COURT OF APPEAL.
G. P. S. DE SILVA. J. (PRESIDENT) AND GUNAWARDENE. J.
A. APPEAL No. 444/77(F).
C. COLOMBO No. 12385/P.
MARCH 6. 1986.
Partition action – Original Owner-Judicial approach to the question of original ownership.
When a partition action is instituted the plaintiff must perforce'indicate an original owneror owners of the land. A plaintiff having to commence'at some point, such owner orowners need not necessarily be the very first owner or owners and. even if it be soclaimed, such claim need not necessarily and in every instance be correct becausewhen such an original owner is shown it would theoretically and actually be possible togo back to still an earlier owner. Therefore, in actual practice it is the usual, and in myview sensible, attitude of the Courts that it would not be reasonable to expect proofwithin very high degrees of probability on questions such as those relating to the originalownership of land. Courts by and large countenance infirmities in this regard, ifinfirmities they be, in an approach which is realistic rather than legalistic, as to dootherwise would be to put relief given by partition decrees outside the reach of verymany persons seeking to end their co-ownership.
APPEAL from the District Court of Colombo.
P. A D.Samarasekera, P.C. with Jayantha de A. Guneratne for plaintiff-appellant.
N. R. M. Daluwatta. P.C. with Miss D. K. Gabadage for 21st defendant-respondent.
Cur. adv. vult.
May 8; 1 986.
The plaintiff-appellant filed this action in the District Court seeking topartition the-land called Delgahawatteowita depicted on preliminarypjan No. .960 marked X and produced at the trial. There was nodispute in respect of the corpus sought to be so partitioned.
The case of the plaintiff was that the original owner of the propertyIt ad been her grandfather Brampy Perera who was married incommunity of property to her grandmother Pavistina and on the deathof both of them the pToperty devolved equally on their eight childrenwho included inter alia the plaintiff's father Arnolis, Abraham the
contesting 21st defendant-respondent (who died subsequent to thelodging of this appeal and in room of whom a legal representative hasbeen appointed) and Cecilia, on whose death seven children (onehaving died unmarried and issueless) succeeded to her rights, one ofthem being Alpin the 1 2th defendant who testified at the trial onbehalf of the contesting 21 st defendant.
The plaintiff gave evidence at the trial and described the successionunder the said Brampy Perera. She claimed that she derived theinterest of her father Arnolis upon deed No. 321 55 of 1 958 (PI) andthat the title of the said Brampy Perera to the land having devolved onthe parties mentioned by her they are entitled to rights therein asshown by her.
The 21 st defendant had filed answer denying the original'ownershipof Erampy Perera and his marriage in community of property.Consequently while admitting • the mere 'devolution under BrampyPere'a and the bare execution of, deed PI, he had’denied that anyrights passed to the parties mentioned by the plaintiff. His Claim hadbeen that the land had at one time been a swamp and that over 30years previous to the action he started filling up the same andeutivating it, that all plantations had been raised and possessed byhiht, and that he had acquired' a prescriptive title to the same.Coisequently, while claiming title to the entire land he had asked for adismssal of the plaintiff's action.'It might at this point be useful to takenote cc the fact that the 21st defendant had not claimed to be theoriginal owner of the land. His claim had been that he had had therequisite possession for the period mentioned by him as aconsequeioe of which he had acquired a prescriptive title to the entireland.■
• After trial th. |earned District Judge answering the relevant points ofcontest in favor 0f the 21st defendant by his judgment dated 29th.April 1977 dism.secj the plaintiff's action on the view he had takenthat the 21 st defbrjant had acquired title by possession to the entireland, and consequently this appeal came to be filed.
Learned President '-Counsel appearing for the plaintiff-appellantcontended before us at' it makes no difference whether BrampyPerera referred to was Oivas not. married in community of property toPavistina or whether in ^nt 0f fact the original owner had beenBrampy Perer,a or his wife t. saj,j pavistina. His contention was that in
either event the-property devolved on their eight children. It becamepossible for him to make this latter assertion in view of the evidence ofthe 21st defendant that the land belonged to his mother and that heentered the land on his mother's rights. Learned President's Counselappearing for the 21st defendant-respondent conversely contendedthat it was not in the mouth of the plaintiff-appellant at this stage totake up this position and that there is in any event no clear evidencethat the 21st defendant in giving this evidence was referring to thisland or some other land. On the question as to whether such referencewas to this land or any other, I am satisfied having carefully examinedhis evidence that the 21st defendant's reference was to this land, aview taken by the trial judge himself when he refers to this item ofevidence and goes on to advert to the 21 st defendant’s possession ofthis land for over 30 years as stated in the latter's statement of claim.The other question is as to whether the plaintiff can now be heard tosay that it matters not whether the land originally belongs to BrempyPerera the husband or Pavistina the wife. The contention of thelearned Counsel for the 21st defendant was that the action had beenbrought on the footing of Brampy Perera's original ownership, thanhepleadings were on that footing, that the points of contest raised wereon that footing and that at this stage the plaintiff should not be allow5dto adopt the. other position that Pavistina was the original owner efcnif the 21st defendant's evidence suggested that. Learned Courselcontended that the 21st defendant had at the trial to mee' theposition taken up by the plaintiff that Brampy Perera was the ciginalowner, which position he did in fact meet. He contended that-ven ata later stage of the trial a point of contest should have been aised asto whether Pavistina was the original owner in order to enabk the 21 stdefendant to refute that position by evidence and to ena’le the trialJudge to come to a finding on that, and if the question ame to make afurther finding as to what rights she was entitled to. ''s contentionwas that at this stage the appellant should not be pelted to adoptthis position, a position he (Counsel) himself did n* come ready tomeet.
When a partition action is instituted the pl^tiff must perforceindicate an original owner or owners of the Ian- A plaintiff having tocommence at some point, such owner or owrvs neec* not necessarilybe the very first owner or owners and eve^'11s0 claimed such
claim need not necessarily and in every in.o,ncecorrect because
when such an original owner is shown it co^ theoretically and actually
be possible to go back to‘still an earlier owner. Such questions beingrooted in antiquity it would be correct to say as a general statementthat it could be well nigh impossible to trace back the very first ownerof the land. The fact that there was or may have been an originalowner or owners in the same chain of title; prior to the one shown bythe plaintiff if it be so established need, not necessarily result in thecase of the plaintiff failing. In like manner if it be seen that the originalowner is in point of fact someone lower down in the chain of title thanthe one shown by the plaintiff that again by itself need not ordinarilydefeat the plaintiff's action'. Therefore, in actual practice it is the usual,and in my view sensible, attitude of the Courts that it would not bereasonable to expect proof within very high degrees of probability onquestions such as those relating to the original ownership of land.Courts by and large countenance infirmities in this regard, if infirmitiesthey be, in an approach which is realistic rather than legalistic, as to dootherwise would be to put the relief given by partition decrees outsidethe reach of very many persons seeking to end their co-ownership.
It is in'this perspective and against such a background I think thatthis matter must be viewed. The case of the 21st defendant must beunderstood to be that his title to .this land is independent of anypredecessor in such title. He says he possessed the* land in its entiretyfor over 30 years and claims a title based upon possession. The caseof the. plaintiff in this respect in essence is that the 21st defendant'stitle is to an undivided. 1/8th share and that such title is.referable to apredecessor. That predecessor the plaintiff had claimed to be BrampyPerera the father of the 21 st defendant. However, the plaintiff's caseon her plaint had been that on Brampy Perera's death a half sharedevolved on his widow Pavistina and the balance half equally on eachof their eight children. She had further stated that on the death ofPavistina her rights too devolved on the self same eight children and. thus they are shown as inheriting equally her half share; so that on herplaint Pavistina at some stage .is shown though not as an originalowner of the entire land, at least in a sense, as an original owner oftheentire half share. This position the 21 st defendant had challenged anddenied in his statement of claim'. The plaintiff had pleaded a devolutionunder Brampy Perera which broadly speaking is the. same devolutionunder Pavistina with respect to the half share left to-her on herhusband's death. The 21st defendant. knew> then what the devolution.under Pavistina was which devolution the plaintiff was relying on withrespect to Pavistina's undivided half share. If the 21st defendant in
giving evidence has stated that the land originally belonged toPavistina (meaning not an undivided half from Brampy Perera but thewhole) can it reasonably be said that the plaintiff should be precludedfrom relying on that evidence and adopting that very position and canit be said that the Court should not allow him to do so. I think not. I amof the view that to do so would not be consistent with the justice ofthis case. The answer to the objection raised on behalf of the 21stdefendant is in my view a simple one and to be largely found in thereason given above that the 21st defendant in any event had'to meetthe case of Pavistina being entitled to an undivided half share, inconnection with which the 21st defendant himself had testified thatPavistina was entitled not merely to a half, but to the whole. Counselfor the ,21st defendant contended before us that the trial Judge wasnot called upon to decide upon the original ownership of Pavistina, andif she was held to be such original owner, to then decide upon thequantum of her rights. He Contended that in the absence of points ofcontest on these questions the 21st defendant was not required tolead evidence as to ouster with respect to a case of the original ownerbeing Pavistina,’evidence he would have otherwise placed before theCourt. What I. have said' earlier is a sufficient answer to all thesesubmissions: the question as to the original ownership of Pavistinathough not formulated in this manner as a point of contest at the trialcan I think in all the circumstances be deemed to have been containedin the point of contest numbered as one and the answer to that and asto the quantum of her rights can be deemed to be found in theevidence of the 21st defendant referred to earlier given at thebeginning of his cross examination, in the form of an admissionrunning counter to what appears to be his position that he was for allpurposes and at all times material the original and only owner of theland.
The question then whether it was Brampy Perera or his wifePavistina who was the original owner of this land becomes largelyacademic and of not much moment in this view of the matter and it ismy finding at this appeal that either the one or the other of them wassuch owner and such person's rights devolved on the eight childrenreferred to. This finding that the original owner might have beenPavistina can be said to arise from the evidence of the 21 st defendanthimself while the finding that the original owner might have .beenBrampy Perera gets support from inter alia the oral testimony of theplaintiff and others including the admission by the 21st defendant inevidence that. his father had planted arecanut trees found along the
perimeter of the land. Account in this connection must also be takenof the document P1 (executed in 1958 at a time when the need forcreating evidence of title could not have been said, in all'thecircumstances, to have existed) especially with respect to the titlerecited therein and the share dealt thereby both of which support anoriginal ownership on the part of Brampy Perera.
On this finding then the children of Brampy Perera and Payistinabecame co-heirs in respect of the land and the remaining question isas to the effect of the 2 I st defendant's claim of title to the entire landbased upon possession. At the outset itself it-can be said that thisclaim must fail. Even if the 21 st defendant had exclusive possession itis clear that such possession cannot be adverse and must be referableto-his lawful title (or what in some contexts is called paper title) and hispossession must be deemed to be on behalf of all the co-owners in theabsence .of clear proof of ouster. Evidence o^f the latter is singularlylacking and on the contrary the evidence tends taken as a whole tosuggest possession by others in the plaintiff's pedigree as well, atvarious times. In this respect there is .also some cogency in theargument of the learned President's Counsel for the plaintiff-appellantthat the 21st defendant's evidence and claim before the Surveyor at- the preliminary survey that he had possession for about 30 yearsmakes out a case where, having regard to his age. he commenced topossess around.the age of fifty the conclusion being that as suggestedby the evidence others in the plaintiff's pedigree'before thatpossessed rights in the land.'•
The learned District Judge's findings oh The relevant points olcontest cannot stand in the view that I have taken that he hasmisdirected himself on these questions.
The plaintiff has given evidence in proof of the pedigree relied on byher and in accordance' with that evidence-it is possible to determinewhat shares the parties are entitled to in the subject matter."
In the absence of any counter claims to the improvements thelearned District Judge has arrived at a finding that the same shouldbelong to the 21st defendant and I see no reason to disturb thatfinding.'
I accordingly set aside the judgment of the District Judge and remitthe case back to the District Court with a direction to enterinterlocutory decre.e for partition in accordance with the evidencegiven by the plaintiff-appellant at the trial. The improvements will
belong to the 21 st defendant-respondent for which he will receive atthe appropriate stage the appropriate compensation. Theplaintiff-appellant will be entitled to recover pro rata the recoverablecosts (which will include the costs of the preliminary survey) from theparties entitled to rights in the land. The 21 st defendant (now deadand represented by his legal representative) will pay theplaintiff-appellant Rs. 315 as costs of this appeal but in all thecircumstances I make no order as to costs of contest in the Courtbelow.
P. S. DE SILVA, J. – I agree.Appeal Allowed.
2-MAGILIN PERERA v. ABRAHAM PERERA