Seetiya v. Ukku
UKKU AND ANOTHER
COURT OF APPEAL.
H. A. G. DE SILVA. J. AND DHEERARATNE. J.
A. 314/78-D. C. KULIYAPITIYA 258/P.
AUGUST 2 and 7. 1985.
Prescription among co-owners-Action for partition.
Nothing short of ouster or something equivalent to ouster is necessary to makepossession adverse and end co-ownership. Although it is open to a court from lapse oftime in conjunction with other circumstances of a case to presume that possessionoriginally that of a co-owner had.later become adverse, the fact of co-ownerspossessing different lots, fencing them and planting them with a plantation of coconutwhich is a common plantation in the area cannot make such possession adverse.
Cases referred to:
(.1) Corea v. Iseris Appuhamy (1911 )J 5 NLR 65.
Tillekeratne v. Bastian (1918) 21 NLR 12.
Sediris Appuhamy v. James Appuhamy (1958) 60 NLR 297. 302.
APPEAL from judgment of the District Court of Kuliyapitiya.
T. 8. Dissanayake, P.C. with Eardley Ratwatte for the 1 st plaintiff-appellant.
R. P. Gunatileke for the 1 st defendant-respondent.
Harsha Soza for the 4th defendant-respondent.
2nd, 3rd, 5th and 6th respondents absent and unrepresented.
The plaintiff sought to partition the land called Meegahawattahenaalias Meegahawatta, depicted as lots A, B, C. and D in plan 1553,less an extent of 2 roods, 28 perches within lot A, which extent is aseparate land covered by T. P. 374188. The plaintiffs concededinterests in the land to the 1 st and 4th defendants. The contesting 1 stdefendant averred that only lots A and B formed the corpus and thatlot C should be excluded as it was a different land calledKajugahamullawatta, exclusively possessed by him. The 1st defendantfurther averred that in consequence of an amicable division of the
Sri Lanka Law Reports
(1986) I SriL. R.
corpus among the co-owners over 40 years ago. he had been inexclusive possession of lot B and that therefore the plaintiffs actionshould be dismissed. The contesting 4th defendant averred'that onlyots A and B formed the corpus. He further pleaded that lot D wasexclusively possessed by him, as forming a part of a land calledKongahamullawatta and asked for the dismissal of the plaintiff'saction. Although he averred that he should get interests from thecorpus, at the trial he understandably abandoned his claims forinterests in lots A and B. The contesting 5th and 6th defendants towhom the plaintiffs conceded no interests from the land, claimed thecorpus on an entirely different pedigree.
The learned trial Judge, having considered the final village plan (P1)dated 1 2.02.1934 and other factors, came to the correct conclusionthat lots A, B, C and D in plan 1553, less the extent covered by lot 47within lot A, formed the corpus. This finding of fact was not canvassedbefore us.
The learned trial Judge accepted the pedigree set out by theplaintiffs and found no difficulty in rejecting the dispute raised by the5th and 6th defendants. This finding of fact too was not canvassedbefore us.
On the acceptance of the pedigree as set out by the plaintiffs, thelearned trial Judge concluded that the plaintiffs along with the 1st andthe 4th defendants are co-owners of the corpus, but. however, heproceeded to dismiss the plaintiffs' action stating in brief as follows:
"On consideration of the documentary and oral evidence, it seemsto me, that although the co-owners had about the years 1933 to1 934 considered the corpus as one land, from the period between1937 to 1939 they had planted the land, erected fences, and hadpossessed it dividedly without interruption and withoutacknowledging the rights of each other, as they do possess now It'had been proved from the evidence led that the co-ownership of theland ended from about the year 1 939."
Seetiya v. Ukku (Dheeraratne. J.)
The 1 st plaintiff has now appealed from this judgment.
Let me look at the factual possession of the corpus by therespective co-owners. Lot A, in the possession of the plaintiff,contains 54 coconut trees 25 years old and 18 coconut trees 1 yearold. This lot A, as stated earlier, includes an extent of land outside thecorpus, which belongs to the 1st plaintiff. Lot B in the possession ofthe 1st defendant, contains 160 coconut trees 28 years old. Lot Calso in the possession of the 1st defendant, contains 35 coconuttrees 28 years old. Lot D in the possession of-the 4th defendant,contains 43 coconut trees 28 years old. These lots are separated byfences as old as the plantations raised in them. According to theextents covered by these separate lots forming the corpus, theplaintiffs who are entitled to a 1/2 share of the land, are in possessionof an extent representing little over 1 /4th share; the 1st defendantwho is entitled to 3/8 shares of the land, is in possession of an extentrepresenting little less than 5/8 shares; and the 4th defendant who isentitled to a 1 /4th share of the land, is in possession of an extentrepresenting little over 1 /4th share. The reason for the 1st and the 4thdefendants for resisting the partition of the land, is thus quite obvious.
It is contended on behalf of the 1st plaintiff-appellant that thecommon possession of the land had not terminated, while it iscontended on behalf of the 1st and 4th defendants-respondents thatthe co-owners have-prescribed to their respective lots by longpossession, adverse to each other.
Before examining these competing claims, let me turn to the lawrelating to prescription among co-owners' The substantive principle oflaw regarding this matter was. authoritatively laid down in the case ofCorea v. Iseris Appuhamy (1), that the possession of one co-owner isin law the possession of the other co-owners. It was also laid down inthat case that it was not possible for one corowner to put an end tothat possession by any secret intention in his mind and that nothingshort of an ouster or something equivalent could bring about thatresult. The principle of substantial law laid down in that case, wasrefined in the case of Tillekeratne v. Bastian (2), by the applicationfrom the field of the law of evidence, a presumption, that it was opento court from the lapse of time, in conjunction with othercircumstances of a case, to presume that possession originally that ofa co-owner, had since become adverse.
Sri Lanka Law Repons
11985] I SnL R
The facts of the instant case find no room for invoking thepresumption of ouster referred to in Tillekeratne's case Theco-owners, who separately planted the land from about 1939, withthe exception of the 2nd plaintiff, who died during the pendancy of thecase, are all alive and all of them gave evidence at the trial. Directevidence from these co-owners being available in this case, the onlymatter we have to consider is whether the 1st and 4thdefendant-respondents have, by their direct evidence proved ousteror something equivalent thereof so as to make their possessionadverse. There is no evidence in this case of an amicable division ofthe property with the common consent of all co-owners The area inwhich the corpus is situated, being an area falling within what ispopularly known as "the coconut triangle," the co-owners, naturallyplanted coconuts in this common land m separate portions. Thismanner of possession, according to the rights of co-owners, whichcommonly lakes place in the country, was referred to by Sinnetamby.J in the case of Sedins Appuhamy v. James Appuhamv. (3) at page302, in the following words:
"Every co-owner is in law entitled to his fractional share ofeverything in the co-owned property including the soil as well as theplantations, but in practice it is not possible for every co-owner toenjoy his fractional share or every particle of sand that constitutesthe common property: and every blade of grass and every fruit fromthe trees growing on the land without much convenience to himselfas well as other co-owners To avoid this, for the sake ofconvenience, co-owners possess different portions of the commonland, often out of proportion to their fractional shares, merelybecause of improvements they have effected."
The only evidence which found acceptance by the learned trialJudge in this case is mere long possession by the co-owners inseparate lots, having planted them. To say that the possession of the1st and 4th defendant-respondents was adverse. I would haveexpected some additional circumstances. The presence of old fences,apparently erected to protect the plantations, are not m my mind suchan additional circumstance, which would make the possession of theco-owners adverse to each other.
. Seetiya v. Ukku (Dheeraratne. J.)
For the reasons stated. I would allow the appeal, set aside thejudgment of the learned trial Judge and answer the issues asfollows
Issue No. (1) Yes, as lots A, B, C and D in plan 1 553, less theextent within lot A covered by lot 47.
Yes, in the following shares.
2 B to 2 F Plaintiffs5/24shares
1 st Defendant9/24shares
3/24 shares of the 1 st Defendant and 3/24shares of the 4th Defendant will be subject to thelife interest of the 10th Defendant.
Does not arise.
Does not arise.
Plaintiff can maintain the action.
. Does not arise.
Does not arise.
The improvements will go according to the report to plan No. 1 553and the parties will be entitled to_ pro-rata costs. I direct that theInterlocutory Decree for partition be entered accordingly. The 1stplaintiff-appellant will be entitled to the costs of this appeal.
H. A. G'. DE SILVA, J. – I agree.