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Present: Lascelles C.J. and Wood Benton J.
BAKI et ah v. LEBBE et ah127—D. C. Kandy, 20,358.
Prescription—Cultivation of a small portion out of a large land—Musttitle by prescription be restricted to area cultivated?—Adversepossession—Must possession be adverse to the whole world ?—Ordinance No. 22 of 1871 f s. 3.
The question whether title acquired by prescription must belimited to the actual area of which possession is had must beanswered with due regard to the nature of the property and to theuse and cultivation of which it is susceptible.
It is possible for a party to an action to establish title by prescrip-tion without proving that his possession was adverse to the wholeworld.
Wood Renton J.—I do not think that the words “ another '• person ” in that explanation (in section 3 of Ordinance No. 22 of1871) would justify us in holding that a declaration of title on theground of prescriptive possession could never be successfullyolaimed unless the claimant was in a position to show a title
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adverse to the whole world. It would, perhaps, not be. right tolimit the scope of the words “ another person ” to the particularperson against whom prescriptive title was set up. Where itappeared, for instance, on the pleadings or on the face of the evidencethat the person claiming such title was only a tenant at will of athird person, he could scarcely expect to have his title upheld.But I demur to the suggestion that a decree for declaration oftitle could only be made on such evidence as would be necessaryif it operated as a decree in rem.
Lasoelles C.J.—Possibly the explanation (in section 3) meansno more than that the possession, in addition to being adverse tothe plaintiff or claimant, must also be ut domirma, or it may be—andI am inclined to think that this is the more likely explanation—thatthe words “ in any other person ” are loosely used so as to coverthe case where the plaintiff sets up prescription against the defend*ant, as well as the case where the defendant relies on prescriptionfor his defence.
HIS was an appeal from a judgment of the District Judge ofKandy (F. R. Dias, Esq.). The facts are set out in the
H. A. Jayewardene, for the appellants.
Bawa, K.G., for the respondents.
Cur. adv. vult.
July 3, 1912. Wood Renton J.—
This is an action for declaration of title to the land described inthe plaint. According to the plaintiffs-respondents, it belonged toSuppen Kangany, the husband of the first plaintiff-respondent,and the father of the others, and devolved on them under a deed ofgift from him dated August 31, 1890. They also claim title to itby prescription. Under a writ issued in case No. 20,124 of theDistrict Court of Kandy, the first defendant-appellant seized theland as the property of the second. The respondents have, there-fore, brought this action claiming the declaration of title abovereferred to. The appellants allege that the original owner of theland was one Meyapulle, and that on his death it devolved on hisson, the second defendant-appellant, who has acquired title to itby prescription. They also say that Suppen Kangany only worked' the land under Meyapulle, and never had a title to it of his own. Thelearned District Judge has upheld the respondents’ claim of title byprescription, and after carefully considering all the evidence andthe arguments on both sides which were urged at the hearing ofthe appeal, I have come clearly to the conclusion that he is right.
The land in question would appear to have belonged at one time,to the firm of George Wall & Co., who sold it to a Moorman, DawuduSaibo, in 1871. In 1872 Dawudu Saibo granted a tertiary mortgageover the crops for 1872 and 1873 of the estate, which was plantedwith coffee, to Meyapulle, through whom the respondents claim.
Rdki 9,, Lebbe ■
It is obvious, as the learned District Judge has pointed out, that adocument of this kind could confer no paper title, and forms asomewhat unsatisfactory starting point for title by prescription.The land would seem to have been subsequently abandoned on thefailure of the coffee industry in Ceylon some thirty-five years ago.
It is said to have been worked for a few years by a Mr. Newman, withSuppen as his head kangany, and then to have been abandoned byhim to Suppen in payment of, or as a security for, his indebtednessto the latter. The evidence of these facts is shadowy, and for themost part hearsay. But what is clear is that the land remained fortwenty-five or thirty years in Suppen’s exclusive possession. Theappellant’s counsel contends, however, that, even assuming thatSuppen took over the land from Newman under the circumstancessuggested, he did so in a subordinate character, and that nothinghas happened since to convert his occupancy into possession utdominus. As I have already pointed out, there is no strict proofof the fact that Suppen entered upon the land under Mr. Newmanat all; and in the absence of such proof, the facts, to which I will referin a little while, are amply sufficient to establish his title by prescrip-tion. But, even assuming that Suppen’s occupancy commencedunder Newman under the circumstances described in the evidence,his possession would, I think, be adverse, within the meaning ofsection 8 of Ordinance No. 22 of 1871, as against the presentappellants, who have been found by the District Judge to have notitle to the land at all. Comparatively little help is to be had fromEnglish cases on the point that I am now considering; for in Englandadverse possession in the strict sense of the term was abolished bythe Real Property Limitation Act, 1833 (3 and 4 Will. 4, c. 27).But it seems that prior to that enactment the question whetherpossession was or was not adverse was to be decided by inquirywhether ther circumstances of that, possession were sufficient! toevince its incompatibility with a freehold estate in the claimant (see‘ Smith’s L. C., 18th ed., II., p. 651). The same principle seems tometo be embodied in section 3 of Ordinance No. 22 of 1871, where theadverse title spoken of iS one independent of the claimant or plaintiffin the action. It is true that the explanatory clause in section 3speaks of acknowledgment of a right existing in another person.But I do not think that the words “ another person ” in thatexplanation would justify us in holding that a declaration of titleon the ground of prescriptive possession could never be successfullyclaimed unless the claimant was in a position to show a title adverseto the whole world. It would, perhaps, not be right to limit thescope of the words “ another person ” to the particular personagainst whom prescriptive title was set up. Where it appeared,for instance, on the pleadings or on the face of the evidence thatthe person claiming such title was only a tenant at will of a thirdperson, he could scarcely expect to have his title upheld. But I
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demur to the suggestion that a decree for declaration of title couldonly be made on such evidence as would be necessary if it operatedas a decree in rem.
1 have carefully examined all the cases that were cited tous by the appellants’ counsel at the argument of the appeal.I do not think, however, that any of these authorities can be saidto be applicable to the facts with which we have here to deal.The general principle laid down by the Privy Council in NagudaMarikar v. Mohammadu 1 is, of course, beyond dispute. But here,as I have pointed out, there is no strict proof of the reason for thecommencement of Suppen’s tenancy, and the action is brought, notagainst an owner, but against the respondents, with no title at all.This observation disposes also of the cases of Madvxmwala v.Ekneligoda 3 and Orloff v. Grebe.3 It was further contended bythe appellants’ counsel that in any case Suppen Kangany couldestablish title only to the small portions of the land in questionwhich he actually cultivated, and could not show that such culti-vation was a constructive possession of the whole land. See on thispoint Mohini Mohan Roy v. Promoda Nath Roy,* Radhamoni Debi v.Collector of Khrilna,3 Clark v. Elphinstone,® Glyn v. Howell.1 Thequestion, however, in every case is one of fact, and it appears tome that here the circumstances taken as a whole are sufficient toestablish Suppen’s title beyond all doubt. We begin with hiscontinued and exclusive possession. If Mr. Newman put him inpossession of the land, neither he nor any other of the formerowners asserted any kind of subsequent claim to it. The evidenceshows that it was abandoned altogether save for the possession,which the District Judge has discredited, of Meyapulle. There isproof that Suppen cultivated two distinct and widely separatedportions of the land. The presumption is that he did so in virtueof his claim to the whole. He paid the tax due on the cultivatedportions till it was done away with. His coolies left the land, buthe remained and brought up his family there. He sold the materialsof the storehouse and took the purchase money as his own. Healso granted a firewood contract affecting the whole land. Thereare other items in the evidence to which I might have referrred, butthese, I think, are sufficient.
I would dismiss the appeal with costs.
Wood .Bbhton J.
. It is unnecessary to recapitulate the facts of the case, which havebeen fully set out in the two judgments of the District. Count and inthe previous judgment of this Court. It is admitted that the
(1903) 7 N. L. R. 91.* (1890) I. L. R. 24Cal. 256.
(1898) 8 N. L. R. 213.* (1900) I. L. R. 27Cal. 943.
(1907) 10 N. L. R. 183.» (1880) A. C. 171.
1 (1909) 1 Ch. 666, 677.
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defendants have no title at all to the land in dispute, butexception is taken to the learned District Judge's finding thatthe plaintiffs have acquired title by prescription on two grounds,which I shall proceed to examine. In the first place, it isobjected that the possession of the plaintiffs and that of SuppenKangany, through whom they claim, was not 14 adverse ” withinthe meaning of section 3 of Ordinance No. 22 of 1871. It is concededthat the possession of the plaintiffs was adverse to the defendants.But that, it is said, is not enough;, the possession, in order to be" adverse " for the purposes of the section, must be unaccompaniedby any act of the possessors, from which an acknowledgment of aright existing, not merely in the defendants, but in “ any otherperson," would be fairly and naturally inferred.
The appellants* argument is that, inasmuch as Suppen Kanganyis stated by the second plaintiff to have entered the land on Mr.Newman's request to take it over until he came back, SuppenKangany *8 possession was dependent on Mr. Newman*s title, and wastherefore not "adverse" even as against the defendants in this action.
On the facts proved I do not think that this argument can succeed,for there is no evidence whatsoever of any act on the part of SuppenKangany or of the plaintiffs from which any acknowledgment couldbe inferred of any? right existing in Mr. Newman. The secondplaintiff, in the passage relied on by the appellants, stated that hisparents had told him that when Mr. Newman left the propertyabout thirty-five years ago, owing money to Suppen Kangany, hetold the latter to take over the property until he came back. ButMr. Newman abandoned the property and never came back, andSuppen and his family remained in possession. It would beunreasonable to construe the. second plaintiff's evidence into anadmission that Suppen Kangany occupied the land under Mr.Newman, when it is clear from the evidence that Mr. Newmanabandoned the land without any intention of resuming possession,and that Suppen Kangany possessed-it on his own account.
The construction of the words "a right existing in another person"in the parenthesis in section 3 of Ordinance No. 22 of 1871 givesrise to some difficulty. The parenthesis purports to explain themeaning of the words " a title adverse to and independent of thatof the claimant or plaintiff." But the explanation appears to gofar beyond the meaning of the expression it purports to expound,and to interpret these words to mean a title which is adverse, notonly to that of the claimant or plaintiff, but to that of any otherperson. The possession of the defendant must be such as is incom-patible with the title of the plaintiff or claimant if such possession isto be deemed adverse to him, but I confess that I cannot understandwhy it should also be required to be incompatible with the title ofany other person. None of the reported cases throws any lighton this difficulty.
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Possibly the explanation means no more than that the possession,in addition to being adverse to the plaintiff or claimant, must alsobe nt dominu8, or it may be—and 1 am inclined to think that this isthe more likely explanation—that the words “ in any other person ”are loosely used so as to cover the case where the plaintiff sets upprescription against the defendant, as well as the case where thedefendant relies on prescription for his defence. Be that as it may,there is, as I have stated, no evidence of any act on the part ofthe plaintiffs from which an acknowledgment of a right existing inany other person can be inferred.
The other ground of appeal relates to the extent of land to whichthe plaintiffs have established title. It is said that title acquiredby prescription must be limited to the actual area of whichpossession is had, and authorities were cited for that proposition.This, as a general proposition, is good law, but it must be appliedwith due regard to the nature of the property and to the use andcultivation of which it is susceptible. The property in question isabout 66 acres in extent. It was formerly planted with coffee, but,like much other land so planted, it was abandoned, and hasrelapsed into patana covered with mana grass and some trees.
It. is proved and found by the learned District Judge that .SuppenKangany made three paddy fields in different parts of the propertyat least as far back as 1887; that he grazed cattle there; that he soldall the trees on the land for firewood; that the first plaintiff let outthe produce of the whole of the lands, high and low, to Sirimala;that Suppen sold the materials of a store on the property; and thathe lived on it and brought up his family there. I do not think thatit is straining the doctrine of constructive possession to hold thatSuppen and the plaintiffs had occupation of the whole land. Thegreater part of it was uncultiyable or could not be cultivatedwithout great expense, and the occupation of Suppen and of theplaintiffs was, in my opinion, such occupation as was to be expected,having regard to the nature and condition of the land. It would beunreasonable to expect them to have reclaimed the patana landand to have planted it with tea, as such an operation would requirea considerable expenditure of capital.
In my opinion the judgment of the District Judge is right, andI would dismiss the appeal with costs.
RAKI et al v. LEBBE et al