Sri Lanka Law Reports
 1 Sri L.R.
LEISA AND ANOTHER
SIMON AND ANOTHER
COURT OF APPEALWIGNESWARAN, J. ANDTILAKAWARDANE, J.
CA NO. 443/93 (F)
DC GAMPAHA NO. 26653/LSEPTEMBER 28, 2000.
Rei Vindicatio – Prescriptive rights – Presumption of right to possess – Differencebetween possession, occupation and dominium – Prescription Ordinance, section3 – Plaintiff claims paper title as well as by prescription – Should the plaintiffprove prescription?
The plaintiff-appellants instituted action seeking declaration of title and ejectmentof the defendants from the premises in question. The defendants claimed pre-scriptive rights. The plaintiffs action was dismissed.
On appeal –
The contest is between the right of dominium of the plaintiffs andthe declaration of adverse possession amounting to prescription bythe defendants.
The moment title is proved the right to possess it, is presumed.
Thus, even if the Court found that the defendants had prescribed to thecorpus, the proper answer to the 1st issue would have been yes, but thedefendants have prescribed.
An averment of prescription by a plaintiff in a plaint after pleading papertitle is employed only to buttress his paper title.
For the Court to have come to its decision as to whether the plaintiff haddominium, the proving of paper title is sufficient.
Leisa and Another v. Simon and Another (Wigneswaran, J.)149
The mere fact that the plaintiff claimed both on deeds as well as by longpossession did not entail the plaintiff to prove prescriptive title thereto.Their possession was presumed on proving paper title. The averment ofprescription in the plaint did not cast any burden upon the plaintiff to provea separate title by prescription in addition to paper title.
Once paper title became undisputed the burden shifted to the defendantsto show that they had independent rights in the form of prescription asclaimed by them.
Per Wigneswaran, J.
“A person is in possession of a house for example, when he or his servantsor licensees are living in it, if he or they are absent from it, he would stillbe held to be in possession, if such absence was only temporary. In this casethe brother of the 1st plaintiff (1st defendant) could have been in occupationand still the 1st plaintiff would have been in possession simultaneously.”
APPEAL from the judgment of the District Court of Gampaha.
Case referred to:
1. Pathirana v. Jayasundera – 58 NLR 169 at 177.
G. L Geethananda for plaintiff-appellants.
Dinesh de Alwis with Janaki Nawaratne for defendants-respondents.
Cur. adv. vult.
January 16, 2001
This appeal by the plaintiff-appellants is against the judgment dated 124. 09. 1993 delivered by the Additional District Judge, Gampaha,wherein this action of the plaintiffs for a declaration in their favourin respect of the land described in the schedule to the plaint (viz.Lot A in plan No. 1177 (P3)), ejectment of the defendants therefrom,demarcation of the southern boundary'of the said land, damages andcosts was dismissed with costs. The learned Additional District Judgehad found that the defendants had prescribed to the land in dispute.
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The 1st plaintiff is the elder sister of the 1st defendant. The 2ndplaintiff is the son of the 1st plaintiff and the 2nd defendant is the 10daughter of the 1st defendant.
There cannot be any dispute that by PI the 1st plaintiff and byP2 the 2nd defendant on the same day (04. 08. 1966) obtained titlefrom the same source to Lot A in extent AO R1 P32 and Lot B inextent 38 perches, respectively. The 1st defendant Marasinghe PedigeSimon was in fact a witness to deed P2 executed in favour of hisdaughter the 2nd defendant.
At pages 168 to 170 of the Brief, Simon had accepted that hissister became owner of Lot A by P1. His evidence is as follows:
g. osnSaJ® dg ©SOSosi ®g>qd l oQS oc®dD§®)0c3 qjSgd a® qoO ra. I 20gdm ®0ge©a) s®@ §ca@) gaieai 6® gS® ek©c©@?
g.©esoasDO6 g0® tsxSt^o ®®a) ga)®0) o©:)®^ to?
g. ®©a5 0§®s)®©) 6®. 0e3. oeotiC) ®SaJo&6i ©mo @t®@) 0@® gS®
(ex. 1 0® ®dg© ®C30S)g.6® ®@a) SgfflsSsxxS?
g.@iSs) So0©©etas!) esosiigta?
g.quBgoQ £35gS© isx3sw@osoOsssiei gSo® '0' to)£©@ SSp
g.0®o®)O'0'©itoOqfito to 8§®ei®03oei)?
Leisa and Another v. Simon and Another (Wigneswaran, J.)151
On 18. 03. 1983 the 1st plaintiff sold 6/1 Oth share of Lot Aabovesaid to the 2nd plaintiff by P4. As per plan ‘X’ No. 4670 dated10. 06. 1985 prepared by K. A. J. Amerasinghe, Licensed Surveyor,prepared for this case, Lot 1 in plan X was Lot A in plan 1177 and 40Lot 2 and 3 in plan X were Lot B in the said plan No. 1177. Whenthis action was filed on 10. 04. 1984 the paper title to Lot A depictedin plan 1177 (P3) (Lot 1 in plan X) was with the 1st and 2nd plaintiffs.
Once the paper title became undisputed the burden shifted to thedefendants to show that they had independent rights in the form ofprescription as claimed by them. In fact, the following dictum ofGratian, J. in Pathirana v. Jayasundera<1> at 177 became applicable.
“In a rei vindicatio proper the owner of immovable property isentitled, on proof of his title, to a decree in his favour for the recoveryof the property and for the ejectment of the person in wrongful sooccupation. The plaintiff’s ownership of the thing is of the very essenceof the action’. Maasdorp’s Institutes (7th ed.) vol 2, 96.”
In this connection it is useful to consider the submissions of thelearned Counsel for the defendant-respondents at this stage. He hassubmitted as follows:
Unless paper title coupled with prescription was proved, theplaintiffs in this case could not have obtained a decree in theirfavour.
The evidence of the 1st plaintiff proved that she was not in
possession of the premises in suit.60
No obstruction to the construction of any fence had beenproved there being no physical division between Lots A & Bdepicted in plan No. 1177 (P3).
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The defendant-respondents had been in possession of Lots A& B (in plan P3) from 1947 and even after P1 was executed.
Boutique in Lot B had been given on rent to the 2nd plaintiff-appellant.
The land and premises in suit were part of Lot S in plan
932 (preliminary plan) submitted in DC Gampaha CaseNo. 16214/P.7C
Each of the above submissions would now be examined.
1. Paper title plus prescription must have been proved.
Wille in his book “Principles of South African Law” (3rd edition)at page 190 states as follows:
‘The absolute owner of a thing has the following rights in the thing:
touse and enjoy it; and
todestroy it; and
In discussing the right to possession, he states, also at page 190: 80
“The absolute owner of a thing is entitled to claim the possessionof it; or, if he has the possession he may retain it. If he is illegallydeprived of his possession, he may by means of vindicatio or reclaimrecover the possession from any person in whose possession the thingis found. In a vindicatory action the claimant need merely prove twofacts, namely, that he is the owner of the thing and that the thingis in the possession of the defendant”.
Thus, in this action there was no question of the plaintiffs havingto prove their title by deeds as well as prescription. The contest in
Leisa and Another v. Simon and Another (Wigneswaran, J.)153
an action of this nature is between the right of dominium of the plaintiff 90and the declaration of adverse possession amounting to prescriptionby the defendant. The moment title to the corpus in dispute is provedthe right to possess it is presumed. Thus, even if the Court foundthat the defendants had prescribed to the corpus the proper answerto the first issue would have been “Yes. But, the defendants haveprescribed to the corpus”. An averment of prescription by a plaintiffin a plaint after pleading paper title is employed only to buttress hispaper title. Such pleading also acts as an advance assertion againstany averment of prescription that may be claimed by the defendants.
For the Court to have come to its decision as to whether the plaintiffs tooin this case had dominium over the corpus, the proving of paper titlewas sufficient. The mere fact that paper title was claimed both bydeeds as well as by long possession amounting to prescription didnot entail the plaintiffs to prove prescriptive title thereto. Their pos-session was presumed on proving paper title. The burden was caston the defendants to prove that by virtue of an adverse possessionthey had obtained a title adverse to and independent of the papertitle of the plaintiffs. The averment of prescription in the plaint didnot cast any burden upon the plaintiffs to prove a separate title byprescription in addition to the paper title as asserted by the learned twCounsel for the defendant-respondent.
Possession by plaintiffs
The learned Counsel seems to confuse between possession andoccupation – two important concepts in Land Law. It must be notedthat the brother of the 1st plaintiff (1st defendant) could have beenin occupation and still the 1st plaintiff could have been in possessionsimultaneously. A person is in possession of a house, for example,when he or his servants or licensees are living in it. If he or theyare absent from it, he would still be held to be in possession, if suchabsence was only temporary or if he could return and re-enter at any 120moment if he chose, without asking anyone’s permission or withoutany preliminary ceremony. But, the moment anyone else enters into
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and remains in possession of the premises without his consent theformer possessor is ousted. According to section 3 of the PrescriptionOrdinance such a possession must be undisturbed, uninterrupted,adverse to or independent of that of the former possessor and shouldhave lasted for at least 10 years before he could transform suchpossession into prescriptive title.
In this instance the possession of Lot A by Simon was not of suchnature. The 1st plaintiff stated at pages 114 and 115 of the Brief as 130follows:
g. 6 gSe® o©S aS) ©dod aSg?
C. tod aS) ©da©). ®®d ©da©).
6 gS© ©kb ©0 SS® Exacted SSJosS smi.cjraeo® ogda® §dd Sgosa qp®.
g. ®d©@ o©S aS) ©jS®0 soaigdo)© gB gdod o®)ag?
C. raoslgda) Sc© 6a)d ©da©). @®d ©da©).
g.6gd aS0® §d®®ga gSo® a©) 6ed© okb®> a©)©daS)odg?
e.©gcd® ®o^ e3mi. q$@g S®Q® aSod So®©®. © edgSg@x)©agdodga).
a©d a© 2d So©a©). © ®S oga® g S§ai e® SdSadc. o® SdSadcO 140qSS gS@a ®od gaa ae® g®X3©a SSoci. 6 ©kb gdaod S§oaJ a«a.
Further, at pages122-123 she stated as follows:
g.o® a§oS 2 oSSoc®^§edOc ©a a@x3d ga)0 oc. 4®dgo0d@G3) gdod
g. 6 Sodod a®) §dS ®go©a 6a ©EDd?
Leisa and Another v. Simon and Another (Wigneswaran, J.)155
g. SeSfitoOj gsi® S^a ds> (Dged gaJoaJ ®>m osig?
g.StMsxii 5$>S ©€® osi csgsa) g>Q® @cn gslag?
& ®oei gsdOoS ®> §ceo gestos).
g.a®) S® ga)® 0gs5 es®:© §sJ6oa) QSjmg1
C.®S. 6® So0® ®) esesS), oaxi g®x& sxsQi g©si ed®0).
C. @) geJoai 6 goes) g0oc4 ocsS. ®) g® gsiGal ®) ago© ©sjsJ offlic©. ®3gs»0 (2 00® ex®/®§Ex5£0) §© gSo®® 6/10 si §03 gai®. gofflsi 4/10®0 SS® fflsO ogoasi geto©). ®§®Q §® g ©£©£.
The abovesaid pieces of evidence prove that the defendants didnot have exclusive possession of Lot A. The 1st plaintiff did possess 160Lot A and enjoyed produce from her land though she did not objectto Simon, her brother, taking whatever he wanted. She had given anundivided share to her son the 2nd plaintiff and intended to give someshares to her other sons too. Thus, the relationship of parties as sisterand younger brother was very relevant in examining the nature ofpossession. There was no evidence placed before Court that therelationship between 1st plaintiff and 1st defendant was strained until1984.
At pages 158 and 159 the 1st defendant gave evidence as follows:
"®@ SX3 gaxxS S0) I 60S oj®^§®)Co s® 2 G0S cx®di)§E)6t 0® g® 170©@© ®ocJ g©6x3oc35l zg§00 0® §0®0 qo© ©0 S0). 19840 go
Gffl©5toe5i axsu. 6 G®3®©efiG®a5 @® ejgoO eg® gsdQ §Q0©@d ©otee® wsx,. ©&&0S3QC5 eoa) gd®) Seal ®@ §G3©®©ffiJ ffleSos) ®jax."
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1st defendant admitted the smooth relationship between him andhis sister though he sought to bring in the idea of renting out thepremises to the 2nd plaintiff. No contemporaneous records pertainingto any payment of rents was produced. No letters or correspondencewas produced. No questions were put to the 1st plaintiff when shegave evidence about her son occupying premises belonging to 1stdefendant’s daughter, the 2nd defendant, on rent.iso
In any event the question of actual occupation by 1st plaintiff ofthe land and premises in suit was irrelevant so long as her possessionof the land and premises in suit through her brother the 1st defendantwas perceivable and presumable from the evidence.
If suppose a third party was laying claim to the disputed land andthe 1st defendant brother had been in occupation, such occupationof the brother as against the third party would have been taken tobe possession by the 1st plaintiff even though she may not have beenin occupation.
Thus, the occupation of the brother must be considered to have 190been the 1st plaintiffs possession unless there was sufficient evidenceof adverse possession by him.
No obstruction proved
The proof of obstruction, again, is an incidental matter. It is thedisputing of the paper title of the plaintiffs that is relevant for the firstrelief claimed – viz. declaration of title to Lot A abovesaid.
At pages 147/148 of the Brief the 1st defendant stated as follows:
"o® ck@jSg® ®0 gog®®©} cgJgs® SO ®0©@ g&S) So0® ox). @® ®0©@
cxtfxsd wOowtfi S® q® exetoS e® @S® SoSatoeS. 6 g©e© So©®©) e®
Gxgttde® gss»0S ggsxti ©oases). G5»0S ogati Sg©®Sj gsbOg) ggs> oSesSSesteD
®30©ri ®@ SgS®0i'200
Leisa and Another v. Simon and Another (Wigneswaran, J.)157
But, the surveyor at pages 141 and 142 of the Brief stated as follows:
g. es®) ©K&a gS® oaiOsj ograSa) @6503 0©0 ®S gS©a) ©es) SoSateSdidtf) aicgD?
e.0iOsi S§oai) axst.
g. go® 1, 2 ®t©§ eg® eoatej® osoOaioaf ®S g©©a) 000056?
C-0® gS©£i> 0OOO5J.
The plan X filed of record also showed that there was no demar-cating boundary and that it was shown by fixing stakes on the ground(vide pages 235 and 237 (line 7) of the Brief).21(
Hence, it is to be understood that the 1st defendant was averseto the 1st plaintiff constructing any fence between Lots A & B sincehe was trying to lay claim to the entirety (Lots A & B) with his daughter.
Possession from 1947 by 1st defendant-respondent
As stated earlier occupation from 1947 has no relevance. Posses-sion and occupation must be distinguished. What is referred to aspossession by the learned Counsel was in fact occupation by the 1stdefendant. So long as such occupation was as a brother of the 1stplaintiff and therefore as a licensee of the 1st plaintiff, the long periodof occupation would not make it an adverse possession unless there 220had been an overt act of ouster as in the case of prescription amongco-owners. The long occupation by the brother must in law be deemedas possession by the sister through her younger brother. The learnedJudge also seems to have overlooked the difference between longoccupation as a licensee and adverse possession. There was onlya long period of occupation as a licensee in this instance. There wasno adverse possession until 1984. Action itself was filed in 1984.
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Boutique in Lot B
As earlier referred to there is insufficient evidence of the boutiquebeing given on rent to the 2nd plaintiff-appellant. No question regarding 230the boutique being given on rent was put to the 1st plaintiff whenshe related in her evidence about the existing state of affairs pertainingto cordial relationship between the families of the sister and thebrother. The story about the boutique being given on rent to the 2ndplaintiff-appellant must have been an after thought to show that theoccupation of Lot A by the 1st defendant was independent and thatthe 2nd plaintiff was only a licensee on Lot B. In any event thepossession of the 1st defendant prior to 04. 08.1966 was as a licenseeof the previous owner, (vide page 193 of the Brief).
DC Gampaha Case No. 16214/P240
The abovesaid partition case was for an estate in extent 24 acres1 rood 18.5 perches (vide plan 932 (V1)). Though P1 and P2 hadbeen executed in 1966, yet Lot S encompassing the lands transferredon P1 and P2 to the 1st plaintiff and the 2nd defendant, respectively,was also surveyed for this partition case without excluding it (Lot S).
The plan only referred to the 8th defendant (Simon the 1st defendantin this case) being in occupation at the time of Survey, in fact, neitherP1 nor P2 executed in 1966 was in his favour. There was no statementof claim filed by him. In any event for him to claim adverse possessionagainst his sister, the plan V1 abovesaid was drawn up in 1972 while 250his sister obtained title on P1 in 1966. In this connection his evidenceat pages 177 and 178 is revealing –
g. s)®a) 0® esgS edsogI ©adSoa ©aems) ®0® o:i®ax3 oaoO 0©eD§0 Sgero?
g.es®aSQsiScsd ffia> o® ®S® ra©«3®si e>®aJ SaiQ Sra?
Leisa and Another v. Simon and Another (Wigneswaran, J.)159
Hence, the 1st defendant’s claim to the Surveyor was not as anowner in his own rights of Lots A and B in plan No. 1177, but asthe caretaker of the Virasinghe family.
The said action (case No. 16214/P) was not proceeded with, butwas dismissed in 1973 (vide V3 at page 308 of the Brief).
Thus, the legal arguments put forward by the learned Counsel forthe defendant-respondents though accepted by the Additional DistrictJudge, Gampaha, were in fact, erroneous and contrary to admitted 270legal principles pertaining to occupation, possession and dominium.The Additional District Judge had erroneously concluded that longpossession automatically gives rise to prescription. This need not beso.
We, therefore, allow the appeal.
We set aside the judgment dated 24. 09. 1993 and enter judgmentin favour of the plaintiff-appellants as prayed for in the plaint dated10. 04. 1984. We direct the learned District Judge of Gampaha totake steps to ensure the demarcation of the southern boundary ofLot A in plan 1177 in terms of prayer (c) of the plaint. The damages 280claimed appear reasonable and therefore we have allowed prayer (d)together with taxed costs in both Courts (Original and Appellate).
TILAKAWARDANE, J. – I agree.