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Present: Jayewardene A.J.
RAX NAIBE V. PUNCHI BANDA.
275—G. B. Ratnapura, 48.
Prescription—Usufructuary mortgagee—Long possession—Presumption ofouster.
' A Court may presume from iapse of time, in conjunction withother circumstances, that the possession of a usufructuarymortgagee has become adverse.
PPEAL from a judgment of the Commissioner of Requests,Ratnapura.
E. G. P. JayatiUeke, for defendants, appellants.
N. E. Weerasooriya, for plaintiff, respondent.
June 21, 1930. Jayewardene A.J.—
The plaintiff sued the defendants • to redeem a usufructuarymortgage made by one K. M. Punchi Banda in the year 1874.The latter died leaving three children: Kiri Banda, Ram Banda,and Punchi Banda. Kiri Banda in 1879 sold the lands that weremortgaged to the original mortgagee, Endane Kiri Banda, registrar.The plaintiff has acquired title to the two-third shares of the othertwo sons. The only question for trial was whether .the defendants,who are ohildren of the registrar, had acquired title by prescriptivepossession. The registrar entered into possession as usufructuarymortgagee and he and his heirs must be presumed to have continuedto possess in that capacity, unless they show that the character ofthat possession has changed, and that .there has been somethingin the nature of an ouster which made that possession adverse tothe mortgagor and his successors in title. Where a person who hasobtained possession of a land of another in. a subordinate character,as for example as a tenant or mortgagee, seeks to utilize thatpossession as the foundation of a title by prescription, he must showthat by some overt act known to the person under whom hepossesses he has got rid of that subordinate possession and com-menced to use and. occupy the' property ut dominus (GovernmentAgent v. Ismail Lebbe *). It is for him to show that his quasi-fiduciaryposition was changed by some overt act of possession. This viewwas adopted by the Privy Council in Naguda Marikar v. Mohamadu-and also by the Supreme Court in Orloff v. Grebe.3
The registrar bought all the lands mortgaged in 1879 from one ofthe two sons of the mortgagor. He and his heirs have had possessionever since. If their possession can be referred to the purchase of1879 and not to the mortgage of 1874, then that possession is 1
1 (1908) 2 Weer. 29.2 (1003) 7 N. L. R. 91.
3 (1907) 10 N. L. R. 183.
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adverse, if it is shown that the other two sons or their successorshad notice of the sale by their brother to the registrar; In 1888 Jayuwab-there was litigation about the first land mortgaged, Ehelagahaliadda. DBNB A,J*The plaintiff in that case, one Bamalhamv, sued the registrar for Ran Naidea .declaration of title and ejectment claiming title at a Fiscal's sale V*Ban&i%in 1880 on a writ against the mortgagor Punchi Banda, who hadprobably died after action brought hut before the Fiscal sold theland. The registrar pleaded that he was the owner of the land bypurchase in 1879 from Kiri Banda, the son of the mortgagor. Healso set out the mortgage bond of 1874. The' registrar statedthen that Punchi Banda’s son sold the land to pay off his father'sdebts. His title was upheld.
Again in 1909, his title was challenged by one Tikiri Banda, apurchaser, from the other two sons, but his title was again held tobe good, and the Judge observed that the registrar claimed in 1888on the same title and that the registrar and his children had been inpossession ever since. The mortgage-bonds produced by the defend-ants show that they have dealt with these lands as owners a.t differenttimes. These are usufructuary bonds and the mortgagees have hadpossession. These bonds have been duly paid and discharged bythe defendants as shown by the endorsements on them. It isimpossible to think that the sons did not know of their brother'ssale to the registrar, of the cases of 1883 and 1909, and of thesebonds. The plaintiff, who bought one-third from one brother.
Bam Banda, in 1902, lives only .half a mile from the lands. In factplaintiff admitted in cross-examination that he had heard that theregistrar, defendant's father, had a transfer from Kiri Banda of allthe shares of the land belonging to his father. The plaintiff went tothe extent of disclaiming title to Ehelagahaliadda, which he hadclaimed in his plaint. He said tha.t he did not chum the sixthland too, Delgahaliadda, but he was rehabilitated by lvis ownCounsel and said “ Delgahaliadda is No. 4 in P 3, so I do claim it.
As regards the certificate of quiet possession (P 8), it is inrespect of Amurukarahena, which is not included in the mortgage.
The first defendant says that lie agreed to accept one-third to finishthe inquiry. As to the gemming licence of. 1903 (P 7). the defend-ant says that the plaintiff never gemmed on the lands. In 1903plaintiff was then only entitled to one-third although he seems tohave claimed two-thirds for gemming purposes. However, thesedocuments cannot outweigh .the large body of evidence in favour of^the defendants. I am convinced that the plaintiff and his vendor,the two sons, were well aware of the purchase by the registrar in1879. The defendants have Succeeded in showing that the characterof the possession changed and was adverse for well-nigh fifty years,
– This case is almost on all fours with the case Fernando v. Pereira1
1 (1917) 1 C. L. Rec. o.
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Man Naidev. PunchiBanda
cited by Counsel for the appellant, where Shaw J. observed thatundisturbed possession for a long term of years by a usufructuarymortgagee may, by itself,. raise a presumption of an ouster. Theret.oo the defendants produced some old cases in. which they and othersclaiming as heirs of the mortgagees had asserted title to the land.
It is open to the Court from lapse of time in conjunction withother circumstances to presume that a possession, originally per-missive, has since then become adverse (Tillekeratne v. Bastion1);and as Bertram C.J. pointed out, it is the reverse of reasonable toimpute a character to a man’s possession which his whole behaviourhas long repudiated.
In Doe v. Prosser2 Lord Mansfield observed:“ An undisturbed
and quiet possession for such a length of time is a sufficient groundfor the jury to presume an actual ouster. "
In Hamidu Lebbe v. Ganitha relied on by respondent’s Counsel,it was held that it depends on the circumstances of each casewhether it is reasonable to presume an ouster from long continuedexclusive possession. I feel with Dalton J. that this comes verynear to the border line of those “ stale claims ” referred to byWood V.C. in Thomas v. Thomas,4 to which the provisions of thePrescription Ordinance should be applied to the fullest extent andwhich ought to be discouraged.
I am of opinion that, the defendants have proved “adverse”possession against the plaintiff and his predecessors in title forover forty years and have acquired prescriptive title to the landsmortgaged in 1874.
I accordingly allow the appeal and set aside the judgment appealedfrom. The defendants are entitled to the costs in both Courts.
» 21 N. L. R. 12.
* (1774) 1 Cowp. 217,
8 (1925) 27 N. L. R. $$.4 (1885) 2 K. <fe J. 79.
RAN NAIDE v. PUNCHI BANDA