Sri Lanka Law Reports
 1 Sri L.ft.R.i'i
COURT OF APPEAL.
H. A. G. DE SILVA, J. AND DHEERARATNE. J.
A. 7/79 (F)-D.C. GALLE 8481/L*
OCTOBER 24 AND 25, 1985. *
Unallotted lot in Partition Decree-Prescriptive possession-Plaintiff fails to provetitle-Can he rely on weakness of defendant's title ?
The plaintiff claimed title to a lot left unallotted in a partition decree on the basis of hispredecessor having prescribed to it. The 1 st defendant also claimed title to the same lotby prescription. He was in possession but a deed executed by his father militatedagainst his claim to prescriptive title.
The plaintiff was a purchaser who had not been given possession by his vendor. He hadto rely on the prescriptive title of his vendor and her father who was her predecessor intitle. The vendor had a brother who survived her father.
It could be inferred the vendor herself did not have possession because-
if she had possession she could have placed the purchaser (plaintiff) inpossession
the purchaser held back Rs. 1,000 of the consideration to be paid after he wasgiven possession.
Samarapala v. Jagoda
In a vindicatory suit the plaintiff must prove his title. Having failed to prove his own title,he cannot rely on the weakness of the 1 st defendant's title. Whatever the strength ofthe 1st defendant's case, if the plaintiff fails to establish his title, plaintiff's case mustnecessarily fail.
Cases referred to:
D. A. Wanigaratne v. Juvanis Appdhamy (1962) 65 N.L.R. 167.
Carolisappu v. Anagihamy (1949) 51 N.L.R. 355.
APPEAL from judgment of District Judge, Galle.
P. A. D. Samarasekera. P.C. with Jayantha de Almeida Gooneratne. K. Abeypala and M.Hussein for plaintiff-appellant.
N. R. M. Daluwana, P.C. with Miss S. Nandadasa for the defendant-respondent.
Cur. adv. vult.
January 31, 1986.
H. A. G. DE SILVA. J.
The plaintiff instituted this action against the defendants seeking:
a declaration of title to lot 17 of a land called Talawewattawhich in final decree (PI) in D.C. Galle Case No. 38344remained unallotted;
an order of eviction of th$ 1st defendant therefrom andrestoration of th# plaintiff to possession thereof;
Rs. 1,000 as damages for the cutting down of 40 rubber treesby the 1 st defendant; and
damages at Rs. 100 per mensem till the plaintiff is placed inquiet possession of the said land.
The 2nd defendant was said to be the predecessor in title of theplaintiff and had been made a party in order that she may warrant anddefend the plaintiff's title. The learned District Judge after trial heldthat the plaintiff had failed to establish his title and dismissed theplaintiffs action with costs. It is from this judgment that the plainttffhas appealed.
The plaintiff's case was that lot 17 in extent 27.10 perches asdepicted in plan I 252A (P2) filed in D.C. Galle Case No. 38344 wasnot allotted to any party in the final decree P1 dated 28th April 1945
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but the 1 st plaintiff in that case one Jagodage Charles Mathias whowas allotted lot 4 possessed this lot 17 and after his death theprescriptive title thereto devolved on his daughter Kamala Piyaseeli the2nd defendant. The latter by Deed No. 17341 of 10th August 1973conveyed an undivided 3/4 share of lot 4 and the entirety of lot 17 tothe plaintiff. Lot 1 7 is referred to in the second schedule-to that deedand it also states that the said lot was held and possessed by her byvirtue of prescriptive possession. The plaintiff alleged that on 26thAugust 1973, the 1st defendant without his permission entered theland and cut coconut trees and rubber trees and caused damage tohim in a sum of Rs. 1,000.
The 1st defendant in his answer averred that in or about 1960when lot 1 7 was overgrown with weeds and jungle, he had clearedthe jungle and planted catch crops and in 1968 had planted teaclones on a portion of that land. The remaining portion had beenplanted with catch crops. He further averred that he was the owner oflot 19 which adjoins lot 17. He also stated that he had prescriptivepossession to this lot for a period of over 10 years. He denied thatJagoda Carolis Mathias referred to in the plaint had at any timepossessed this land. He further stated that Mathias had two children,viz. Kamala Piyaseeli the 2nd defendant and Premachandra at the timeof his death and as such the ownership of the entire lot could not inany circumstances be conveyed bytthe 2nd defendant to the plaintiff.Premachandra had died after his father's death and was also an heir tohis father's assets. It was the 1st defendant's position that whenDeed P5 was executed, the plaintiff was aware that the 1 st defendantwas in possession and therefore he retained Rs. 1,000 out of thepurchase price till the 2nd defendant gave him possession. The 2nddefendant had filed a case in M.C. Galle Case No. 157 seeking torecover the said Rs. 1,000 from the plaintiff.
The 2nd defendant Kamala Piyaseeli did not file answer nor did shegive evidence on behalf of the 1 st defendant.
The learned trial judge has quite correctly held that even if Kamalafjyaseeli purported to convey lot 1 7 to the plaintiff by Deed P5 she. could have done so only if she herself had prescriptive title to lot 17.
It was the plaintiff's position that though the land was sold to him onDeed P5 for Rs. 2.500 he had paid only a sum of Rs. 1.500 beforethe notary and he had retained the balance Rs. 1,000 to be paid when
CASamarapala v. Jagoda (H. A. G. De Silva, J.)38 V
he was placed in possession. He had up to date not paid that moneyas he was never placed in possession. The question then arises, ifKamala Piyaseeli was in fact in possession of that land what was thedifficulty for her to have handed over possession to the plaintiff. This,of course, she could not have done if she was not in possession andsomeone else such as the 1 st defendant was in possession. One thingis clear, the plaintiff never entered into possession of that land. He hasso admitted in his evidence.
In D. A. Wanigaratne v. Juvanis Appuhamy (1) Herat, J. in hisjudgment at page 1 68 states as follows:
“In this case the plaintiffs-respondents brought an action reivindicatio in respect of a paddy field against the 1stdefendant-appellant.
They joined as defendants their vendors so as to warrant anddefend quiet, possession.
It has been laid down now by this Court that in an action reividicatio the plaintiff should set out his title on the basis of which heclaims a declaration of title to the land and must, in Court, provethat title against the defendant in the action. The defendant in a reivindicatio action need not prove ^anything, still less, his own title.The plaintiff cannot a$k for a declaration of title in his favour merelyon the strength that the defendant's title is poor or not established.The plaintiff must prove and establish his title.
In the case, the plaintiffs produced a recent deed in their favourand further stated in evidence that they could not take possession ofthe shares purchased by them because they were resisted by the1 st defendant. No effort was made to call any of the vendors to theplaintiffs to prove the possession or title of the vendors".
In this case too the plaintiff has not been in a position to call hispredecessors-in-title, viz. Charles Mathias and his daughter KamaiSPiyaseeli, the 2nd defendant. The former as he was dead and thelatter as the relations between the plaintiff and the 2nd defendantwere not cordial as a result of the plaintiff withholding Rs. 1,000 fromthe purchase price till possession was handed over to him.
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I will now consider what evidence the plaintiff has placed beforeCourt either oral or documentary to prove prescriptive possession byMathias and thereafter by his daughter the 2nd defendant as learnedcounsel for the plaintiff:appellant cited the case of Carolisappu v.Anagihamy (2) where it was held that-
"The period of possession of an intestate person can be tacked onto a possession of his heirs for the purpose of computing the periodof ten years required to acquire prescriptive title under section 3 ofthe Prescription Ordinance".
The final decree P1 in D. C. Galle case No. 38344 was entered on28th April 1943 and lot 1 7 remained unallotted therein. Lot 4 wasallotted to the 1st plaintiff, i.e. Jagodage Charles Mathias. Toestablish possession of lot 17 by Charles Methias. oral evidence wasgiven by the plaintiff and his brother Haramanis. who were bothchildren of Mathias's sister. According to P3 dated 10th November1943, the plantation on lot 17 consisted of 5 coconut trees. 2 jaktrees, 53 rubber trees, another 5 rubber trees and 41 tea bushes.
Journal entry P4 of 23.5.44 in D. C. Galle Case No. 38344 showsthat the 8th defendant acknowledges payment of Rs. 426.50 fromthe 1st plaintiff, i.e. Mathias, as compensation due from the 1stplaintiff in respect of lot 17. In journal entry of 2.8.44 P4(a) the 8thdefendant has moved to be permitted to deposit Rs. 1.70.03 in favourof 1st plaintiff for lot 17 received Say the 8th defendant by mistake.There is also a motion P4(e) da*fed 5th Jun^ 1946 which seeks anorder of payment in favour of the 8th defendant in that case for thesum of Rs. 170.02 deposited by the 8th defendant. It further statesthat the '8th defendant was declared entitled to the rubber plantationof lot 1 7 and the owner of lot 1 7 was ordered to pay to the 8thdefendant Rs. 170.02 as compensation for the rubber. This lot 17however was left unallotted and the 8th defendant continued .topossess the rubber. The plaihtiff offered compensation for lot 17 andthe 8th defendant unthinkingly accepted'it and issued a receipt. Soonafterwards when he realised that he had accepted compensation forthe unalloted lot 1 7 he offered the-money to the plaintiff and when herefused to accept it, deposited the money in Court. The 8th defendant 'had then filed action in C. R. Galle Case No. 25872 against the.plaintiff to get possession of the rubber on lot 17 but the case wassettled and the plaintiff was allowed to remain in possession of therubber as he had paid compensation. The 8th defendant now soughtto withdraw the money he deposited.
Samarapala v. Jagoda (H. A. G. De SHva-. J.)
This evidence would show that after the final decree in 1943.Mathias the plaintiff in that case, had gone into possession of lot 17and was in possession in 1946. According to the plaintiff. Mathiasdied about 25 years before 1978, i.e. about 1953. Mathias had onlyone child but 1D1 shows that Mathias had a son Jagodage RomisPremachandra who died on 8.8.1954 and had survived Mathias and1 D3 indicates that Romis Premachandra had a son KulasiriAmarawardena born on 20.4.1954.
It was the plaintiff's position that after Mathias died, the 2nddefendant his daughter possessed the land and he knew personallythat the 2nd defendant tapped the rubber trees on the land andplucked coconuts just as her father had done previously. Incross-examination the plaintiff has said that possession of the landwas never handed over to him by the 2nd defendant after theexecution of Deed P5 in 1973 but in the complaint P7 made to thepolice on 10.7.1974 regarding the forcible cutting of trees by the 1stdefendant he has stated that after he purchased this land he hadcultivated it with catch crops. He further stated that the 1 st defendanthad entered the land and cut the rubber trees in August 1973 but hemade the complaint to the Police about it only in July 1974, nearly anyear later and according to it, the 1st defendant had entered the landonly on 8th July 1974. There were obvious contradictions in thepositions that he had taken up in Iris evidence and in the complaint tothe police.
Haramanis in his evidence stated that Mathias possessed this lotand during this period he was in the habit of getting the rubber treestapped, and the coconuts plucked by labourers while his daughter the2nd defendant and her brother used to pluck the tea leaves. Later hestated that no labourer was employed to tap the rubber trees and thiswas done by the 2nd defendant herself. According to him Mathias haddied about 15 years before 1978, i.e. about 1963. This would beabout 10 years after the year given by his brother, the plaintiff.
Further it has been conclusively proved that Mathias had anotherheir in addition to his daughter the 2nd defendant, viz. his son RomisPremachandra who survived Mathias and was himself survived by hisson Kulasiri Amarawardena. In these circumstances, without cogentevidence to prove that the 2nd defendant only of Mathias's intestateheirs possessed this land, it would be difficult to hold with the
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contention of the plaintiff that the 2nd defendant had prescriptivepossession of thfs lot 17. The only person who could have given thisevidence, viz. the 2nd defendant could not be called by the plaintiff. Inthis state of the evidence the trial judge has in my view quite justifiablyheld that the plaintiff has failed to prove possession by the 2nddefendant and consequently failed to establish his own title.
The learned trial judge has also held that the 1st defendant hashimself not established prescriptive possession to this land in view ofDeed P6 executed on 18th July 1973. The vendor is his father andthe purchase price is Rs. 150. As the learned trial judge states, if the1st defendant had prescriptive possession since 1960 what was thenecessity for him to obtain this conveyance in 1973. In any event,whatever is the strength of the 1st defendant's case, if the plaintifffails to establish his title, his case must necessarily fail. I am thereforeof the view that the learned trial judge was correct in the conclusionshe has come to and his judgment must be affirmed. The appeal standsdismissed with costs.
DHEERARATNE, J. – I agree.
1-SAMARAPALA v. JAGODA