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KAPURUHAMI v. HENDRICK et al.C. R-, Kurunegala, 2,954.
Go-oumers of land—Arrangements as to possession—Evidence ofpossession of particula/r trees in lieu of undivided share—Evidencein anticipation of defendant's case.
It is competent for the owners of undivided shares of a land tomake arrangements among themselves as to the enjoyment of theproduce of the land ; and evidence showing that any one co-ownerhas enjoyed the fruits of a certain number of trees in pursuance ofsuch arrangement would go to support his title to an undividedshare of the land.
Where a defendant in a land suit pleads title by prescription, it iscompetent for the plaintiff to adduce, in the first instance, evidenceof possession by himself in anticipation of the defendant’s case.
LAINTIFF claimed five-sixteenths of a cocoanut garden. Heproved that forty years previous to the trial it was possessed
by Mudalihamy and Ettarala apparently as joint owners ; thatMudalihamy was entitled to five-sixteenths only ; that Mudali-hamy and his co-owner made an arrangement by which Mudali-hamy took the produce of twenty-five trees in a particular part ofthe garden ; that Mudalihamy’s interest devolved on himself;and that he had all alone, since purchase up to a short time beforethe institution of this suit, taken the produce of the twenty-fivetrees.
After giving evidence to this effect plaintiff proposed to callother witnesses to corroborate the statement that he and hispredecessors in title had been taking the produce of the twenty-five trees. The Commissioner declined to admit any such evidenceand dismissed the action.
Van Langenberg, for appellant.
Batoa, for respondent.
26th June, 1898. Bonsee, C.J.—
I do not think the Court was entitled to dismiss plaintiff’s action.It is" quite competent for the owners of undivided shares to makearrangements among themselves as to the enjoyment of the produceof the land ; and evidence showing that the plaintiff had enjoyedthe fruit of these trees would go to support his title to five-sixteenths.
Further, the evidence was admissible on another ground. Thedefendants had pleaded adverse possession of the whole of thegarden for the prescriptive period, as they were entitled to do, and
it was competent for the plaintiff to adduce evidence to meet thatcase set up by the defendants. He is not obliged to wait till theyhave called evidence and then to call rebutting evidence.
It is competent for him to call evidence, in the first instance, toanticipate the defendants’ case.
The case must go back to be tried, and the costs of the previousproceedings and of this appeal will abide the event of the newtrial.
Boxser, C. J.
KAPURUHAMI v. HENDRICK et al