095-NLR-NLR-V-05-FERNANDO-v.-TEGIS-APPU.pdf
FERNANDO v. TEGIS APPU.
D. C., Kalutaia, 2,092..
Cultivation of Crown land by several persons—Contribution by them all of half-improved value under Ordinance No. 12 of 1840—Crown grant in favourof one cultivator only—Sale by that cultivator to plaintiff of a dividedportion—Action in ejectment against other cultivators in possession—Their right to retain possession in spite of the Crown grant—Duty iffCourt to try the real question at issue between the parties.
Where a Crown land was cultivated by several persons and eachcontributed bis share of half the improved value, in terms of the OrdinanceSo. 12 of 1840, to S M, one of the co-cultivators, and deputed himto apply to the Crown on their behalf for a grant, and such grant was. madein favour of that cultivator only, but they continued to be in possessiontogether; and where S M purported to sell a divided portion to F, andF sued in ejectment S M’s co-shares, alleging ouster; and where theDistrict Court found that there was no ouster and dismissed plaintiff'scase,—
Held, that it was the duty of the Court to try the real issue betweenthe parties, namely, whether the defendants have possessed their shares,for a period often years previous to action, and that thedecision ofthe
majority of theSupreme Court in Lenohamy v. Samuel (2C. L.R.101)
should not beunderstood as depriving co-owners, whoclaiminret
vindicatio and fail to prove the alleged ouster, of all further right ofaction to the land. ,
Per Bonseb, C.J.—If, in such a case, the Court finds the plaintiffshave alleged an ouster which they cannot prove, or what it thinks isfictitidus, it may punish them in costs, but cannot' deprive them offurther opportunities of maintaining their claim to the land.
T
HE plaintiffs in this case were the landlord and his lessee.
They complained of ouster, by the defendantsandprayed
for a declaration of title in favour of the first plaintiff and forejectment of the defendants.
( 331 )
The first plaintjff claimed under one Sultan Marikar, to whomthe Crown had granted the land on the 21st March, 1871, on pay-ment by him of half the improved value, under Ordinance No. 12of 1840.
The defendants laid claim to one-half of the entire land undera conveyance from one Samsi Lebbe of about five acres, and fromSultan Marikar himself of about two acres. They further allegedthgt, when the Crown put up for sale the land in suit in 1869, SultanMarikar and his co-sharers (the predecessors in title of the de-fendants/, intending to buy the land, agreed that- Sultan Marikarshould bid for it and buy it for himself and his co-sharers, andthat the grant passed by the Crown in favour of Sultan Marikarwas really for himself and hjs co-sharers. They denied the rightof Sultan Marikar to convey title to a defined portion of the saidland to the plaintiff.
The issuestried bytheDistrictJudge were: .(1) did Sultan
Marikar have a Crown grant in 1871, and was it in his favouralone, or for himself and others; ('2). did he convey to the firstplaintiff a defined south-westernportion;(3)diddefendants
disturb and oust the plaintiffs; and(4) if so,whatwasthe damage
suffered by them?
The District Judge (Mr. Allan Beven), after hearing evidence,delivered judgment as follows: —
I do not tbjnk it unusual for a Crown grant to be made out- inthe name of one person while there are several other shareholdersto the land.The questionfor meto decide is whether subse,-
quent to theissue oftheCrowngrant to Sultan Marikar the
defendants were regarded as co-owners of this land. I am satisfiedthat the father of the first three defendants asweddumized the fieldwith the original owmer Samsi Lebbe, for I cannot but regard SamsiLebbe as the original owner, inspite oftheCrown grant in
favour of Sultan Marikar. For a long periodfrom1824to 1871 by
act of possession and cultivation they were regarded as owners.
“ By deed No. 4,728, January, 1861, Samsi Lebbe sold to the firstand second defendants and the deceased brother of the thirddefendant three acres of this land. By deed No. 1,553 of 26thJanuary, 1861, Sultan Marikar conveyed two acres to the firstdefendant. The fatherofthe defendants, in consideration of
having asweddumized this land, was allowed a portion equal totwo acres. This was inherited by the defendants, who thusbecame entitled to seven acres or half the land.
“ The defendants have put in evidence the copies of plaint andanswer in partition suit No. 1903, which in my opinion canjustly be received in evidence in spite of the contention of counsel
1902.
February 11.
( 332 )
.for plaintiff.Thejudgmentin that case clearly showsthat
February ll.plaintiff andSultan Marikar brought a collusive actionfor
partition in order to deprive these defendants of their shares inthis land. Having failed in their object after the decision in ..that case, the first plaintiff leases this land to second plaintiff, inorder that he may put forward a cause of action to strengthenhis title totheland. Ido not believe that plaintiffever
possessed this land at any time. I consider the ouster fictitious,and that this case is brought merely that first plaintiff should geta good titletothe land.Sultan Marikar and first plaintiff
attempted to get a good title by means of a partition decree, butwere frustrated by the vigilance of Mr. Boosmalecocq, the thenDistrict Judge. First plaintiff has failed in this his secondattempt. The action is dismissed with costs.”
Plaintiffs appealed.
Sampayo, R. H. Morgan, and Dornhont, for plaintiffs, appel-lants.
Walter Pereira and H.. A. Jayawardene, for defendants,respondents.
11th February, 1902; Bonser, C.J.—
The real issue in this case was never tried. Plaintiff got aconveyance in 1896 from one Sultan Marikar and complains thatthe defendants ousted him on a certain date and took possessionof the land. It appears that Sultan Marikar in 1871 obtained agrant from the Crown on payment of half the improved value,under Ordinance No. 12 of 1840.
The defendants’ case is, that Sultan Marikar and they were at thetime in joint occupation and joint possession of the land in certain■definite shares; and that Sultan Marikar, when the land was put upfor sale by the Crown, was deputed by them to apply to the Crownon their behalf for a grant on payment of half the improved value;that they contributed their share towards the expenses;, thatthe Crown grant was accordingly taken in the name of SultanMarikar, and everything went on just as before, down to the•commencement of this action. The case of the defendants is that,:although the title under the Crown grant had been in SultanMarikar, yet the possession of the land was in accordance with the.arrangement made by them in 1871 with Sultan Marikar; and thatthey therefore by possession for some five and twenty yearsacquired a right to retain the possession in spite of the prima facietitle conferred on Sultan Marikar to the whole land by the Crown.grant.
( 888 )
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That issue was never tried, but issues were stated which werenot very material.
One issue was whether the defendants had ousted the plaintiff.The District Judge decided that issue against the plaintiff, findingthat plaintiff never had possession and had never been ousted, andthat this was purely a fictitious cause of action. Mr. WalterPereira argued for the respondents, that on this finding the actionought to hate been, and was properly, dismissed, relying upon thejudgment of the majority of this Court in Lenohamy v. Samuel(2 0. L. R. 101), where the Court dismissed an action brought bythe plaintiff who claimed to be entitled to an undivided half of theland and alleged that the defendants were entitled to the otherhalf, and had ousted him and excluded him from all enjoyment ofthe land. The Court there held that the proper form of action insuch a case was a partition, and that they would not allow theplaintiff to maintain an action of ejectment on a fictitious allega-tion that they had been ousted by the defendants. If that case isto decide that, when parties who claim to be owners of land bringan action alleging an ouster which they are unable to prove, they areto be punished by having their action dismissed, and being deprivedof all further opportunities of maintaining their claim to the land,1 think it will be inconsistent with the law and procedure of thisCourt which has been established for the last nine or ten years.The practice as laid down by this Court is this: that it is the dutyof a judge to ascertain what is the real question at issue betweenthe parties. If he finds that plaintiffs have alleged an ousterwhich they cannot prove, or which he thinks is fictitious, then hecan punish them in costs, but he ought not, it seems to me,punish them by depriving them of all right of action.
The question at issue between the parties in such a case is, insubstance, whether the plaintiff is entitled to the land or not, andit seems to me that the judge ought (and it is in accordance withthe practice of recent years) to try that question. (Mr. Dornhorsthas just called our attention to the fact that the present practiceis in accordance with the older practice as reported in MadankaraTerunnanse v. Dias, 7 S. C. C. 145.)
We think that in this case the action should go back to try thisissue as to. whether the defendants have possessed any of .theshares which they claim for a period of ten years previous to'action, so as to enable them to retain possession in spite of theCrown grant.
The costs of this appeal will abide the ultimate result.
190%
February It-Bonsbb, OJ.
Wenot, J.—Agreed.