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MADUANWALA v. EKNELIGODA.
D. C., Ratnapura, 727.
Prescriptive possession—Ordinance No. 22 of 1871, a. 3—"Adverse”possession—Difference between possession and occupation—Nature of occupation by tenant or licensee—Attempt to changeoccupation into possession by secret act adverse to owner.
A person who is let into occupation of property as a tenant, oras a licensee, must be deemed to continue to occupy on the footingon which he was admitted, until by some overt act he manifestshis intention of occupying in another capacity. No secret actwill avail to change the nature of his occupation.
Bonseb, C.J.—Possession, as I understand it, is occupation eitherin person or by agent, with the intention of holding the land asowner.
Withers, J.—The “ adverse ” possession spoken of by the Ordi-nance No. 22 of 1871 implies use of occupation vt dominus.-
' I 'HIS was an action in ejectment. The plaintiff averred thatunder a writ of execution sued out in case No. 7,477 of theDistrict Court of Ratnapura on 12th February, 1861, against oneMuttetuwegama Banda, Korale Mahatmaya, the Fiscal seized theland called Durayagodella, and sold the same to Ekneligoda TikiriBanda on the 22nd June, 1861, and subsequently, on 22ndSeptember, 1896, conveyed the land to the purchaser by deedNo. 3,506 ; that the land was situated in Batugedara, which was agabadagama, or royal village, and which -the Crown granted to thesaid Tikiri Banda by grant dated 15th October, 1873 ; that the saidTikiri Banda having held possession of the land for upwards ofthirty years conveyed the land to plaintiff by deed dated 10thJune, 1896 ; that defendants have since that date been in unlawfulpossession of the said land and prevented the plaintiff frompossessing it.
The defendants denied that the sale in execution was legal,that Tikiri Banda ever possessed the land, that Batugedara was aroyal village, or that the Crown granted the land to Tikiri Banda,'and stated that the original owner of the land was EkneligodaKumarihami, who possessed the same for over.thirty years till herdeath in 1893, when the defendants and three others entered intopossession as her only heirs.
The District Judge found that M. Banda, Korala, was theoriginal owner of the land in dispute ; that it was validly soldby the Fiscal to Ekneligoda Tikiri Banda; that the land wasafterwards claimed by the Crown; that the Crown granted it to
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1698. Ekneligoda Tikiri Banda ; and that Tikirihamy possessed the land,August 10. not in her own right, but on behalf of her brother, the plaintiff’s• vendor, during the whole period of his possession.
The District Judge, therefore, gave judgment for pln.int.ifF
The defendants appealed.
Wendt, for appellant.
Domhorst, for respondent.
10th August, 1898. Bonser, C.J.—
In this case the property in dispute is a piece of land about 8 acresin extent with a house on it, which originally belonged to andwas the residence of Muttetuwegama Banda, Korala. He wasthe husband of a lady who is the sister of the real plaintiff in thisaction, Tikiri Banda. Immediately after the purchase TikiriBanda went to live in the house, and lived there for four yearsuntil, on being appointed Korala in another village, he went to livein that village. It would appear that there is some evidence thatthe former owner lived on in the house, at all events they livedthere after Tikiri Banda removed to another village. TikiriBanda says he allowed his sister, who had no means of support,and who was abandoned by her husband about this date, to live onin this house as an act of charity ; that he supplied her withprovisions and clothing, and allowed her to take what fruit andproduce she pleased from the land. It also appears that he didnot give up the house entirely to her, for he kept his furnitureand crockery there, and used it as his residence whenever hisofficial duties from time to time called him to the neighbourhood.
In 1873 the Crown made a claim to this property on the ground ,of it being situated in a royal village. Tilori Banda came to anarrangement with the Government, by which on payment of halfof the then improved value of the property he was confirmed in hispossession .and received a Crown grant. It appears that he had atvarious times exercised rights of ownership by granting leases ofvarious portions of the property to persons who entered intopossession of those portions.
In 1893 the lady died, and shortly after her death some of herchildren, the defendants, set up a claim to be the owners of theproperty. That claim Tikiri Banda resisted with the result thatthis action was instituted.
The defendants seek to make out that their mother had, byoccupation of this land and house, acquired a title to them underthe Prescription Ordinance.
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the District Judge has found against them, and considers itproved that the sister fras merely an occupier ; that is to say, shehad.no possession of this property, but had merely occupationunder license of her brother. In my opinion his judgment isright.
It is said that we are bound to hold that, if a person allowsanother out of charity to occupy his house, we are bound topresume that that occupation is possession; that the license tooccupy means license to possess vi dominus. If this were so, itwould be a presumption not to further the intentions of the partiesbut to defeat them.
I think in some of the cases a distinction has not been drawnbetween occupation and possession. Possession, as I understandit, is occupation either in person or by agent with the intentionof holding the land as owner. There is one fact in the case whichpoints in the direction of such a possession on the part of thesister, at all events to part of the property, that is, that in 1887 shegranted a lease of the property ; but even if we were to hold thatthe lease establishes an intention on her part to occupy as owner,yet it seems to me that it falls short of establishing the possessionrequired by the Prescription Ordinance—first, because it waswithin ten years of the bringing of this action ; and second, becausethere is no evidence that this act ever came to the knowledge ofTikiri Banda. A person who is let into occupation of property'asa tenant or as a licensee must be deemed to continue to occupyon the footing on which he was admitted, until by some overt acthe mainfests his intention of occupying in another capacity. Nosecret act will avail to change the nature of his occupation.
As I said before, the District Judge came to a right conclusionin the matter.
I am of opinion that the judgment is right and ought to beaffirmed.
So far from there being any evidence that Tikiri Bandasurrendered his rights in this land to any one, and that heintended to make his sister a present of the land so that she mightdispose of it as her own property, there is evidence that he tookcare to exercise his possessory and proprietary rights.
Immediately after his purchase of the land at the Fiscal’s salein execution of a judgment against Muttetuwagama Banda heoccupied the land for four years, and left it only because he wasappointed a headman in another district. From time to time on hisvisits to the district he occupied quarters in the house on that land.
August 10.BonSeb, C.J.
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Auguit JO.Withers, J.
When the Crown asserted a dominant right to this land in theseventies, he was the first to come forward and claim the land, andhe obtained a grant from the Crown upon payment of half .theimproved value of this land. In this class of oases occupation isoften confounded with possession, but the two terms are quitedistinct in meaning, a person may occupy without possession anda person may possess, without occupation. Our Ordinance speaksof adverse possession which implies use or occupation as daminua.
The Chief Justice’s observations on the law governing this classof cases meet with my unreserved support.
MADUWANWALA v. EKNELIGODA