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AMERESEKERE v. RAN MENIKA et al.
D. C., Kurunegala, 1,265 L 312.
Division of land among co-heirs—Nature of proof required for one heir toprescribe against another.
Among co-heirs the strongest evidence of adverse possessionshould be given. Such evidence can very rarely prove division,unless it comes in the form of notarial conveyances, either crossbetween the heirs or so specifying the shares they severally deal withat different times as to indicate their acquiescence and possessionon that basis.
rpHIS was a partition suit. Plaintiff claimed || share of theland Kohombagahamulawatta, and prayed for a partitionthereof. The land orginally belonged to one Kohombihami, whodied leaving three children: Menuhami, Appuhami, and Jevat-hami. Plaintiff derived title through the children of the first andsecond, and through the third person aforesaid. Defendants,admitting the ownership of Kohombihami, declared that the wholeland was allotted to and possessed by Menuhami, and that Appu-hami and Jevathami had been assigned other lands in lieu thereofby their parent. Defendants claimed the land under Menuhami,and pleaded title by prescriptive possession.
The District Judge found for plaintiff, and accordingly entereda decree of partition in his favour. Defendants appealed.
Bawa, for appellants.
Domkorst and H. A. Jayawardena, for respondent.
8th September, 1897. Browne, A.J.—
Mr. Bawa has failed to satisfy me that the learned DistrictJudge has come to a wrong conclusion on the evidence. Nodoubt there is the fact that the sons of the original owner aresundered one from another now in residence—a circumstance
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which we must always expect to find—and that they are eachplanting gardens and chenas for themselves, and there is the fact,on which the defence seems mainly to rest, that second defendant’svendor in 1892 professed to sell one-fourth and not one-twelfth,and that subsequent conveyances' have repeated that statement.But this was done after two of the original owners’ sons had, in1890, leased out' two-thirds of the garden as their shares, so thatone assertion is pretty well met by another. On the evidence ofpossession, I agree in the views expressed in the judgment. Amongstco-heirs the very strongest evidence of adverse possession shouldbe given. In my judgment, such evidence can very rarely provedivision unless it comes in the form of notarial conveyances, eithercross between the heirs or so specifiying the shares they severallydeal with at different times as to indicate their acquiescence andpossession on that basis.
I affirm the judgment with costs.
AMERESEKERE v. RAN MENIKA et al