Edirisuriya v. Edirisuriya
1975 Present; Samerawickiame, Acting C. J., Vythialingam, J.,and Walpita, J.
P. EDIRISURIYA, Appellant, and M. EDIRISURIYA, Respondent
S. C. 283/70 (F)—D. C. Hambantota 255/L
Possessory action—Meaning of Ouster—Possession ut dominus—Scope ofremedy.
The essence of the possessory action lies in unlawfuldispossession committed against the will of the plaintiff andneither force nor fraud is necessary. Dispossession may be byforce or by not allowing the possessor to use at his discretionwhat he possesses.
To succeed in a possessory action the plaintiff must provethat he was in possession “ ut dominus This does not meanpossession with the honest belief that the plaintiff was entitledto ownership. It is sufficient if the plaintiff possessed withthe intention of holding and dealing with the property ashis own.
VYTHIAXiINGAM. J.—Edirisuriya v. Edirisuriya
PPEAL from a judgment of the District Court, Hambantota.
I. M. R. Wijetunga, with N. Seneviratne for the Defendant-ADDellant.
N. R. M. Daluwatte with M. S. A. Hassan for the Plaintiff-Respondent.
Cur. adv. wilt.
October 9, 1975. Vythialingam, J.—
The plaintiff-respondent brought this possessory action for-the ejectment of the defendant, his servants, agents, workmenand others and to be restored to quiet possession of the landand house of which he claimed to have been in possession forover a year and a day. Admittedly the land originally belongedto one Porolis Edirisuriya, the father of both the plaintiff andthe defendant, on the Crown Grant Pll dated 2.9.1943 (alsomarked Dl). Porolis Edirisuriya died in March 1950.
It is plaintiff’s claim that he lived with his father and assistedhim in cultivating the land during his lifetime and after hisdeath he was in sole possession of it till 7th April, 1968 when hewas dispossessed by the defendant. He had obtained a permitunder the Land Development Ordinance PI dated 11.12.1950.The defendant on the other hand maintained that he was thenominated successor of his father and produced in support of itthe document D4 dated 29.9.1945 the nomination under section56 of the Land Development Ordinance. This nomination waswas registered in the Register of Grants D5.
He admitted however that after his father’s death in 1950 hewent to live in Hathala, six miles away and allowed the plain-tiff to possess the land. He also said that upto February, 1968the plaintiff gave him his paraveni share and that there was nodispute at all. In February he came to know that the plaintiffwas claiming the land on a permit and that thereafter he andhis family occupied the house and that he was working thefield from 7.4.1968. After trial the learned District Judge heldthat the plaintiff had been in possession of the premises in suitfor over a year and a day prior to the date of the ouster andentered judgment for him as prayed for with costs.
The defendant has appealed against the judgment and decree.On the facts there is ample evidence in the case to support thefindings of the learned District Judge and I see no reason tointerfere with it. Mr. Wijetunge who appeared for the defen-dant-appellant submitted that the plaintiff should establish thathe was in possession ‘ut dominus’ and dispossession or ousterin order to succeed. He argued that the plaintiff had notestablished either of these matters.
VYTHlALINGrAil, J.—Edirisuriya v. Ediriauriya
In regard to the second matter Mr. Wijetunge submitted thatthe acts of the defendant only amounted to tresspass and did notamount to a dispossession or ouster of the plaintiff frompossession. In support of this contention he relied strongly onthe case of Pathirigey Carlina Hamy vs. ugegodagey Charlesde Silva (1883) 5 S. C. C. 140 where Burnside, C. J. said “It isclear that the dispossession referred to in section 4 consists ofan amover or deprivation of possession, or in another word wellknown to the law, ‘an ouster’. Acts which merely amount to atrespass without ouster do not amount to dispossession.” In thatcase the defendant, in the absence of the plaintiff, entered hisland and erected a fence separating the portion on which Helived from the rest and plucked the nuts of the portion soseparated. The plaintiff thereafter did not receive the fruits ofthe separated portion. On these facts it was held that the actsof the defendant did not amount to dispossession of theplaintiff.
It is doubtful whether the law has been correctly applied tothe facts in that case. It is undoubtedly true that a mere actof trespass, as for instance, where one enters another’s landand commits theft of coconuts, would not amount to dis-possession or ouster. But where as in that case the defendantseparated the portion on which he lived and fenced it off andplucked the nuts from the portion so separated and thusdeprived the plaintiff of the free possession of that portion hehas effectively dispossessed or ousted the plaintiff within themeaning of that section, from that portion.
In Percra Vs. Wijesuriya (59 N. L. R. 529) Basnayake, C. J.and Pulle, J. refused to follow Carlina Hamy’s case, Basnayake,
J. remarking “with great respect I find myself unable to agreewith that decision.” In that case on 13th June, 1951, the defen-dants cut the barbed wire and trees of the fence that separatedtheir land from the plaintiff’s land and on 22.6.1951 the 2nddefendant along with several others entered the land in thenight at about 9.30 p. m. and began constructing a hut whichthey could not complete because of the intervention of thePolice. However on 23.6.1951 the plaintiff constructed two hutsand remained in possession. It was held that although the plain-tiff was in possession of the land on the date of the institution ofthe action, the acts of the defendant on the 13th and 22nd June,1951 amounted to dispossession of the plaintiff within the mean-ing of section 4 of the Prescription Ordinance.
In the instant case the defendant apparently started disputingthe plaintiff’s possession in February 1968. The plaintiff madea complaint to the Police on 1.3.1968 (P3) in which he complain-ed that the defendant was threatening to take forcible possession
VVTTTTAT.TNTC!AAt. .1.—Edirisnriya v. Edvrisuriya
of the paddy field and requested the Police to look jnto it andgrant him relief. Thereafter the defendant himself wrote theletter dated 3.3.68, D12 to the Government Agent stating that hewas the nominated successor of his father but that the plaintiffwas claiming to be entitled to it on a permit and requesting theGovernment Agent to inquire into the matter and cancel theplaintiff’s permit.
Then on 7.4.1968 when the plaintiff went to the field in themorning at about 6 or 6.30 a.m. to clear the threshing floor hefound the defendant, his sons and several others standing in thecompound and the verandah of the house which at that timewas unoccupied and which was being used to keep the tools.He then went and made the complaint P2 to the Police on thesame day at 11 a.m. He also filed a private plaint P5 chargingthe defendant and the others in the Magistrate’s Court ofHambantota. The Magistrate however discharged the accusedand referred the plaintiff to his civil remedy as he was of theview that this was purely a civil matter. This order was madeon 6.11.68, but in the meantime the plaintiff had filed this actionon 31.10.1968.
The defendant’s evidence is that after sending the letter D12he came with his wife and children and stayed in the house ashe had the key with him. He also admitted that till 1968 theplaintiff worked the field though he said that without anytrouble the plaintiff gave him his share. There was no otherevidence than the defendant’s mere ipse dixit in support ofthis. It was not even put to the plaintiff. The defendant franklyadmitted that from 7.4.1968 he was working the field. Althoughno force was used there has been here a clear dispossession andouster which distinguishes the facts of this case from the factsin Carlina Hamy’s case, even if that is good law.
Dispossession may be by force or by not allowing the possessorto use at his discretion what he possesses whether it is done bysowing, or by ploughing or by building or repairing somethingor by doing anything at all by which they do not leave the freepossession to the person who was dispossessed. The essence ofthe possessory action lies in unlawful dispossession committedagainst the will of the plaintiff and neither force nor fraud isnecessary. The fact that through fear of superior force theplaintiff did not try to assert his rights by going into the fieldcannot be held against him. His complaints to the Police andhis filing actions show that he was relying on his legal reme-dies. In Wijesuriya’s case (supra Basnayake, C. J. said at page532 “ Any act which deprives a person from exercising his rightsof possession would be a deprivation of his possession or anouster of him. ” I hold therefore that the plaintiff has establish-
VYTHIALINGAM, J.—Ediriauriya v. Ediriauriya
ed.that he has been dispossessed in the sense in which thatterm is used in section 4 of the Prescription Ordinance.
In regard to the first submission mentioned earlierMr. Wijetunge submitted that the plaintiff had to establishpossession “ ut dominus ” to succeed in the action. His conten-tion was that this involved two elements a physical elementthat is actual possession and a mental element of possession asan owner with an honest belief that he was the owner. Heargued that the plaintiff did not and could not have an honestbelief in his ownership because he knew, and the learned Dis-trict Judge has so found, that the defendant was the dulynominated successor of his father.
No authority has been cited to us in support of the proposi-tion that possession “ ut dominus ” means possession with thehonest belief that the plaintiff was entitled to ownership. Norhave I been able to find any. It is correct to say that to succeedin a possessory action the plaintiff must prove that he was inpossession “ ut dominus But all that this means is, in thewords of Wood Renton, J. (later C. J.) “ he must have possessednot alieno nomine, but with the intention of holding and deal-ing with the property as his own ” Fernando et al vs.
Fernando et al (13 N.L.R. 164 at 165). In that case it was heldthat a lessee who has entered into possession bona fide undera lease is entitled to the possessory remedy even though thelease may be technically defective, as he had possession “ utdominus
Quoting this passage with approval Gratiaen, J. said at page101 in Perera Vs. Perera (39 C. L. W. 100) “The test to beapplied with regard to proof ut dominus is a subjective test".In the instant case the plaintiff had been in possession of theland for over eighteen long years asserting that he was the soleowner and refusing to recognise as valid any claim of thedefendant. He is registered as the owner cultivator of this field.He has paid acreage taxes and other dues in respect of thepermit given to him by the Government and obtained loansfrom the Multi-purpose Co-operative Society for the purpose ofcultivating this field and has even brought a tractor.
The defendant said that he allowed the plaintiff to possess thefield and obtained from him his paraveni share. But as I havepointed out there was nothing to support his version. In facthis own conduct disproves his statement. According to him therewas no trouble from 1950 to February 1968 when the plaintiffsuddenly decided not to pay his share and told him that hehad a permit in respect of this field. There was no explanationas to why the plaintiff acted in this strange manner in 1968
V YTHIALTNGAM J.—Edirisuriya v. Edirisuriya
although he had obtained the permit on 11.12.1950. It was only-after he entered into possession that the defendant sought to gethis name registered in the Paddy Lands Register and to becomea member of the Multi-Purpose Co-operative Society.
Besides I do not think that the learned trial judge correctlyappreciated the oral and documentary evidence when he saidthat “ Having regard to the documents P15 and P16 it is correctto say that the plaintiff was aware of the defendant’s nominationat least sometime after 11.12.1950 ”. The documents P15 and P16are payments for water rates in respect of the field and the land,made on 13.8.1952 by the plaintiff on behalf of P. Edirisuriya.Apparently the trial judge has misunderstood these documentsto mean that the plaintiff made these payments on behalf of thedefendant. He has, however, overlooked the fact that the pay-ments although made in 1952 were for dues in respect of the year1947 when the grantee the father of Porolis Edirisuriya was aliveand therefore the payment could have been on his behalf andnot on behalf of the defendant Piyadasa Edirisuriya. Theplaintiff’s evidence was that he came to know that the defendantwas the nominated successor only after 1.3.1968. So that thetrial judge was not justified in holding that the plaintiff wasaware that the defendant was the nominated successor of hisfather prior to 11.12.1950. I am satisfied that the plaintiff’spossession was possession “ ut dominus ” as required by the law.
Mr. Wijetunge submitted further that a decree in favour ofthe plaintiff would be futile as the defendant as the duly nomi-nated successor of the grantee Porolis Edirisuriya was entitledto the land. The trial Judge has also held that the nominationD1 prevails over the permit PI in favour of the plaintiff. Thisis a moot point. However, the question as to who is the ownerof the land is quite irrelevant. As Gratiaen, J. pointed out in
Perera’s case (supra) “in possessory actions it is not
appropriate to investigate title for the purpose of decidingwhether or not a party’s claim to possession of land is justifiedin law. The purpose of a possessory suit is not to adjudicate uponquestions relating to title but to give speedy relief to a personwho, claiming to be owner of property in his own right hasbeen dispossessed otherwise than by process of law.” To refuseto give plaintiff relief in these circumstances is to defeat thisPurpose and to encourage people who take the law* into theirown hands to assert title by taking forcible possession ofproperty.
Here again Mr. Wijetunge relied on Carolina Hamy’s case(supra) where Burnside, C.J. said “ The plaintiffs before thissuit, had it is admittedly by a regular sale and conveyance,parted with all interest whatever which might have, or have
1**A 27298 <6/77)
—Registrar-General v. Sangarappillai
had, in the lands, they can therefore have no locus standi toclaim to be put in possession of lands or interests in lands, whicheven assuming they were ever entitled to, they have electedto transfer to someone else. ” It is sufficient for the purpose ofdistinguishing that case to say that the plaintiff in the instantcase has not parted with any rights he may have had.
As pointed out by Bonser, C.J. in the case of ChangarapillaiVs. Chelliah (5 N.L.R. 270) the possessory action is a mostbeneficial one whose operation the court should seek to enlargerather than to narrow. The trial judge was therefore correct inrelying on the words of Buchanan, A.C.J. in Wilsnack Vs. Vander Westhizen and Haak (1907 S. C. 600) in which a licenseeunder a local authority of a house was evicted by the respon-dents who purported to have obtained a title deed in theirfavour, and quoted by Pulle, J. in Sameen Vs. Dep, 55 N.L.R.523 at 527 “ The whole foundation of the rule for the restorationof property taken possession of in this way is that a spoliatoris not entitled to take the law into his own hands and a personwho takes the law into his own hands must restore the propertyand establish his right thereto in a peaceable manner or in acourt of law.’ The words apply to the facts of the instant case.
The appeal fails and is dismissed with costs.
Samerawickrame, J.—I agree.
Walpita, J.—I agree.
P. EDIRISURIYA, Appellant, and M. EDIRISURIYA, Respondent