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Present: Bertram C.J. and Porter J.
PODISINGHO et al v. JAGUHAMY.
281—D. C. Regalia, 6,149.
Emphyteusis—Person leasing in perpetuity more than his share'—Posses-sion by the lessee of the entire rights leaseiL-^Prescription—Lessormay claim benefit of possession by lessee.
Where a person who was entitled to a share of a land granted* aperpetual lease of the same to another, and the lessee took theproduce of the whole land and gave to the heirs of the' lessor thelandowner's share for over ten years. ■
Held, that the lessees had acquired a title by prescription to thelease of the whole land, and that the lessors had acquired title tothe whole land.
A person claiming rights of emphyteusis may not only acquirethese rights by prescription, but may enlarge those rights byprescription. Prescription can be established not ' only by directpossession, but also by possession through a lessee.
H. y. Perera (with him Rajakariar), for the appellant.
Keuneman, for the respondents.
November 21, 1923. Bertram C.J.—
This case is s, somewhat obscure one, and we are indebted toMr. Perera for very lucidly explaining to us both the facts and theimplications of the learned Judge's judgment which we could nototherwise so readily have realized. On the facts as so explainedthe position seems to me clear. The plaintiffs and their prede-cessors hold under what has been described as a perpetual lease.The document referred to gave them the right of emphyteusis, andit is expressly admitted that for many years past they have actedas tenants of the whole land, and have received the produce of thewhole land accounting for the landowners* shares. Now, Mr. Pererahas demonstrated that the original lessors, under whom these rightsare claimed, had not a title to the whole land which they purportedto lease. Bandulahamy, one of the lessors, appears to have noright at all. Banhamy, the other lfessor, had only a right to one-third. Banhamy and Bandulahamy, acting together, could leaseno more than Banhamy’s one-third. That was the position in 1852,the date of this perpetual lease. But it is quite clear that a personclaiming rights of emphyteusis may not only acquire these rightsby prescription, but may enlarge those rights by prescription.
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That is settled by two eases (Jayawardene v. Silva 1 and Arunasalatn-Ohettty v. J3ilinda2). Although, therefore, the tenants under thisdeed of perpetual lease only starred with the legal right to pne-thirdby acting since that date as tenants of the whole land, they haveenlarged their rights under that deed so far as to cover the wholeland. It cannot be contested, therefore, that, so far as the culti-vators* share goes, they possessed that ‘with respect to theentire land, and Mr. Perera does not effectively contest thatclaim.
But the plaintiffs claim something more. They claim that theyhad also acquired half the landowners* share in the land, that isto say, one-fourth of the land. They derive that by a deed of 1919from Christian Naida, a son of their original lessor Bandulahamy.Mr. Perera says that Christian Naida had no title to convey. Buthe had a title. He was the lessor of the plaintiffs and their pre-decessors. It is sworn in evidence that these persons gave him halfthe landowners* share of the land. Prescription can be establishednot only by direct possession, but also by possession through a lessee.It is hardly necessary to quote authority for that proposition.Bandulahamy, therefore, by the possession of his tenants, certainlycould acquire a landowners’ share which he did not originallypossess. That share could pass to his son, and that share so passingto the son could be conveyed to the plaintiffs. That appears to bethe view of the learned Judge, though it is not very fully expressed,and that view appears to me sound in law.
Mr. Perera emphasizes the fact that a part of the landowners'share has been paid to various persons under whom he claims. Theanswer to that is that these shares were paid to these persons on theundertaking that they were the heirs of Ranhamy, one of theoriginal lessors. Whether they were the heirs or not, whether theyderived their title by inheritance or under the deeds they set up, itdoes not affect the question. We are dealing with a question of' prescription, and the circumstances J have mentioned does notaffect the question of prescription. He also draws attention to thefact that certain mortgages were executed in favour of one of theplaintiffs of certain shares in the land. That, again, does not affectthe matter, because the plaintiffs in question would naturally treatthese mortgages as being mortgages of the landowners* share of theland which they admitted the mortgagors would be entitled to.In view of these considerations, I am not prepared to say that thelearned Judge’s' solution of this problem was wrong, and woulddismiss the appeal, with costs.
Porter J.—I agree.
'(19M) 18 N. L. R. 269.
Appeal dismissed.2 (2922) 24 N., L. R. 311.
PODISINGHO et al v. JAGUHAMY