SA3STS0NT, J.—Danton Obeyesekere v. Endoris
Present: Sansonl, J., and Silva, J.
DANTON OBEYESEKERE, Appellant, andW. ENDORIS and others, Respondents
S. G. 141/60—.D. C. Gampaha, 3993fP
Co-owners—Separate possession of a portion of the co-owned land by one of theco-owners—Inference of prescriptive possession and title.
A two-third share of a co-owned land containing in extent about two roodswas possossed separately for over twenty years by the 1st defendant and hispredecessors in title. It was not separated off for mere convenience of posses-sion and as a temporary arrangement. It was much more likely that- it wasintended as a permanent mode of possession by an outsider when she boughtthe share from two of the co-owners.
Held, that the lot so separated off ceased, with the lapse of time and exclusivepossession, to be held in common with the rest of the land. Thosv who possessedit were entitled to claim that the}' acquired prescriptive title to it. Th*. meremontion of undivided shares in subsequent deods could not affect the trueposition.
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 Dheera-ratne, for the Plain tiff-Respondent.
Cur. adv. vult.
August 30, 1962. Sansoni, J.—
The Plaintiff brought this action to havo a land called Kadurugaha-watte partitioned. That land is described in the Schedule to the plaintas bounded on the North by the live fence of a portion of this land ofLawaris Naide, East by the High Road, South by the live fence ofthe land of A. Thomis and West by the live fence of the land of LawarisNaide and another containing in extent about two roods. The northernboundary is of some importance, as will appear later in this judgment.
According to the plaint, Danchi Naide was the original owner, and hedied leaving as his heirs his wife Kiri Nachchire and 3 children Poddi,Migel and Tamby. Poddi and her mother transferred to the other twoheirs their 2/3 share of the land by deed 8D1 of 1899, so that Migol andTamby thus became the owners of a 1/2 share each. They by deed8D2 of 1905 sold an undivided 2/3 share to Maria Elizabeth Fernando,
SANSONI, J.—Danton Obeyesekere v. Endoris
who by deed 8D3 of 1909 transferred that share to Cornelia HenriettaObeyesekere, who by deed 8D4 of 1935 transferred that share to the 1stDefendant.
The 1st Defendant died pending this action. The 8th Defendant ishis legal representative, and his heirs are the 7th to the 11th Defendants.
The Plaintiff averred in the plaint that Migel died, leaving himand Elisahamy as his heirs, each thereby becoming entitled to 1/12 share,and that Elisahamy by deed 2D1 of 14th December 1953 transferredher share to the 2nd Defendant, that Tamby died leaving as his heirs4 children namely, Lisobamy, Rapiel, Rosahamy and Podina, and thetwo former by deed PI of December, 1953 transferred their 1/12 shareto the Plaintiff, and the two latter by deed 2D2 of 15th December 1953transferred their 1/12 share to the 2nd Defendant. Thus the Plaintiffclaimed to be entitled to 2/12ths, and he allotted 8/12 to the 1st Defen-dant and 2/12 to the 2nd Defendant.
When the Surveyor wont to make the preliminary plan, the Plaintiffpointed out a block of 21 perches as shown in Plan Y as the corpus. The1st Defendant's representative disputed this and stated that it representedonly a divided portion of the entire land which the 1st Defendantpossessed, and that the rest of the land lay towards the North. A freshcommission was issued and a new plan X was made, in which the original21 perches was shown as Lot C, and the Lots A and B lying to the Northof it were, as pointed out by the 1st Defendant’s representative, depictedas the rest of the land.
Answers were thereafter filed. The 1st Defendant pleaded that hehad acquired proscriptive title to Lot C of 21 porches, and that the entireland consisted of Lots A, B and C. The 2nd Defendant in his answeragreed with the Plaintiff with regard to the corpus to be partitioned. Healso 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 Plain-tiff and 2nd and 6th Defendants claimed, as against the 8th Defendant,that Lot C of 21 perches represented the entire land described in theschedule to the plaint. The 8th Defendant, as the 1st Defendant haddone, claimed Lot C upon prescriptive possession.
With regard to Lots A and B the position of the 2nd and 6th Defendantswas that Amarabandu and his wife, Podihamy, had acquired interestsin those Lots upon deeds 2D5 of 1917 and 2D6 of 1939 which conveyedrespectively 1/5 and 1/10 shares of a land called Kadurugahawatte ofabout 2 roods hounded on the North by the live fence of the land ownedby Peduru Perera and others, on the East by the Main Road, on the Southby the live fence of a portion of this land owned by Juanchi (probablyanother name for Danchi) Naide, and on the West by the live fence of theland called Moegahawatte. The 6th Defendant, who is the son of Amara-bandu and Podihamy, acquired 2/15 share of that land on deed 2D 7 of
SANSONT, J.—Danton Obeyesekere v. Endoria
1937, and also received a gift from his parents of their interests upon2D4 of 1951. By deed 2D3 of 1952 he sold 3/8 share to his brother-in-lawthe 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 thatDan chi Naide owned. He also held that the 1st Defendant had notacquired a prescriptive title to it. He accordingly entered an inter-locutory decree against which the 8th Defendant has appealed.
It is necessary first to refer to the conduct of the 2nd Defendant asdisclosed in earlier actions. Having obtained deed 2D3 in June 1952,he destroyed a barbed wire and live fence which separated Lot C from theland to the north of it in November 1952. He was charged in the Magis-trate’s Court, Gampaha, by the 1st Defendant and pleaded guilty of theoffence of mischief. He refused, in breach of an undertaking given byhim, to allow the fence to be erected, and he was sued in the Court ofRequests, Gampaha, and was ordered to pay damages to the 1st Defen-dant. While that action was perding he purchased the shares men-tioned in 2D1 and 2D2 while the Plaintiff bought a share on deed PI atthe same time.
Bearing on the question of prescription are two plans which have beenproduced. A plan 8D8 of 1949 made at the instance of the 1st Defendantdepicts the fence which has been destroyed. It shows Lot C lyingbetween that fence on the north and a wire fence on the south as the pro-perty of the 1st Defendant. A still earlier plan 2D9 of 1938 produced bythe 2nd Defendant is illuminating. It depicts the land lying to the northof Lot C. The abutting land on the south, corresponding to Lot C, isdescribed as “ Land of Mrs. J. P. Obeyesekere ” (the transferee on deed8D3). It is most unlikely that Lot C would have been so described if ithad not been regarded at that time as her property and possessed assuch. While there are only one coconut and one boli tree on Lot C thereis also a boutique on it, and the oral evidence is overwhelming thatthe 1st Defendant and his prodecessors in title possessed that dividedlot exclusively and collected the rent from the boutique. The evidenceof 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 notclaim to have known these lands before 1947.
As to whether Lot G alone represents the entirety of Kadurugahawatteof about 2 roods which the Plaintiff seeks to partition, the first matterwhich goes against that view is the extent. 21 perches (or 27 perchesif one includes the extent of the V. C. road adjoining it) is nowhere neartwo roods. The main argument of Mr. Jayewardene, however, wasthat Lots A and B now belong to persons who have succeeded to LawarisNaide’s interests, and he relied strongly on the northern boundary indeeds 8D1 to 8D4. No doubt these deeds show that Lawaris Naide’sland adjoined Danchi Naide’s land, but they do not help us to fix thelocation of either land. The fence which the 2nd Defendant destroyedwas not, in my view, the boundary fence of Danchi Naide’s land, but onlythe fence separating 1st Defendant’s divided 2/3 share from the balance
Sieberi v. New Asia Trading Co., Ltd.
J share. Danchi and Lawaris were related to each other and they aresaid to have brought up Amarabandu. They may weli have possessedtheir adjacent lands in one continuous extent, as the evidence of theirkinsman Alberis called by the 8th Defendant seems to show. When theoutsider Maria Elizabeth Fernando bought in 1905, however, her sharewould have been separated off by erecting the fence which the 2ndDefendant later destroyed.
Separate possession of that § share for over 20 years has been clearlyproved, and those who possessed it are entitled to claim that they haveacquired prescriptive title to it. I do not think this is a case where a lotwas separated off for mere convenience of possession and as a temporaryarrangement. It is much more likely to have boen intended as a perma-nent mode of possession, and the lot so separated off would, withthe lapse of time and exclusive possession, cease to be held in commonwith the rest of the land. Each case must be considered in the light ofthe proved circumstances, and the more mention of undivided shares insubsequent deeds will not affect the true position. I think that if thelearned District Judge had considered the ca se in this way, he would haveheld that the land depicted in plan Y does not belong in common to theparties but only to the heirs of the 1st Dofondant.
I would accordingly set aside the judgment and decree of the lowerCourt and dismiss the plaintiff’s action. Since the 8th Defendant hadto fight the Plaintiff as well as the 2nd and 6th Defendants at the trial,he is entitled to recovor 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.
DANTON OBEYESEKERE, Appellant, and W. ENDORIS and others, Respondents