DIAS J.—Seliris v. Dingirimenika
1948Present: Dias and Nagalingam JJ.
SEDIR1S, Appellant, and DINGIRIMENIKA el al. Respondents8. C. 436—D. 0. Kegalla, 4,385
Prescription—Possession under jus rotentionis—Not adverse—Right to lendercompensation for improvements—Not barred by limitation.
Possession under a jus rntentionis is nob adverse possession and cannotfound a title by proscription. Nor can the right to tender compensationfor the improvements be burrod by limitation.
Appeal from a judgment of the District Judge, Kegalla.
N. E. Weenisoortn, K.C., with H*. D. Gunasekera, for plaintiffsappellants.
H. W. Jayeu-auletie, for defendants respondents.
Cur. adv. vvl*.
November 1*2, 1948. Dias J.—
By the filial decree PI dated July 5,1926, in D. C., Kegalla, PartitionCase No. 6,720, the land in dispute was allotted to K. M. Podimenika thefirst defendant to that action and to K. M. Tikirikutimrihamy, the seconddefendant to that action. It was further ordered and decreed that thesetwo persons should pay to R. D. Odirisa and K. Dingiriappu, who werethe fifth and sixth defendants to that action, the sum of Ra. 156*25 inrespect of certain plantations made by them.
1 (1831) Barnetcell and Adolphus's Reports 218.
1 (1872) 41 Law Journal 110.
DIAS J.— Sediris v, Dingirimenika
K.M. Podimenika has given evidence in this case. K, M. Tikiri-kumarihamy is the sixth defendant to the present action and R. D.Odirisa is the first defendant to this action. Dingiriappu is dead and isrepresented by the second to the fifth defendants.
K.M. Podimenika by deed P3, dated July 17, 1045, conveyed hertitle to an undivided half to the first and second plaintiffs. The case forthe plaintiffs is that the first defendant, Dingiriappu, and his successorswere in possession of the land in dispute under their jus retentionis, andwere, therefore, not possessing adversely. The plaintiffs say that thecompensation was tendered but not accepted, and that the first to thefifth defendants are in wrongful possession of the land. They, therefore,ask that they be ejected and for damages. At the trial the partiesagreed that the damages were to be Rs. 50 up to date and continuingdamages at Rs. 25 per annum.
The case for the first to fifth defendants is that Podimenika and thesixth defendant, Tikirikumarihamy, “ surrendered and gave over theirrights to the first defendant and Dingiriappu who thereupon became theabsolute owners of the property ”, and that they entered into possessionas absolute owners. They, therefore, claim title by prescription. Inthe alternative they plead that the right of the plaintiffs to tendercompensation is now prescribed.
The plaintiffs have brought into Court the sum of Rs. 156*25.
The parties went to trial on the following issues:—
Did Podimenika and Tikirikumarihamy, sixth defendant, surrender
their lots 1,1a and 1b allotted to them by the final decree incase No. 6,720 of this Court in favour of the first defendant andDingiriappu in lieu of compensation ?
Have defendants acquired a prescriptive title to the said lots t
Is plaintiff barred by prescription from offering compensation
ordered in the said partition action to defendants ?
Damages agreed on at Rs. 50 up to date and continuing damages
at the rate of Rs. 25 per year thereafter.
Podimenika gave evidence for the plaintiff. The defendants called noevidence. TheDistrict Judge answered issues l, 2 and 3 in the affirmativeand issue 4 in the negative, and dismissed the plaintifT’s action with costs.
In my opinion, the decree appealed against cannot stand. The caseof de Silw v. Sangananda Unanse1 has been misunderstood and mis-applied by the District Judge. That case lays down a genera) principle,and is not confined to the interpretation of the terms of the decreeentered in that particular case. The ratio decidendi is that when in thefinal decree in a partition action provision is made that one party shouldpay compensation to a bona fid-e possessor for erecting buildings on theland, or for planting the land, &c., the latter has the right to retainpossession until the compensation due to him is paid. It was furtherlaid down that it was not necessary expressly to reserve the jvs retentionisin the final decree. The jus. retentionis is a necessary legal consequencewhich automatically attaches whenever a right to compensation accruesto a bona fide possessor.
: [I33S) 40 S'. L. R. I6l>.
A bcyayutwuekerc v. Local Govt, Service Commission
It is, therefore, clear that the first to fifth defendants are possessingthe land under the jus retentions. Their possession cannot be consideredto be adverse, so as to afford them a foundation for a title by prescription.
I cannot understand the contention that there had been a surrenderof the land to the first defendant and to Dingiriappu. Podimenika hasdenied this on oath. No evidence has been led for the defence, and thereis no notarial deed produced to prove the surrender. The evidencemakes it clear that as the owners were unable to raise the amount ofcompensation, they told the first defendant and Dingiriappu to possessthe land till the money was found.
The claim that the right of the plaintiffs to tender compensation isbarred by limitation is based on no known principle of law. Counsel forthe respondents was unable to refer us to any section of the ProscriptionOrdinance on which such a contention could be based.
I set aside the decree appealed from, and enter judgment for theplaintiffs in regard to an undivided half of the land as prayed for, withdamages at Ks. 60 up to date, and continuing damages of Rs. 25 perannum thereafter until possession is restored to tho plaintiffs. Thefirst to fifth defendants will be entitled to withdraw the sum of Rs. 156'26deposited in Court. The first to fifth defendants will pay to the plaintiffsthe costs both here And below.
Nagalikgam J.—I agree.
SEDIRIS ,Appellant , and DINGIRIMENIKA et al , Respondents