Danasekara v. Ranmenika
1951Present Basnayake J. and Pnlle J.DANASEKARA, Appellant, and RANMENIKA et at., RespondentsS. C. 54—D. G. Kegalle, 5,148
Prescription—Sole of land in execution proceedings—Continued possession byjudgment-debtor—Fiscal’s conveyance executed long time thereafter—Acquisitionof prescriptive title—Civil Procedure Code, s. 291.
When, pending execution of the Fiscal’s conveyance, a judgment-debtorcontinues for a long time to be in possession of immovable property soldagainst him in execution proceedings, the character of his possession maybe snch as to form the basis of an independent title by prescription,notwithstanding the provisions of section 291 of the Civil Procedure Code.
PULLE J.—Danasekera v. Ranmenika
.^^.PPEAL from a judgment of the District Court, Kegalle.
C. Ft. Ounaratne, for the 6th defendant appellant.
A. L. Jayasuriya, for the 4th and 5th defendants respondents.
C-ur. adv. vult.
April 20, 1951. PunnE J.—
The appellant is the 6th defendant in an action instituted in 19 ITfor the partition of a land called Hitinawatte in extent 1A. 1R. 10P.Originally there were five defendants and by the interlocutory decreedated the 31st May, 1948, the fourth and the fifth defendants wereeach allotted l/8th share. On the 29th June, 1949, the 6th defendantintervened and claimed the shares allotted to the 4th and 5th defendantson the basis that he purchased at a sale in execution on the 22nd May,1918, a l/4th share belonging to one Arathchchillegedera Ranmenika,the mother of the 4th and 5th defendants under whom they claimedby inheritance. Although the sale took place as far back as 1918 andthe intervention was on the 29th June, 1949, the 6th defendant obtaineda Fiscal’s conveyance only on the 29th July, 1949, of an undividedwestern portion “ in extent one timba paddy sowing !’ out of the landsought to be partitioned.
The intervention involved a contest between the 6th defendant onthe one side and the 4th and 5th defendants on the other whether, inspite of the sale, Ranmenika and the 4th and 5th defendants had acquireda title by prescription to a divided portion as set out in their statementof claim.
The learned District Judge found in favour of the 4th and 5th defen-dants that, in spite of the sale, Ranmenika not merely continued topossess but that she and her children had acquired title by prescriptionto that portion of the land lying to the south of road depicted in PlanNo. 900, marked ' X ’. The evidence of the 6th defendant that Ran-menika continued after the sale in execution to remain on the landwith his leave and licence was, by implication, rejected.
Learned Counsel for the 6th defendant did not seek to disturb anyof the findings of fact and confined himself to the submission that asRanmenika’s title had not been divested in the interval between thesale in 1918 and the conveyance in 1949, it was not possible for heror her successors to acquire a fresh title by prescription, as any possessionreferable to a larwful title could not be regarded as adverse. In myopinion, on the evidence in this case and the findings, this submissioncannot be accepted. The acts of possession of Ranmenika and herchildren were not limited to the purposes indicated in section 291 ofthe Civil Procedure Code. While the 6th defendant obtained a con-veyance in 1949 of an undivided share of one timba paddy sowing extent,Ranmenika’s right to a divided portion was acknowledged by theco-owners of the land to the north of the road as far back as 1939 as isevidenced- by the proceedings instituted in D. C. Kegalla Case No. 1,091.It was recognized by the 6th defendant’s own son who is the plaintiffin the case under appeal and to a lesser extent by the 6th defendant
GBATIAEN J.—Blacker e. David
himseli who took no steps for over 30 years to obtain a conveyance.The title of Ranmenika after the sale in execution was a precariousone not only liable to be determined at any moment but with retrospectiveeffect. I am unable to say that in no event can the character of thepossession of a judgment-debtor be regarded as the basis of an inde-pendent title by prescription. If the argument urged on behalf of the6th defendant is accepted, assuming that he never entered into possessionof what he purchased, he would be placed in a position of advantageby having obtained the Fiscal’s conveyance in 1949 rather than in 1918,for it would then have to be conceded that if he had obtained the con-veyance in about 1918, the title of the 4th and 5th defendants couldnot have been challenged. An argument which leads to such a resultis unacceptable. The case of Muttu Caruppen et al. v. Ranhira et al.1is an express authority for the proposition that it is possible for a judg-ment-debtor pending the execution of a Fiscal’s conveyance to acquiretitle by prescription to the land sold against him in execution pro-ceedings. The possibility of such title being set up and proved is alsorecognised in Carolis v. Perera et al. 2.
I would dismiss the appeal with costs.
Basxayake J.—I agree.
DANASEKARA, Appellant, and RANMENIKA et al., Respondents