Samson Atygala v. Attorney-General (Bandaranayake. J.)
MARSHALL APPUHAMY AND ANOTHER
WANASUNDERA. J.. TAMBIAH, J. AND L. H. DE ALWIS. J.
S.C. APPEAL No. 16/85.
A. No. 866/75 (F),
C. NUWARA ELIYA No. 31 9/L.
JANUARY 30. 1986. '
Prescription by stranger buying entirety of co-owned land ignorant of rights of the otherco-owners – Is proof of ouster necessary ?
A stranger who enters into possession of the entirety of co-owned property in the beliefthat he is the sole owner, need not prove ouster or something equivalent to ouster bujonly adverse possession for a period of 10 years in order to acquire a prescriptive titleto it. Mere execution of deeds by the other co-owners can in no way interrupt thestranger's prescriptive possession.
Cases referred to:
Corea v. Iseris Appuhamy (1911) 15 NLR 65. 1912 AC 230.
Kobbekaduwa v. Seneviratne (1951) 53 NLR 354.
Tillekeratne v. Bastian (1918)21 NLR 12.
Hussaima v. Ummu Zaneera (1961) 65 NLR 125 P.C.
Sri Lanka Law Reports
 1 SriL.R.
Fernando v. Podi Nona (1955) 56 NLR 491. 492, 493.
Hamidu Lebbe v. Ganitha (1925) 27 NLR 33.
Bhavrao v. Rakhmin AIR (23) Bom. 137: 1LR 23 Bom. 137.
Palania Pillai v. Rowther (1942) 55 Madras L. W. 532.
Sellappah v. Sinnadurai (1951) 53 NLR 121.
Brito v. Muttunayagam (1918) 20 NLR 327.
APPEAL from judgment of Court of Appeal.
S. C. B. Walgampaya for defendant-appellants. •
N. R. M. Daluwatte. P.C. with K. Balapatabendi and T. G. A. de £Hva forplaintiffs-respondents.
C8r. adv. vult.
March 4. 1986.
L. H. DE ALWIS, J.
The only matter that was argued before us by learned counsel for theappellants at the hearing was whether the evidence of possessionpla.ced by the plaintiff before the trial Judge was sufficient to amountto an ouster of the defendants, so as to establish a prescriptive title infavour of plaintiffs, inasmuch as their respective predecessors-in-titlewere co-owners of the land in question. The land is calledPitiyahenawatta and there is no dispute as to its identity.
The plaintiffs and the defendants claim title to the land on twodifferent pedigrees. The plaintiffs state that the original owner of theland was one Hinguruwela Senanayake Seneviratne HeratMudiyanselage Kiribanda while the defendants say that the originalowner was one Walakonawattegedera Kiriwantha. According to theplaintiffs, the aforesaid Kiribanda on deed No.5,50 of 11.8. 1 946 (PI)conveyed the entire land to Welakonewattegedera SenanayakeSeneviratne Herat Mudiyanselage .Herat who on deed No. 6697 of6.3.1947 (P2) transferred it to Navaratne Mudiyanselage AlutgederaHeen Menika. Heen Menika died leaving the plaintiffs qs her heirs.
The first defendant's case is that W. Kiriwantha died leaving as hisheirs Welakonewattegedera Herat Mudiyanselage Heen Menika andW. H. M. Muthu Menika. The said Muthu Menika on deed No. 4442of 6.1 0.58 (D2) and Heen Menika on deed No. 4454 of13.10.58(D3) conveyed their respective rights in the land to the firstdefendant.
Marshall Appuhamy v. Punchi Banda (L. H. De Alwis. J.)
In an earlier action No. 4927 filed in the Court of Requests ofNuwara Eliya by W. H. M. Heen Menika and W. H. M. Muthu Menikaagainst W. H. M. Kiribanda and four others, decree was entered on
0.1 910(D4A) declaring Heen Menika, Muthu Menika andKiribanda the owners of the land in question.
On the issues raised in the present trial, the.learned Judge held withthe plaintiffs that the original owner of the land was Kiribanda and thatin view of the decree (D4A) in the Court of Requests case,: theplaintiffs were entitled to a 1/3 share of the land and the first -defendant to a 2/3 shar». that is. on the basis of the documentaryevidence. On the issue of prespriptlve title raised by the partieshowever the learned Judge answered it in favour of the plaintiffs andagainst «he first defendant. .
The first defendant appealed against the judgment to the Court ofAppeal which held that there was ample evidence to support thefinding and affirmed the judgment of the trial Judge and dismissed theappeal. It is from the judgment of the Court of Appeal that the firstdefendant now appeals..'
Learned.counsel for the first defendant-appellant contended that onthe finding of the trial Judge the predecessors-in-title of the partieswere co-owners, but both the trial Judge and the Court of Appealfailed to approach the' question of prescriptive title from thatstandpoint and that the evidence of possession led by the plaintiffswas insufficient to amount to an ouster of the first defendant and hispredecessors in title and establish a prescriptive title in favour of theplaintiff.
■ He relied on several cases including Corea v. Iseris Appuhamy (1)where the Privy Council laid down the principle of law that thepossession of one co-owner of the land enures to the benefit of theother co-owners and that a co-owner's possessioi, in law is thepossession of his co-owners. It is not possible for a co-owner to put anend that possession by any secre intention in his mind and nothingshort of ouster or something equivalent to ouster could bring aboutthat result.
In Kobbekaduwa v. Seneviratne (2) it was-held that the mere factthat a co-owner who was in occupation of the common property andpurported to execute deeds in respect of the entirety of it for a longperiod of years does not lead to the presumption of an ouster, in theabsence of evidence to show'that the other co-owners had knowledgeof the transactions.
Sri Lanka Law Repons
11986] 1 SriL.R.
Tillakeratne v. Bastian (3) a decision of a Full Bench of this court,also cited by learned counsel, was a case where the presumption ofouster among co-owners was drawn, Bertram. J. said:
"It may be taken therefore that it is open to court, from lapse oftime in conjunction with the circumstances of the case, to presumethat a possession originally that of a co-owner has since becomeadverse."
His Lordship also said:*
"It is, in short, a question of fact wherever long conynuedexclusive possession by one co-owner is proved to have existed,whether it is not just and reasonable in all the circumstances of thecase that the parties should be treated as though it had been provedthat separate and exclusive possession had become adverse atsome date more than ten years before action brought."
These two passages in the judgment of Bertram, C. J. were citedwith approval by the Privy Council in Hussaima v. Umma Za'meera (4).as setting out correctly the principles of law applicable to prescriptionamong co-owners in our country.
In the present case, however, although the predecessors-in-title ofthe' plaintiffs and the first defendant were co-owners by virtue of thedecree D4A entered on 18.10.1910 in the Nuwara Eliya Court ofRequests case, one of the plaintiffs' predecessors in title HmgurawelaH. M. Kinbanda who was only entitled to a 1/3 share of the land,conveyed the entirety of the land on P1 m 1946 toWelakonewattegedera H. M. Kiribanda and he in turn conveyed theentirety of the land on P2 in 1947 to Aluthgedera Heen Memka whowas a complete stranger to the family of the original owner. Theevidence is that she was the mistress of the vendor and came to livewith him m 1947, on the execution of P2.
The position of a stranger who enters into possession of the entiretyof the common property without the knowledge or belief that anyother party is entitled to any interest in the property is different fromthat of a co-owner. This is clearly demonstrated by Gratiaen, J. inFernando v. Podi Nona (5). At page 492 he says:
"The ratio decidendi of Corea v. Appuhamy (supra) is that a personentering as a co-owner into possession of the common propertycannot, by merely forming a secret intention which has not been
Marshall Appuhamy v. Punchi Banda (L. H. DeAlwis. J.)
communicated to his other co-owners either by express declarationor by overt action, alter the character of his possession and therebyacquire title to their shares by prescription. This principle is. ofcourse, subject to the rule of common sense that, in appropriatecases, an ouster may be presumed to have taken place at somepoint of time after the date of entry, which was originally notadverse – Tillekeratne v. Bastian (supra), Hamidu Lebbe v. Ganitba
. There is, however, no room for the application of presumptionsor counter-presumptigns where a man had from the inceptionentered into possession of the land unequivocally claiming title toth& entirety. In such a situation, his possession,is at, every stageadverse to the true owner .or his true co-owners^as the case maybe)., and in the latter eventdhe other co-owners cannot be heard tosay that his possession .was merely in support of their commontitle'. Where a stranger purporting to have purchased the entire landfrom a person who was in fact only a co-owner, he has been held tohold adversely against the other co-owners for purposes ofprescription. In Bhavrao v. Rakhmin (7) the Full Court of the BombayHigh Court took the view that prescription would run in favour of thepurchaser as soon as he entered into exclusive possession of theproperty, if he did so claiming to be the sole owner. 'Adversepossession', the judgment points out, 'depends upon the claim ortitle under which the'possessor holds and not upon a considerationof the question in whom the true ownership is vested.' Thedistinction between the possession of the entire land by a co-owneron the’ one hand and of a stranger who has purported to purchasethe entire land is also emphasised-in Palania Piliai v. Rowther (8).'While possession of one co-owner' said Chief Justice'Leach, 'is initself rightful, the position is different when a stranger is inpossession'. The possession of a stranger in'itself indicates that hispossession is adverse to the true owners."'
Gratiaen, J. finally came to the conclusion that —
"The true test now becomes clear. Where a stranger enters intopossession of a divided allotment of land, claiming to be sole owner,although his vendor in fact had legal title only to a share, Corea v.Appuhamy (supra) has no application unless his occupation of thewhole was reasonably capable of being understood by the otherco-owners as consistent with an acknowledgment of their title."
Sri Lanka Law Reports
 1 SriL.R.
In Sellappah v. Sinnadurai (9). it was also held that where one of theseveral co-owners sells the entirety of the common property to aperson who is a stranger and not a co-owner, and who possesses itwithout knowledge or belief that any other party is entitled to anyinterest in the property, his possession is not possession of theco-owner. In such a case Corea v. Iseris Appuhamy (supra) or Brito v.Muttunayagam (10) is inapplicable. The purchaser acquires title to theentirety of the property after adverse possession for 10 years.
No issue of co-ownership was raised b» the parties at the .trial.Learned counsel for the appellants submitted that it was the duty ofthe trial court to have framed such an issue. I do not thin* anyprejudice has been caused by it to the first defendant. l«or it isapparently from this angle that both the trial court and the Court ofAppeal have approached the question of the plaintiff's prescriptive titleto the entirety of the land.
A stranger who enters into possession of the entirety of co-ownedproperty in the belief that he is the sole owner need not prove ousteror something equivalent to ouster but only adverse possession for aperiod of 10 years in order to acquire a prescriptive title to it.
In the present case P2 of 194/ conveyed the entirety of the land toAlutgedera Heen Menika who was a complete stranger and she hadentered into possession in the belief that she was the sole owner. Infact the vendor himself had purchased the entirety of the land on P1 in1946 before conveying it to her. There is nothing to indicate that HeenMenika had any knowledge or belief that any other party had interestsin the property at the time she entered the land. As the Court ofAppeal has pointed out there was ample evidence of adversepossession by Heen Menika and the plaintiffs. Witness Wannakuralastated that Heen Menika came to live in the house on the land in1947, on the execution of Deed P2. The witness states that heworked on the land in about 1 952 along with the second defendant'sfather, Punchirala, under Heen Menika, the plaintiff's mother. The firstdefendant's case was that Punchirala lived on the land under him andthat after the latter's death he permitted Punchirala's son, the seconddefendant to look after the land. Kiriwanthe, a brother of the seconddefendant,had given the plaintiffs a document dated 26.8.1970(P3)undertaking to look after the land oh their behalf. Subsequently adispute arose between Kiriwanthe and the plaintiffs. The matter was
Marshall Appuhamy y. Punchi Banda (L. H. DeAlwis, J.)
inquired into by the Chairman of the Conciliation Board of the area,who wrote letter dated 1.1.73 (P5) to the Grama Sevaka stating thatKiriwanthe admitted the ownership of the plaintiffs and agreed tovacate the land. Although the documents P3 and P5 containingKiriwanthe's undertaking, do not constitute an acknowledgement ofthe plaintiffs' right to the land by the defendants, they neverthelesssupport the plaintiff's case that they did have possession of the land.
The learned trial Judge has accepted the plaintiff's position andrejected the first defendant's version for cogent reasons. This is afinding of fact which has been affirmed by the Court of Appeal.
In 1 f^58 the first defendant purported to purchase the rights ofMuthu Mehika and Heen Menika on D2 and D3 respectively. Thefinding of the trial Judge which is affirmed by the Court of Appeal isthat the plaintiffs were in possession of the. land. Mere execution ofdeeds, in respect of the land can in no way interrupt the plaintiffs'prescriptive possession of it. In fact the plaintiffs and theirpredecessors.-in-title had already acquired a prescriptive title to theland by adverse possession from 1947 for over 10 years by the timeD2 & D3 were executed in 1958.
The two defendants unlawfully and forcibly entered the land onlyon8. 1. 1973 and started disputing the plaintiffs' title to it, as was foundby the trial court. From 1947 up to that date is a period of about 26years and by then, as was pointed out earlier, the plaintiffs and theirpredecessors-in-title had by exclusive and adverse possession of theentire land acquired a prescriptive title to the land. This action, it mightbe mentioned, was filed on 6.8.73 within about seven months of thedefendant's forcible entry into the land. I
I therefore affirm the judgment of the Court of Appeal and dismissthe appeal of the first defendant with costs.
WANASUNDERA, J. – I agree.
TAMBIAH, J. – I agree.
1-MARSHALL APPUHAMY AND ANOTHER v. PUNCHI BANDA