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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton
SILVA v. DINGIBI MENIKA et al.
D. C., Kandy, 18,314
Possessory action—Proof of possession for a year and a day before ousternot necessary—Dispossession otherwise than by process of law.
To succeed in a possessory action all that is necessary for theplaintiff to prove is that he was in possession, and that he wasdispossessed otherwise than by process of law. It i3 not necessaryto prove possession for a year and a day before ouster.
HE facts material to the report are fully set out in the judg-ment of Hutchinson C.J.
Seneviratne, for the appellants.—The finding of the DistrictJudge that plaintiff had possession for a year and a day previousto ouster is unsupported by the evidence. Without proof of suchpossession the plaintiff cannot succeed in this action. See judgmentof Lawrie J. in Perera v. Fernando.1
H. A. Jayewardene, for the respondent.—Under section 4 ofOrdinance No. 22 of 1871 proof of possession for a year and a day isnot necessary to maintain possessory action. See Goonewardene v.Perera,2 Menu Etana v. Gabriel Appuhamy.3
April 22, 1910. Hutchinson C.J.—
This is a possessory action in which the plaintiff claims to beentitled to possession of certain land marked A on the plan,alleging that he was in possession for a year and a day, and that hewas afterwards, in October, 1906, forcibly ousted by the defendants.The issues agreed to were: Was the plaintiff for a year and a dayprior to the alleged ouster in possession of lot A; and, secondly,did the defendants take wrongful and forcible possession? TheDistrict Judge answered both the questions in the affirmative. Onthe first issue there was a contest in the District Court and in thisCourt as to whether or not the first defendant did not obtainpossession of lot A in April, 1906. The Judge finds that he did hot,and I think on the evidence that that was right, but I cannot findany evidence to support the finding that the plaintiff had possessionfor a year and a day. I think it is proved that the plaintiff was in
1 (1892) 1 S. C. R. 329.* [1902) S N. L. R. 320.
(1909) 1 Cur. L. R. 2.
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possession before and up to October, ]906, and that the defendantsthen took possession forcibly; but there is no evidence how long theplaintiff had had possession. The question is, therefore, whetherit was necessary for the plaintiff to prove possession for a year and /a day. Section 4 of the Prescription Ordinance, No. 22 of 1871enacts that “any person who has been dispossessed of land other-wise than by process of law may within one year of his dispossession,and on proof of his dispossession, obtain a decree for restoration ofpossession without proof of title”; but this is not to affect the otherrequirements of the law as respects possessory cases. Two decisidnsaffecting this point have been quoted to us. In Perera v. Fernando,la Full Court case, Mr. Justice Lawrie thought that the plaintiff’sclaim should be dismissed because he did not prove possession fora year and a day before ouster. The other Judges decided the caseon a different ground. In Ooonewardene v. Pereira2 Chief JusticeBonser expressed the opinion that where there was an ouster' byviolence nothing more is required to be proved by the plaintiff thanthat he was in possession, and that he was violently ousted; andMr. Justice Wendt agreed with him; and in Menu Etana v. GabrielAppuhamy3 Mr. Justice Wendt expressed a similar opinion. Ithink that section 4 of the Ordinance was intended to do away withthe requirement of the Roman-Dutch Law as to length of possessionwhich was required in a possessory action, and all that is necessaryfor the plaintiff in such a case as this to prove is that he was inpossession, and that he was dispossessed otherwise than by processof law. I think, therefore, that the judgment of the DistrictJudge was right, notwithstanding that his finding on the first issuewas mistaken. The formal decree, however, requires amendment;it declares the plaintiff entitled to the land, but it should onlydeclare him entitled tn possession of the land. The decree, there-fore, must be amended by adding the words “possession of”before the words “the land”. I think the appellant should pay therespondent costs of this appeal.
Middleton J.—I agree, and have nothing to add.
Appeal dismissed; decree amended.
(1892) 1. S. C. R, 329.2 (1902) 5. N, L. R. 320,
3 (1909) I. Cur. L. R. 2.
SILVA v. DINGIRI MENIKA et al