was conceded than that the 13th

defendant out the premises and collected the entire rent. There

is no definite evidence as to what he did with the rent whether

he appropriate whole of it for himself, shared it with the other

co-owners, spent it maintenance of the building or used it for

charitable purposes. It not be strange if the 13th defendant

collected the rent and looked the building and before him his

father did so. Of the three children Muttu Natchia the 13th

defendant's father was the only male being so it is quite

natural, these parties being Muslims, that t; defendant's father,

the only male in the family, was in charge premises and

collected the rent. On the death of the father the son may well

have taken over those duties without any objection from the

other co-owners. If the 13th defendant did not appropriate for

him entire rent his claim to this property on a prescriptive title

is quite untenable. The prescriptive title is set up on the basis

that he appropriated the entire rent for him. Assuming that he

did so, although the evidence is insufficient for so holding, is he

entitled to succeed on the issue of prescription?

As the deed P2 created a valid fideicommissum the 13th

defendant and the other descendants of Muttu Natchia and her

husband would be co-owners of this property. In Corea v. lseris

Appuhamy 1[1 (1911) 15 N .L.R. 65.] the Privy Council

recognized the principle "Possession is never considered

adverse if it can be referred to a lawful title ". There is no

doubt that in. the instant case the 13th defendant entered into

possession of the property in the character of a co-owner. In

that case the Privy Council further held that, in law, the

possession of one co-owner is also the possession of his co-

owners; that it was not possible to put an end to that

possession by any secret intention in his mind and that nothing

short of ouster or something equivalent to ouster could put an

end to that possession. An invitation by the counsel for the

respondent to presume an ouster or something equivalent to

an ouster from Iseris's long-continued possession was rejected

by Their Lordships of the Privy Council in that case but the

point was not fully considered.

In Tillekeratne v. Bastian 1[1 (1918) 21 N.L.R. 12.] a case

decided by a Bench of three Judges, this Court held that it was

open to the Court, from lapse of time in conjunction with the

circumstances of the case, to presume that a possession

originally that of a co-owner had since become adverse.

Bertram C.J. who delivered the main judgment in that case

referred to the observations of Lord Mansfield in Doe v. Prosser

2[2 (1774) I Cowper 217.] and followed the principle

enunciated therein. Lord Mansfield said in that case " But if,

upon demand by the co-tenant of his moiety, the other denies

to pay and denies his title, saying he claims the whole and will

not pay, and continues in possession, such possession is

adverse and ouster enough In this case no evidence whatever

appears of any account demanded, or of any payment of rents

and profits, or of any claim by the lessors of the plaintiff, or of

any acknowledgment of the title in them, or in those under

whom they would now set up a right. Therefore, I am clearly of

opinion, as I was at the trial, that an undisturbed and quiet

possession for such a length of time is sufficient ground for the

jury to presume an actual ouster??"

Whether the presumption of ouster is to be drawn or not

depends on the circumstances of each case. In Tillekeratne

v.Bastian 1[1 (1918) 21 N.L.R. 12.] there were three

circumstances of great importance which justified this Court in

presuming an ouster. They were :-(1) Bastian whose share was

in issue had not been recognized by the other members of his

family as the lawful child of his father (2) Neither Bastian nor

his vendee claimed a share of the plumbago dug from the land

and (3) The share of this land purchased from Bastian was not

included in the schedule of assets of the vendee when he

became insolvent. There are no circumstances of such

importance in the instant case.

In regard to the observations of Lord Mansfield referred to

above I would venture to say that there is some risk in

applying the principle enunciated by him indiscriminately to a

set of similar circumstances existing in this country. Our land

tenure is different from that prevailing in England and our laws

of inheritance in respect of immovable property also differ from

theirs. Common ownership of lands is rampant here whereas it

is comparatively rare in England. Our social customs and family

ties: have some bearing on the possession of immovable

property owned in common and should not be lost sight of.

Many of our people consider it unworthy to alienate ancestral

lands to strangers. Those who are in more affluent

circumstances permit their less fortunate relatives to take the

income of the ancestral property owned in common. But that

does not mean that they intend to part with their rights in

those lands permanently. Very often if the income derived from

such a property is not high the co-owner or co-owners who

reside on it are permitted to enjoy the whole of it by the other

co-owners who live far away. But such a co-owner should not

be penalized for his generous disposition by converting the

permissive possession of the recipient of his benevolence to

adverse possession.

In considering whether or not a presumption of ouster should

be drawn by reason of long-continued possession alone, of the

property owned in common, it is relevant to consider the

following, among other matters :-

(a) The income derived from the property.

(b) The value of the property.

(c) The relationship of the co-owners and where they reside in

relation to the situation of the property.

(d) Documents executed on the basis of exclusive ownership.

If the income that the property yields is considerable and the

whole of it is appropriated by one co-owner during a long

period it is a circumstance which when taken in conjunction

with other matters would weigh heavily in favor of adverse

possession on the part of that co-owner. The value of the

property is also relevant in considering this question although it

is not as important as the income. If the co-owners are not

related to one another and they reside within equal proximity

to the property it is more likely than not that such possession

is adverse and it would be particularly so if the property is

valuable or the income from it is f considerable. If the co-

owners are also co-heirs the position would be otherwise.

In this case it is unfortunate that no evidence has been led to

show what the income from this property was. If the rent was

high it would have been a point in favor of the 13th defendant

if he appropriated the whole of it. The fact that no evidence

was adduced by the 13th defendant on the question of rent,

probably, indicates that the rent was not much. In the plaint

the property is valued at Rs. 75,000. That would appear to be a

fair valuation as the premises were situated in Prince Street,

Pettah. The building on it must be an old one because none of

the co-owners claimed to have constructed it. If the rent was

small, not much would have been left, after paying the rates

and taxes, to be shared by the co-owners. If that assumption is

correct the fact that the other co- owners did not press the

13th defendant for their shares of the income would not be a

strong point against them. That of course, is on the basis that

the 13th defendant appropriated to himself the whole income.

'In this case the 13th defendant has failed to produce a single

document executed by him on the basis that he was the sole

owner of the property.

The absence of such documents goes to show that he did not

intend to change the character of his possession or to assert a

title to the whole property.

There is also no ostensible reason why the other co-owners

should have meekly acquiesced If they became aware that the

13th defendant was setting up an independent title to the

entire property.

In my view the evidence of possession by the 13th defendant is

wholly insufficient to hold that he has acquired a prescriptive

title to a share of any of the co-owners.

I am also inclined to the view that no occasion to draw a

presumption of ouster arises where a co-owner relies only on

his own exclusive possession, as in this case, in support of the

prescriptive title he sets up. The 13th defendant relied on his

possession alone according to the statement of claim filed by

him. Therefore he ought to know when he decided to assert a

title to the property adverse to the interests of his co-owners.

What is the overt act he did which brought to the notice of his

co-owners that he was denying their rights to the property? Did

he refuse to give their shares of the income? He did not say so.

But the burden was on him to establish the prescriptive title.

The presumption of ouster is drawn, in certain circumstances,

when the exclusive possession has been so long-continued that

it is not reasonable to call upon the party who relies on it to

adduce evidence that at a specific point of time, in the distant

past, there was in fact a denial of the rights of the other co-

owners. The duration of exclusive possession being so long it

would not be practicable in such a case to lead the evidence of

persons who would be in a position to speak from personal

knowledge as to how the adverse possession commenced. Most

of the persons who had such knowledge may be dead or cannot

be traced or are incapable of giving evidence when the comes

up for trial. In such a situation it would be reasonable, in

certain circumstances, to draw the presumption of ouster. But

in the instant case the party who claimed to have originated

the adverse possession was alive at the time of the trial. He is

no other than the 13th defendant himself. There was no

necessity, therefore, to resort to a presumption of ouster. The

13th defendant's adverse possession, if any, was a question of

fact which he could and should have proved. He failed to do so.

In Tillekeratne v. Bastian 1[1 (1918) 21 N. L. R. 12.] Bertram

C.J. while dealing with the circumstances in which the

presumption of ouster may be drawn stated "If it is found that

one co-owner and his predecessors in interest have been in

possession of the whole property for a period as far back as

reasonable memory reaches; that he and they have done

nothing to recognize the claims of the other co-owners; that he

and they have taken the whole produce of the property for

themselves; and that these co-owners have never done

anything to assert a claim to any share of the property, it is

artificial in the highest degree to say that such person and his

predecessors in interest must be presumed to be possessing all

this time in the capacity of co-owners, and that they can never

be regarded as having possessed adversely, simply because no

definite positive act can be pointed to as originating or

demonstrating the adverse possession". All the circumstances

set out in this passage are not present in exclusive possession

attributed to the 13th defendant in this case. It is significant to

note that the learned Chief Justice contemplates he case where

a co-owner and his predecessors in interest are concerned do

not think that he would have been prepared to draw the

presumption of ouster if the exclusive possession relied on was

solely that of co-owner who set up the prescriptive title. In

such a case the ouster or something equivalent to ouster would

have to be proved, as any other question of fact, by leading the

necessary evidence.

The presumption that possession is never considered adverse if

it be referred to a lawful title may sometimes be displaced by

the com presumption of ouster in appropriate circumstances.

However, this counter presumption should not be reached

lightly. It should be applied if and, only if, the long continued

possession by a co-owner and predecessors in interest cannot

be explained by any reasonable explanation other than that at

some point of time, in the distant past, the posses became

adverse to the rights of the co-owners. Indeed, this is not, a

case.

The appeal must therefore be dismissed. The judgment

however needs variation on one point. The learned District

Judge was of view that the rights allotted to the plaintiff and

certain defendants specified by him were free of the

fideicommissum. That is not correct. Only the 1/9th share

originally belonging to Noor Lahira and which devolved on 9 to

12th defendants will not be subject to the fideicommissum. As

this fideicommissum endures for four generations it would be

only 5th generation of fideicommissary heirs who would inherit

the prop' free of the fideicommissum. Therefore the proceeds

of sale of the ball 8/9ths of the property should be deposited in

Court and would be subject to the fideicommissum. The

substituted defendant's appellants will the costs of this appeal

to the respondents.

H. N. G. FERNANDO, J.-

It is common ground in this case that the land which is the

subject of the action belonged originally to one Ibrahim Lebbe

Ahamado Lebbe. By a deed No. 260 of 16th July 1872 he made

a gift of that land to his' Muttu Natchia subject to certain

conditions. Muttu Natchia had three children; her son Abdul

Rahaman was the father of the 13th defendant her two

daughters were the ancestors of the plaintiff and the other

defendants. When the plaintiff instituted this action for the

partition of the land on the basis that the deed P2 created a

fideicommissum favor of the descendants of Muttu Natchia up

to the fourth generation, the 13th defendant filed answer

claiming that the deed P2 of 1872 not create a fideicommissum

and also that the deed was void for wan acceptance on behalf

of the persons designated as fideicommissaries. In addition the

13th defendant claimed that Muttu Natchia had placed him (the

13th defendant) in complete possession of the property and

that he had acquired prescriptive title thereto as against all or

some at least of the other parties to the action. The issues

concerning the question whether the deed did create a valid

fideicommissum and the question of due acceptance were

answered in the lower Court against the 13th defendant, and

the correctness of those answers has not been canvassed at

the hearing of the appeal. On behalf however of the appellants,

who are the heirs of the 13th defendant who died after the

filing of the appeal, it has been strenuously argued that the

appellants are entitled to a decree in their favor under section

3 of the Prescription Ordinance in respect of the shares of

certain of the defendants in the action. I have therefore to

refer to the evidence concerning possession and to the

conclusions reached by the District Judge on the issue of

prescription.

At the commencement of the trial, the Counsel who appeared

for the plaintiff is recorded as having admitted that "the 13th

defendant's father had been in possession from prior to 1916

and that the 13th defendant came into possession in 1916 ".

Thereafter the second defendant, a brother of the plaintiff,

gave evidence. According to this evidence, the plaintiff, her

sister the first defendant, and her brother the second

defendant succeeded to interests in the property on the death

of their mother in 1939 but were all minors at that time. The

second defendant, who was the eldest of the three was born in

1923, and would have attained majority only in 1944. The

plaint having been filed in September 1953 it is clear that the

13th defendant cannot claim a decree under the Prescription

Ordinance, in respect of the shares to which these three parties

were entitled, and the District Judge so held. This finding is not

now challenged.

In regard to the interests of certain other parties, there was no

evidence which established clearly the time at which their

interests accrued or their ages at that time. The learned

District Judge however took the view that it was for the 13th

defendant to prove the time of accrual of these interests and to

establish that the parties have been free of the disability of

minority for over ten years prior to the institution of the action.

On this ground he held that the 13th defendant, having failed

to establish the necessary matters, was not entitled to a decree

in respect of the interests of the parties concerned. He

accordingly allotted to the 13th defendant only the one-third

share which under the deed P2 accrued to him as the only child

of his father Abdul Rahaman and rejected his claim to the

entirety of the property. It has been argued for the appellants

that the District Judge wrongly placed on the 13th defendant

the burden of showing when the interests of these other parties

accrued and of further establishing that they were free of the

disability of minority referred to in section 13. It seems to me

that this argument is entitled to succeed, and in the absence of

evidence to the contrary, I will assume that neither the proviso

to section 3, nor the provisions of section 13 can be of avail to

these parties.

The second defendant and the eleventh defendant were the

only witnesses called at the trial, the second defendant being

called on behalf of the plaintiff and the eleventh defendant on

his own behalf. In his evidence-in-chief the second defendant

gave no evidence whatsoever concerning possession of the

property, but in cross-examination the following questions and

answers were recorded :-

Q. You .know who is occupying these premises?

A. A. R. Abdul Majeed the 13th defendant is occupying these

premises

Q. Has he not rented it out to anybody?

A. He has rented it out and he is collecting the entire rent.

From the time I became aware of things he has been collecting

the rent.

The 11th defendant gave no evidence concerning possession

and the 13th defendant neither, gave evidence himself nor

called any witnesses.

The learned District Judge did not expressly consider in his

judgment the question whether the possession of the 13th

defendant was of the character required by section 3 of the

Ordinance. He has either assume that his possession was of the

requisite character, or else considered it unnecessary to deal

with the question because he decided that in an; event the

claim of the 13th defendant had to fail on other grounds.

The arguments for the appellants have been, firstly that the

learned. District Judge impliedly held, and in view of the

admission of plaintiff' Counsel could rightly hold that the

possession of the 13th defendant was of the nature

contemplated in section 3, and secondly that such a conclusion

was justified by the evidence which is reproduced above. As

the first argument, I am quite unable to accede to it. Even if

the ad mission " that the 13th defendant's father had been in

possession before 1916 and that the 13th defendant came into

possession in 1916" car legitimately be construed to mean that

the possession of the 13tl defendant had been " undisturbed

and uninterrupted" since 1916, it is inconceivable that the

Counsel who appeared for the parties opposed 14 the 13th

defendant did intend to concede to the latter the right to a

decree under section 3. The admission, for what it was worth,

was made at the commencement of the trial by Counsel

appearing for the plaintiff, who could in no way be prejudiced

by it, because he had been a minor and was in any event

protected by section 13. No similar admission was made by

Counsel representing the fourth to eighth defendants or by

Counsel representing the ninth and tenth defendants, all of

whom are fideicommissaries under the deed P2. In fact at the

stage of the addresses it was stated on behalf of the ninth and

tenth defendants that, even if a fideicommissum had not been

duly created, these defendants were in any event co-owners

against whom the 13th defendant, who was not a stranger,

could not prescribe. In these circumstances, it is impossible to

regard the admission by the plaintiff's Counsel as having

involved a, concession, binding on the other parties that the

character of the 13th defendant's possession has been of such

a nature that the possession could be of avail against his co-

fideicommissaries or co-owners.

I have therefore to consider the second argument for the

appellants, namely that the evidence reproduced above was

sufficient to entitle the 13th defendant to a decree against all

those parties who had failed to bring themselves within the

protection afforded either by the proviso to section 3 or by

section 13. Be it noted that this evidence was only to the effect

that the 18th defendant let out the premises and had always

collected the rents: there was no specific statement either that

he had appropriated the rents exclusively for himself or that he

had never given a share to any of the other fideicommissary

heirs of Muttu Natchia.

But let me assume, although I cannot agree, that the only

reasonable meaning of the evidence of the second defendant is

that the 13th defendant for nearly forty years from 1916, not

only gathered the rents of the premises, but also appropriated

them solely for himself without ever giving or conceding a

share in the rents to any descendants of his two aunts. Upon

this assumption, the 13th defendant undoubtedly had

undisturbed and uninterrupted possession of the property in

the sense contemplated by section 3 of the Prescription

Ordinance, for (in the language of the parenthesis in section 3)

his possession was "unaccompanied by payment of rent, by the

performance of any service or duty, or by any other act from

which a right existing in any other person would fairly or

naturally be inferred ". But a person is not entitled to a decree

under section 3 by virtue of such possession alone: the section

requires the proof of a second element, namely that the

possession must be "by a title adverse to or independent of

that of the claimant or the plaintiff in such action ". That this is

a distinct and separate element was emphasized by Bertram

C.J. in his judgment in Tillekeratne v. Bastian 1[1 (1918) 21 N.

L. R. 12.]. Having referred to a view earlier prevailing that the

parenthesis Was intended to be an explanation of everything

which the section required the possessor to establish, and

having cited certain judgments and Thompson's Institutes as

endorsing that view, the learned Chief Justice, adopting an

expression earlier used by Wendt, J., pointed out that the coup

de grace had been administered by the decision in Corea v.

Appuhamy 2[2(1911) 15 N. L. R. 65.] to the theory that the

words in the parenthesis were intended as a definition of

"adverse title ". He then referred to the suggestion made in

Pereira's Laws of Ceylon that the parenthesis was intended to

be explanatory of the expression "undisturbed and interrupted

possession " a suggestion which was expressly adopted by the

Privy Council in Corea's case (at page 77) :-" The section

explains what is meant by undisturbed and uninterrupted

possession. Assuming that the possession of Iseris has been

undisturbed and uninterrupted since the date of his entry, the

question remains, has he given proof, as he was bound to do,

of adverse or independent title? ".

Having regard to my own unfamiliarity with a subject which has

received much critical and learned consideration from the

Bench and the Bar, and in connection with which Lord

Mansfield had observed:-" the more we read, unless we are

very careful to distinguish, the more we shall be confounded ",

I must be pardoned if, in the course of my attempt to analyze

the problem which possession by a co-owner presents, I

emphasize too much that which should have been obvious.

Firstly, section 3 imposes two requirements: "undisturbed and

uninterrupted possession" and "possession by a title adverse or

independent"; secondly t question whether the second of these

requirements is satisfied does I arise unless the first of them

has been proved. It is clear from t judgment of the Privy

Counsel in Corea's case that a co-owner

Possession can satisfy the second requirement in two difficult

modes:

(a) by proving that his entry was not by virtue of his title as

co-owner; but rather of some other claim of title; in fact Their

Lo] ships, in Corea's case, rejected the finding of the Supreme

Court that the possessor had entered as sole heir of the former

owner;

(b) by proving that, although his entry was by virtue of his law

title as a co-owner, nevertheless he had put an end to his

possess in that capacity by ouster or something equivalent to

ouster, a that therefore and thereafter his possession had been

by an adverse independent title.

Long-continued possession by itself clearly not contemplated in

either of these two modes of proving that the possession of a

co-owner had be "by a title adverse or independent ". The

appellants therefore obtain no assistance from the decision in

Corea's case. On the contrary I find it impossible to distinguish

the facts of that case from the facts of 1 present one, and the

decision operates strongly against the appellant have now to

consider the so-called presumption of ouster which v referred

to by the Privy Council in the judgment.

In Tillekeratne v. Bastian 1[1 (1918) 21 N. L. R. 12.] Bertram

C.J. adopted from Smith's Lead: Oases, the definition of

adverse possession, i.e. "possession held in a manner-

incompatible with the claimant's title ", and he observed that

the question whether possession by a co-owner is adverse

must be Considered in the light of three principles of law, the

third of which is " That a person who has entered into

possession of land in one capacity is presumed to continue to

possess it in the same capacity". Having thereafter referred to

the English Law, and to early Ceylon cases, he WI on to hold

that there is a counter-principle which is part of the law Ceylon

and that it is open to the Court, from lapse of time in conjunct

with the circumstances of the case, to presume that possession

origin that of a co-owner has since become adverse. He later

explained how t presumption should be applied:" It is in short a

question of fact whenever long-continued exclusive possession

is proved to have exist whether it is not just and reasonable in

all the circumstances of the c that the parties should be treated

as though it had been proved t: that separate and exclusive

possession had become adverse at some of more than ten

years before action was brought ". The words I have

parenthesized indicate that this presumption is available in

connect with the mode (b) of proving an adverse or

independent title which have elicited from the judgment in

Corea's case, namely in order establish that although the entry

had been qua co-owner, the possession had commenced at

some later time to be upon an assertion of an adverse title. No

such presumption would be available to counter the

principlethat a co-owner is presumed to enter by virtue of his

lawful title. The presumption referred to by Bertram C.J. has

since been usually referred to as the presumption of ouster.

The argument for the appellants has been that this

presumption of ouster, applies in their case that it is just and

reasonable that the possession of the 13th defendant, having

been exclusive and of long duration, should be regarded as

having become adverse at some time after 1916. Let me first

repeat the language employed by Bertram C.J:-" It is open to a

Court from lapse of time in conjunction with the circumstances

of the case??.";" whenever long-continued possession is proved

to have existed, whether it is not just and reasonable in all the

circumstances of the case??.. " Long-continued possession (for

nearly 40 years) was established indisputably in the case of

Tillekeratne v. Bastian 1 but that was not all-Each of the three

Judges thought it necessary, as indeed Bertram C. J's language

rendered it necessary, to refer to circumstances, quite distinct

from the mere duration of possession, which indulged them to

apply the presumption :-

"Though Babappu was the legitimate son of Allis, he was not

accorded this status by the family" ;

"It is a very significant fact that Tillekeratne, who purported to

have acquired his (Babappu's) share in 1893, became insolvent

in 1897, and did not include this land in the schedule of his

assets."

"It would moreover be contrary to equity that a person

possessing a doubtful status in a family, who has lived apart

from it for a generation in another locality, should be permitted

through the medium of a sale to a speculative purchaser to

revive his obsolete pretensions, and to assist those claiming

through that purchaser to invade the family inheritances."

(per Bertram, C.J.)

Although he (Babappu) purported to sell to Tillekeratne in

1893, his vendee never possessed, nor was the land included

in the inventory of his estate on his death in 1901, and his (the

vendee's) heirs made no attempt to assert any right until 1916.

"

(per Shaw, J.)

"Babappu appears not to have been really recognized as a

legitimate son of Allis by the rest of he family. He must have

known that he was being intentionally excluded from

possession. "

"While a co-owner may without any inference of acquiescence

in an adverse claim allow such natural produce as the fruits of

trees to be taken by the other co-owners, the aspect of things

will not be the same in the case where valuable minerals are

taken for a long series of years without any division in kind or

money."

(per de Sampayo, J.)

There were thus in that case several proved circumstances

rendering it reasonable to presume that the possessor's title

had become adverse to that of their co-owner: the co-owner's

status in the family was doubtful and had not been accorded to

him: valuable minerals had been appropriated for-the sole

benefit of the possessors: the co-owner must have known that

he was being intentionally excluded from possession: the

actual claimant was a vendee from the co-owner, but this

vendee had himself neither possessed nor claimed his share for

over ten years. Were not these cogent circumstances from

which to infer that the possession had become adverse at some

time?

The passages which I have cited from the judgments in

Tillekeratne v. Bastian were preceded by certain observations

which fell from Bertram C.J (at pages 20 and 21):-

"It is the reverse of reasonable to impute a character to a

man's possession which his whole behavior has long

repudiated. If it is found that one co-owner and his

predecessors in interest have been in possession of the whole

property for a period as far back as reasonable t memory

reaches; that he and they have done nothing to recognize the

claims of the other co-owners; that he and they have taken the

whole produce of the property for themselves; and that these

co- owners have never done anything to assert a claim to any

share of the produce, it is artificial in the highest degree to say

that such a person and his predecessors in interest must be

presumed to be possessing all this time in the capacity of co-

owners, and that they can never be regarded as having

possessed adversely, simply because no definite positive act

can be pointed to as originating or demonstrating the adverse

possession. Where it is found that presumptions of law lead to

such an artificial result, it will generally be found that the law

itself provides a remedy for such a situation by means of

counter-presumptions. "

Read out of their context, these observations may tend to

support the view that adversity may be presumed from mere

long-continued and exclusive possession. They emphasis the

absurdity and artificiality t which might prevail if there were

no" counter-presumption ", but l they do not constitute an

enunciation of the principles governing the application of that

presumption. They are only a preface or preamble, so to say,

to the enunciation of principles which is to follow and which is

contained in the passages' I have earlier cited, and cannot be

regarded as altering or extending the principles as so

enunciated.

In Hamidu Lebbe v. Ganitha 1[1 (1925) 27 N. L. R. 33.], one of

two brothers had been in exclusive possession for nearly forty

years. They had quarreled, and the excluded brother had left

the ancestral village. Dalton J., relying on the decision in

Tillekeratne v. Bastian; was much inclined to presume from

these circumstances that this brother must unsuccessfully have

preferred a claim to his share, and that the possession would

thereafter have been adverse. He felt, however, that the Privy

Council decisions in Corea', case and in Brito v. Muttunayagam

2[ 2(1918) 20 N. L. R. 327.]a (where a father had possessed

his widow share after a quarrel with his children) did not permit

him to presume adverse possession. Ennis J. observed that

"some definite facts would have to be proved" from which one

could infer a change in the character of the possessor's

intention with regard to the holding of the land. If the quarrel

and, the departure of the co-owner from the village did not

constitute sufficiently definite facts from which this inference

could be drawn, would it ever be reasonable to draw that

inference where all that is proved (as is so in the present case)

is long-continued possession?

There have been numerous subsequent decisions of this court

which have denied to co-owners in exclusive possession a

decree under section 3 of the Prescription Ordinance, but it is

sufficient for present purposes to summarize their effect by

reference to some of them. Exclusive possession for many

years, coupled with the execution by the possessor of deeds

inconsistent with the title of his co-owners, is insufficient in the

absence of evidence that the co-owners knew of and

acquiesced in the execution of the deeds. This proposition was

accepted as settled law in Umma Ham 11. Koch1[1 (1946) 47

N. L. R. 107] which followed earlier decisions to the same

effect: - Careem v. Ahamadu 2[2 (1923) 5 C. L. Rec. 170.] and

Sideris v. Simon 3[3.(1945)46 N .L.R. 273.]. The preparation

of a Plan indicating that the possessor regarded himself as

exclusively entitled to a specific portion of the common land

and purporting .to allot another specific portion to his co-

owners, coupled with dealings by the possessor with his portion

on the basis of sole ownership, does not justify a presumption

of ouster in the absence of evidence that the co-owners

acquiesced in the preparation of the plan of partition: -

Githohamy v. Karanagoda 4[ 4 (1954) 56 N. L. R. 250.]. It is

significant that, in these and other cases, there was almost

invariably reliance, even by unsuccessful possessors, upon

some circumstance additional to the mere fact of long and

undisturbed and uninterrupted possession, and that proof of

some such additional circumstance has been regarded in our

Courts as a sine qua non where a co-owner sought to invoke

the presumption of ouster.

I am aware of one decision only which is seemingly contrary to

the cursus curiae as just stated. There is language in the

judgment of Canekeratne J. in Subramaniam v. Sivaraja et al.

5[5(1945) 46 N. L. R. 540.] to indicate that the taking of

profits exclusively and continuously for a very long period, and

the acquiescence of co-tenants in the possessor's omission to

account, would justify the presumption of an ouster. But there

is no reference in the judgment to any earlier decision relative

to prescription by co-owners, and the facts as stated in the

judgment show that there had been no proof that the person in

possession claimed title from the same source as did her

adversaries. On the contrary the claims of title were mutually

exclusive. I cannot regard this case as providing a relevant

precedent, but even if it does there is at least one ground upon

which it should be distinguished. While the possessor's name

had continuously appeared in the assessment Register of the

Sanitary Board as the owner of the property, and she alone

had paid the rates, the alleged co-tenants had in some years

placed their names also on the Register. The fact that they

did so but nevertheless did not receive any of the profits from

the possessor might have justified the inference that they had

staked a claim to their share in the profits and had been

rebuffed by the possessor. Even in that case therefore the

possessor, if she was properly regarded as a co-owner, did rely

upon a circumstance additional to the fact of long possession,

as a ground on which the presumption of ouster might be

drawn.

That line of decisions, one of the more recent being Fernando

v. Podi Nona 1[1(19,54),56N.L.R.491.], which recognize the

principle that, where a stranger obtains a transfer of the entire

land from one co-owner, his possession commences:-as

adverse, is not relevant to the present discussion. "The

possession of a stranger in itself indicates that his possession is

adverse ":-Leach C. J. in Pillai v. Rawther 2[ 2 N.L.R. 23 Bomb.

137.]. When the title upon which the stranger enters into

possession, though in law defective, is based upon a transfer to

him of the entire land, it is nevertheless a title adverse,

inasmuch as it constitutes a denial of the rights of others. What

such a stranger proves is an entry by a title adverse-the mode

(a) of proof which I have elicited from the judgment in Corea's

case, and not the mode (b) (i.e. of change in the character of

the possession) which is required of a person who enters qua

co-owner. Those decisions therefore throw no light on the

question I am now considering.

The judgment in the case of Rajapakse v. Hendrick Singho

3[3(1959)61N.L.R.2.], though delivered on June 22, 1959, was

not referred to during the argument of the present appeal, and

I was unaware of it when the preceding part of this judgment

was prepared. The facts in that case were, briefly, as follows:-

The original owner had conveyed an undivided portion of the

land to T by deeds executed in 1919 and 1920: T in 1921

transferred an undivided 11/19 share to his grandson, who in

turn sold the undivided interests in 1927 to G: the plaintiff

purchased the interests of G in May 1953 and instituted a

partition action in August of the same year. The defendants,

who were descendants of the original owner and thus entitled

to the shares outstanding after the transfers of 1919 and 1920,

claimed that they had exclusively possessed the entire land

from 1922 and had divided the produce among themselves and

to the exclusion of the plaintiff's predecessors in title. The

grandson of T, who had been a predecessor of the plaintiff and

had been the owner of the undivided interests for about six

years, admitted at the trial that neither he nor his successor G

had ever occupied the land, and that the defendants had lived

on the land and enjoyed the produce to the exclusion of himself

and G. It was held on these facts that there was overwhelming

evidence upon which ouster could be presumed.

The plaintiff in that case claimed under T, who was a purchaser

and not an heir of the original owner, and the plaintiff's

predecessors were strangers to the family of the original

owner. It is reasonable to assume that when a stranger

purchases undivided interests inland, he does so as an

investment and with the object of enjoying his due share of the

fruits. If having purchased such an interest, a stranger does

not assert his right to possession, but instead acquiesces in the

exclusive appropriation of the entire produce by the members

of the family of the original owner, it may be reasonable to

presume from his unusual conduct that he either acknowledged

the exclusive rights of the family or else failed in an effort to

assert his own rights. Indeed this same feature, namely that-

the rights of the family were challenged only after a long period

of acquiescence on the part of a stranger-purchaser, was one

of the circumstances which induced this Court in Tillekeratne v.

Bastian to presume that there had been an ouster. If the ratio

decidendi of the decision in Rajapakse v. Hendrick Singho is

that acquiescence, on the part of a purchaser of an undivided

interest, in the exclusive possession of the entire land and the

appropriation of its profits by the other co-owner, is a

circumstance from which the adversity of the possession of the

other co-owners can be inferred, then that decision may be in

consonance with the dicta of Bertram C.J. and Ennis J. to which

I have earlier referred. If that be the basis of the decision, it is

easily distinguishable from the present case, where the title

has throughout remained vested in the members of the same

family.

Before concluding this judgment, it may be useful to add one

observation concerning the presumption of ouster. Some of the

presumptions mentioned in the Evidence Ordinance are

arbitrary, in the sense that a Court is permitted to presume the

existence of facts, even though it may be uncertain that the

facts did indeed exist. The presumption of legitimacy is a good

example of such ails arbitrary presumption: a Court may be

compelled to regard the child of a wife as legitimate despite the

availability of evidence, whether direct or in the form of

admissions, which can establish illegitimacy. The presumptions

as to the regularity of official acts and the "course of business"

are also examples, though less pointed, of something akin to a

"rule of thumb ". In my view, however, the so-called

presumption of ouster is not to be applied arbitrarily, but only if

proved circumstances tend to show, firstly the probability of an

ouster, and secondly the difficulty or impossibility of adducing

proof of the 'ouster. If the circumstances justify the opinion

that possession must have become adverse at some time, a

Judge is not in reality presuming au ouster: he rather gives

effect to his opinion despite the absence of the proof of ouster

which a co-owner would ordinarily be required to adduce. This

aspect of the matter was touched upon by Bertram C. J. in

Tillekeratne v. Bastian (at page 18).

The principle as stated in judgments of Bertram C. J. in

Tillekeratne v. Bastian and of Ennis J. in Hamidu v. Ganitha 1[1

(1925) 27 N. L. R. 33.], that the inference of ouster can only

be drawn in favor of a co-owner upon proof of circumstances

additional to mere long possession, has been consistently

recognized and strictly applied. To draw that inference from

mere duration of possession would be to disregard the very

terms in which they stated the principle, and to ignore the

requirement of an "adverse or independent title" prescribed in

section 3. Moreover, if exclusive possession alone is to suffice,

after what period will it be just and reasonable to presume

ouster? There being nothing in the section to the contrary, a

particular Judge may well be inclined to presume ouster from

possession for a period of ten years: but if another Judge

declines to do so unless the period is much longer, can it be

said that one Judge is right and the other wrong? Will not such

a situation be reminiscent of the days when the principles of

Equity were said to vary with the length of the Chancellor's

toe? The proposition we are invited to uphold is not only

contrary to settled law; it contains no criterion by the

application of which consistency of judicial decisions can be

reasonably expected.

Our Courts have constantly recognized the rule that

undisturbed and uninterrupted possession by a co-owner does

not suffice to entitle him to a. decree unless there is proof of

the ouster of the other co-owners. The decision in Tillekeratne

v. Bastian recognized an exception to that rule and permits

adversity of possession to be presumed in the presence, of

circumstances additional to the fact of undisturbed and

uninterrupted possession for the requisite period. If the true

effect of the exception is that the fact of such possession

simpliciter established a. title "adverse or independent ", what

need is there for a co-owner to prove ouster and what scope

remains for the operation of the rule? What need for a co-

owner to prove anything more than is required of a,

trespasser?

I would hold for the reasons stated that the 13th defendant

was entitled only to the one-third share which accrues to him

under the deed which created the fideicommissum, and that he

did not acquire any title by prescription to any other share. The

judgment of the District Judge has therefore to be affirmed,

subject to the correction of one error therein. As stated in the

judgment, it is only the fifth fideicommissary heir who holds

the property free of the fideicommissum. It was common

ground at the hearing of the appeal that none of the parties are

of the fifth generation. Accordingly, the .fideicommissum

attaches to all the shares allotted in the judgment and to the

proceeds of sale, except to the 1/9 share referred to by my

brother de Silva. I agree with the order proposed by him.

Appeal dismissed, subject to the correction of one error.

HUSSAIMA Vs A. L. UMMU ZANEERA Respondents Co-owners-Prescriptive

possession by a co-owner-Adverse title-Burden of proof- Fideicommissum for four

generations-Burden of proof regarding termination of successive interests and of

any disability-Prescription Ordinance, ss. 3, 13.

Volume 65, Page No 125 New Law Reports 125

[IN THE PRIVY COUNCIL]

1961 Present : Viscount Radcliffe, Lord Evershed, Lord Devlin,

Lord Pearce, and Sir Terence Donovan

PRIVY COUNCIL APPEAL No. 53 OF 1961

S. C. 260-D. C. Colombo, 6970/M

Co-owners-Prescriptive possession by a co-owner-Adverse title-

Burden of proof- Fideicommissum for four generations-Burden

of proof regarding termination of successive interests and of

any disability-Prescription Ordinance, ss. 3, 13.

A deed of gift executed on the 16th July, 1872, in respect of

certain property in the business district of Pettah, Colombo,

was alleged by the plaintiff to have created a fidei commissum

which continued in operation after the death of the grantor's

wife in favour of the descendants for four generations. In the

present proceedings for partition of that property the plaintiff

was the great-great-grand daughter of the grantor's wife and

there were numerous other parties. The 13th defendant was a

grandson of the grantor's wife, his father having been one of

her three children and her only son. He denied that the deed of

gift created a fidei commissum, and claimed to have acquired

exclusive title to the entirety of the property by prescriptive

possession. This claim was resisted by the plaintiff and all other

defendants who particularly relied on the proviso to section 3

and also on section 13 of the Prescription Ordinance.

The 13th defendant accepted the trial Judge's finding that the

deed of gift created a fidei commissum and he accepted also

that, having regard to their ages of minority, he could not

succeed against the plaintiff or the first or second defendant. It

was also shown that the trial Judge wrongly placed on the 13th

defendant the burden of proving the exact dates when the

successive interests of the other parties determined and when

any disability came to an end.

On the issue of prescription it was admitted by all parties other

than the 13th defendant " that the 13th defendant's father has

been in possession from prior to 1916 and that the 13th

defendant came into possession in 1916 ". It was also

admitted, in cross-examination, by the 2nd defendant, who

was called by the plaintiff that the 13th defendant " is

occupying these premises " and that " he has rented the use

and has collected the entire rent ". At the end of the record of

the plaintiff's evidence there was also again recorded the

plaintiff's admission "that from 1916 the 13th defendant

collected the rents". The 13th defendant did not himself give

any evidence.

Held, that the evidence that the 13th defendant " collected the

rents " for 37 years from 1916 till the time of the present

action in September 1953, was not by itself sufficient to prove

that a possession originally that of a co-owner became adverse

at some date more than ten years before the institution of the

action. The language of the admission and evidence upon the

face of it and according to its ordinary sense was limited to the

actual receipt or collection of the rents and was silent as to

their application. The point should also be noted that of a

Muslim family the 13th defendant was the son of the only son

of the original grantor's wife. Such facts, unsupplemented, fell

short of anything that amounted to an adverse title the onus of

proving which, by the terms of section 3 of the Prescription

Ordinance, lay on the 13th defendant.

126

APPEAL from a judgment of the Supreme Court reported in

(1959) 61 N. L. R. 261.

Hanan Ismail, for Appellants.

M. Markhani, with John Baker, for 5th to 8th Respondents.

Cur. adv. vult.

May 9, 1961. [Delivered by LORD EVERSHED]-

In their Lordships' opinion this appeal is one of considerable

difficulty and the question involved very much upon the

borderline ; but after careful consideration of the arguments

submitted to their Lordships by learned counsel their Lordships

have come to the conclusion, not for reasons later appearing,

without some regret, that they should humbly advise Her

Majesty to dismiss the appeal.

The appeal arises out of proceedings for partition begun nearly

ten years ago. The claim of the plaintiff, who has since died,

was that she was entitled to a share of certain property in the

business district of Pettah, Colombo, by virtue of a Deed

executed by one Ibrahim Lebbe Mohammadu Lebbe on the

16th July, 1872. The main question at the trial was whether

the Deed created an effective fidei commissum and if so

whether such fidei commissum continued in operation after the

death of the grantor's wife in favour of her descendants for four

generations. The plaintiff was a great-great-granddaughter of

the grantor's wife and, as might be expected, there were

numerous other parties to the proceedings. The 13th defendant

was a grandson of the grantor's wife, his father having been

one of her three children and her only son. The 13th defendant

has died since the trial and the appellants before the Board are

his four children, who were substituted in the proceedings for

the 13th defendant before the case came to be heard by the

Supreme Court of Ceylon. In addition to the question

concerning the fidei commissum the 13th defen¬dant before

and at the trial claimed to have acquired an exclusive title to

the entirety of the property by prescriptive possession pursuant

to section 3 of the Ceylon Prescription Ordinance No. 22 of

1871. This claim was resisted by the plaintiff and all the other

defendants who particularly relied on the proviso to section 3

and also on section 13 of the Ordinance. The proviso and

section referred to are set out in the judg¬ment of the Chief

Justice of Ceylon. For present purposes the relevance of these

terms of the Ordinance is that if the fidei commissum be

established and there was consequently a series of successive

interests in the property corresponding in substance to

successive beneficial interests under an English Trust then the

period of the prescription (unless it has then run its full course)

starts afresh on each transmission of interest and moreover

does not run against a beneficiary becoming entitled so long as

he or she is under a disability, such as infancy.

127

These being the issues raised in the action, it appears from the

record of the proceedings that when in due course the issues

involved came to be framed an admission was made by counsel

for the plaintiff. The admission was " that the 13th defendant's

father has been in possession from prior to 1916 and that the

13th defendant came into possession in 1916 ". When, after

the evidence had been called, counsel made their final

addresses it was stated by the learned counsel for the 13th

defendant that " on the first day the case came up for trial all

the parties agreed to the admission made by " counsel for the

plaintiff. There was some discussion before their Lordships

whether in truth all the parties had so agreed, but it appears

reasonably clear from the judgment of the District Judge and,

the judgments of the Supreme Court that the admission was

regarded as having been accepted by all the parties other than

the 13th defendant.

In the meantime the evidence had been given but in fact only

two witnesses were called. On the plaintiff's part, her brother

the second defendant gave evidence in support of the claim of

fidei commissum. In cross-examination on behalf of the 13th

defendant the following two questions and answers were

recorded :-

Q. " You know who is occupying these premises ?

A. . . . . . the 13th defendant is occupying these premises.

Q. Has he not rented the use to anybody ?

A. He has rented the use and has collected the entire rent. "

The only other witness called was the 11th defendant, whose

evidence was immaterial upon the question before the Board.

The 13th defendant did not himself give any evidence. At the

end of the record of the plaintiff's evidence there is also again

recorded the plaintiff's admission " that from 1916 the 13th

defendant collected the rents ".

Their Lordships have referred to the precise terms of the

admission and of the two questions and answers given in

evidence because, as things have fallen out, it is upon the

proper inference to be drawn therefrom that the decision of

this appeal must rest.

As their Lordships will later notice, the Chief Justice in the

Supreme Court (before which the 13th defendant's appeal

came in 1959) drew the inference that the admission and

evidence quoted justified the conclusion that from 1916 the

13th defendant had in fact enjoyed undisturbed and adverse

possession of the property within the meaning of the

Prescription Ordinance. The majority of the Supreme Court,

however, did not share the Chief Justice's view and held that

the 13th defendant had not proved such possession as section

3 of the Prescription Ordinance required.

Their Lordships think it most unfortunate, as things have

turned out, that the exact extent and meaning of the admission

by counsel was not clarified either at the time when it was

made or later when the case was before the District Judge, and

not the less so since it was first made, as previously stated,

when the issues in the case were being formulated. The

128

relevant issues so formulated were in fact those numbered 3

(b) and 4 and were to the effect-Had the 13th defendant been

in exclusive possession and acquired a prescriptive title to the

entirety of the property or to the shares therein of the plaintiff

and the other several defendants ? The learned District Judge

could undoubtedly have caused the scope of the admission to

be made clear but unfortunately did not do so, and having

regard to the view which the learned District Judge took it may

fairly be said that it was not necessary for his decision that he

should.

As already stated, the main question was that relating to the

alleged fidei commissum in 1872 and, as regards the claim of

the 13th defendant, the extent of the admission was in the

event immaterial because, in the view of the District Judge as

expressed in his judgment in February, 1956, it was having

regard to the terms of the proviso to section 3 of the Ordinance

for the 13th defendant to prove as regards each share in the

trust property what were the exact dates when the successive

interests therein determined and when any disability came to

an end. The District Judge held that the fidei commissum had

been validly established but he also held that the claim of the

13th defendant wholly failed because he had not at all

discharged the onus which the learned Judge thought lay upon

him of proving the several dates above mentioned.

The 13th defendant then appealed to the Supreme Court of

Ceylon. He accepted the District Judge's finding of the creation

of a fidei commissum and its extent and he accepted also that,

having regard to their ages, he could not succeed against the

plaintiff or the first or second defendant. The main argument

before the Supreme Court was whether the District Judge had

been right in the view taken by him as regards the burden of

proving the several dates above mentioned. Upon this point the

13tb defendant succeeded. Thereupon, and for the first time,

the scope and meaning of the admission and the two questions

and answers earlier quoted became vital to the conclusion of

the appeal. It was, however, made quite clear before their

Lordships that neither side then asked for a retrial or for any

order designed to obtain further clarification of the admission

and evidence. Each side was content to rest upon the terms of

the admission and of the answers given by the second

defendant as they were recorded, and the argument therefore

was as regards the proper inference to be drawn therefrom.

The judgments of the learned Judges in the Supreme Court

contain a careful review of authorities both English and

Ceylonese upon the proper application of the relevant terms of

the Prescription Ordinance in the case of one claiming a

prescriptive title whose occupation of the property in question

was or should be originally attributed to his interest as co-

owner ;particularly of the judgment of Lord Mansfield in the

English case of Doe d Fisher v. Prosser1[1 Cowp : 217.]and the

judgment of Bertram, C.J. in the Ceylonese case of Tillekeratne

et al. v. Bastian et al.2[(1918) 21 N. L. R. 12.]. Their Lordships

are content to accept the principles applicable as they were

expounded in the Supreme Court. Nor, indeed, were the

principles really

129

in dispute before their Lordships. The question, and the very

difficult question, has been of their application. In the

circumstances their Lord-ships are content to found themselves

for present purposes upon two passages in the judgment of

Bertram, C. J. at pp. 23 and 24 of the latter of the cases above

mentioned : " It may be taken, therefore, that it is open to the

Court, from lapse of time in conjunction with the

circum¬stances of the case, to presume that a possession

originally that of a co-owner has since become adverse." " It is,

in short, a question of fact wherever long continued exclusive

possession by one co-owner is proved to have existed whether

it is not just and reasonable in all the circumstances of the case

that the parties should be treated as though it had been proved

that that separate and exclusive possession had become

adverse at some date more than ten years before action

brought." As already observed the learned Chief Justice in the

present case felt able to draw from the admission and the

questions and answers of the second defendant the requisite

inference in favour of the 13th defendant. In the course of his

judgment he said : " It would appear, therefore, that on the

facts of the instant case the co-owners cannot claim the benefit

of the appellant's possession as he had possession not on their

behalf but for himself without giving them their share of the

rent ". And again : " There is no evidence that till the time of

this action in September 1953 anyone has ever questioned the

appellant's right to take the rent during these 37 years." In

other words, it was the view of the learned Chief Justice that in

the absence of any other evidence on either side than that

quoted, the proper inference to be drawn from such evidence

and the admission was that the 13th defendant not only

received and collected the rents but applied them for his own

purposes without any accounting to any other members of the

family. As their Lordships have also stated, De Silva and

Fernando J J were unable to accept the conclusion which had

appealed to the Chief Justice. In each of their respective

judgments forcible attention was drawn to the fact that the

13th defendant (on whom by the terms of sec¬tion 3 of the

Ordinance the onus of proof lay) had forborne to give evidence

himself and to the absence of any evidence regarding such

matters as the amount of the rents received or outgoings

discharged or to the existence of any document or writing

executed by the 13th. defendant consistent with his claim to be

exclusive owner of the property. Mr. Ismail for the appellant,

stressed, naturally enough, the great length of time during

which, on any view, according to the admission and evidence,

the 13tb defendant and his father bad clearly in fact been in

receipt of and collected the rents : and if (as he said) the 13th

defendant had failed to give negative evidence that he had

never accounted to any other members of the family there had

been on the other side no positive evidence from or on the part

of any one of the other parties that he or she or any other

members of the family had at any time received anything from

the property or made any claim in respect thereof. Mr. Ismail

also criticised (in their Lordships' opinion justly) the view of the

majority of the Supreme Court that if the admission of counsel

had been meant to have the scope and meaning for

130

which the appellants contended there would have been no

point in going on with the trial. Such a view, as their Lordships

venture to think, loses sight of the fact that at the trial the

relevant question which the District Judge had to decide was

concerned with the dates of the coming into existence of the

successive interests in the property, having regard to the terms

of the Prescription Ordinance which prevent time running

against persons under a disability and which require or may

require time to begin to run again whenever a new interest

comes into existence.

Their Lordships have been very conscious of the force of Mr.

Ismail's contentions, but since, as already stated, both sides

before the Supreme Court were content to rest upon the

ordinary meaning and inferences to be drawn from the

admission and the second defendant's two answers, they have

felt unable to conclude that the majority of the Supreme Court

were not justified in refusing to draw from the admission and

the answers such an extended scope and meaning as the

appellant's case inevitably re quires. After all the language of

the admission and evidence upon the face of it and according

to its ordinary sense was limited to the actual receipt or

collection of the rents and was silent as to their application.

Their Lordships have noted also the point made by De Silva J.

that of this Muslim family the 13th defendant was the son of

the only son of the original grantor's wife. Such facts

unsupplemented, fall short of proving anything that amounted

to an adverse title.

Their Lordships repeat, none-the-less, that they have felt some

regret at reaching a conclusion based as it is upon the

inference proper to be drawn from such meagre premises as

the recorded admission by counsel and the two short answers

given by the second defendant in cross-examination-

particularly since their Lordships cannot help feeling that the

true facts might at the time of the trial have been so easily

discovered. Their Lord¬ships were therefore disposed at one

stage to think that in the interests of justice a new trial should

be ordered. On the whole, however, their Lordships have

decided against such an Order. In reaching their final

conclusion their Lordships have attached weight to these

considerations : first that before the Supreme Court, both sides

were content deliberately to take their stand upon the

admission and evidence as they stood : second that the 13th

defendant is now dead: third, that it is now ten years since this

litigation began and if the matter were reopened upon a fresh

trial, the value of the property, situated though it is in a

business quarter of Colombo, appears on the material before

their Lordships not to be very great and to be therefore

somewhat disproportionate to the costs that would or might be

incurred in addition to those incurred already ; and finally their

Lordships have in mind that the appellants are in any case

entitled to a one-third interest in the property (to which should

be added the sum of Rs. 1,000 which is conceded to be payable

to them out of the pro¬ceeds of sale of he property by way of

recoupment of moneys spent by the 13th defendant upon

drainage works) and have conceded before the Board (as they

did before the Supreme Court) that their claim cannot be

sustained in respect of one-fourth of another one-third share in

the property.

131

In all the circumstances therefore their Lordships will humbly

advise Her Majesty that the appeal should be dismissed. The

appellants must pay the respondents' costs before the Board.

DANTON OBEYESEKERE vs ENDORIS Co-owners-Separate possession of a portion

of the co-owned land by one of the co-owners-Inference of prescriptive possession

and title.

NLR Volume 66, Page No 457

962 Present: Sansoni, J., and Silva, J.

S. C. 141/60-D. C. Gampaha, 3993/P

Co-owners-Separate possession of a portion of the co-owned

land by one of the co-owners-Inference of prescriptive

possession and title.

A two-third share of a co-craned land containing in extent

about two roods was possessed separately for over twenty

years by the 1st defendant and his predecessors in title. It was

not separated off for mere convenience of possession and as a

temporary arrangement. It was much more likely that it was

intended as a permanent mode of possession by an outsider

when she bought the share from two of the co-owners.

Held, that the lot so separated off ceased, with the lapse of

time and exclusive possession, to be held in common with the

rest of the land. Those who possessed it were entitled to claim

that they acquired prescriptive title to it. The. mere mention of

undivided shares in subsequent deeds could not affect the true

position.

APPEAL from a judgment of the District Court, Gampaha.

Frederick W. Obeyesekere, for the 8th

Defendant-Appellant.

H. W. Jayewardene, Q.C., with W. D.

Gunasekera and Ranjit Dheeraratne, for the Plaintiff-

Respondent.

Cur. adv. vult.

August 30, 1962. SANSONI, J.-

The Plaintiff brought this action to have a land called

Kadurugahawatte partitioned. That land is described in the

Schedule to the plaint as bounded on the North by the live

fence of a portion of this land of Lawaris Naide, East by the

High Road, South by the live fence of the land of A. Thomis and

West by the live fence of the land of Lawaris Naide and another

containing in extent about two roods. The northern boundary is

of some importance, as will appear later in this judgment.

According to the plaint, Danchi Naide was the original owner,

and he died leaving as his heirs his wife Kiri Nachchire and 3

children Poddi, Migel and Tamby. Poddi and her mother

transferred to the other two heirs their 2/3 share of the land by

deed 8D1 of 1899, so that Migel and Tamby thus became the

owners of a 1/2 share each. They by deed 8D2 of 1905 sold an

undivided 2/3 share to Maria Elizabeth Fernando,

458

who by deed 8D3 of 1909 transferred that share to Cornelia

Henrietta Obeyesekere, who by deed 8D4 of 1935 transferred

that share to the 1st Defendant.

The 1st Defendant died pending this action. The 8th Defendant

is his legal representative, and his heirs are the 7th to the 11th

Defendants.

The Plaintiff averred in the plaint that Migel died, leaving him

and Elisahamy as his heirs, each thereby becoming entitled to

1/12 share, and that Elisahamy by deed 2D1 of 14th December

1953 transferred her share to the 2nd Defendant, that Tamby

died leaving as his heirs 4 children namely, Lisohamy, Rapiel,

Rosahamy and Podina, and the two former by deed P1 of

December, 1953 transferred their 1/12 share to the Plaintiff,

and the two latter by deed 2D2 of 15th December 1953

transferred their 1/12 share to the 2nd Defendant. Thus the

Plaintiff claimed to be entitled to 2/12ths, and he allotted 8/12

to the 1st Defendant and 2/12 to the 2nd Defendant.

When the Surveyor went to make the preliminary plan, the

Plaintiff pointed out a block of 21 perches as shown in Plan Y as

the corpus. The 1st Defendant's representative disputed this

and stated that it represented only a divided portion of the

entire land which the 1st Defendant possessed, and that the

rest of the land lay towards the North. A fresh commission was

issued and a new plan X was made, in which the original 21

perches was shown as Lot C, and the Lots A and B lying to the

North of it were, as pointed out by the 1st Defendant's

representative, depicted as the rest of the land.

Answers wore thereafter filed. The 1st Defendant pleaded that

he had acquired prescriptive title to Lot C of 21 perches, and

that the entire land consisted of Lots A, B and C. The 2nd

Defendant in his answer agreed with the Plaintiff with regard to

the corpus to be partitioned. He also pleaded that Lots A and B,

which were subsequently surveyed, were another land

belonging exclusively to him and the 6th Defendant. The 6th

Defendant's answer agreed with that of the 2nd Defendant.

At the trial points of contest were framed on these lines. The

Plaintiff and 2nd and 6th Defendants claimed, as against the

8th Defendant, that Lot C of 21 perches represented the entire

land described in the schedule to the plaint. The 8th Defendant,

as the 1st Defendant had done, claimed Lot C upon prescriptive

possession.

With regard to Lots A and B the position of the 2nd and 6th

Defendants was that Amarabandu and his wife, Podihamy, had

acquired interests in those Lots upon deeds 2D5 of 1917 and

2D6 of 1939 which conveyed respectively 1/5 and 1/10 shares

of a land called Kadurugahawatte of about 2 roods bounded on

the North by the live fence of the land owned by Peduru Perera

and others, on the East by the Main Road, on the South by the

live fence of a portion of this land owned by Juanchi (probably

another name for Danchi) Naide, and on the West by the live

fence of the land called Meegahawatte. The 6th Defendant,

who is the son of Amarabandu and Podihamy, acquired 2/15

share of that land on deed 2D7 of

459

1937, and also received a gift from his parents of their

interests upon 2D4 of 1951. By deed 2D3 of 1952 he sold 3/8

share to his brother-in-law the 2nd Defendant, and he would

have been left with a very small share.

The learned District Judge held that Lot G was the entire land

that Danchi Naide owned. He also held that the 1st Defendant

had not acquired a prescriptive title to it. He accordingly

entered an interlocutory decree against which the 8th

Defendant has appealed.

It is necessary first to refer to the conduct of the 2nd

Defendant as disclosed in earlier actions. Having obtained deed

2D3 in June 1952, he destroyed a barbed wire and live fence

which separated Lot C from the land to the north of it in

November 1952. He was charged in the Magistrate's Court,

Gampaha, by the 1st Defendant and pleaded guilty of the

offence of mischief. He refused, in breach of an undertaking

given by him, to allow the fence to be erected, and he was

sued in the Court of Requests, Gampaha, and was ordered to

pay damages to the 1st Defendant. While that action was

pending he purchased the shares mentioned in 2D1 and 2D2

while the Plaintiff bought a share on deed P1 at the same time.

Bearing on the question of prescription are two plans which

have been produced. A plan 8D8 of 1949 made at the instance

of the 1st Defendant depicts the fence which has been

destroyed. It shows Lot C lying between that fence on the

north and a wire fence on the south as the property of the 1st

Defendant. A still earlier plan 2D9 of 1938 produced by the 2nd

Defendant is illuminating. It depicts the land lying to the north

of Lot C. The abutting land on the south, corresponding to Lot

C, is described as " Land of Mrs. J. P. Obeysekera " (the

transferee on deed 8D3). It is most unlikely that Lot C would

have been so described if it had not "been regarded at that

time as her property and possessed as such. While there are

only one coconut and one beli tree on Lot C there is also a

boutique on it, and the oral evidence is overwhelming that the

1st Defendant and his predecessors in title possessed that

divided lot exclusively and collected the rent from the boutique.

The evidence of the 2nd Defendant, who was the only witness

called for the Plaintiff, is plainly unreliable where it is not false.

In any event he does not claim to have known these lands

before 1947.

As to whether Lot C alone represents the entirety of

Kadurugahawatte of about 2 roods which the Plaintiff seeks to

partition, the first matter which goes against that view is the

extent. 21 perches (or 27 perches if one includes the extent of

the V. C. road adjoining it) is nowhere near two roods. The

main argument of Mr. Jayewardene, however, was that Lots A

and B now belong to persons who have succeeded to Lawaris

Naide's interests and he relied strongly on the northern

boundary in deeds 8D1 to 8D4. No doubt these deeds show

that Lawaris Naide's land adjoined Danchi Naide's land, but

they do not help us to fix the location of either land. The fence

which the 2nd Defendant destroyed was not, in my view, the

boundary fence of Danchi Naide's land, but only the fence

separating 1st Defendant's divided 2/3 share from the balance

460

1/3 share. Danchi and Lawaris were related to each other and

they are said to have brought up Amarabandu. They may well

have possessed their adjacent lands in one continuous extent,

as the evidence of their kinsman Alberis called by the 8th

Defendant seems to show. When the outsider Maria Elizabeth

Fernando bought in 1905, however, her share would have been

separated off by erecting the fence which the 2nd Defendant

later destroyed.

Separate possession of that f share for over 20 years has been

clearly proved, and those who possessed it are entitled to claim

that they have acquired prescriptive title to it. I do not think

this is a case where a lot was separated off for mere

convenience of possession and as a temporary arrangement. It

is much more likely to have been intended as a permanent

mode of possession, and the lot so separated off would, with

the lapse of time and exclusive possession, cease to be held in

common with the rest of the land. Each case must be

considered in the light of the proved circumstances, and the

mere mention of undivided shares in subsequent deeds will not

affect the true position. I think that if the learned District Judge

had considered the case in this way, he would have held that

the land depicted in plan Y does not belong in common to the

parties but only to the heirs of the 1st Defendant.

I would accordingly set aside the judgment and decree of the

lower Court and dismiss the plaintiff's action. Since the 8th

Defendant had to fight the Plaintiff as well as the 2nd and 6th

Defendants at the trial, he is entitled to recover his costs of

contest in the lower Court from them. The plaintiff-respondent

will pay the 8th Defendant's costs of the appeal.

SILVA, J.-I agree.

Volume 71, Page No 338

View - Volume 71

New Law Reports

338

1967 Present : Tambiah, J., and Siva Supramaniam, J.

G. SIMON PERERA, Appellant, and D. J. JAYATUNGA et al.,

Respondents

S. C. 1/66 (Inty.)-D. C. Panadura, 8551/P

Partition action-Amicable division of property without execution

of deeds-Prescription as between the co-owners thereafter-

Ouster-Quantum of evidence.

The question whether a co-owner has acquired prescriptive title

to a divided lot as against the other co-owners is one of fact

and has to be determined by the circumstances of each case.

339

A land was owned in common by members of one family. An

undivided one-third share of it was purchased by one B, an

outsider, who was already the owner of an adjoining land.

Thereafter, without execution of any deeds there was an

amicable division among the co-owners in pursuance of which

B possessed a divided lot exclusively for nearly thirty years in

lieu of her undivided share. She had not only annexed this lot

to her own adjoining land but had also separated it off from the

rest of the common land by erecting a parapet wall of a

permanent nature.

Held, that there was sufficient evidence of ouster and that B

had acquired, as against the other co-owners, prescriptive title

from the time of ouster in respect of the lot which she

possessed exclusively in pursuance of the amicable division.

APPEAL from an order of the District Court, Panadura.

C. Thiagalingam, Q.C., with Ralph de Silva, for the plaintiff-

appellant.

N. E. Weerasooria, Q.C., with S. W. Walpita, for the 2nd

defendant-respondent.

Cur. adv. vult.

June 20, 1967. TAMBIAH, J.-

I am in agreement with the views expressed by my brother

Siva Supramaniam J. It is unnecessary to recapitulate the facts

which have already been dealt with by him, but I wish to add

my own observations on the question of law raised by Mr.

Thiagalingam.

The question as to whether a co-owner has prescribed to a

particular lot is one of fact in each case. The rule laid down by

Their Lordships of the Privy Council in Corea v.

Appuhamy[1(1911) 15 N. L. R. 65. ] and in Brito v.

Mutunayagam[2(1918) A.C. 895, 20 N. L. R. 327.] that if

possession is referable to a lawful title it cannot be treated as

adverse, is however modified by the theory of counter

presumption set out in Tillekeratne v. Bastian[3(1918) 21 N. L.

R. 12.]by a Full Bench of this Court.

In Tillekeratne v. Bastian (supra) Bertram C.J. succinctly stated

the principle as follows (at page 24):-

" It is, in short, a question of fact, wherever long-continued

exclusive possession by one co-owner is proved to have

existed, whether it is not just and reasonable, in all the

circumstances of the case that the parties should be treated as

though it had been proved that that separate and exclusive

possession had become adverse at some date more than ten

years before action brought."

340

In Hameedu Lebbe v. Ganitha[1(1920) 27 N. L. R. 33.] it was

contended that the ruling in Tillekeratne v. Bastian (supra) was

inconsistent with the decision in Brito v. Mutunayagam (supra).

However, in that case, the Divisional Court held that there was

no inconsistency in the principles laid down in these two cases.

Where a co-owner seeks to establish prescriptive title against

another co-owner by reason of Jong and continued possession

it is a question of fact depending on each case for a court to

decide whether it is reasonable to presume an ouster from the

exclusive possession by a co-owner for a long period of time.

This principle had been applied in Rajapakse v. Hendrick

Singho[2(1959) 61 N. L. R. 32.].

The limits of the rule that possession by a co-owner is not

adverse possession was defined in Cully v. Deod

Taylerson[3(1840) 11 Ad. & E. 1088 ; 9 L. J. Q. B. 288 ; 3 P. &

D. 539.]as follows :-

" Generally speaking, one tenant-in-common cannot maintain

an ejectment against another tenant-in-common, because the

possession of one tenant-in-common is the possession of the

other and to enable the party complaining to maintain an

ejectment, there must be an ouster of the party complaining.

But where the claimant, tenant-in-common, has not been in

the participation of the rents and profits for a considerable

length of time, and other circumstances concur, the Judge will

direct the jury to take into consideration whether they will

presume that there has been an ouster . . . . . . and if the jury

finds an ouster, then the right of the lessor of the plaintiff to an

undivided share will be decided exactly in the same way as if

he had brought his ejectment for an entirety."

This dictum was cited with approval by Viscount Cave who

delivered the opinion of the Privy Council in the case of Varada

Pillai v. Jeevarathnammal[4(1919) A. I. R. (P. C.) 44 at 47.]

In the instant case, the learned District Judge has found that

after Baby Nona purchased a share there had been an amicable

division among the co-owners in pursuance of which Baby Nona

possessed lot 3 in plan X filed of record as her exclusive

property. She not only annexed this lot to the land on the East,

which was her property, but also constructed a wall, which is in

the nature of a permanent structure to a length of 144 feet and

possessed this portion exclusively without paying any rent or

acknowledging title in others for a period of nearly thirty years.

In view of these findings the learned District Judge has

legitimately come to the conclusion that there has been an

ouster and the second defendant and his predecessors have

exclusively possessed this land for the prescriptive period from

the time of ouster. There is no reason for us to disturb this

finding of fact.

For these reasons I hold that the learned District Judge was

right in excluding lot 3 from the land sought to be partitioned

in this case and I dismiss this appeal with costs in both courts.

341

SIVA SUPRAMANIAM, J.-

This is an appeal from the order of the District Judge excluding

a divided portion from the land sought to be partitioned on the

ground that the 2nd defendant who had originally been a co-

owner of the land had acquired prescriptive title to that portion

subsequent to an amicable division of the land.

Lots 1-5 on plan No. 654 (marked X) depict the land sought to

be partitioned in this case. The land comprising these lots

(hereinafter referred to as the said land) is shown as divided

lot 2 on plan 1D3.

It is common ground that Kossinage Podinonahamy became

entitled to the said land as well as to the land shown as lot 3

on the said plan 1D3 upon deed No. 1209 dated 21.9.1919

(P1). By deed No. 18326 of 26.12.1919 (1D1), she transferred

an undivided 2/3 share of the said land to R. V. Don Jamis and

R. V. Dona Nonahamy (3rd defendant). By deed No. 18327 of

the same date she transferred her interests in the divided lot 3

to Baby Nona (7th defendant) wife of Don Haramanis (6th

defendant). By deed No. 8744 dated 14.3.1934 (2D1) R. V.

Dona Nonahamy transferred her 1/3 share in the said land to

the aforesaid Baby Nona who by deed No. 13167 of 15.6.1961

(2D2) donated her rights to P. D. Ariyawardena (2nd

defendant) subject to life interest in favour of herself and her

husband. R. V. Don James died in 1954 leaving as heirs to his

1/3 share the afore-mentioned R. V. Dona Nonahamy and

Kossinage Podinonahamy both of whom by deed No. 462 dated

3.9.1959 (1D2) donated that share to Don Themis Jayatunge

(1st defendant). By deed No. 12026 of 14.8.1958 (P2)

Podinonahamy transferred a 1/3 share (which remained after

the execution of 1D1) to Turin Perera who by deed No. 16682

of 14.12.1962 (P3) transferred the same to Simon Perera, the

plaintiff. The plaintiff instituted this action for a partition of the

said land on the basis of the afore-mentioned shares and

interests.

It is in evidence that Babynona was an outsider while the other

co-owners were members of one family. When she purchased a

1/3 share of the said land she was already the owner of the

eastern land (the divided lot 3 of plan 1D3). The 2nd

defendant's case was that by common consent of the co-

owners the said land had been amicably divided in 1935, that

Babynona's share had been separated off from the rest of the

land and that thereafter Babynona had exclusively possessed

lot 3 (on plan X) along with the eastern land as her separate

property and had acquired prescriptive title to the said lot.

After the separation of a divided lot in lieu of her interests,

Babynona had erected a parapet wall along part of the

boundary between lots 2 and 3 (on plan X) and a barbed wire

fence along the remainder of the boundary. The 2nd defendant

claimed an an exclusion of lot 3 (on plan X) from the land

sought to be partitioned. The learned Judge upheld the

contention of the 2nd defendant and ordered the exclusion of

lot 3.

342

Learned Counsel for the appellant canvassed the correctness of

the finding on the following grounds :-

(a) That the alleged amicable division was of no avail in law

and could not form the starting point of prescription by

Babynona, as James, one of the co-owners, was of unsound

mind at that time and was incapable of giving his consent to

such division.

(b) That the possession of lot 3 by Babynona was referable to

lawful title and was therefore not adverse to the other co-

owners.

(c) That no deeds were executed to confirm the alleged

division, and

(d) Podinonahamy and Nonahamy dealt with undivided shares

of the land even after the date of the alleged division.

As regards ground (a) learned Counsel for the appellant relied

on certain answers given under cross-examination by

Nonahamy (3rd defendant), Haramanis (6th defendant) and a

witness named Don Davith.

Nonahamy's evidence was as follows :-

XXd. " Q. He (Don James) was as a matter of fact insane ?

A. Yes.

Q. A good time of his life he was chained to a bed ?

A. Yes."

Haramanis stated as follows :-

XXd. "Q. She (Nonahamy) gave evidence stating right through

that her brother was insane.

A. He was not insane all throughout.

Q. He was most of the time insane ?

A. Now and then he was insane."

Don Davith gave the following evidence :-

XXd. " Q. For what period of time was James insane ?

A. About 25 years.

Q. He died in 1954 ?

A. Yes.

Q. He was mad from 1929 ?

A. Yes."

. . . . . . .

To Court.

Q. From 1929 till he died he was mentally unsound ?

A. From 1930 he was a little better in his senses.

343

XXd. Q. You stated he was right through ill ?

A. He became insane in about 1912 or 1913. From 1930 he

was a little better."

It is not possible to draw an inference from the evidence

quoted above that in 1935, at the time of the alleged amicable

division of the land, James was of unsound mind and was

incapable of giving his consent to such division or that

prescription could not begin to run against him by reason of

such incapacity. The burden was on the plaintiff to establish

such incapacity. The question should have been specifically

raised as one of the points of contest between the parties.

Even at the stage at which the evidence referred to above was

given by the witnesses, the plaintiff refrained from raising it as

a point of contest. The vague evidence given by the witnesses

under cross-examination was insufficient for the plaintiff to

discharge the burden that lay on her. The learned trial Judge

was ' therefore justified in not adverting to this question in the

course of his judgment, before arriving at his finding on the

issue of prescription.

It was also submitted by learned Counsel for the appellant that

in his pleadings the 2nd defendant had not mentioned James

as one of the persons who had given his consent to the

amicable division. But the sworn testimony of Nonahamy,

Haramanis and Don Davith was that all the co-owners were

parties to the amicable division and this testimony has been

accepted by the trial Judge.

The question whether one of the co-owners has acquired

prescriptive title to a divided lot is one of fact and has to be

determined by the circumstances of each case. A reference to

undivided shares in deeds executed after the date of the

alleged division is not conclusive of the question (vide Danton

Obeyesekere v. Endoris[1(1926) 66 N. L. R. 457.]). An

amicable division among the co-owners can be the starting

point of prescription although no cross conveyances or other

document have been executed by them.

Unlike a fence, a parapet wall is of a permanent nature and the

fact that Babynona and Haramanis constructed a parapet wall

144 feet in length (though not covering the entire length of the

boundary) between their divided portion and the rest of the

land and that they incorporated that divided portion with the

eastern land of which they were owners and exclusively

possessed the whole as one entity for nearly 30 years are

circumstances from which ouster of the other co-owners from

the divided lot can reasonably be inferred.

In the instant case, as stated above, the trial Judge has, in

addition, accepted the evidence that the exclusive possession

of the divided lot was after an amicable division of the land by

the co-owners.

344

There is a further circumstance which strengthenes the case of

the 2nd defendant. The transfer deed P 3 in favour of the

plaintiff describes the share purchased by her as follows:-

" The undivided 1/3 share belonging to Pulikkuttige Haramanis

Baas being excluded, an undivided half share of the soil of the

remaining undivided 2/3 share."

The deed P2 in favour of the plaintiff's vendor by

Podinonohamy described the excluded portion as being on the

eastern side.

Learned Counsel for the appellant laid stress on the fact that

the deeds P2 and P3 do not refer to the portion excluded as a

divided share. The description in the deeds is, no doubt,

inaccurate but apparently what was meant was that a portion

representing the undivided 1/3 share was being excluded. This

is made clear by the fact that what the plaintiff purchased was

not an undivided 1/3 share of the whole land (which would

have been the description if the land was still undivided) but "

an undivided half of the remaining 2/3 share ", i.e., the portion

representing the remaining 2/3 share after the exclusion of

Haramanis's share on the eastern side.

It is also clear from the evidence that in 1962 when the plaintiff

and the 1st defendant got Surveyor Atureliya to survey the

land of which they were the co-owners, they excluded the

portion to the east of the parapet wall from the corpus and it

was only when the plaintiff found that there was a short fall in

the extent in the corpus to the west of the parapet wall that

she decided to take up the position that the whole land was still

undivided.

For the foregoing reasons I am of the opinion that the learned

Judge was right in excluding lot 3 (on plan X) from the land

sought to be partitioned in this case.

I dismiss the appeal with costs.

P. K. J. NONIS vs H. D. PETHTHA Co-owners-Informal

partition of a number of lands-Exclusive possession, by

one co-owner, of a specified land thereunder-Adverse

possession-Prescription Ordinance (Cap. 68), s. 3 73

New Law Reports Page No 1

Co-owners-Informal partition of a number of lands-Exclusive

possession, by one co-owner, of a specified land thereunder-

Adver8e possession-Prescription Ordinance (Cap. 68), s. 3.

1969 Present: Lord Morris of Borth-y-Gest, Lord Donovan,

Lord Wilberforce, Lord Pearson, and Lord Diplock

and another, Repondents

PRIVY COUNCIL APPEAL NO. 32 OF 1968

2. C. 436/64 (F)-D. U. Kuliyapitiya, 784/P

In consequence of an informal partition of a number of

lands which belonged to three co-owners in equal one third

undivided shares, the first respondent, who was one of the co-

owners, was in exclusive possession for ten years thereafter of

a specified land which was allotted to him under the informal

document.

Held, that the first respondent acquired prescriptive title to

the specified land as against the other co-owners.

APPEAL from a judgment of the Supreme Court.

E. P. N. Gratiaen, Q.C., with Brian Sinclair, for the

plaintiff'-appellant.

M. P. Solomon, for the defendants-respondents.

Cur. adv. vult.

2

December 2, 1969. [Delivered by LORD WILBERFORCE]-

The action in respect of which this appeal is brought was

a partition action, brought by the appellant against the two

respondents, seeking a declaration that the appellant was

entitled to an undivided one third share of certain land

described in the Plaint and for partition of the land. This claim

was rejected by the District Court of Kuliyapitiya and, on

appeal, by the Supreme Court of Ceylon.

The lands in question which consisted of some 7 acres

comprised in three Crown Grants dated 20th September 1913,

20th February 1914 and 10th May 1919, had belonged, at the

last mentioned date to Horatalpedi Durayalage Peruma who

amalgamated them into a single parcel. By a Deed of Gift No.

2452 dated 17th July 1924 Peruma gifted them in equal

undivided shares to his children the first respondent, the

second respondent and one Sekara. Sekara, by Deed No.

29662 dated 18th March 1960, sold his share to one

Sumanadasa, who in turn by Deed No. 820 dated 26th July

1962, sold it to the appellant. Thus, according to the

documentary title, the appellant and the two respondents were

each entitled to a one third undivided share. The first

respondent however contended that he had become entitled to

the whole of the 7 acres in question by prescription.

Before the year 1947 it appears that the 7 acres in

question were in the occupation of and were farmed by the first

respondent. The appellant's predecessor, Sekara, and the

second respondent were in occupation of, and farming, other

lands, specified in the Statement of the first respondent dated

17th July 1963, of approximately 14 acres, which, it appears,

had also been derived from Peruma. These 14 acres, according

to the first respondent, and this does not seem to be disputed,

were similarly owned in one third undivided shares by the three

sons of Peruma. It is not contended that prior to 1947 any of

the three brothers had acquired any separate title either to the

7 acres now in dispute or to the 14 acres.

The contention of the first respondent was that on 26th

June 1947 an informal partition occurred by which the first

respondent was allotted the 7 acres in dispute, and the

appellant's predecessor, Sekara, and the second respondent,

jointly, the 14 acres; that this was acted upon so that

thereafter the 7 acres were possessed and enjoyed by the first

respondent to the total exclusion of the other two co-owners.

In consequence, as the first respondent claimed, he became,

prior to the date of the Plaint (namely 7th December 1962),

entitled to the 7 acres by prescription.

Prescription under the Law of Ceylon is regulated by the

Prescription Ordinance (1956), Cap. 68. Section 3 contains the

following provision:

"3. 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 o the claimant or

plaintiff in such action (that is to say, a

3

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 10

years previous to the bringing of such action, shall entitle the

defendant to a decree in his favour with costs. . .

It will be observed that this contains, by the words in

parenthesis, what is in effect a definition of what is commonly,

for convenience, referred to as adverse possession.

In relating this provision to the case of co-owners, it must

be borne in mind that separate possession by an individual co-

owner of part of the property in common ownership may, and

often does, occur and continue for a considerable period,

purely for reasons of convenience, and that in order to displace

the title of the other co-owners, clear and strong evidence of

possession exclusive of the other co-owners, and inconsistent

with the continuation of the co-ownership is required. (See

Simpson v. Omeru Lebbe 1 per Soertsz S.P.J. [1 (1947) 48 N.

L. B. 112.] ). And, as was explained by Lord Macnaghten in

delivering the Board's judgment in Corea v. Appuhamy 2,[2

(1912) A- C. 230, 236; 15 N. L. R. 65. ] a mere intention in the

mind of one co-owner to displace the others is not sufficient to

constitute " adverse " possession.

But, side by side with this basic rule, the Courts of Ceylon

have recognised that acts of an informal character, falling short

of a partition effective in law, may be sufficient to found a

prescriptive claim.

In Tillekeratne v. Bastian3 [3 (1918) 21 N. L. R. 12.] it

was held to be a question of fact, wherever long continued

exclusive possession by one co-owner is proved to have

existed, whether it is not just and reasonable in all the

circumstances of the case that the parties should be treated as

though it had been proved that separate and exclusive

possession had become adverse at some date more than 10

years before action brought. And in Kirimenika v. Menikharny4

[4 (1921) 22 N. L. B. 510.] the alternatives were contrasted of,

on the one hand, an informal but definite partition, where each

party enters into possession of his share and, on the other, a

permissive arrangement. In the first case, title by prescription

might be acquired, and even in the second case this might

follow if the arrangement continued so long that on equitable

grounds it might be presumed that possession became

adverse. These decisions have been followed and applied in

later cases-see De Mel v. De Alwis 5; [ 5 (1934) 13 C. L. Rec.

207. ] Bandara v. Sinnappu 6-[ 6 (1946) 47 N. L. R. 249. ]

The latter case cites with approval a passage from the

judgment of De Sampayo J. in Mailvaganam v. Kandaiya 7 -[

7(1915) 1 C. W. R. 175. ] which is apposite to the present case

"There is no physical disturbance of possession

necessary-it is sufficient if one co-owner has to the knowledge

of the others taken the land for himself and begun to possess it

as his own exclusively.

4

This sole possession is often attributable to an express or

tacit division of family property among the heirs, and the

adverse character of exclusive possession may be inferred from

circumstances."

To apply these authorities to the present case: it was

pleaded by the first respondent that on 26th June 1947 the

three brothers exchanged with one another their interests and

that on this exchange the disputed 7 acres were allotted to

him. The issues as framed by the learned district judge

contained the following:

"(4) Did Petta the first defendant, Sekera and

Wattuwa exchange their lands as described in para. 5 of the

statements of the first defendant.

(5) As a result of such exchange, are the

premises in suit, in the - exclusive possession of Petta the first

defendant."

The first (defendant) respondent gave evidence in

support of his contention that there had been an exchange in

1947 and produced a document, signed by all three brothers

on 26th June 1947, which evidenced the division. Neither the

appellant, nor the second respondent gave evidence, and the

judge accepted the first respondent's evidence. He answered

the two issues (4) and (5) in the affirmative. His judgment was

upheld on appeal; and not surprisingly it was argued that there

were such concurrent findings of fact as should preclude their

re-examination by the Board.

The argument of the appellant was based upon the

terms of the document of 26th June 1947. This, it was said,

merely continued a pre-existing state of affairs-the parties

"agree to possess as possessed earlier until deeds are

executed." It contemplated a future partition by notarially

attested deeds: meanwhile the co-ownership was to be

preserved, the first respondent's possession was never adverse

but was, as it had previously been, on behalf of the co-owners.

There are arguments upon the language of the

document alone which cast doubt upon the validity of this

contention, but their Lordships are reluctant to place much

weight upon verbal expressions in a writing of this character,

prepared as it was by a coconut dealer who was the uncle of

Sumanadasa, and written in Sinhalese from which a translated

version was before the Court. It was clear from the evidence,

that the document, so far from being intended to preserve the

status quo, was drawn up as part of an arrangement which was

meant to resolve certain difficulties between the co-owners, by

attributing to the first respondent on the one hand, and to

Sekara and the second respondent on the other, separate

properties which thenceforth would be separately enjoyed.

The learned district judge accepted this view of the

matter and held that thereafter, in fact, the lands in dispute, as

well as the other lands, were to be and were exclusively

enjoyed by the first respondent and by his brothers

respectively. There was ample evidence on which he could so

hold. The case is, in the opinion of their Lordships, dearly one

of

5

an informal partition, acted upon by the assumption, as from

June 1947, of exclusive possession. This exclusive possession

having continued for more than 10 years prior to the issue of

the Plaint, the first respondent succeeded in establishing a title

by prescription.

Their Lordships will therefore humbly advise Her

Majesty that this appeal be dismissed. The appellant must pay

the costs of the appeal.

Appeal dismissed.

U. G. JAYANERIS VS U. G. SOMAWATHIE Volume 76 New Law Reports Page No

206Partition action-Claim to part of corpus by the contesting defendants on basis

of prescriptive possession-Possession by same person as agent of the contesting

defendants and on behalf of some of the co-owners-Adverse possession-Burden of

proof

206

1968 Present: T. S. Fernando, J., and Weeramantry, J.

S. C. 41/66 (Inty.)-D. C. Galle, 2504/P

Partition action-Claim to part of corpus by the contesting

defendants on basis of prescriptive possession-Possession by

same person as agent of the contesting defendants and on

behalf of some of the co-owners-Adverse possession-Burden of

proof.

The 7th, 8th and 9th defendants, who were the contesting

defendants in a partition action, claimed an undivided one-sixth

share of the corpus on the basis of prescriptive possession.

Their claim was based on the possession of one J who acted as

their agent. This same J was already in possession of the land

on behalf of two of the co-owners. The contesting defendants'

claim based on the possession of J therefore raised the

question of possession, by an agent acting in disparate

capacities-on the one hand for the benefit of co-owners

claiming by a rightful title and on the other for the benefit of

those seeking to dispossess them.

Held, that the burden-was on the contesting defendants to

prove by clear and cogent evidence that the adverse aspect of

J's possession on their behalf was so manifest that all the. co-

owners, and not merely some of them, saw in it a challenge to

their claims.

APPEAL from an order of the District Judge, Galle.

H. W. Jayewardene, Q. C, with S. S. Basnayake, for the

plaintiffs-appellants.

207

M. T. M. Sivardeen, for the 7th, 8th and 9th defendants

respondents.

Cur. adv. vult.

March 8, 1968. WEERAMANTRY, J -

In this case the plaintiffs seek to partition a land originally

belonging to one Odiris de Silva, who died intestate leaving six

children. The contest in this case centred around the undivided

one-sixth share that devolved on Agiris, one of the children of

Odiris. It was common ground that this Agiris had not been

heard of for several years and according to the plaintiffs his

share devolved on his surviving brothers and sister on the

basis that he died intestate, unmarried and issueless. The

seventh, eighth and ninth defendants on the other hand laid

claim to the undivided share of Agiris on the basis that Agiris

had conveyed his share by deed to one Salman to whose

interests they succeeded upon intestacy. However, though this

was the position envisaged by them in their pleadings, these

defendants (hereinafter called the contesting defendants)

proceeded to trial on the basis of a claim to this undivided one-

sixth share by purely prescriptive title, the possession alleged

by them being in the main a period of possession on their

behalf by one Jayaneris who acted as their agent.

This same Jayaneris, at the time he is stated to have been

entrusted with possession on behalf of these contesting

defendants, was already in possession of the land on behalf of

certain co-owners, namely the first defendant and the fifth

defendant, who claimed under the common title devolving from

Odiris. The possession of one co-owner must necessarily enure

to the benefit of all. The contesting defendants' claim based on

the possession of Jayaneris therefore raises the interesting

question of possession by an agent acting in disparate

capacities -on the one hand for the benefit of co-owners

claiming by a rightful title and on the other for the benefit of

those seeking to dispossess them.

Mr. Jayewardene argues, and rightly in my view, that such a

contention can only be based upon clear and cogent evidence

pointing unmistakably to this dualism in the nature of his

possession. The adverse aspect of his possession cannot in

other words remain a mere concept in the recesses of the

agent's mind but must so manifest itself that those against

whom it is urged may see in it a challenge to their claims. Even

as possession qua co-owner cannot be ended by any secret

intention in the mind of the possessing co-owner,1 so also is

possession through an

1 Corea v. Appuhamy (1911) 15 N. L. R. 65, P.C.

208

agent incapable of being affected adversely by an

uncommunicated attitude or mental state existing in the mind

of that self-same agent.1

This does not mean however that express communication is

required of the change in the nature of the agent's possession.

So long as the agent's conduct carries without ambiguity the

message of the altered nature of his possession, express

communication may well be dispensed with ; but we have here

no conduct so unambiguous, no distinction of capacities so

clear, that we may with assurance invest the co-owners with

knowledge that adverse possession had commenced or was

running against them.

The only material before us on this matter is that Jayaneris

planted "catch crops" on the land. There is no evidence of a

division of this produce between two sets of principals nor is

there such a demarcation of the crops as to lend colour to the

suggestion that he played a dual role. His simple activity on the

land would appear difficult therefore to relate to the

sophisticated notion of agency in opposed capacities, as

contended for by the respondents. Jayaneris was there on

behalf of some of the holders on a lawful title and hence on

behalf of them all. It would thus be as difficult for us to

attribute to him a simultaneous possession eroding that same

title as it was for the Privy Council in Corea v. Appuhamy 2 to

permit Iseris who entered under a legal title to " masquerade

as a robber or a bandit" ; and we are drawn back again to the

cardinal principle approved in Corea v. Appuhamy and

consistently followed ever since, that " possession is never

adverse if it can be referred to a lawful title".

The material before us does not in this view of the matter bring

us anywhere near the high order of proof required to establish

adverse possession, the burden of which rests entirely upon

the contesting defendants.

It has been submitted by learned Counsel for the contesting

defendants that the dichotomous nature of Jayaneris'

possession was admitted by two defendants, namely the

second and the fifth. These defendants are brothers of

Jayaneris and are parties who are entitled to other undivided

shares than those deriving from Agiris.

However the defendants who would otherwise succeed to

Agiris' share have not admitted that Jayaneris' possession was

of the character claimed by Jayaneris or the second and fifth

defendants, and, in the absence of any admission by them, the

admission by the second and fifth defendants cannot avail the

contesting defendants. Moreover, where notice of the altered

1 Nagudu Morikar v. Mohammadu (1903) 9 N. L. R. 91, P. C.

2 (1911) 15 N. L. R. 65, P.C.

209

character of a person's possession is necessary, this notice is

necessarily required to all the co-owners, and a notice .to some

alone will not suffice to stamp the, possession in question as

adverse.

Another observation I feel constrained to make is that the case

of prescriptive possession set up by the contesting defendants

became apparent only at the trial and indeed after the close of

the plaintiffs' case. The plaintiffs were entitled to assume upon

the pleadings of the contesting defendants that their title was

based upon a transfer by Agiris. Indeed when the points of

contest were formulated at the commencement of the trial, the

learned Judge noted that, apart from the usual issue relating to

prescriptive rights of parties, the only dispute was whether

Agiris died without marriage or issue and whether the rights of

Agiris devolved on his surviving brothers and sisters as stated

by the plaintiffs or whether Agiris sold his rights to Salman who

died leaving the contesting defendants as his heirs.

It would be wrong, therefore, to say that a case of adverse

possession was the case which the plaintiffs were called upon

to meet or that there was a burden on them to lead evidence in

disproof of prescriptive title on the part of the contesting

defendants. Consequently I do not think that an adverse

inference can be drawn against the plaintiffs from their failure

to meet in advance this altered case of the contesting

defendants. In this context the comments made in the

judgment on the weakness of the plaintiffs' evidence of

possession and on their failure to call other witnesses on this

point would appear to lose their force.

Another item of evidence relied upon by the contesting

defendants in support of prescriptive title, is an inventory of

1930 filed in the testamentary case of Salman, their

predecessor. This document is relied upon to show that a land

by the same name as that of the corpus in this case was

included in the estate of Salman. The appellants contend that

the inventory is inadmissible as evidence of ownership unless

the affirmant to the affidavit filed therewith is called as a

witness. The appellants further dispute the identity of the land

referred to therein, in view of a discrepancy between the extent

there stated and the extent of the corpus.

Be these objections as they may, the inventory is at best a

pointer to possession in or around the year 1930 and is

insufficient of- its own force to establish prescriptive

possession. In the view indicated above of the nature of

Jayaneris' possession, the inventory does not advance the case

of the contesting defendants.

210

In the result, therefore, we hold that the claim of the

contesting defendants to an undivided one-sixth share of the

corpus on the basis of prescriptive possession must fail. The

order of the learned District Judge is hence set aside in so far

as he holds the contesting defendants entitled to the undivided

one-sixth share of Agiris. The rights to this one-sixth share will

devolve in the manner set out in the plaint and the

interlocutory decree will be amended accordingly.

As regards the costs of contest, the order of the trial Judge will

be reversed and the seventh, eighth, and ninth defendants

must pay a sum of rupees sixty-three to the plaintiff and a like

sum to the third and sixth defendants. The plaintiffs will be

entitled to the costs of this appeal. The costs of the action,

including survey fees, will be borne by the parties pro rata.

T. S. FERNANDO, J.-I agree.

Order set aside.

Y. C. PERERA vs D. L. D. C. KULARATNE Partition action-A co-owner's claim to a

portion of the corpus exclusively-Evidence led, by him that a subsidy to replant

rubber on that portion was granted to him upon an application made by him

under the Rubber Replanting Subsidy Regulations, 1953- Weight of the evidence-

Trusts Ordinance, s. 92-Rubber Replanting Subsidy Act (Cap. 437).

Volume 76, Page No 511

1972 Present: Wijayatilake, J., and Pathirana, J.

S. C. 109/69 (Inty.)-D. C. Kalutara, 2308/A

Partition action-A co-owner's claim to a portion of the corpus

exclusively-Evidence led, by him that a subsidy to replant

rubber on that portion was granted to him upon an application

made by him under the Rubber Replanting Subsidy

Regulations, 1953- Weight of the evidence-Trusts Ordinance, s.

92-Rubber Replanting Subsidy Act (Cap. 437).

A co-owner as such is not entitled to make an application for

himself under the Rubber Replanting Subsidy Regulations,

1953. "Under Regulation 2, it is on an application made by the

"Proprietor" as defined in Regulation 12 that a subsidy can be

granted for the purpose of replanting rubber in an estate.

A co-owner who manages the common property on behalf of

the other co-owners and is their accredited agent is a

"proprietor" within the meaning of Regulation 12. Where he has

obtained a subsidy for the purpose of replanting rubber in a

certain extent of the common property, he cannot claim that

extent exclusively for himself unless he proves by clear, cogent

and unequivocal evidence that he renounced his position as an

accredited agent and also as a co-owner acting on behalf of the

other co-owners. The provisions of section 92 of the Trusts

Ordinance would also be applicable in such a case.

APPEAL from an order of the District Court, Kalutara.

H. W. Jayewardene, with N. R. M. Daluwatte, for the 1st, 4th

and 13th defendants-appellants.

A. C. Gooneratne, with R. C. Gooneratne, for the plaintiffs-

respondents.

Cur. adv. vult.

November 10, 1972. PATHIRANA, J.-

The plaintiffs-respondents instituted this action to partition the

land called Lot No. 14 of the Eastern Division of Tempo Estate

depicted in the Plan marked 'X' as lots 1 to 7 in extent 51A. 2R.

25P. The 1st, 4th and 13th defendants-appellants in their

statement of claim admitted the soil shares given to them but

disputed the claim of the plaintiffs-respondents that the

entirety of the budded rubber plantations on lots 1 and 4 were

made by the first plaintiff exclusively for his benefit. The

appellants took up the position that the 1st plaintiff made the

plantations for and on behalf of all co-owners.

512

The only point of contest was whether the 1st plaintiff planted

this extent exclusively for himself or on behalf of himself and

the other co-owners. It was admitted that the first plaintiff

planted lots 1 and 4.

The 1st plaintiff's case was that he commenced to make these

improvements in 1956 after he obtained a subsidy of Rs. 9,000

from the Rubber Controller under the Rubber Replanting

Subsidy Act, Ch. 437. He had become a co-owner of an

undivided 1/10th share on Deed P3 of 30.4.1953 along with the

1st, 2nd, 3rd defendants and 2 others. He uprooted the old

rubber trees and got nothing from them as he was not able to

sell them for firewood. He had to barb wire and construct

drains. He bore the entire expenses of replanting and none of

the other co-owners contributed anything. At the" beginning he

gave a share of the income to the other co-owners but later a

kangani who worked under the co-owner gave a share of the

income to all co-owners. After 1954 there was no income from

the land.

The 13th defendant who gave evidence for the defendants was

a purchaser from the 3rd defendant and is a son of the 2nd

defendant and a brother of the 5th defendant. He stated that

the subsidy was obtained for and on behalf of all the co-owners

and that the income from the estate was used by the 1st

plaintiff for replanting the land. The 1st plaintiff gave the share

of the income of the 2nd and 3rd defendants to his father who

maintained the book 1D7.

The learned District Judge held that the 1st plaintiff planted

lots 1 and 4 exclusively for himself. This appeal is from this

finding.

Three main reasons have been given by the learned District

Judge for his decision. Firstly, he says that the application for

replanting which was made in forms provided by the Rubber

Controller for the purpose marked 1D1 of 1.8.1955 by the 1st

plaintiff under the Rubber Replanting Subsidy Act was for

himself, and the other co-owners had signed the declaration

1D2 stating that they had no objection to this. The second

reason was that the defendants had failed to prove, although

the burden of proof was on them, that there was sufficient

income from the land which could have been utilized by the 1st

plaintiff to plant the land. Thirdly, he held that the defendants

had failed to prove that the first "plaintiff planted this land for

the benefit of the other co-owners on an agreement between

the plaintiff and the other co-owners. He further held that all

evidence pointed to the 1st plaintiff planting for his benefit

exclusively.

513

On 1D1 when the 1st plaintiff made the application for a

replanting permit and a subsidy on 31.8.1955 he was only a

co-owner of an undivided l/5th share which amounted to a little

over 5 acres. His application was to replant 10 acres. The

application was made as a co-owner in respect of Tempo

Estate. He has given the names of the other co-owners. In the

cage: " If you are not the sole owner give the names of the

other co-owners and ask them to sign against their names to

show that they agreed to this replanting the land and receiving

the subsidy on their behalf "; the other co-owners had

accordingly entered their names and put their signatures. 1D2,

presumably annexed to 1D1, is a declaration signed by the

other co-owners to the effect that they had no objection to the

1st plaintiff being registered as the Proprietor of the entire Lot

14 which is Tempo Estate.

1D3 is an application made to the Rubber Controller by the 1st

plaintiff dated 25.8.1956 for a subsidy to replant another 15

acres. On Deed No. 1991 of 9.2.1956 (P6), the 1st plaintiff had

become entitled to another 1/10th share. In this application

which was again on a printed form the 1st plaintiff stated that

he was not the absolute owner of the land but only a co-owner

and an authorized agent of the other co-owners whose names

he mentioned. He further stated that in order to replant the

land and for the purpose of obtaining the subsidy the other co-

owners had consented. The name of the estate for which the

subsidy was applied for was stated as Tempo Estate. 1D1 is a

letter dated 3.9.1961 to the 1st plaintiff from the Rubber

Controller in respect of lot 14 Tempo Estate, issuing him a

permit to plant another extent of 26A. 2R. 25P. The permit was

valid up to 31.12.1961. On 1D6 dated 18.1.1963 the Rubber

Controller had extended this permit up to 31.12.1963.

A co-owner of a land as such cannot make an application for

himself under the Rubber Replanting Subsidy Regulations,

1953 (Subsidiary Legislation of Ceylon, Volume VII, Chapter

437). Under Section 2 of these regulations, it is on an

application made by the " Proprietor " that a subsidy can be

granted for the purpose of replanting rubber in an estate.

Under Regulation 12 -the Proprietor is defined as follows :-

"Proprietor, in relation to a Rubber Estate, means the owner or

lessee of such estate and includes a duly accredited agent of

such owner or the lessee and the person for the time being in

charge of such an estate."

514

The 1st plaintiff in his evidence has admitted that from the-

date he and the other co-owners purchased the land in 1953

he managed the property on their behalf as the other owners

were living far away and he gave a share of the income to the

other co-owners. The 13th defendant on behalf of the other

defendants in his evidence has confirmed this. Documents 1D1,

1D2 and 1D3 along with this evidence unequivocally make the

1st plaintiff the " Proprietor " within the meaning of Regulation

12 as he is. the duly accredited agent of the owners of this

rubber estate and was the person for the time being in charge

of the estate. The 1st plaintiff has therefore undertaken to

replant this land not only as a co-owner but also as an

accredited agent of the other owners. In the circumstances, if

he desired to assert his own rights and claim that he

independently for himself and not on behalf of the other co-

owners obtained this subsidy and com¬menced to replant the

land for his exclusive benefit, there must be evidence that he

first renounced his position as an accredited agent and also as

a co-owner acting on behalf of the other co-owners. Whenever

a person acts as an agent, he is estopped from setting up any

claim adverse to that of his principal in respect of the subject

matter of his authority. Thus, he cannot dispute-his principal's

title to goods or money which have been entrusted or received

by him in his capacity as agent............. If the agent wishes to

assert his own right he has first to renounce his position as

Agent. (Powell on the Law of Agency, Second Edition, Page

327).

The 1st plaintiff is also in the position of a co-owner in terms of

Section 92 of the Trusts Ordinance, who as representing all

persons interested in a property, gains an advantage; he must

hold for the benefit of all persons so interested, the advantage

so gained. He having taken advantage of his position as a co-

owner and acting for and on behalf of the other owners

obtained a subsidy from the State to replant the land and

having also made a declaration which he has certified as true

and correct to that effect, he cannot now be allowed to claim

this advantage for himself and claim the sole benefit of it. He is

in a position analo-gous to that of a co-owner who wishes to

set up prescriptive title. He must, therefore, adduce clear,

cogent and unequivocal evidence that he had shed his

character as Agent or trustee when he obtained this subsidy

and also when he started replanting the land. The burden of

proof is therefore clearly on the 1st plaintiff and on the

evidence he has failed to prove this. On the contrary, there is a

preponderance of evidence both oral and documentary in

favour of the view that he obtained this subsidy to replant

rubber for and on behalf of the other co-owners of: this

Division of the Tempo Estate.

515

The next question is, whether he planted an extent larger than

that he was entitled to, was on the basis that the other co-

owners had agreed to sell the said extents of land to him. Both

in the plaint and the amended plaint and in the submission

made by Counsel in the opening of the case, this was not given

as the reason for replanting. It only transpired in evidence. The

13th defendant denied such an agreement. The 1st plaintiff is a

trader, 57 years old, and it is very unlikely that he would have

embarked on a venture like this to plant an area of land out of

proportion to an extent which he was in fact not entitled to and

especially after making the declarations 1D1, 1D2 and 1D3,

without at least obtaining some writing even of an informal

nature that the defendants would transfer the said portions to

him on completion of planting.

The learned District Judge has suggested that the burden was

on the appellants to prove that there was sufficient income

from the land which was utilized by the 1st plaintiff for the

purpose of replanting. If as the 1st plaintiff admitted that he

was looking after the land when the other co-owners were far

away, the burden will be on him to give an account of his

management and produce accounts and all presumptions would

be available against him if he does not do so-Medonza v. Kiel,1

61 N.L.R., 459, Chattoor v. The General Assurance Society

Ltd., 2 60 N.L.R. 169.

Mr. Jayewardene has drawn our attention to the plaintiff's list

of documents dated 23.8.1968, in which are listed the books of

accounts in respect of the land called Tempo Estate, Lot 14.

The 13th defendant has stated in evidence that his mother had

asked the 1st plaintiff to submit accounts in respect of the

income from the uprooted rubber trees, income from the estate

and the expenses incurred in replanting. He further stated that

the 1st plaintiff had kept accounts which were checked by

himself and his mother. These books of accounts were not

produced by the plaintiff. On the other hand the 13th

defendant has produced a pass book D7 maintained by his

father in respect of Tempo Estate which gives an account of all

income given by the 1st plaintiff to the father of the 13th

defendant on behalf of the 2nd and 3rd defendants up to 1956.

There are no entries after this date. This is possible as the

uprooting of the old rubber trees started in 1956 and the

replanting commenced in 1957. There is also in 1D1 the

statement of the 1st plaintiff in his application to obtain a

rubber subsidy that the production for the year 1954 was 1,500

pounds of latex and 200 pounds of scrap rubber. The learned

District Judge did not seek to place much reliance on 1D7

1 (1957) 61 N. L. R. 459.

2 (1958) 60 N. L. R. 169.

516

because the 13th defendant's father had not been called as a

witness although he was present in Court. The intrinsic

evidence in this document 1D1 however suggests strongly that

hese were accounts in respect of Tempo Estate as there were

also entries regarding the execution of deeds in respect of this

land and also fees paid to Notaries etc. along with the income

received.

In addition to the documentary evidence in the case which

supports the position that the 1st plaintiff obtained the subsidy

and improved the land on behalf of the. other co-owners, there

is the legal position that whenever a co-owner plants or

improves the common property the improvements accrue to

the benefit of all co-owners and the improving co-owner is only

entitled to possess the plantations till common ownership is put

an end to by the institution of a properly constituted partition

action, in which the improving co-owner's rights to

compensation will be adjudicated and compensation ordered in

the event of improve¬ments made, been allotted to other co-

owners-Arnolis Singho v. Mary Nona 1 33 C. L. W. 64, Peiris

Singho v. Nonis 2 33 C.L.W. 65, Appuhamy v. Sanchi Hamy 3

21 N.L.R. 33. The very concept of co-ownership is incompatible

with the assertion that one co-owner can improve land

exclusively for himself. A co-owner when he starts to improve

the land acts as the Agent of the other co-owners, the

improvements accede to the soil and all that he is entitled to is

compensation for improvements.

In this connection, the 1st plaintiff has received a subsidy of

Rs. 9,000 for himself and on behalf of the other co-owners to

replant the land. He has had the benefit of the old rubber trees

for which he has not given proper accounts. He has managed

the property for and on behalf of the other co-owners.

Although the burden was on him he has failed to show

accounts of the income and expenses of his stewardship. Shaw

J. in Appuhamy v. Sanchi Hamy 4 21 N.L.R. 33 at 36 refers to

a decision in an unreported case S.C. Min. July 28, 1896. In

that case "Withers J. referring to the improvements made by a

co-owner said " If the entire increase in value is due to his

expenditure, the whole of the expenditure, but no more, will

have to be brought into account. If part only of the increase is

due to the outlay, so much will only have to be brought into

account. If nothing is due to the outlay, nothing will be brought

into account."

1 (1946) 33 C. L. W. 64.

2 (1919) 21 N. L. R. 33.

3 (1944) 33 C. L. W. 65.

4 (1919) 21 N. L. R. 33 at 36.

517

On the totality of the evidence, I am of the view that the 1st

plaintiff improved the land for himself and on behalf of all the

other co-owners. The appeal of the first, fourth and thirteenth

defendants-appellants is therefore allowed with costs in both

Courts.

WIJAYATILAKE, J.-I agree.

Appeal allowed.

M. M. BELIN NONA, Appellant, and H. K. PETARA- Co-owners of two lands-

Averment that both lands were amalgamated and divided among the co-owners-

Prescriptive possession thereafter of the parts severally allotted-Proof. It is only

rarely possible for a party successfully to maintain that there had been an actual

division of a land among co-owners and prescriptive possession thereafter of the

parts severally allotted. The difficulty of proving separate title is all the more

difficult when two lands are said to have been amalgamated and the same

persons are not shown to have owned the same shares in the two lands.

Volume 77, Page No 270

1972 Present: H. N. G. Fernando, C. J., and Walgampaya, J.

S. C. 23/69-D. C. Gampaha, 11922/P

Co-owners of two lands-Averment that both lands were

amalgamated and divided among the co-owners-Prescriptive

possession thereafter of the parts severally allotted-Proof.

It is only rarely possible for a party successfully to maintain

that there had been an actual division of a land among co-

owners and prescriptive possession thereafter of the parts

severally allotted. The difficulty of proving separate title is all

the more difficult when two lands are said to have been

amalgamated and the same persons are not shown to have

owned the same shares in the two lands.

APPEAL from a judgment of the District Court, Gampaha.

H. W. Jayewardene, with N. R. M. Daluwatte and Miss Ivy,

Marasinghe, for the plaintiff-appellant.

J. W. Subasinghe, for the 9th to the 12th defendants-

respondents.

July 14, 1972. H. N. G. FERNANDO, C. J.-

The only issues which were framed in this action related to a

position taken up by the 9th to the 12th defendants, that the

land depicted in the plan filed of record in this case had been

previously amalgamated with the land depicted in plan No. 776

filed of record in case No. 11923/P, and that the land so

amalga¬mated had been divided among the co-owners of both

lands. The learned District Judge answered these issues in

favour of the 9th to the 12th defendants, and therefore

dismissed this action. Counsel for the 9th to the 12th

defendants has now to concede that the former co-owners of

this land and the former co-owners of the other land are not

the same persons, although some of them may have been co-

owners of both lands.

It is only rarely possible for a party successfully to maintain

that there had been an actual division of a land among the co-

owners and prescriptive possession thereafter of the parts

severally allotted. In the circumstances of this case, the

difficulty of proving separate title in that way is all the more

difficult because the same persons are not shown to have

owned the same shares in both the lands- In our opinion, the

evidence upon

271

which the trial Judge acted fell far short of establishing the

complicated division which is alleged to have been made.

Accordingly we hold that the answers to the issues should be

as follows:-

Issue No. 1 No.

Issue No. 2 No.

Issue No. 3 No.

Issue No. 4 Yes- The plaintiff can maintain this action

because it has not been proved that this land was

amalgamated and divided together with the land shown in plan

No. 776.

Issue No. 5 Yes.

Issue No. 6 Yes.

The decree dismissing the plaintiff's action with costs is set

aside and the case is sent back to the District Court, where it

will be open to any party to raise any issue which properly

arises on the pleadings, but of course not to raise again any of

the issues which have been decided in this judgment. The costs

of the former proceedings in the District Court will abide the

final result of the action. The plaintiff-appellant will be entitled

to the costs of this appeal to be paid by the 9th to the 12th

defendants-respondents.

WALGAMPAYA, J.-I AGREE. Case sent back for further

proceedings.

HAMTOU LEBBE v. GANITHA. Co-owners-Prescriptive title-Long-continued

exclusive possession- Presumption of ouster.

NLR 27, Page No 33

View - Volume 27

Present: Ennis A.C.J. and De Sampayo and Dalton JJ.

418-D. C. Regatta, 6,815.

Co-owners-Prescriptive title-Long-continued exclusive

possession- Presumption of ouster.

Where a co-owner of land seeks to establish a prescriptive title

against another by reason of long-continued exclusive

possession, it depends on the circumstances of each case

whether it is reasonable to presume an ouster from such

exclusive possession.

Per DALTON J.-I see no reason to suppose that the law as laid

down in Tillekeratne v. Bastion,1[1 (1918) 21 N. L. R. 12.] is in

any way inconsistent with the decision in Brito v.

Muttunayagam2[ 2 (7918) A. C. 895 ; (1918) 20 N. L. R. 327.]

CASE referred to a Bench of three Judges by Ennis A.C. J. by

the following judgment, which states the facts :-

ENNIS A.C.J.-

This was an action for a declaration of title to a half share of

Kongahakumbura. The land originally belonged to one

Kirihatana, and it appeared, in the course of the case, that

Kirihatana died leaving two sons, the defendant-Ganitha and

Suddana. Suddana had two children, Rankira and Ukku, who in

1921 sold to the plaintiff. The learned Judge in a very brief

judgment has held in favour of the defendant, saying that it is

too late |in the day for the plaintiff to assert title through the

children of Suddana, and that, therefore, the plaintiff's case

must fail on the issue of prescription. Ganitha, the defendant,

came into Court, saying in his answer that he was the sole heir

of his father, Kirihatana, and an issue was framed as to

whether Suddana was the son of Kirihatana. In the course of

the trial, after the plaintiff had

proved that Suddana was a son of Kirihatana, the defendant

went into the box and himself gave evidence admitting that his

father had two sons, himself and Suddana. He then proceeded

to say that he held the land in dispute for the last forty or fifty

years, and that Suddana had left long ago for the Gampola

District, and never took any share and never performed any of

the rajakariya services. Again the defendant's evidence is

extremely brief. But in cross examination he admitted that in

1923 he had mortgaged a half share of the land claimed, and

in re-examination he explained merely that this was a

usufructuary mortgage bond. I am unable to find in the

defendant's evidence any starting point for prescription,

34

He came into Court with, a false assertion, and it then

transpired Hamidu Prove a possession adverse to his brother,

Suddana. Lebbe v. In view of the relationship existing between

the parties, the case of am a Corea v. Appuhamy1[1 (1911) 15

N. L. R. 65 ; (1912) A. C. 230.] seems to be much in point in

connection with this case. However, Mr. Keuneman for the

defendant has called our attention to the case of Tillekeratne v.

Bastian (supra), where the question as to whether an ouster

could be presumed was gone into at some length. The case

itself is not on all fours with the present case, inasmuch as the

facts there show that the parties in possession of the land had

been dealing with it for over forty years by means of leases,

and that the land in question was a valuable mineral land, and

that there had been no division of the proceeds during the

entire period of the occupation by one co-owner and his

predecessor in title. However, in the course of that case,

Bertram C.J. expressed the opinion that "It is the reverse of

reasonable to impute a character to a man's possession which

his whole behaviour has long repudiated."

In the present case, it seems to me, we are not called upon to

do any such thing. I am unable to see in the evidence of the

defendant anything in the defendant's behaviour which

repudiates the character of his possession. His possession can

be attributed to a lawful right which he had to possess as a co-

owner, and in order to prescribe against his co-owners, some

act of ouster would have to be proved or some definite facts

from which one could infer a change in the character of the

defendant's intention with regard to the holding of this land. I

am unable to see in his evidence anything whatever which

points to a change in his intention. On the contrary, it seems to

me that the mortgage in 1923 shows that even at that date he

was aware that only half the land belonged to him. I am of

opinion that the defendant's possession cannot in any way be

said to be adverse to that of his brother, Suddana,

notwithstanding that the defendant has taken the crops from

the land for the last forty years and performed the services. My

brother, however, is of a different opinion, and in the

circumstances the case must be referred to a Court of three

Judges.

R. L. Pereira (with him Ranawake), for the plaintiff, appellant.

Keuneman (with him Jansz), for the defendant, respondent.

July 8, 1925. ENNIS A.C. J.-

I have very little to add to what I have already said in the

terms of reference. I am in accord with the conclusion arrived

at in Tillekeratne v. Bastian (supra), but am of opinion that the

evidence in the present case does not justify its application

here, or support a presumption of something in the nature of

an ouster so as to give

35

the defendant a starting point for prescription. The defendant,

upon whom the burden lay, gave evidence in chief which is

contained in five lines of the typewritten record, and in cross-

examination made admissions which militate against his claim

to have prescribed. The defendant called no witnesses. He

mentioned brothers and sisters as if acknowledging claims at

some time in them, but he did not say more. He mentioned

having performed service without saying what it was. The

defendant and his brother, Suddana, were clearly co-parceners

in the land, and as such the possession per se of one could not

be held as adverse to the other. This is the rule laid down in

Corea v. Appuhamy (supra) and re-enunciated in Brito v.

Muttunayagam (supra). In my opinion the defendant has failed

to establish any fact which could give rise to a presumption of

ouster, and I would allow the appeal with costs.

DE SAMPAYO J.-I agree.

DALTON J.-

In view of the difficulty I felt and expressed when this appeal

was argued before a Bench of two Judges, it is, I think, due to

the parties and to this Court, now that the case has been

argued again, to set out fully my views of the law as applicable

to the facts of the case before us.

In this action the plaintiffs claimed a declaration that they are

entitled to an undivided half share of the land named

Kongahakumbura, an order to eject the defendant therefrom,

and that they are entitled to damages in the sum of Rs. 80,

and further damages until possession of the land was restored

to them.

They set up in their plaint that the defendant, Ganitha, and one

Suddana were by right of maternal inheritance each possessed

of an undivided half share in the land in question; that

Suddana died about eight years ago intestate, leaving as his

heirs his children, Rankira and Ukku Amma, who became

entitled to their father's undivided half share ; that Rankira and

Ukku Amma, by their deed No. 3,882 of June 2, 1921, sold all

their undivided half, share in the land to the plaintiffs, and that

the plaintiffs and their predecessors in title have been in the

undisturbed and uninterrupted possession of the said half share

for more than ten years before the institution of this action by

a title adverse to and independent of that of the defendant and

all others.

To this the defendant answered that he was the sole heir of his

father, Kirihatana, to whom the land belonged, that he died

many years ago, and that he (the defendant) and his

predecessors in title had been in the undisturbed and

uninterrupted possession of the land for a period exceeding ten

years prior to the institution of this action. He accordingly

asked that the plaintiff's action be dismissed.

36

The issues settled were-

(1) Was Suddana a son of Kirihatana ?

(2) Has defendant acquired prescriptive title ?

I would point out Here that these issues do not appear to me to

be sufficient to decide the matter in dispute. It is clear from the

evidence subsequently led that neither the plaint nor the

answer adequately set out the case of either party. The

defendant, although he claimed to be sole heir of Kirihatana,

admits that Suddana was a son of Kirihatana, whilst the

plaintiffs set up a prescriptive title themselves, presumably in

view of the fact that Suddana and the defendant had other

brothers and sisters as they (the plaintiffs) sought to establish

in the cross-examination of Ganitha. If they succeeded in

establishing this, Suddana himself, through whom they

claimed, had no right to half the property, hence their claim in

their plaint to a prescriptive title on behalf of Suddana and his

heirs.

The evidence is short, the second plaintiff and one other

witness alone giving evidence in support of the claim. It is to

me worthy of notice that they do not call either of their

vendors. The second plaintiff states that he does not know how

many children Kirihatana had, but that he died leaving two,

defendant and Suddana. But, then, he causes confusion by

saying he purchased from these two children of Kirihatana,

which is clearly an error. He continues : " Suddana lived at

Heracola beyond Gampola, and was married in binna." This is

corroborated by the marriage certificate which is produced. He

then states that he and the first plaintiff bought a half share in

the land. " Kirihatana lived at Gampola, and died leaving two

children, from whom we bought a half share about 2 1/2 years

ago on deed P 2." There seems an error here, for the deed

purports to say the purchase was from the two children of

Suddana. As regards the purchase he states that Rs. 300 was

paid before the Notary which is confirmed by the deed, but he

admits no possession of the land was obtained.

The witness called in support of the claim says nothing about

the number of children born to Kirihatana, but states that

defendant and Suddana were owners of the land, and

cultivated it jointly until about thirty-eight or forty years ago,

since when defendant alone cultivated it. He adds that Suddana

left Gampola district after a quarrel with defendant, but that he

used to come once a year to get his share of the produce, as

did his two children (the plaintiff's vendors) after his death. The

land was service tenure property, and defendant alone

performed the rajakariya (" services"); what these services

were is not stated.

The defendant admits Suddana was his brother, and states he

has been in sole possession of the land for forty or fifty years.

The date when Suddana left Gampola may be fixed by the

marriage certificate

37

which is dated 1876. He denies that Suddana ever took any

share of the produce, and states he alone performed the

services to the landlord. In 1923 he admits he mortgaged only

half of the land, but this he purports to explain by saying it was

a usufructuary mortgage'. As these were paddy fields it was

stated that he, by only mortgaging half in this way, retained

possession of the other half to obtain paddy for his own use. It

was suggested to him in cross-examination that he had other

brothers and sisters besides Suddana, and he admitted he had

some sisters, but states they are dead. He also admits that in

1923 he brought an action in respect of his maternal estate

against one Kalu Banda. In that case the defence of Kalu Banda

was based on the allegation that he (defendant) had five

brothers and sisters, but he says the case was settled by Kalu

Banda taking a deed for the whole property from defendant

alone. Whether the sisters and brothers (if there were any

brothers) left any heirs who might be entitled to an interest in

the property does not appear.

He calls no witnesses, and hence it will be seen the evidence is

somewhat meagre on both sides. The judgment is equally

short. The learned trial Judge, however, comes to the

conclusion that after leaving the Gampola district, Suddana

never had any possession of the land. He would, therefore,

appear to disbelieve the evidence that Suddana or his children

took any share in the produce. He seems also to lay some

stress on the performance of the services to the landlord by

defendant alone. As regards the purchase by plaintiffs, he

comes to the conclusion that it is a speculative one, on the

ground that they have not called or apparently given any notice

of these proceedings to their vendors. He concludes that the

plaintiffs' case must fail on the issue of prescription (issue 2),

and dismisses the action with costs. He does not refer to the

plaintiffs' plea of prescription as against the defendant " and all

others." If he had come to the conclusion that there were other

brothers and sisters of defendant and Suddana, as urged for

the plaintiffs in the cross-examination of defendant, it is

certainly a matter which affects the plaintiffs' claim to hah5 the

property. In any case, however, before plaintiffs can succeed

on their claim, even if defendant's plea be not upheld, it seems

to me that on the case they put forward, that other brothers

and sisters of Suddana do exist, they must satisfy the Court

that they have succeeded on their plea of prescription, for

admittedly their vendors would not be entitled by inheritance to

half the land.

They appeal from the judgment shortly on the ground that

defendant's plea of prescription could not be upheld, for " the

mere possession even, if true, of one brother's share by

another brother does not ripen into a title by prescription." The

authority relied upon is Corea v. Appuhamy (supra). The

circumstances of that case are certainly remarkable ; it has

been my experience elsewhere that

38

that fact is somewhat lost sight of when the authority is cited.

For the respondent the law there laid down is not questioned,

but it is urged that nowhere is it held that even against a co-

owner may not an ouster be presumed from the circumstances

of any particular case. In Tillekeratne v. Bastian (supra)

decided in 1918, this question was answered after being dealt

with at length. It was there held that the principle of " a

presumption of ouster" is part of the law of the Colony, and

that it is open to the Court from lapse of time taken in

conjunction with the circumstances of the case to presume that

the possession originally that of a co-owner has since become

adverse. It has been suggested to us that that would, under

local conditions, be a dangerous principle to apply to the

Colony, but it is clear from that judgment that it has been

applied in a series of judgments of this Court and has also been

adopted in India (Gangadhar v. Paraskram).1[1 I. L. R. 29

Bom. 300.]

But the question arises whether the decision in Tillekeratne v.

Bastian (supra) is not overruled by the decision of the Privy

Council in Brito v. Muttunayagam (supra), the decision in which

of the local Court (but not of the Privy Council) was referred to

in Tillekeratne v. Bastian (supra). In this case between father

and children it was held that as the children were co-owners

with the father, his possession of the property was not

adverse, although there were strained relations between father

and children. In the course of the judgment it is stated-

" It is the fact that no claim was made by the wife's next of kin

after her death, and that the strained family relations made it

likely that such a claim would have been preferred. From these

circumstances the District Judge drew the conclusion that the

possession was adverse. This, however, depends on what was

the character of G. Brito's possession as a matter of right. The

learned District Judge seemingly overlooked the case of Corea

v. Appuhamy (supra) which the learned Judges of the Court of

Appeal took as decisive of the question. In that case it was held

by this Board that the possession of one co-parcener could not

be held as adverse to the other co-parceners. Lord

Macnaughten, who delivered the judgment, cited the dictum of

Wood V.C. in Thomas v. Thomas2[2 (1856) 2K & J 79, 83.]

Possession is never considered adverse if it can be referred to a

lawful title."

Is this an authority for the proposition that under no

circumstance can the possession of one co-owner be held as

adverse to another co-owner ? It has been so argued before

us.

Reference to the judgments of the Court of Appeal in Brito v.

Muttunayagam (supra), decided by Ennis and Shaw JJ., shows

that neither of these learned Judges had any doubt that Corea

v. Appuhamy

39

(supra) decided that an ouster, or something of the nature of,

or equivalent to, an ouster, would result in the possession of a

co-owner becoming adverse to the other co-owners. Ennis J.

says- " In the case of Corea v. Appuhamy (supra) the Privy

Council held that the possession of one co-owner enured to the

benefit of the other co-owners, and that position could only be

altered by an ouster or something in the nature of an ouster."

And Shaw J. says-

" He was a co-owner with his children, and his possession is

that of his co-owners unless something equivalent to an ouster

by him of his co-owners can be shown. Corea v. Appu hamy

(supra)."

It still remained, however, to be decided whether or not an

ouster might be presumed from long-continued, undisturbed,

and uninterrupted possession. And on that point all the Privy

Council was prepared to say was that, whether or not it was

still law that such a presumption might be drawn, in that

particular case the circumstances would not justify any such

presumption.

When Brito v. Muttunayagam (supra) came before the Privy

Council, the question of presumption of ouster was not referred

to or dealt with. All that the Privy Council decided on the

question of prescription was that if the interest of Brito was, or

was analogous to, the interest of co-ownership, then Corea v.

Appuhamy (supra) applied. The dictum of Wood V.C., in

Thomas v. Thomas (supra) that" possession is never

considered adverse if it can be referred to a lawful title " is

again cited with approval, and the possibility of any

presumption of ouster is not mentioned. For that very reason it

may be said that the extracts I have given above from the

Privy Council's judgment do not decide that no question of

presumption of ouster can arise as between co-owners, and

hence I see no reason to suppose that the law as laid down in

Tillekeratne v. Bastian (supra) is in any way inconsistent with

the decision in Brito v. Muttunayagam (supra). This is not

exhaustive of the reasons which can be put forward in support

of this conclusion.

In the result it seems to me that the law of this Colony on this

point is clearly laid down in Tillekeratne v. Bastian (supra). It is

a question of fact where ever long-continued exclusive

possession by one co-owner is proved to have existed, whether

it is not just and reasonable in all the circumstances of the case

that the parties should be treated as though it had been proved

that that separate and exclusive possession had become

adverse at some date more than ten years before action

brought. The question is dealt with at length in the judgment of

Bertram C.J. in that case. I would not do more here than refer

to the very definite opinion on the point in English law as

expressed by Lord Mansfield in Doe v. Prosser,1[1 Cowp. 217.]

and cited by him.

40

In appeal before this Court we have this question of fact

answered by the trial Judge in favour of the defendant

(respondent), and when the case was argued on the first

occasion I was unable to say that that finding of fact was not

justified by the evidence, and a just and reasonable one in all

the circumstances of the case. The long-continued exclusive

possession of the one brother from thirty-eight to forty years

was proved. It was proved that they had quarrelled, and one

had left the other in possession. Although Suddana went to live

at a place, only eight or nine miles away, yet during all that

time the trial Judge finds neither he nor his children exercised

any right to possess the land. Lastly, the service to the

landlord, it being service tenure land, was performed by

defendant alone. The evidence which seemed to me to weigh

very strongly in favour of the defendant was the fact that the

brothers had quarrelled, taken together with the short distance

which separated their residences. Is it not most likely that, with

the existence of the quarrel, a claim would, under the

circumstances, have been preferred by Suddana It certainly

seemed so to me. But on that occasion the case of Brito v.

Muttunayagam (supra) was not cited in the argument before

us, and there the very matter which cause me the difficulty is

dealt with. In that case there were strained relations between

father and children, a condition of affairs which was duly

considered by the Privy Council, for this was one of the chief

circumstances in the case on which the trial Judge had come to

the conclusion that the possession of the father had become "

adverse" to his children. It was held that the trial Judge was

wrong. It seems to me that it is a decision or an expression of

opinion, however it be regarded, which must govern me in this

appeal, however hard the result may be to the defendant. I feel

that it comes very near to the border line of those " stale

claims" to which Wood V.C. referred in Thomas v. Thomas

(supra), to which the provisions of the Prescription Ordinance

should be applied to the fullest extent, and which ought to be

discouraged.

Under all the circumstances, therefore, for the reasons given

above, applying the cases of Corea v. Appuhamy (supra) and

Brito v. Muttunayagam (supra), and also the law as laid down

in Tillekeratne v. Bastian (supra) I have, but I must state on

the facts with some hesitation, come to the conclusion that the

defendant did not discharge the onus laid upon him in his plea

of prescription.

On the' other hand, I am satisfied that the plaintiffs have also

failed to substantiate their entire claim, although they are

entitled to so much of the land as was inherited by Suddana

and his heirs. They have failed in their plea of prescription

against the other brothers and sisters of Ganitha and Suddana,

who they allege still exist.

The question is whether under all the circumstances a new trial

should be ordered, or whether the case be referred back for the

trial

41

Judge to take farther evidence and decide on this point,

namely, the amount of the shares which fell to Suddana and

his heirs, or whether, the action brought being against the

defendant alone, it will be sufficient to make an order allowing

the appeal. On Consideration, the property being a very small

one, and liable to be dissipated in costs, it will be sufficient to

make the latter order.

I would accordingly allow the appeal. In the result the appellant

would be entitled to the costs of appeal.

Appeal allowed.

SIDERIS vs SIMON Prescription-Co-owners-Long continued and undisturbed

possession-Presumption of ouster-Question of fact. In an action between co-

owners the question whether a presumption of ouster may be made from long

continued and undisturbed and uninterrupted possession is one of fact, which

depends on the circumstances of each case.

New Law Reports

Volume 46, Page No 273

1945 Present: Howard C.J. and Canekeratne J.

57-D. C. Colombo, 2,880.

Prescription-Co-owners-Long continued and undisturbed

possession-Presumption of ouster-Question of fact.

In an action between co-owners the question whether a

presumption of ouster may be made from long continued and

undisturbed and uninterrupted possession is one of fact, which

depends on the circumstances of each case.

APPEAL from a judgment of the District Judge of Colombo.

H. V. Perera, K.C. (with him S. P. Wijewickrema), for the first

to fourth defendants, appellants.

N. E. Weerasooria, K.C. (with him M. D. H. Jayawardene), for

the plaintiffs, respondents.

Cut. adv. vult.

274

June 18, 1945. HOWARD C.J.-

The first to fourth defendants appeal against a judgment of the

Additional District Judge of Colombo, declaring the plaintiffs

entitled to an undivided share in certain land, and ordering that

the first to fourth defendants be ejected therefrom and the

plaintiffs placed in possession.

The plaintiffs claimed that they and the fifth defendant were

jointly entitled to the land in dispute and that the first to fourth

defendants who had no manner of right or title to any portion

of the said land wrongfully and unlawfully entered into a

portion and cut and removed the crop which the plaintiffs had

raised thereon. It was conceded that the land in dispute

originally belonged to one Henchappu who had 4 sons and 3

daughters. The plaintiffs and the fifth defendant maintained

that the four sons entered into exclusive possession of the land

and acquired a title by prescription. The plaintiffs are the

successors in title of the four sons of Henchappu whilst the

second defendant is the son of one of the daughters of

Henchappu and the first, third and fourth defendants are her

grandchildren. The learned Judge held that the four sons of

Henchappu and their successors were in exclusive possession

of the land in question and acquired a prescriptive title thereto.

In coming to this conclusion he thought that taking all the

circumstances of the case into consideration and having regard

to the documents produced and accepting the fact that the four

sons of Henchappu and their successors possessed the field to

the exclusion of the three daughters he was entitled to

presume an ouster. It has been contended by Mr. Perera on

behalf of the appellants that, inasmuch as the four sons and

three daughters of Henchappu were co-owners, the learned

Judge was wrong in coming to the conclusion that there had

been an ouster. There have been numerous cases on the

question as to the acquisition of rights by prescription against

co-owners. In Thomas v. Thomas 1 it was held by Wood V.C.

that possession is never considered adverse if it can be

referred to a lawful title. This dictum was cited with approval in

the Privy Council case of Corea v. Appuhamy 2. In that case

the principle was formulated that the possession of one co-

parcener could not be held as adverse to the other co-parcener

and in spite of over thirty years' possession the defendant's

title by prescription was not upheld. The possession of one co-

owner was the possession of all the co-owners. It was not

possible, for one co-owner to put an end to that possession by

any secret intention in his mind. Nothing short of ouster Or

something equivalent to ouster could bring about that result.

The principle as laid down by the Privy Council in Corea v.

Appuhamy was cited with approval in the later Privy Council

cases of Brito v. Muttunayagam 3 and Cadija Umma v. S. Don

Mania Appu 4. It has been followed in the local cases of Cooray

v. Perera 5 Fernando v. Fernando6 and Fernando v. Fernando

and others7. Doubts however, as to what was necessary to

prove ouster have arisen since the judgment of Bertram C.J. in

Tillekeratne v. Bastian 8 who accepted the principle formulated

in Corea v. Appuhamy by stating that it was not

1 (1855) 2K.&J. 83. 5 45'N. L. R. 455.

2 15 N. L. R. 65. 6 44 N. L. R. 65.

3 20 N. L. R. 327. 7 27 C. L W. 71.

4 40N. L. R. 392. 8 21 N. L. R. 12.

275

possible for a co-owner to put an end to the title of another co-

owner and initiate a prescriptive title by any secret intention in

his own mind and that nothing short of an " ouster or

something equivalent to an master " could bring about the

result. The learned Chief Justice then sent on to say that

although the question had been argued in the case and

discussed in the judgment, the Privy Council in Corea v.

Appuhamy and not decided whether an ouster could be

presumed from the long continued possession of the co-owner

in question. He then proceeded to formulate the principle that

it is open to the Court, from lapse of time in conjunction with

the circumstances of the case, to presume that a possession

originally that of a co-owner, has since become adverse. In

Tillekeratne v. Bastian the claim on the ground of co-ownership

had been dormant for a period of more than forty years.

Moreover, the nature of the possession was significant. The

land had no plantation worth considering. It was plumbago

land and the defendants dug plumbago thereon both by

themselves and through lessees all throughout. In these

circumstances the principle to which I referred was formulated

by the Court which held that the defendants had succeeded in

establishing their claim to the whole land by prescription. The

decision, however, did not go so far as to lay down that ouster

could be presumed merely from long and exclusive possession.

Such a decision would have been contrary to Corea v.

Appuhamy. It is a question of fact in each case and the

question as to whether from long continued, undisturbed and

uninterrupted possession ouster may be presumed depends on

all the circumstances of the case-vide judgment of Dalton J. in

Hamidu Lebbe v. Ganitha 1[ 27 N. L. R. at p. 39.]. In

Tillekeratne v. Bastian there was long continued, undisturbed

and uninterrupted possession for a period of over 40 years. The

nature of the possession was for the purpose of digging

plumbago both by the defendants and their lessees. In this

connection De Sampayo J. in his judgment at page 28 drew a

distinction between the possession of land for the purpose of

extracting minerals and the possession for the taking of natural

produce in the following passage: -

" Moreover, the nature of the possession is significant. The land

had no plantation worth considering; it was plumbago land,

and the defendants dug plumbago therein both by themselves

and through lessees all throughout. While a co-owner may

without any inference of acquiescence in an adverse claim

allow such natural produce as the fruits of trees to be taken by

the other co-owners, the aspect of things will not be the same

in the case where valuable minerals are taken for a long series

of years without any division in kind or money."

Moreover, it would appear that the plaintiff Tillekeratne had

bought the share of the co-owner, had worked a plumbago pit

himself on another land in the neighbourhood, and had never

claimed or taken a share in the plumbago which to his

knowledge was being dug from the disputed land by the

defendants and their lessees. It seems to me that the

distinction drawn between the excavation and removal of

minerals, an act definitely depreciating the value of the

holding, and the taking of natural produce

276

such as the fruit of trees or the development of lands for the

cultivation of paddy by expenditure incurred by the occupier is

both logical and sound.

The only matter remaining for consideration is whether the

learned Judge has correctly upheld the principles to which I

have referred and. rightly come to the conclusion that he was

entitled to presume ouster. It may be conceded that the

possession from 1904 to 1942 was long continued, undisturbed

and uninterrupted. But this is not enough. What other

circumstances existed leading to the presumption that there

was an ouster ? It is suggested that various deeds written on

the basis that the four sons of Henchappu are the owners

supply the other circumstances from which ouster can be

presumed. The earliest deed (5 D3) dated October 4, 1894,

was by Davith Appu, one of the four sons and conveyed an

undivided one-third share of the land to Peeris Appu and

Deonis Appu. Davith Appu on the assumption that the four

sons were entitled, should have conveyed one-fourth only. But

it is clear that Davith conveyed more than the one-seventh

share to which he was entitled if all the brothers and sisters

were co-owners. The next document is a deed of lease (P 12)

dated January 12, 1901, in which the lessors are two of the

sons of Henchappu, Velun and Jeelis, William, a child of Saran

who was another son of Henchappu and Peeris, one of the

transferees on 5 D3. This deed dealt with the entirety of the

land and none of the daughters of Henchappu joined in. There

is also another deed dated January 20, 1904 (5 Dl), in which

Velun, one of the sons of Henchappu, reciting that he was

entitled to an undivided one-fourth share of the land which he

and his three brothers held and possessed by right of "

Sambuddi " possession and " asweddumising ", sold to his

daughter and her husband an extent of 10 kurunies. This deed

ignores the rights of the daughters of Henchappu. But do these

deeds inevitably point to an acquiescence by the daughters of

Henchappu in the acquisition of their rights as co-owners by

the sons? Was the making of these deeds something equivalent

to an ouster? The land was being cultivated by the growing of

paddy and hence any inference of acquiescence would not arise

as it did in the case of Tillekeratne v. Bastian where the co-

owner stood by when plumbago was excavated and removed.

Moreover, there is no evidence that the daughters of

Henchappu knew of the execution of the various deeds.

Without such proof there was nothing more than a secret

intention in the mind of the transferors and lessors to initiate a

prescriptive title and put an end to the co-owners' co-

possession. This is not sufficient to constitute ouster.

The judgment of the District Court is set aside and judgment

must be entered for the first to fourth defendants with costs in

this Court and the Court below.

CANEKERATNE J.-I agree.

Appeal allowed.

RAJAPAKSE vs HENDRICK SINGHO Co-owners-Exclusive possession of the common

property by some of the co-owners- Effect-Ouster- Prescription. Fresh evidence-

Retrial-Permissibility.

New Law Reports Volume 61, Page No 32

1959 Present: Basnayake, C.J., and Pulle, J.

S. C. 815-D. C. Gampaha, 3,761JP

Co-owners-Exclusive possession of the common property by

some of the co-owners- Effect-Ouster- Prescription.

Fresh evidence-Retrial-Permissibility.

(i) Action for the partition of a land was instituted on August

24, 1953. There was overwhelming evidence that the

defendants,. since the year 1922, were not only in occupation

of the land but also took its produce to the exclusion of the

plaintiffs and their predecessors in title, and gave them no

share of the- produce, paid them no share of the profits, nor

any rent, and did no act from which an acknowledgment of a

right existing in them would fairly and naturally be inferred.

Held, that the evidence disclosed an ouster of the plaintiff's by

the defendants and that the ouster continued for a period of

over ten years.

(ii) If evidence which was in the possession of parties at the

time of a trial, or by proper diligence might have been

obtained, is either not produced or has not been procured, and

the case is decided adversely to the side to which the evidence

was available, no opportunity for producing that evidence will

be given by an appellate Court by granting a retrial.

APPEAL from a judgment of the District Court, Gampaha.

Sir Lalita Rajapakse, Q.C., with F. W. Obeyesekere and D. C.

W. Wickremasekera, for Plaintiffs-Appellants.

Cecil de S. Wijeratne, with G. L. L de Silva" for Defendants-

Respondents.

Cur. adv. Vult

33

June 22,1959. BASNAYAKE, C.J.-

This is an action for the partition of a land called

Keragahalanda in extent 4 acres and 3 roods. It is common

ground that Atapattu LiyanaraIlage Paulis purchased it on deed

No. 5,822 of 17th December 1895 (PI). Of this land, Paulis sold

to Don Thelenis " an undivided portion of land of the extent of

about two acres" on deed No. 17,115 of 6th January 1919 (P2)

and "an undivided portion of land of three roods" on deed No.

18,352 of 23rd July 1920 (P3). On 11th August 1921 by deed

No. 2,131 (P4) Don Thelenis sold "an undivided eleven-

nineteenth (11/19) part or share " to his grandson Ranatun

Vidane RaIlage Gunasekera who on 28th October 1927 by deed

No.3, 766 (P5) sold the undivided interests he purchased to

Dun John Seneviratne Gunawardhana. On 1st May 1953 the

plaintiffs purchased those interests on deed No. 14,871 (P6)

from Gunawardhana and on 24th August 1953, less than four

months after their purchase, they instituted this action.

The defendants, ten in number, resist the plaintiff's action on

the ground that they have been in possession W the exclusion

of the plaintiffs and their predecessors in title. The 1st, 2nd,

and 3rd defendants are children of Paulis, the 5th, 7th, 8th, 9th

and 10th defendants are his grandchildren. The 4th and 6th

defendants made no claim. The 1st, 2nd, 5th and 8th

defendants live on the land. On it there are three houses and

the foundation of a fourth. There is also a well. The 1st plaintiff

in his evidence admits that the 1st defendant owns one of the

houses, the 2nd defendant another, and the 8th defendant the

third. He also admits that the foundation and well belong to the

5th defendant, and that the 1st defendant planted all the

coconut trees on the land, one hundred and forty-two in

number.

The 1st plaintiff confessed that he never got "possession " but

he says that his predecessor Gunawardhana who owned the

ten acres of land adjoining this land which at one time formed

part of it plucked coconuts. This evidence is of little value in

view of the 1st plaintiff's own statement that the land is a

jungle and that the coconuts that can be plucked from it are

not enough for a meal. Not one of the predecessors in title of

the plaintiffs was called to give evidence on their behalf.

The surveyor's report discloses that the 1st plaintiff had no

knowledge of this land whatsoever. There are plantations

valued at Rs. 4,274, consisting of coconut, jak, arecanut,

mango, coffee, del, tamarind, beli, cotton, pepper, kaju, lime,

orange, kitul, in a land which he calls a jungle.

The 1st defendant a man 60 years of age, a son of Paulis,

states that after the death of his father in 1922 he took the

produce of the land and gave his brothers and sisters their

share to the exclusion of the predecessors in title of the

plaintiffs. Don Thelenis's grandson, .D. G. Ranatunga, Village

Headman of Dematadenikane for twenty-seven years, who is

also known as R. Q. Gunasekera, to whom in 1921 Don

Thelenis transferred the share now claimed by the plaintiffs,

states that he never enjoyed the produce of the land nor

occupied it and that his successor in title Gunawardhana never

exercised any rights of ownership and that the defendants lived

on the land and enjoyed its produce to his exclusion.

34

R. P. Jema the retired headman of Radawadunna, who had

been headman for thirty-two years, supports the 1st

defendant. He says that it was Paulis's children and

grandchildren who enjoyed the produce of this land to the

exclusion of all others and that to his knowledge neither Don

Thelenis nor Gunawardhana "possessed" it.

I shall now turn to the law on the subject of prescription among

co- owners as admittedly the plaintiffs and defendants are co-

owners and the latter have been in occupation of the land since

1922 to the exclusion of the predecessors in title of the

plaintiffs.

It is settled law (Corea v. Appuhamy1 and Cadija Umma fl. Don

Manis2) that the possession of one co-owner is the possession

of the other co-owners and that possession qua co-owner

cannot be ended by any secret intention in the mind of the

possessing co-owner. The possession of one co-owner does not

become possession by a title adverse to or independent of that

of the others till ouster or something equivalent to ouster takes

place.

In our judgment in S. C. 12-D. C. Tangalle No. P. 60 delivered

on. December 19, 1958, which has not yet been reported, we

have discussed the question of prescription among co-owners

at length and we do not. I therefore propose to refer to all the

cases discussed in that judgment.

The law being as stated above the only question that arises for

decision i in this case is whether the evidence discloses an

ouster of the plaintiffs by the defendants and whether that

ouster continued for a period of over ten years. The expression

" ouster " which is used in Corea's case (supra) and later in

Cadija Umma' s case is a concept of English Law and we must,

turn to that system of law in order to ascertain its meaning.

The matter is discussed in the cases of Doe fl. Prosser 3 and

Peaceable fl. Read '. In the former case Justice Aston said-

"There have been frequent disputes as to how far the

possession of one tenant in common shall be said to be the

possession of the other and what acts of the one shall amount

to an actual ouster of his companion. As to the first, I think it is

only where the one holds possession as such, and receives the

rents and profits on account of both. With respect to the

second, if no actual ouster is proved, yet, it may be inferred

from circumstances, which circumstances are matter of

evidence to be left to a Jury."

In the latter case Lord Kenyon C.J. said-

" I have no hesitation in saying where the line of adverse

possession begins and where it ends. Prima facie the

possession of one tenant in common is that of another, every

case and dictum in the books is to- that effect. But you may

shew that one of them has been in possession and received the

rents and profits to his own sole use, without. account to the

other, and that the other has acquiesced in this for such a

length of time as may induce a jury under all the circumstances

to presume an actual ouster of his companion. And there the

line of presumption ends. "

35

The expression "actual ouster" needs explanation and as it is

an expression used by both Lord Mansfield and Lord Kenyon in

the cases referred to above I cannot do better than explain it in

the very words of Lord Mansfield-

"Some ambiguity seems to have arisen from the term' actual

ouster' as if it meant some act accompanied by real force, and

as if a, turning out by the shoulders were necessary. But that is

not so. '"

In the instant case the evidence that the defendants since the

death of Paulis in 1922 were not only in occupation of the land

but also took its. produce to the exclusion of the plaintiffs and

their predecessors in title, and gave them no share of the

produce, paid them no share of the profits, nor any rent, and

did no act from which an acknowledgment of a right existing in

them would fairly and naturally be inferred, is overwhelming.

In this state of evidence I do not see how we can disturb the

finding of the learned District Judge though undoubtedly there

are statements in his judgment which invite criticism, and

learned counsel for the appellants rightly directed our attention

to those statements especially the statement of the learned

District Judge that questions of ouster and prescription did not

arise for consideration. With that view we are unable to agree.

Those questions do arise but on the facts of this case. there is

no difficulty in resolving them ill favour of the defendants.

Learned counsel also complained that on the mistaken

impression, for which, he submitted, there was no justification

in the evidence, that Don D Thelenis was alive at the date of

trial, the learned Judge had drawn an adverse inference against

the appellants and we were invited to send the case back for a

retrial on the ground that Don Thelenis was not alive at. the

date of the trial. Learned counsel submitted an affidavit with

the, certificate of registration of death of a Police Headman

named Don Thelenis in support of his application. But in view of

the uncontradicted1 evidence of Jema that Don Thelenis did

not possess the land it is immaterial whether Thelenis was alive

or not at the time of the trial. The complaint of learned counsel

does not appeal' to be entirely justified on the evidence. R. P.

Jema the retired headman who is a witness for- the defendant

stated-

" Q: Do you know a person called Thelenis ?

"A: Yes.

" Q: He is also a man of that area?

" A: He is living in the adjoining village.

" Q: The original owner sold over half a share when he was

residing on this land to Thelenis?

"A: Yes.

" Q: And Gunasekera got the land from Thelenis ?

"A: Yes."

It would appear from the record that the above answers were

elicited in cross-examination. If Thelenis was in fact dead the

failure of the plaintiffs to challenge witness Jema's statements

is inexcusable especially

36

If the grandfather of Gunasekera and Don Thelenis, the Police

Headman referred to in the affidavit, Were one and the same

person. If a. statement m regard to a fact which could have

been ascertained with the exercise of due diligence is allowed

to pass unchallenged at a time when they had an opportunity

of contradicting it the plaintiffs alone must be the blame. It

would be wrong to criticize the trial Judge on that score. "The

principles governing the grant of a retrial to enable a party to

produce fresh evidence are well established. It has been

repeatedly stated that the invariable rule in all courts and one

founded upon the clearest principles of reason arid justice, is

that, if evidence which either was in the possession of parties

at the time of a trial, or by proper diligence might have been

obtained, is either not produced or has not been procured, and

the case is decided adversely to the side to which the evidence

was available, no opportunity for producing that evidence

ought to be given by granting a, retrial. (Nash v. Rochford

Rural Council ; E. H. Lewis J J Sons Ltd. v. Morelli 2.)

There being no presumption that all the predecessors in title of

the plaintiffs are dead it is for them to explain why they are not

called to give evidence. The plaintiffs have failed to do so and it

is legitimate for the court to presume that the evidence of

those persons if produced would be unfavourable to them,

especially as one of them, (a headman, did give evidence in

favour of the defendants.

Before we part with this judgment we desire to draw the

attention of both practitioners and Judges to the "lords of

Bertram C.J. in Alwis v. Perera 3 wherein the importance of

requiring a witness to explain exactly what he meant by such

expressions as " I possessed ", " We possessed " is

emphasised.

The appeal is dismissed with costs.

PULLE, J.-I agree. Appeal dismissed

JAMIS PERERA AND ANOTHER v. CHARLES DIAS AND OTHERS Prescription -

Prescription among co-owners - Division and adverse possession of co-owned

property.

Sri Lanka Law Reports 1999 - Volume 2 , Page No - 159

SUPREME COURT

G. P. S. DE SILVA, CJ.,

KULATUNGA, J. AND

RAMANATHAN, J.

S.C. APPEAL NO. 10/95

C.A. NO. 898/82 (F)

D.C. HOMAGAMA NO. 611/L

JANUARY 26, 1996

Prescription - Prescription among co-owners - Division and

adverse possession of co-owned property.

The State acquired an extent of IA, OR. 08 P. out of a 6-acre

land called Alubogahawatte which was the Southern portion of

the land. Alubogahawatte was originally co-owned. At the trial

of the title dispute referred to the District Court by the

Acquiring Officer under s. 10 of the Land Acquisition Act, it was

established by oral and documentary evidence that the land

which was the subject-matter of the acquisition proceedings

was possessed entirely for about 60 years by the parents of the

1st, 2nd and 3rd defendants. Consequently, those defendants

claimed that they had acquired a prescriptive title to the entire

land, which was the land in dispute.

Held :

There was cogent evidence of separation, division and adverse

possession of the land in dispute by the 1st, 2nd and 3rd

defendants and their predecessors in title.

APPEAL from the judgment of the Court of Appeal.

R. K W. Goonesekera with D. F. H. Gunawardhana for the 5th

and 6th defendants-appellants.

D. R. P. Goonetilleke with S. A. D. Suraweera for the 1st to 3rd

defendants-respondents.

Cur. adv. vult.

160

February 1, 1996.

G. P. S. DE SILVA, CJ.

These proceedings relate to a 'reference' made to the District

Court in terms of section 10 of the Land Acquisition Act by the

Acquiring Officer. The dispute (as regards title) was between

the 1st, 2nd and 3rd defendants-respondents on the one hand

and the 5th and 6th defendants-appellants on the other. The

1st, 2nd and 3rd defendants respondents claimed that they had

acquired a prescriptive title to the entirety of the land, (the

subject-matter of the acquisition proceedings), while the 5th

and 6th defendants-appellants denied the claim of the

defendants-respondents and asserted title to 3/4th share of the

land. Both the District Court and the Court of Appeal held with

the 1st, 2nd and 3rd defendants on their claim of prescriptive

title. Hence the appeal by the 5th and 6th defendants to this

Court.

The State acquired an extent of 1A. OR. 08P. out of a 6-acre

land called Alubogahawatte which was originally owned by

Davith Perera (a 2/3 share), Luwis Perera and Mango Perera

(1/3 share). Davith Perera, in lieu of his undivided 2/3 share,

possessed a divided lot and on his death the said lot devolved

on his widow and children. By deed 5DI of 1909 a half-share of

the said lot was conveyed to the daughter Jane and her

husband Jamis Silva. By deed 1D2 of 1910 the balance half-

share was conveyed to another daughter Lousia and her

husband Henderick Dias. Lousia and Henderick are the parents

of the 1st, 2nd and 3rd defendants. These facts are not in

dispute.

It is the case of the 1st, 2nd and 3rd defendants that Lousia

and Henderick, in lieu of the aforesaid 1/2 share possessed the

entirety of the land which is the subject of the acquisition

proceedings as a distinct and separate land for a period of

about 60 years and thus acquired a prescriptive title thereto.

Likewise, Jane and her husband Jamis Silva possessed

exclusively the balance 1/2 share which was to the North of the

corpus acquired by the State. The 2nd defendant,

161

whose evidence was accepted by the District Judge, stated that

after the execution of 1D2, his parents separated off their

portion of the land and possessed it as a distinct lot to the

exclusion of all others. He further testified that after the death

of his parents he and the 1st and 3rd defendants continued to

possess the land in dispute as a divided and separate lot.

On a consideration of the documents in the case, it seems to

me that there are two deeds which tend to support the oral

evidence given by the 2nd defendant. The first deed is ID6 of

1935. This deed refers to a sale by Jane and Jamis Silva of half

an acre of land on the northern side. The portion conveyed is

the portion on which the school stands. The significance of 1

D6 is that it shows that as far back as 1935 Jane and her

husband Jamis Silva sold half an acre from their rights on the

northern side. This is indicative of the division of the land

referred to by the 2nd defendant in his evidence.

The other deed which is of relevance is 1 D7 of 1944 by which

the predecessor in title of the 5th and 6th defendants conveyed

one rood to Joseline Silva, a sister of the 6th defendant. It is of

importance to note that in this deed (executed about 30 years

prior to the present dispute) the southern boundary of the land

conveyed is described as the 'land of P. P. Henderick Dias'

(which is the land in dispute). This too is a circumstance which

tends to show that the land possessed by Henderick and Lousia

was separate and distinct from the land possessed by Jane and

Jamis Silva.

The principal point urged by Mr. R. K. W. Goonasekera for the

5th and 6th defendants-appellants against the case of divided

possession relied on by the 1st to 3rd defendants-respondents

is that the latter claimed rights in the northern portion of the

land in two previous acquisition proceedings. Mr. Goonesekera

submitted that a claim of that nature could only be on the basis

that the entirety of the land was co-owned. This submission is

not without attraction. However, on a consideration of the

evidence on record as a whole

162

it seems to me that the conduct of the 1st to 3rd defendants is

not of sufficient weight to displace the cogent evidence of

separation, division and adverse possession by the 1st, 2nd

and 3rd defendants and their predecessors in title.

The appeal turns on what are essentially questions of fact. The

findings of the trial Judge are based on credible evidence, both

oral and documentary. The concurrent findings of both courts

are against the appellants.

I can see no reasonable basis to reverse these findings. In the

result, the appeal fails and is dismissed with costs fixed at Rs.

750.

KULATUNGA, J. - I agree.

RAMANATHAN, J. - I agree.

Appeal dismissed.

LEISA AND ANOTHER v. SIMON AND ANOTHER Rei Vindicatio - Prescriptive rights

- Presumption of right to possess - Difference between possession, occupation and

dominium - Prescription Ordinance, section 3 - Plaintiff claims paper title as well

as by prescription - Should the plaintiff prove prescription

Sri Lanka Law Reports

2002 - Volume 1 , Page No - 148

Sri Lanka Law Reports

148

COURT OF APPEAL

WIGNESWARAN, J. AND

TILAKAWARDANE, J.

CA NO. 443/93 (F)

DC GAMPAHA NO. 26653/L

SEPTEMBER 28, 2000.

Rei Vindicatio - Prescriptive rights - Presumption of right to

possess - Difference between possession, occupation and

dominium - Prescription Ordinance, section 3 - Plaintiff claims

paper title as well as by prescription - Should the plaintiff prove

prescription?

The plaintiff-appellants instituted action seeking declaration of

title and ejectment of the defendants from the premises in

question. The defendants claimed pre-scriptive rights. The

plaintiff's action was dismissed.

On appeal -

Held :

(1) The contest is between the right of dominium of the

plaintiffs and the declaration of adverse possession amounting

to prescription by the defendants.

(2) The moment title is proved the right to possess it, is

presumed.

(3) Thus, even if the Court found that the defendants had

prescribed to the corpus, the proper answer to the 1st issue

would have been yes, but the defendants have prescribed.

(4) An averment of prescription by a plaintiff in a plaint after

pleading paper title is employed only to buttress his paper title.

(5) For the Court to have come to its decision as to whether

the plaintiff had dominium, the proving of paper title is

sufficient.

149

(6) The mere fact that the plaintiff claimed both on deeds as

well as by long possession did not entail the plaintiff to prove

prescriptive title thereto. Their possession was presumed on

proving paper title. The averment of prescription in the plaint

did not cast any burden upon the plaintiff to prove a separate

title by prescription in addition to paper title.

(7) Once paper title became undisputed the burden shifted to

the defendants to show that they had independent rights in the

form of prescription as claimed by them.

Per Wigneswaran, J.

"A person is in possession of a house for example, when he or

his servants or licensees are living in it, if he or they are absent

from it, he would still be held to be in possession, if such

absence was only temporary. In this case the brother of the 1st

plaintiff (1st defendant) could have been in occupation and still

the 1st plaintiff would have been in possession

simultaneously."

APPEAL from the judgment of the District Court of Gampaha.

Case referred to :

1. Pathirana v. Jayasundera - 58 NLR 169 at 177.

G. L. Geethananda for plaintiff-appellants.

Dinesh de Alwis with Janaki Nawaratne for defendants-

respondents.

Cur. adv. vult.

January 16, 2001

WIGNESWARAN, J.

This appeal by the plaintiff-appellants is against the judgment

dated 24, 09. 1993 delivered by the Additional District Judge,

Gampaha, wherein this action of the plaintiffs for a declaration

in their favour in respect of the land described in the schedule

to the plaint (viz. Lot A in plan No. 1177 (P3)), ejectment of

the defendants therefrom, demarcation of the southern

boundary of the said land, damages and costs was dismissed

with costs. The learned Additional District Judge had found that

the defendants had prescribed to the land in dispute.

150

The 1st plaintiff is the elder sister of the 1st defendant. The

2nd plaintiff is the son of the 1st plaintiff and the 2nd

defendant is the daughter of the 1st defendant.

There cannot be any dispute that by PI the 1st plaintiff and by

P2 the 2nd defendant on the same day (04. 08. 1966) obtained

title from the same source to Lot A in extent A0 R1 P32 and Lot

B in extent 38 perches, respectively. The 1st defendant

Marasinghe Pedige Simon was in fact a witness to deed P2

executed in favour of his daughter the 2nd defendant.

At pages 168 to 170 of the Brief, Simon had accepted that his

sister became owner of Lot A by P1. His evidence is as follows:

151

On 18. 03. 1983 the 1st plaintiff sold 6/10th share of Lot A

abovesaid to the 2nd plaintiff by P4. As per plan 'X1 No. 4670

dated 10. 06. 1985 prepared by K. A. J. Amerasinghe, Licensed

Surveyor, prepared for this case, Lot 1 in plan X was Lot A in

plan 1177 and Lot 2 and 3 in plan X were Lot B in the said plan

No. 1177. When this action was filed on 10. 04. 1984 the paper

title to Lot A depicted in plan 1177 (P3) (Lot 1 in plan X) was

with the 1st and 2nd plaintiffs.

Once the paper title became undisputed the burden shifted to

the defendants to show that they had independent rights in the

form of prescription as claimed by them. In fact, the following

dictum of Gratian, J. in Pathirana v. Jayasunder (1) at 177

became applicable.

"In a rei vindicatio proper the owner of immovable property is

entitled, on proof of his title, to a decree in his favour for the

recovery, of the property and for the ejectment of the person

in wrongful occupation. 'The plaintiff's ownership of the thing is

of the very essence of the action'. Maasdorp's Institutes (7th

ed.) vol 2, 96."

In this connection it is useful to consider the submissions of the

learned Counsel for the defendant-respondents at this stage.

He has submitted as follows:

(1) Unless paper title coupled with prescription was proved, the

plaintiffs in this case could not have obtained a decree in their

favour.

(2) The evidence of the 1st plaintiff proved that she was not in

possession of the premises in suit.

(3) No obstruction to the construction of any fence had been

proved there being no physical division between Lots A & B

depicted in plan No. 1177 (P3).

152

(4) The defendant-respondents had been in possession of Lots

A & B (in plan P3) from 1947 and even after P1 was executed.

(5) Boutique in Lot B had been given on rent to the 2nd

plaintiff- appellant.

(6) The land and premises in suit were part of Lot S in plan 932

(preliminary plan) submitted in DC Gampaha Case No.

16214/P.

Each of the above submissions would now be examined.

1. Paper title plus prescription must have been proved

Wille in his book "Principles of South African Law" (3rd edition)

at page states as follows:

"The absolute owner of a thing has the following rights in the

thing:

(1) to possess it;

(2) to use and enjoy it; and

(3) to destroy it; and

(4) to alienate it."

In discussing the right to possession, he states, also at page

190:

"The absolute owner of a thing is entitled to claim the

possession of it; or, if he has the possession he may retain it.

If he is illegally deprived of his possession, he may by means of

vindicatio or reclaim recover the possession from any person in

whose possession the thing is found. In a vindicatory action the

claimant need merely prove two facts, namely, that he is the

owner of the thing and that the thing is in the possession of the

defendant".

Thus, in this action there was no question of the plaintiffs

having to prove their title by deeds as well as prescription. The

contest in

153

an action of this nature is between the right of dominium of the

plaintiff and the declaration of adverse possession amounting

to prescription by the defendant. The moment title to the

corpus in dispute is proved the right to possess it is presumed,

Thus, even if the Court found that the defendants had

prescribed to the corpus the proper answer to the first issue

would have been "Yes. But, the defendants have prescribed to

the corpus". An averment of prescription by a plaintiff in a

plaint after pleading paper title is employed only to buttress his

paper title. Such pleading also acts as an advance assertion

against any averment of prescription that may be claimed by

the defendants. For the Court to have come to its decision as

to whether the plaintiffs in this case had dominium over the

corpus, the proving of paper title was sufficient. The mere fact

that paper title was claimed both by deeds as well as by long

possession amounting to prescription did not entail the

plaintiffs to prove prescriptive title thereto. Their pos¬session

was presumed on proving paper title. The burden was cast on

the defendants to prove that by virtue of an adverse

possession they had obtained a title adverse to and

independent of the paper title of the plaintiffs. The averment of

prescription in the plaint did not cast any burden upon the

plaintiffs to prove a separate title by prescription in addition to

the paper title as asserted by the learned Counsel for the

defendant-respondent.

2. Possession by plaintiffs

The learned Counsel seems to confuse between possession and

occupation - two important concepts in Land Law. It must be

noted that the brother of the 1st plaintiff (1st defendant) could

have been in occupation and still the 1st plaintiff could have

been in possession simultaneously. A person is in possession of

a house, for example, who in he or his servants or licensees

are living in it. If he or they are absent from it, he would still

be held to be in possession, if such absence was only

temporary or if he could return and re-enter at any moment if

he chose, without asking anyone's permission or without any

preliminary ceremony. But, the moment anyone else enters

into

154

and remains in possession of the premises without his consent

the former possessor is ousted. According to section 3 of the

Prescription Ordinance such a possession must be undisturbed,

uninterrupted, adverse to or independent of that of the former

possessor and should have lasted for at least 10 years before

he could transform such possession into prescriptive title.

In this instance the possession of Lot A by Simon was not of

such nature. The 1st plaintiff stated at pages 114 and 115 of

the Brief as follows:

155

The above said pieces of evidence prove that the defendants

did not have exclusive possession of Lot A. The 1st plaintiff did

possess Lot A and enjoyed produce from her land though she

did not object to Simon, her brother, taking whatever he

wanted. She had given an undivided share to her son the 2nd

plaintiff and intended to give some shares to her other sons

too. Thus, the relationship of parties as sister and younger

brother was very relevant in examining the nature of

possession. There was no evidence placed before Court that

the relationship between 1st plaintiff and 1st defendant was

strained until 1984.

At pages 158 and 159 the 1st defendant gave evidence as

follows:

156

1st defendant admitted the smooth relationship between him

and his sister though he sought to bring in the idea of renting

out the premises to the 2nd plaintiff. No contemporaneous

records pertaining to any payment of rents was produced. No

letters or correspondence was produced. No questions were put

to the 1st plaintiff when she gave evidence about her son

occupying premises belonging to 1st defendant's daughter, the

2nd defendant, on rent.

In any event the question of actual occupation by 1st plaintiff

of the land and premises in suit was irrelevant so long as her

possession of the land and premises in suit through her brother

the 1st defendant was perceivable and presumable from the

evidence.

If suppose a third party was laying claim to the disputed land

and the 1st defendant brother, had been in occupation, such

occupation of the brother as against the third party would have

been taken to be possession by the 1st plaintiff even though

she may not have been in occupation.

Thus, the occupation of the brother must be considered to have

been the 1st plaintiff's possession uniess there was sufficient

evidence of adverse possession by him.

3. No obstruction proved

The proof of obstruction, again, is an incidental matter. It is the

disputing of the paper title of the plaintiffs that is relevant for

the first relief claimed - viz. declaration of title to Lot A above

said.

At pages 147/148 of the Brief the 1st defendant stated as

follows:

157

But, the surveyor at pages 141 and 142 of the Brief stated as

follows:

The plan X filed of record also showed that there was no

demar¬cating boundary and that it was shown by fixing stakes

on the ground (vide pages 235 and 237 (line 7) of the Brief).

Hence, it is to be understood that the 1st defendant was averse

to the 1st plaintiff constructing any fence between Lots A & B

since he was trying to lay claim to the entirety (Lots A & B)

with his daughter.

4. Possession from 1947 by 1st defendant-respondent

As stated earlier occupation from 1947 has no relevance.

Possession and occupation must be distinguished. What is

referred to as possession by the learned Counsel was in fact

occupation by the 1st defendant. So long as such occupation

was as a brother of the 1st plaintiff and therefore as a licensee

of the 1st plaintiff, the long period of occupation would not

make it an adverse possession unless there had been an overt

act of ouster as in the case of prescription among co-owners.

The long occupation by the brother must in law be deemed as

possession by the sister through her younger brother. The

learned Judge also seems to have overlooked the difference

between long occupation as a licensee and adverse possession.

There was only a long period of occupation as a licensee in this

instance. There was no adverse possession until 1As stated

earlier occupation from 1947 has no relevance. Possession and

occupation must be distinguished. What is referred to as

possession by the learned Counsel was in fact occupation by

the 1st defendant. So long as such occupation was as a brother

of the 1st plaintiff and therefore as a licensee of the 1st

plaintiff, the long period of occupation would not make it an

adverse possession unless there had been an overt act of

ouster as in the case of prescription among co-owners. The

long occupation by the brother must in law be deemed as

possession by the sister through her younger brother. The

learned Judge also seems to have overlooked the difference

between long occupation as a licensee and adverse possession.

There was only a long period of occupation as a licensee in this

instance. There was no adverse possession until 1984. Action

itself was filed in 1984.

158

5. Boutique in Lot B

As earlier referred to there is insufficient evidence of the

boutique being given on rent to the 2nd plaintiff-appellant. No

question regarding the boutique being given on rent was put to

the 1st plaintiff when she related in her evidence about the

existing state of affairs pertaining to cordial relationship

between the families of the sister and the brother. The story

about the boutique being given on rent to the 2nd plaintiff-

appellant must have been an after thought to show that the

occupation of Lot A by the 1st defendant was independent and

that the 2nd plaintiff was only a licensee on Lot B. In any event

the possession of the 1st defendant prior to 04. 08. 1966 was

as a licensee of the previous owner, (vide page 193 of the

Brief).

6. DC Gampaha Case No. 16214/p

The above said partition case was for an estate in extent 24

acres 1 rood 18.5 perches (vide plan 932 (V1)). Though P1 and

P2 had been executed in 1966, yet Lot S encompassing the

lands transferred on P1 and P2 to the 1 st plaintiff and the 2nd

defendant, respectively, was also surveyed for this partition

case without excluding it (Lot S). The plan only referred to the

8th defendant (Simon the 1st defendant in this case) being in

occupation at the time of Survey. In fact, neither P1 nor P2

executed in 1966 was in his favour. There was no statement of

claim filed by him. In any event for him to claim adverse

possession against his sister, the plan V1 abovesaid was drawn

up in 1972 while his sister obtained title on P1 in 1966. In this

connection his evidence at pages 177 and 178 is revealing -

159

Hence, the 1st defendant's claim to the Surveyor was not as an

owner in his own rights of Lots A and B in plan No. 1177, but

as the caretaker of the Virasinghe family.

The said action (case No. 16214/P) was not proceeded with,

but was dismissed in 1973 (vide V3 at page 308 of the Brief).

Thus, the legal arguments put forward by the learned Counsel

for the defendant-respondents though accepted by the

Additional District Judge, Gampaha, were in fact, erroneous

and contrary to admitted legal principles pertaining to

occupation, possession and dominium. The Additional District

Judge had erroneously concluded that long possession

automatically gives rise to prescription. This need not be so.

We, therefore, allow the appeal.

We set aside the judgment dated 24. 09. 1993 and enter

judgment in favour of the plaintiff-appellants as prayed for in

the plaint dated 10. 04. 1984. We direct the learned District

Judge of Gampaha to take steps to ensure the demarcation of

the southern boundary of Lot A in plan 1177 in terms of prayer

(c) of the plaint. The damages claimed appear reasonable and

therefore we have allowed prayer (d) together with taxed costs

in both Courts (Original and Appellate).

TILAKAWARDANE, J. - I agree.

Appeal allowed.

FERNANDO v. FERNANDO New Law Reports Volume 44, Page No 65 Co-owners-

Purchaser of entire property from a Co-owner-Prescription- Ouster.

View - Volume 44 New Law Reports 65

1942 Present: Wijeyewardene J.

108-C. R. Negombo, 44,783.

Co-owners-Purchaser of entire property from a Co-owner-

Prescription- Ouster.

A purchaser of property from a co-owner, who purported to sell

the entirety of the property, is bound to prove an ouster or to

lead such evidence as would justify the Court in presuming that

an ouster has taken place at least ten years before the

institution of the action.

APPEAL from a judgment of the Commissioner of Requests,

Negombo.

C. E. S. Perera (with him C. J. Ranatunge), for defendant,

appellant.

L. A. Rajapakse (with him R. N. Ilangakoon), for plaintiff,

respondent.

Cur. adv. vult.

66

October 27, 1942. WIJEYEWARDENE J.-

The plaintiff instituted this action to obtain a declaration of title

to lots N and O of a field called Davatagaha Cumbura. The

defendants admitted the title of the plaintiff to the entirety of

lot O and two-eighth shares of lot N. They further pleaded that

the second defendant was entitled to five-eighth shares of lot N

and the added-defendant to the remaining one-eighth share of

lot N.

The following is a brief statement of the devolution of title on

deeds to lots N and O as proved by the evidence in this case : -

(a) By virtue of a partition decree entered in D. C. Negombo,

1,764, and by right of inheritance from their parents, eight

persons, Allis, Noiya, Roido, Mendiris, Carolis, Suwaris, Mango

and the added-defendant, became entitled to an undivided

one-eighth share each of lot N. Noiya conveyed his one-eighth

share to Carolis by deed D 5 of 1918, Mango her one-eighth

share to the added-defendant by AD 1 of 1920, and Roido her

one-eighth share to the second defendant by D 4 of 1920.

Mendiris, Carolis and Suwaris and the added-defendant

conveyed four-eighth shares to the second defendant by D 3 of

1921. The heirs of Allis conveyed their one-eighth share to

Carolis by P 1 of April 7, 1926. Thus, in 1926, Carolis was

entitled to two-eighth shares, the second defendant to five-

eighth shares and the added-defendant to one-eighth share of

lot N.

(b) Allis and Carolis were each entitled to a half share of lot O.

The heirs of Allis conveyed their half share of lot O to Carolis by

P 1 of 1926, who thus became entitled to the entirety of lot O.

(c) By deed P 2 of February 4, 1935, Carolis purported to

convey the entirety of lots N and O to Migoris, who by P 3 of

March 2, 1940, conveyed them to Cornells, who in turn

conveyed them to the plaintiff by P 4 of June 15, 1940.

It is, therefore, clear that the plaintiff can claim only two-

eighth shares of lot N and the entirety of lot O by virtue of

deed P 4, as his predecessor in title, Carolis, was entitled to

only those interests in 1926, though the deed P 3 executed by

him in 1935 purported to convey the entire lots N and O.

In order to substantiate his claim to the entirety of lot N, the

plaintiff must prove that he acquired a prescriptive title against

his co-owners, the second defendant and the added-defendant.

The plaintiff relies, for this purpose, on a usufructuary

mortgage bond P 6 of July 12, 1926, executed by Carolis in

favour of one Sanchina in respect of the lots N and O and the

oral evidence given by himself and the two witnesses, Sanchina

and Davith Perera. Sanchina stated that lots N and O were

cultivated for her by Migoris up to 1935, when the bond was

discharged. Davith Perera corroborated Sanchina and added

that from 1935 up to the date of the action neither Carolis nor

the second defendant cultivated the field. The plaintiff, too,

gave similar evidence. No explanation has however, been given

for the failure of the plaintiff to call Migoris to prove

67

the possession from 1935 to 1940. On the other hand, Carolis,

who was called as a witness by the defence, stated that the

field was not cultivated by Migoris from 1935 to 1940. He

explained that he mortgaged the whole of lot N as the second

defendant, his son, was a minor at the time and could not join

in the execution of the bond. Carolis gave his age as 50 years

and the second defendant could not have been possibly more

than 15 years old when the bond was executed in 1926. It may

also be noted that, when Carolis sold the entirety of lots N and

O by P 2 in 1935 to Migoris, he based his title to the property

on the deed P 1 and did not claim to have acquired title to any

shares by prescriptive possession.

The question now arises whether the plaintiff can be said to

have established his title by prescriptive possession, even if all

the evidence led by him in support of that plea is accepted.

In Corea, v. Iseris Appu1[ (1911) 15 N. L. R . 65], the Privy

Council stated the law with regard to prescription among co-

owners in the following terms : -

" His possession was in law the possession of his co-owners. It

was not possible for him to put an end to that possession by

any secret intention in his mind. Nothing short of ouster or

something equivalent to ouster could bring about that result."

In that case, the defendant who attempted to set up a

prescriptive title against his co-owners, had de facto possession

of the whole estate for over 30 years. The trial Judge found

that during that period " he had planted and leased and

mortgaged and sold various lands and generally dealt with

them as owner ". In spite of this and other findings of fact in

favour of the defendant the Privy Council refused to uphold his

claim to title by prescriptive possession.

In Tillekeratne v. Bastion[(1918) 21 N. L. R. 12. ] this court

upheld a claim to prescriptive possession by the defendants

against a co-owner. In that case, the period of possession was

more than forty years. Referring to the nature of the

possession in that case, de Sampayo J said : " The land had no

plantation worth considering; it was plumbago land and the

defendants dug plumbago therein both by themselves and

through lessees all throughout. While a co-owner may without

any inference of acquiescence in an adverse claim allow such

natural produce as the fruits of trees to be taken by the other

co-owners, the aspect of things will not be the same in the

case where valuable minerals are taken for a long series of

years without any division in kind or money. The effect of this

becomes still more pronounced where the co-owner, being also

a co-heir, has alienated his share to a stranger and the

stranger too is kept out (for over 20 years) ". In that case a

Divisional Bench of this Court expressed the view-" It is a

question of fact, whenever long continued exclusive possession

by one co-owner is proved to have existed, whether it is not

just and reasonable in all the circumstances of the case that

the parties should be treated as though it had been proved that

separate and exclusive possession had become adverse at

some date more than ten years before action was brought."

A similar question arose in Brito v. Muthunayagam[(1918) 20

N. L. R. 38.]. In that case, which dealt with the rights of the

children against their father, the Privy

68

Council held that as the children were co-owners with the

father the possession of the entire property by the father was

not adverse, although there were strained relations between

the father and the children. In the course of his judgment, Lord

Dunedin said, referring to Corea v. Iseris Appu (supra).

" In that case, it was held by this Board that the possession of

one co-parcener could not be held as adverse to the other co-

parcener. Lord Macnaughton, who delivered the judgment,

cited the dictum of Wood V.C., in Thomas v. Thomas1[ (1855)

2 K. J. 79.]: Possession is never considered adverse if it can be

referred to lawful title."

In Brito v. Muthunayagam (supra) it was found that the father

had executed a mortgage in respect of the entire property

many years before the institution of the action but that was not

considered as furnishing evidence of an ouster. While

approving the principle laid down in Tillekeratne v. Bastian

(supra) this court refused in Hamidu Lebbe v. Ganitha[(1925)

27 N. L. R. 33.] to presume an ouster though in that case the

defendant was found to have had possession for nearly 40

years. In Careem v. Ahamadu[(1923) 5 C. L. Rec. 170.] one

Noorami Umma and her brothers and sisters were entitled to a

land by inheritance. In 1889 Noorami Umma obtained a

conveyance for the whole property from one of her brothers,

who was entitled to only a share of the land.' Noorami Umma

remained in the occupation of the house on the land from

1889, mortgaged the whole land in 1892, and executed a deed

in respect of the entirety of the land in 1897. The defendant

claimed the entirety of the property by right of purchase in

1920, in satisfaction of a mortgage executed by the children of

Noorami Umma. The plaintiff, who was one of the brothers of

Noorami Umma, disputed the title of the defendant shortly

afterwards. This court held that the evidence of possession did

not lead to the presumption of an ouster in the absence of

evidence to' show that the co-owners of Noorami Umma had

knowledge of the various transactions of Noorami Umma.

In the present case, the judgment of the Commissioner of

Requests is not very helpful on the question of prescription. He

has upheld the plea of prescription on the ground that Carolis

and the second defendant " do not derive title from the same

source ". It is difficult to understand what the learned Judge

meant by that statement as admittedly they derive title from

Allis and others who were co-owners. The learned Counsel for

the respondent was unable to throw any light on this

observation of the Commissioner of Requests.

The plaintiff does not purport to prove exclusive possession for

more than 15 years before the institution of the action, and the

evidence shows that during some part of that period the

second defendant was a minor. To uphold the plea of

prescription it is necessary to presume that Carolis began to

possess adversely against his minor son from 1926, when he

executed the mortgage bond. There is not even a suggestion of

any ill-feeling between Carolis and the second defendant and

added-defendant, the sister of Carolis. The deed P 2 executed

by Carolis shows that when he transferred the land to Migoris

he claimed title only on deed PI and,

69

did not assert title on any other ground. There is, moreover,

nonviolence whatever to show that either the second defendant

or the added-defendant was aware of the execution of the

mortgage bond P 6. The plaintiff has failed to prove an ouster

or to lead such evidence as to justify the Court in presuming

that an ouster must have taken place at least ten years before

the institution of the action.

I set aside the judgment of the Commissioner of Requests and

direct decree to be entered, declaring the plaintiff entitled to lot

O and two-eighth shares of lot N. The plaintiff will be entitled to

a writ of ejectment in respect of lot O, if the defendants are in

possession of lot O. The plaintiff will pay the second defendant

and the added-defendant the costs here and in the lower Court.

Judgment varied.

MARIA PERERA v. ALBERT PERERA Partition Amicable partition

Ouster Prescription Sri Lanka Law Reports 1983 - Volume 2 , Page No -

399

1983 - Volume 2 Sri Lanka Law Reports 399

COURT OF APPEAL

B. E. DE SILVA. J. AND G. P. S. DE SILVA, J.

C.A. (S.C.) NO. 426/75 (F)

D.C. KALUTARA NO. L/ 1997

10, 11 OCTOBER 1983.

Partition Amicable partition Ouster Prescription

Held

An amicable partition can be a starting point of prescription

even though no deed of partition or cross deeds or other

documents have been executed. But inclusive possession by a

co owner for a period of 10 years alone cannot give rise to

prescriptive title. There must be the further important element

of all change of circumstances from which an inference could

reasonably be drawn that such possession is adverse to and

independent of "all other co owners. There must be proof of

circumstances from which a reasonable inference could be

drawn that such possession had become adverse at some date

ten years before action was brought. Mere exclusive possession

for 20 years (by taking the natural produce of the land) on a

plan not signed by any of the co owners to whom the plaintiff

claimed lots were allotted cannot constitute proof of ouster.

The possession of a co owner would not become adverse to the

rights of the other co owners until there is an act of ouster or

something equivalent to ouster.

Cases referred to:

1. Ponnambalam v. Vaitialingam and another (1978 79) 2 Sri

LR 166

2. Obeysekera v. Endoris and others 66 NLR 457

3. Simon Perera v. Jayatunga 71 NLR 338

4. Nonis v. Peththa 73 NLR 1

5. Ram Menika v. Ram Menika 2 SCC 153

6. Mensi Nona v. Nimalhamy 10 Ceylon Law Recorder 159

7. Abdul Majeed v. Ummu Zaneera 61 NLR 361

400

APPEAL from Judgment of the District Judge of Kalutara.

D. R. P. Gunatilaka with R. S. Tillakaratne for defendant

appellant.

J. W Subasinghe, S. A. with Miss E M. S. Edirisinghe

for plaintiff respondent.

Cur. adv. vult

November 18, 1983

G. P. S. DE SILVA. J.

The plaintiff brought this action against the defendant on 2nd

May, 1972 for a declaration of title, damages and ejectment inn

respect of the land described in Schedule B to the plaint. The

title set out in the plaint was :

(a) that on deed No. 55 of 1928, the person called Martin

Munasinghe became entitled to an undivided 63/144 shares of

the land called Hewawatta alias Mahawatte in extent Al. R2. P0,

described in Schedule A:

(b) that the said land was amicably partitioned between the

four co owners in the year 1951 and the said Martin

Munasinghe was allotted Lot D in plan 46, dated 12.4.51, and

that he entered into possession of the said Lot D and possessed

it from 1951 (vide paragraph 3 of the plaint) : the plan of

partition was produced marked 'P 2' ;

(c) Martin Munasinghe died intestate, leaving as his heirs, his

widow Luvie Perera and four children who sold their rights on P

3, dated 27th February, 1961, to Millie Nona who thus became

entitled to Lot D ;

(d) that Millie Nona possessed Lot D and acquired a

prescriptive title to it ;

401

(e) that Millie Nona by P4 of 23rd March, 1971, sold a portion

of Lot D (shown as Lot A in plan P1 of 12th April, 1967) to the

plaintiff.

After trial, the District Judge entered judgment for the plaintiff

and the defendant has now appealed. Mr. D. R. P. Gunatilake,

Counsel for the defendant appellant, pointed out that in

paragraph 3 of the amended Answer, the defendant has

averred that :

" the purported amicable partition mentioned in paragraph 3 is

invalid and is ineffective in law as all co owners, including the

plaintiff's predecessors in title, have not joined same and on

the ground that no valid deed of partition has been executed. "

Mr. Gunatilake submitted that the foundation of the title relied

on by the plaintiff was the amicable partition of 1951 ; that in

the absence of a deed of partition or of cross conveyances, the

amicable partition did not confer title on Martin Munasinghe to

Lot D in the plan P2, and therefore, the entire case for the

plaintiff necessarily failed. Counsel's submission was that this

being a rei vindicatio action, the burden is on the plaintiff to

prove his title as set out in the plaint. On the other hand, Mr.

Subasinghe, Counsel for the plaintiff respondent, whilst

conceding that the execution of P2, the plan of partition, in

1951, did not terminate co ownership, strenuously contended

firstly that the amicable partition of 1951 was the starting point

of prescription amongst the co owners, and that the evidence

led on behalf of the plaintiff was sufficient to establish title to

Lot D shown in P2 by prescription.

I am in entire agreement with Mr. Subasinghe's submission

that an amicable partition amongst the co owners can be a

starting point of prescription even though no deed of partition

or cross deeds or other documents have been executed.

However, it is to be noted that P2 has not been signed by any

of

402

the co owners to whom the plaintiff claims lots were allotted at

the division in 1951. As observed by Ranasinghe, J., In

Ponnambalam v. Vaitialingam and another (1):

"The termination of common ownership without the express

consent of all the co owners could take place where one or

more parties either a complete stranger or even one who is in

the pedigree claim that they have prescribed to either the

entirety or a specific portion of the common land. Such a

termination could take place only on the basis of unbroken and

uninterrupted adverse possession by such claimant or

claimants for at least a period of ten years ... Proof of such

termination would be a question of fact depending on evidence,

direct and or circumstantial. "

The question that arises for decision in this case is whether,

upon the evidence, it could be said that the plaintiff and his

predecessors in title have acquired a prescriptive title to Lot D

in plan P2. Mr. Subasinghe urged that upon the evidence of

Millie Nona and specially Neris Perera called on behalf of the

plaintiff, there was sufficient evidence to establish title by

prescription. I have perused the evidence of Neris Perera in

regard to possession, and his evidence, at most, would show

that his father Michael Pereira, D. N. Perera, the deceased

husband of the defendant, Martin Munasinghe, and Annie Nona

who were allotted separate lots, possessed their lots

separately. Millie Nona in her evidence, stated that she

possessed the land after he purchase on P3 in February 1961.

She further stated that Martin Munasinghe was in possession of

Lot D and after his death, his widow and children possessed it.

Thus, it is seen that the evidence accepted by the District

Judge, establishes the fact of possession of the divided Lot D in

P2 for a period of 20 years. Possession was by taking the

natural produce of the land. The possession of a co owner

would not become adverse to the rights of the other co owners

until there is an act of ouster or something equivalent to

ouster. Ranasinghe, J., in Ponnambalam v. Vaitialingam and

another

403

(supra), after a very careful consideration of the authorities

dealing with the question of prescription among co owners,

expressed himself thus :

"....... that the inference of ouster could only be drawn in

favour of a co owner upon proof of circumstancesadditional to

mere long possession: that proof of such additional

circumstances has been regarded in our courts ,as a sine qua

non where a co owner sought to invoke the presumption of

ouster. "

In my view, the evidence of possession relied on by plaintiff,

does not show any circumstances from which the inference

could be drawn that the separate possession of Lot D had

become adverse at some point of time more than ten years

before the institution of the action.

On the other hand, there are circumstances which tend to

indicate the contrary. It is of some significance that P3 of

February 1961 upon which Millie Nona purchased the land,

makes no reference whatever to the plan of partition P2. If, in

fact, Lot D in P2 was possessed as a distinct and separate lot, it

is strange that there was no reference to P2 in the deed P3.

Moreover, there is the evidence of Millie Nona that after her

purchase in 1961, the defendant claimed that she was entitled

to 1/12 share of the land. Millie Nona's testimony is that, since

the defendant was worrying her, she got surveyor U. M. de

Silva to prepare the plan P1, dated 12.4.67, and gave the

defendant 7.2 perches out of her land (Lot B in P1). This, in my

view, is a circumstance that goes against the plaintiff's case,

for it is a recognition of the defendant's claim to rights in the

land in dispute.

Finally, I wish to refer to the cases relied on by Mr.

Subasinghe. Mr. Subasinghe cited the case of Obeysekera v.

Endoris and others (2). Ranasinghe, J., In Ponnambalam v.

Vaitialingam (supra), referring to this case, stated: -

"The additional circumstance that was required was supplied by

the 1st defendant's prosecution of the

404

2nd defendant for destroying the barbed wire fence which had

been erected to separate off the portion which was then being

separately possessed by the 1st defendant. "

Mr. Subasinghe next cited Simon Perera v. Jayatunga, (3).

Here, too, there was an additional circumstance :

"In the instant case, the learned District Judge has found that

after Baby Nona purchased a share, there had been an

amicable division among the co owners in pursuance of which

Baby Nona possessed lot 3 in plan X filed of record as her

exclusive property. She not only annexed this lot to the land on

the East, which was her property, but also constructed a wall

which is in the nature of a permanent structure to a length of

144ft. and possessed this portion exclusively ................ for a

period of nearly 30 years. " (The emphasis is mine)

Another case cited before us was the decision of the Privy

Council in Nonis v. Peththa (4). In this case, the " informal

partition " which involved an exchange of lands amongst the co

owners was evidence by a document which had been signed by

all three co owners. The judgment does not refer to the precise

evidence relating to possession but the Privy Council observed:

It was clear from the evidence, that the document, so far from

being intended to preserve the status quo, was drawn up as

part of an arrangement which was meant to resolve certain

difficulties betwen the co owners, by attributing to the 1st

respondent on the one hand, and to Sekera and the 2nd

respondent on the other, separate properties which thenceforth

would be separately enjoyed. "

Mr. Subasinghe also relied on the case of Ram Menika v. Ram

Menika (5), and invited our attention to the following passage

in the judgment:

It need hardly be added that exclusive possession originally

referable in the way just indicated to the consent of the Co

405

proprietors may sometimes by change of circumstances

become a holding adverse to and independent of all co-owners

such as may, by lapse of time, give rise to a prescriptive right.

"

This passage is not an authority for the proposition that

exclusive possession by a co owner for a period of 10 years is

alone sufficient to give rise to a prescriptive title. There must

be the further important element of a " change of

circumstances ", from which an inference could reasonably be

drawn that such possession is " adverse to and independent of

" all other co owners.

Before I conclude, I wish to refer to the case of Mensi Nona v.

Nimalhamy (6), which appears to contain dicta that tend to

support the contention of the plaintiff respondent. But it is

important to note that this was a case where there was clear

and cogent evidence that the land " had been amicably

partitioned between the then co owners as far back as 1895 ...

It has also been clearly established by the evidence of the

surveyor, Mr. Weeraratne, that in 1895, at the instance of the

then co owners, he surveyed and blocked out the land and

handed to each of the persons then in possession a plan of the

block allotted in severalty to him. " (The emphasis is mine.)

Thus, it is clear that the division took place with the knowledge

of all the co owners and the possession of the separate lots

thereafter was on a permanent basis, and not on grounds of

convenience. In the appeal before us, however, there is no

evidence as to the circumstances in which P2 came to be

prepared. As stated earlier, it has not even been signed by any

of the co owners and Noris Perera stated in cross examination,

that he does not know upon which plan the amicable partition

was effected.

On a consideration of these cases, it seems to me that there is

no departure from the principle that exclusive possession of a

separate lot alone is not sufficient, and that there must be

proof of circumstances from which a reasonable inference could

be drawn that such possession had become adverse at some

date ten years before action was brought a principle which

was

406

emphasized in the judgments of K. D. de Silva, J. and H. N. G.

Fernando, J. in the decision of the Divisional Bench in Abdul

Majeed v. Ummu Zaneera (7). It is this essential requirement

that the plaintiff has failed to prove in the instant case.

For these reasons, I am of the opinion that the plaintiff has

failed to establish title by prescription to the land in suit. The

appeal is accordingly allowed, the judgment and decree of the

District Court are set aside and the plaintiff's action is

dismissed with costs.

The defendant appellant is entitled to the costs of appeal.

B. E. DE SILVA, J. I agree.

Appeal allowed.

BANDARA, Vs SINNAPPU 47 NLR 249 Where a Iand Panguwa consisted of

gardens, deniyas and chenas and it was established that these deniyas were

assweddumized by the various co-owners and possessed separately by them

without interference by the other co-owners for a period of over twenty years-

1946 Present. Howard C.J.

171-C. B. Ratnapura, 1,244.

Co. owners-Possession of specific portions of the common land

by the various co-owners-Title by prescription.

Where a Iand Panguwa consisted of gardens, deniyas and

chenas and it was established that these deniyas were

assweddumized by the various co-owners and possessed

separately by them without interference by the other co-

owners for a period of over twenty years-

Held, that each co-owner acquired a title by prescription to the

specific portion in his possession.

250

APPEAL from a judgment of the Commissioner of Requests of

Ratnapura.

H. V. Perera, K.C. (with him G. P. J. Kurukulasooriya), for the

plaintiff appellant.-This is a case .where one co-owner merely

cultivated a field and took the produce to the exclusion of the

other co-owners. Nothing short of ouster or something

equivalent to an ouster is sufficient for one co-owner to

dispossess another. In Cadija Umma v. Don Manic Appu 1 the

Privy Council held that one co-heir?s possession cures to the

benefit of his co-heirs, unless ouster or something equivalent t

an ouster is proved. This was followed in Umma Ham v.

Koch2where it was held that mere possession and execution of

deeds were not sufficient to constitute an ouster. See also

Fernando v. Fernando and another3. It is a question of fact in

each case, and the question whether from long continued,

undisturbed and uninterrupted possession ouster may be

presumed depends on all the circumstances of the case. In this

case the respondent has only put the land to its natural use,

and it should be distinguished from a case where the nature of

the land is altered as for the digging of plumbago-See Sideris

v. Simon 4.

N. E. Weerasooria, K.C. (with him H. Deheragoda), for the

defendants, respondents-In this case the respondents have

assweddumized the land, and a case of assweddumizing should

be distinguished from mere cultivation and the taking of

natural produce; as assweddumization involves the conversion

of high land into low land it should be analogous to the digging

of plumbago.

There is also evidence that the respondents were possessing

this land in lieu of their undivided interests in other lands of the

same ?ganpanguwa ?, and that other co-owners were similarly

possessing other lands in lieu of their undivided shares. This

type of possession is often attributable to an express or tacit

division of family property among the heirs and is sufficient to

prove an ouster-Mailvaqanam v. Kandaiya 5. Whether this

division is done by arrangement or not, under such

circumstances one co-owner can prescribe against the other

within a period of ten years-De Mel v. De Aiwis6 . Ouster can

also be presumed where one co-owner enters a land and takes

the profits exclusively and continuously for a very long period-

Subramaniam v. Sivaraja 7.

H. V. Perera, K.C., in reply.-An improving co-owner is entitled

the the fruits of the improvements effected by him-Podi Sinno

a. Aiwis8 . Hence plaintiff could not in law enjoy the fruits of

the improvements made by the defendants.

Cur. adv. vult.

June 20, 1946. HOWARD CJ.-

The appellant in this case appeals from a judgment of the

Commissioner of Requests, Ratnapura, dismissing his action

with costs. The appellant sought to be declared entitled to

1/24th share of a field called Wereney Cumbure Inhale

Asseddumdeke which was described in the schedule to the

Foot notes

1 (1938) 40 N. L. R. 392 apt. 396.

5 (1913) 1 C. W. R. 175.

2 (1946) 47 N. L. R. 107.

6 (1934) 13 C. L. Rec. 207 at 209.

3 (1944) 27 C. L. W. 71.

7 (1943) 46 N. L. R. 540 at p. 543.

4 (1945) 46 N. L. R. 273 at p. 275.

8 (1926) 23 N. L. R. 401.

251

plaint. The Commissioner held that the plaintiff is entitled to

1/24th share of the lands specified in the plaint, but the

defendants have acquired title to lot 1 by prescription. The

evidence established that three brothers by name W. A. Viand,

W. A. Madduappu, and W. A. Punchirala were entitled to a 4

share of the field in question. W. A. Vidane who was thus

entitled to 1/6th died, leaving two children Naidehamy and

Dingirihamy. Naidehamy?s 1/12th share devolved on his two

children Dantahamy and Kaluhamy. Dantahamy?s 1/24th share

devolved on his sole child Menikhamy who died leaving

Siriwardenahamy who by deed No. 5550 of February 7, 1914

(P 1), sold this 1/24th share together with other lands to

Punchimahatmaya. The latter sold this 1/24th share with other

lands by deed 1171 of June 16, 1937 (P 2), to the plaintiff. The

defendants traced their title to Kaluhamy who died leaving the

first defendant? and three others. The first defendant

maintained that in lieu of a part of his undivided interest in the

Weerasinghe Aratchillage Gan Panguwa he entered into

possession of Wereney Cumbure Deniya, which is lot 1, about

20 years ago, assweddumized it and has been in exclusive

possession of it ever since. By deed No. 15124 of November

30, 1031 (B 1), the first defendant sold lot 1, known as

Pambeyakumbura, act?s it was assweddumized, to his son-in-

law and daughter, the second and third defendants, who have

been in possession ever since. The plaintiff not only claimed

the land in question by virtue of his paper title hut also

maintained that he and his predecessors in title had been in

possession of lot 1. This contention was rejected and in my

opinion rightly rejected by the Commissioner. The latter has

accepted the evidence of the first defendant that he entered

into possession of lot 1 as co-owner of Weerasinghe

Aratchillage Gan Panguwa, that he started assweddumizing it

little by little without any interference by any other

shareholders of the Gan Panguwa, that certain co-owners of

chenas and fields of this Gan Panguwa had been ?in the habit

of possessing certain lands exclusively in lieu of their shares in

all the lands, that lot 1 was possessed by him in that manner,

and that he has been in exclusive possession of this lot for over

20 years without any interference by any one else. There is no

doubt ample evidence to support the Commissioner?s findings

of fact in regard to the previous history of lot 1. Thus

Punchimahatmaya, the plaintiff?s predecessor in title, states on

p. 15 as follows: -

?This panguwa is in extent about 300 acres. I am a Kandyan. If

there are deniyas the various co-owners assweddumize them

and possess separately. Similarly they possess chenas also. I

do not know who assweddumized those lots but when I bought

they wore fields. There were Val Vidanes at that time also.

They used to make a list of the fields and the cultivator.?

Again at pp. 13 and 14 Bandara, another of the plaintiff?s

witnesses, states as follows: -

?Weerasinghe Aratchige Gan Panguwa consisted of gardens

and deniyas and chenas, The whole panguwa is about 200 to

300 acres.? The first defendant on p. 17 states :-

?The land in dispute was a been. When I first entered it was

overgrown with mamba and weraniya sticks. Because of the

pamba jungle

252

it was called Pambagahakumbura. When the Land

Commissioner came I gave Pambakumbura to this field. I

entered this land about 40 years ago and started

assweddumizing it. I have not completed assweddumizing it.

There is about one lathe yet to be-assweddumized. For the last

40 years I am assweddumizing. After I started assweddumizing

I did not allow any co-owners to possess it .-

When that was put about 12 lahas had been assweddumized

and after that I ass assweddumized the rest. My brothers have

assweddumized. Dodampe Mudalihamy has assweddumized.

His mother is Lokuetana, Lokuetana is Punchirala's daughter or

Naidehamy?s daughter. She is not a descendant of Vidane,

Madduma Appu or Punchirala. Mudalihamy has assweddumized

Suduwelikandedeniya. He has also planted - acre of

Gonnamaladeniya pahalakella and adjoining these he has

assweddumized 5 lahas. The two portions of high land and the

field of Suduwelikandegodella is 14 acres high land and 3 pelas

paddy.

That Mudalihamy did not allow any other co-owner to possess.?

and again at p. 18

?It is not correct to say that I entered this land 20 years ago as

stated in my answer. The other shareholders had other lands to

assweddumize. I have assweddumized the entirety of this

chena and deniya. There is one laha more to be

assweddumized.?

On pp. 22 and 23 Thomas Singho states as follows :-

?I know this land in dispute for the last 30 years. When I came

to know it first this land was in deniya. This first defendant

assweddumized this deniya. He may have taken 10 or 15 years

to assweddumize the whole field. He used to assweddumize it

year after year. No one else possessed this field for the last 30

years besides first defendant and his son-in-law. Plaintiff never

possessed. In 1942 plaintiff claimed this field for the first time.

This land belongs to Weerasinghe Aratchillage Panguwa. This

panguwa may be about 100 acres both high ad low. There are

other co-owners of this Panguwa. They assweddumize different

portions and possess them. Wastuhamy is possessing ?Gode

Deniye Kumbura? which he assweddumized. It is about 6 lahas

in extent. Menikrala also has assweddumized in two places and

he is possessing them. First defendant is possessing the land

called Godadeniyewatta in its entirety. Appuhamy is possessing

the land called ?Godedeniye Udahakella ?. The chenas are also

worked by different co-owners in different blocks. I live within

mile of this field in question. I have worked this field also for 2

years as cultivator under first defendant. These years first

defendant took the landowner?s share.?

It has, therefore, been established that (a) the lot in dispute

was part of a panguwa of 200 to 300 acres consisting of

gardens, deniyas and chenas, (b) that these deniyas were

assweddumized by the various co-owners and possessed

separately by them without interference by the other co-

owners for a period of over twenty tears. The question,

therefore, arises as to whether this possession is sufficient in

law to confer on the 2nd and 3rd defendants a title by

prescription. Mr. Perera has contended that it

253

does not inasmuch as there has been no ouster and the

possession of the defendants is that of their co-owners. In

support of this contention Mr. Perera has relied on the cases of

Ummu Ham v. Koch 1 , Sideris v. Simon 2,Fernando v.

Fernando 3, and Cadija Umma v. Don Manis Appu 4 . All these

cases followed the well known Privy Council case of Corea v.

Appuhamy 5 . Mr. Perera, however, concedes that, on the

principle established in Podi Sinno v. Alwis 6, the defendants as

improving co-owners would he entitled in a partition action to

the fruits of the improvements effected by them. In spite of Mr.

Perera?s contention I am of opinion that it is impossible to

distinguish the facts in this case from those in De Met v. De

Alwis 7, the headnote of which is as follows :-

?Each of two co-owners of two contiguous lands was entitled to

an undivided half share of the first land, and an undivided third

the second. One of them allocated to himself the entirety of the

first land and a portion of the second adjoining the first. The

remaining portion of the second land passed into the exclusive

possession of the other co-owner. The portions thus allocated

were roughly the equivalents of their respective fractional

interests in the two lands. Each of the areas thus separated

was incorporated with certain interests of which each co-owner

was sole owner. These consolidated areas were possessed as

distinct and separate lands for well over ten years. In the

action between the representative in interest of one co-owner

and the successors in title, by purchase, of the other, the trial

Judge rejected the plea of prescription on which the defendant

relied. In appeal this judgment was reversed.

Held .- That, where co-owners enter into possession of a

specific portion of a land and remain in exclusive and adverse

possession thereof for a period of ten years, each co-owner

acquires a title by prescription to the specific portion in his

possession.

The dictum of De Sampayo J. in Mailvaqanam v. Kandaiya 8 , is

also very much in point so far as the facts of this case are

concerned. This dictum is as follows

?The Commissioner has found that possession has all along

been with the plaintiff and his predecessors in title and that

Sabapathy from whom the 1st defendant derives title never

had any possession, but lie has not given effect to that finding

on the ground that there was no ouster of Sabapathy, who was

a co-owner. It seems to me that the Commissioner has

misunderstood the nature of ouster required for the purpose of

prescription among co-owners and of the evidence necessary to

prove such ouster. There is no physical disturbance of

possession necessary-it is sufficient if one co-owner has to the

knowledge of the others taken the land for himself and begun

to possess it as his own exclusively. This sole possession is

often attributable to an express or tacit division of family

property among the heirs, and the adverse character of

exclusive possession may be inferred from circumstances.

1 (1946) 41 N. L. R. 107.

5 (1912) A. C. 230.

2 (1945) 46 N. L. R. 213.

6 (1926) 28 N. L. R. 401.

3 (1944) 27 C. L. W. 71.

7 (1934) 13 C. L. R. 207.

4 (1933) 40 N. L. R. at p. 396.

8 (1915) 1 C. W. R. 175.

254

The judgment of Canekeratne J. in Subramaniam v.

Sivaraja1,[1 (1945) 46 N. L,. R. 540] which deals with the

circumstances in which an ouster may be presumed is another

decision that supports the principle which Mr. Weerasooria

contends is applicable to the facts of this case.

For the reasons I have given I have come to the conclusion

that the Commissioner came to the right decision and the

appeal is dismissed with costs.

Appeal dismissed.

P. P. G. SEDIRIS, vs M. S. ROSLIN In considering whether or not a presumption of

ouster should be drawn by reason of long-continued possession alone of the

property owned in common, it is relevant to consider the following, among other

matters: (a) The income derived from the property. (b) The value of the property.

(c) The relationship of the co-owners and where they reside in relation to the

situation of the property. (d) Documents executed on the basis of exclusive owner

ship.

New Law Reports Volume 78, Page No 547

1977 Present : Ismail, J., Sharvananda, J., and Ratwatte, J.

S.C. 213/72 (Inty)-D. C. Matara 3973/P

Marriage-Presumption of marriage-Marriage by habit and

repute-Rebuttal of presumption of marriage-Prescription among

Co-owners.

Where a man and a woman belonging to two different castes

are proved to have lived together as man and wife for many

years and where there is evidence that relatives and friends of

the man had ostracized him from their society,

Held, the association between the parties attracted the

presumption of marriage which could be rebutted only by

strong and cogent evidence.

"The test is whether the conduct of the parties produced

among their relatives and friends a general belief that they

were really married. Ordinarily, in the case of parties of the

same caste, their relations and friends acknowledge and

recognize their marriage by visiting them and mixing with them

in their social ceremonies. But, if a person marries outside his

caste beneath his social status, his relatives and friends

disapprove that marriage and manifest their disapproval by

ostracizing him from their society. The recognition they give to

such a marriage is in the shape of out casting him and

boycotting him from their social functions. This negative

conduct is exhibited only if the parties are married and not if

they live in concubinage ".

APPEAL from a judgment of the District Court, Matara.

P. R. Wikremanayake, for the Plaintiff-Appellant.

J. W. Subasinghe for the 3rd Defendant-Respondent.

1st and 2nd Defendant-Respondents absent and

unrepresented.

Cur. adv. vult.

February 7, 1977. SHARVANANDA, J.-

In this action, the plaintiff seeks to partition the land called Lot

D of Belikatulande Dawaniyagahakoratuwa, which is depicted

as Lot A in Plan 153 filed of record marked X.

548

It is common ground that one Siyadoris and Andiris Appu. were

both declared entitled equally to this lot by final decree in

partition action D. C, Matara 1438. By deed No. 6864 dated

24.6.35 marked 3D1, Siyadoris sold his rights to Pinonahamy,

his sister-in-law, who, on deed No. 44595 dated 8.1.63.

marked 3D2, sold her half share to Rosalin, the 1st defendant.

According to the plaintiff, Andiris Appu, who was entitled to the

balance half share, died leaving as heirs five children, three of

whom died without marriage or issue, leaving the plaintiff and

the 2nd defendant as the only heirs. As such, the plaintiff

claimed one fourth and second defendant the other one fourth

of the corpus. The 3rd defendant, in his answer, denied that

the plaintiff and the 2nd defendant were entitled to any share

on the plea that they were not the legitimate children of Andiris

Appu. According to the 3rd defendant, Andiris Appu died

unmarried and issueless and his rights devolved on his brother

Carolis and the latter joined Siyadoris in the execution of deed

No. 6864 of 1935 (3D1) and purporting to transfer the half

share which originally belonged to Andiris Appu. The transferee

Pinonahamy is a daughter of Carolis. According to the 3rd

defendant, Pinonahamy. who was thus entitled to the entire lot

on deed No- 6864 of 1935, by deed No. 1610 dated 12.1.63

(3D3), transferred to him the balance half share remaining

after her disposition on deed No. 44595 (3D3). The 3rd

defendant states that neither the plaintiff nor the 2nd

defendant are entitled to any rights in the corpus.

The crucial question in this case is whether Andiris Appu was

married to Dingihamy, the mother of the plaintiff, and the