Jayaneris v. Somaivathie
1968 Present: T. S. Fernando, J., and Weeramantry, J.
U.G. JAYANERIS and another, Appellants, and U. G.SOMAWATHIE and 2 others, Respondents
S. C. 41/66 (Inty.)—D. C. Galle, 2504/P
Partition action—Claim to part of corpus by the contesting defendantson basis of prescriptive possession—Possession by same person asagent of the contesting defendants and on behalf of some of theco-owners—Adverse possession—Burden of proof.
The 7th, 8th and 9th defendants, who were the contestingdefendants in a partition action, claimed an undivided one-sixthshare of the corpus on the basis of prescriptive possession. Theirclaim was based on the possession of one J who acted as theiragent. This same J was already in possession of the land on behalfof two of the co-owners. The contesting defendants’ claim basedon the possession of J therefore raised the question of possessionby an agent acting in disparate capacities—on the one hand forthe benefit of co-owners claiming by a rightful title and on theother for the benefit of those seeking to dispossess them.
Held, that the burden was on the contesting defendants to proveby clear and cogent evidence that the adverse aspect of J’spossession on their behalf was so manifest that all the co-owners,and not merely some of them, saw in it a challenge to their claims.
APPEAL from an order of the District Judge, Galle.
H. W. Jayewardene, Q.C., with S. S. Basnayake, for theplain tiffs-appellants.
WEERAMANTRY, J.—Jayaneriea v. Somawathie207
M. T. M. Sivardeen, for the 7th, 8th and 9th defendants-respondents.
Cur. adv. vult.
March 8, 1968. Weeramantry, J.—
In this case the plaintiffs seek to partition a land originallybelonging to one Odiris de Silva, who died intestate leaving sixchildren. The contest in this case centred around the undividedone-sixth share that devolved on Agiris, one of the children ofOdiris. It was common ground that this Agiris had not beenheard of for several years and according to the plaintiffs hisshare devolved oh his surviving brothers and sister on the basisthat he died intestate, unmarried and issueless. The seventh,eighth and ninth defendants on the other hand laid claim to theundivided share of Agiris on the basis that Agiris had conveyedhis share by deed to one Salman to whose interests theysucceeded upon intestacy. However, though this was the positionenvisaged by them in their pleadings, these defendants (herein-after called the contesting defendants) proceeded to trial on thebasis of a claim to this undivided one-sixth share by purelyprescriptive title, the possession alleged by them being in themain a period of possession on their behalf by one Jayaneris whoacted as their agent.
This same Jayaneris, at the time he is stated to have beenentrusted with possession on behalf of these contestingdefendants, was already in possession of the land on behalf ofcertain co-owners, namely the first defendant and the fifthdefendant, who claimed under the common title devolving fromOdiris. The possession of one co-owner must necessarily enureto the-bcngfu of all. The contesting defendants’ claim based onthe possession of Jayaneris therefore raises the interestingquestion of possession by an agent acting in disparate capacities—on the one hand for the benefit of co-owners claiming by arightful title and on the other for the benefit of those seekingto dispossess them.
Mr. Jayewardene argues, and rightly in my view, that such acontention can only be based upon clear and cogent evidencepointing unmistakably to this dualism in the nature of hispossession. The adverse aspect of his. possession cannot in other. words remain a mere concept in the recesses of the agent’s mindbut. must so manifest itself that those against whom it is urgedmay see in it a challenge to their claims. Even as possession quaco-owner cannot be ended by any secret intention in the mindof the possessing co-owner,1 so also is possession through an
1 Corea v. Appuhamy (1911) 15 N. U. S. 65, P. O.
WEERAMANTRY, J.—Jayaneris v. Somawathie
agent incapable of being affected adversely by an uncommuni-cated attitude or mental state existing in the mind of thatself-same agent.1
This does not mean however that express communication isrequired of the change in the nature of the agent’s possession.So long as the agent’s conduct carries without ambiguity themessage of the altered nature of his possession, expresscommunication may well be dispensed with ; but we have hereno conduct so unambiguous, no distinction of capacities so clear,that we may with assurance invest the co-owners with knowledgethat adverse possession had commenced or was running againstthem.
The only material before us on this matter is that Jayanerisplanted “ catch crops ” on the land. There is no evidence of adivision of this produce between two sets of principals nor isthere such a demarcation of the crops as to lend colour to thesuggestion that he played a dual role. His simple activity on theland would appear difficult therefore to relate to the sophisticatednotion of agency in opposed capacities, as contended for by therespondents. Jayaneris was there on behalf of some of the holderson a lawful title and hence on behalf of them all. It would thusbe as difficult for us to attribute to him a simultaneous possessioneroding that same title as it was for the Privy Council in Coreav. Appuham-y 1 2 to permit Iseris who entered under a legal titleto “ masquerade as a robber or a bandit ” ; and we are drawnback again to the cardinal principle approved in Corea v.Appuhamy and consistently followed ever since, that“ possession is never adverse if it can be referred to a lawfultitle”.
The material before us does not in this view of the matterbring us anywhere near the high order of proof requited toestablish adverse possession, the burden of which rests entirelyupon the contesting defendants.
It has been submitted by learned Counsel for the contestingdefendants that the dichotomous nature of Jayaneris’ possessionwas admitted by two defendants, namely the second and thefifth. These defendants are brothers of Jayaneris and are partieswho are entitled to other undivided shares than those derivingfrom Agiris.
However the defendants who would otherwise succeed toAgiris’ share have not admitted that Jayaneris’ possession wasof the character claimed by Jayaneris or the second and fifthdefendants, and, in the absence of any admission by them, theadmission by the second and fifth defendants cannot avail the’contesting defendants. Moreover, where notice of the altered ?
1Nagtidu Marikar v. Mohammadu (1903) 9 N. L. R. 91, P. C.
2(1911) 15 N. L. R. 65, P. O.
WEERA3IANTKY, J.—Jayaneria v. Somawathie20ft
character of a person’s possession is necessary, this notice isnecessarily required to all the co-owners, and a notice to somealone will not suffice to stamp the possession in question asadverse.
Another observation I feel constrained to make is that the caseof prescriptive possession set up by the contesting defendantsbecame apparent only at the trial and indeed after the close ofthe plaintiffs’ case. The plaintiffs were entitled to assume uponthe pleadings of the contesting defendants that their title wasbased upon a transfer by Agiris. Indeed when the points ofcontest were formulated at the commencement of the trial, thelearned Judge noted that, apart from the usual issue relatingto prescriptive rights of parties, the only dispute was whetherAgiris died without marriage or issue and whether the rights ofAgiris devolved on his surviving brothers and sisters as statedby the plaintiffs or whether Agiris sold his rights to Salman whodied leaving the contesting defendants as his heirs.
It would be wrong, therefore, to say that a case of adversepossession was the case which the plaintiffs were called upon tomeet or that there was a burden' on them to lead evidence indisproof of prescriptive title on the part of the contestingdefendants. Consequently. I do not think that an adverseinference can be drawn against the' plaintiffs from their failureto meet in advance this altered case of the contesting defendants.In this context the comments made in the judgment on theweakness of the plaintiffs’ evidence of possession and on theirfailure to call other witnesses on this point would appear to losetheir force.
Another item of evidence relied upon by the contestingdefendants in support of prescriptive title, is an inventory of1930 filed in the testamentary case of.Salman, their predecessor.This document is relied upon to show that a land by the samename as that of the corpus in this case was included in theestate of Salman. The appellants contend that the inventory isinadmissible as evidence of ownership unless the affirmant tothe affidavit filed therewith is called as a witness. The appellantsfurther dispute the identity of the land referred to therein, inview of a discrepancy between the extent there stated and theextent of the corpus.
Be these objections as they may, the inventory is at best apointer to possession in or around the year 1930 and is insufficientof its own force to establish prescriptive possession. In the viewindicated above of the nature of Jayaneris’ possession, theinventory does not advance the case of the contesting defendants.
Wahid v. Ncdeera
In the result, therefore, we hold that the claim of the contestingdefendants to an undivided one-sixth share of the corpus onthe basis of prescriptive possession must fail. The order of thelearned District Judge is hence set aside in so far as he holdsthe contesting defendants entitled to the undivided one-sixthshare of Agiris. The rights to this one-sixth share will devolvein the manner set out in the plaint and the interlocutory decreewill be amended accordingly.
As regards the costs of contest, the order of the trial Judge willbe reversed and the seventh, eighth, and ninth defendants mustpay a sum of rupees sixty-three to the plaintiff and a like sumto the third and sixth defendants. The plaintiffs will be entitledto the costs of this appeal. The costs of the action, includingsurvey fees, will be borne by the parties pro rata.
T. S. Fernando, J.—I agree.
Order set aside.
U. G. JAYANERIS and another, Appellants, and U. G. SOMAWATHIE and 2 others, R