A. M. SHERIFF, Appellant, and M. N. LAILA, Respondent

023-NLR-NLR-V-71-A.-M.-SHERIFF-Appellant-and-M.-N.-LAILA-Respondent.pdf


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LORD MACDERMOTT—Sheriff v. Laila[Privy Council]
Present . Viscount Dilhorue, Lord MacDermott, Lord Hodson,Lord Pearce and Lord PearsonA. M. SHERIFF, Appellant, and M. N. LAILA, Respondent*Privy Council Appeal No. 7 op 1967S. C. 247 of 1964—D. C. Colombo, 9377[L
Landlord and tenant—Claim, by tenant, to prescriptive title to the rented premises—
Quantum oj evidence—Prescription Ordinance {Cap. 68), s. 3.
The* 1st and 2nd defendants were father and son respectively. They werejointly in occupation of certain premises in respect of which the plaintiff, whopossessed documentary' title from her father, instituted the present action on11th January, 1961, for declaration of title. In the Answer filed by the1st and 2nd defendants jointly, the 2nd defendant claimed that he had beenin prescriptive possession of the premises for well over 16 years. The 2uddefendant also testified that he had paid municipal taxes from 1942..
Proceedings relating to an earlier action between the plaintiff’s father andthe 1st defendant were put in evidence on behalf of the plaintiff withoutobjection. In the settlement recorded in those proceedings on 15th February1951, the 1st defendant admitted that he was a tenant of the plaintiff’s fatherin respect of the premises.
Held, that the 2nd defendant did not acquire prescriptive title undersection 3 of the Prescription Ordinance. The evidence relating to the earlierproceedings was relevant and admissible. With both 1st and 2nd defendantsliving under the same roof, it was, to say the least, difficult to see how the2nd defendant could have been building up a prescriptive title during any partof the relevant period while his father was a tenant of the owner, or openlyacknowledging his titlo.
APPEAL from a judgment of the Supreme Court.
M.P. Solomon, with Alavi S. Mokamed, for the 2nd defendant-appellant.
El F. N. Qraliaen, Q.C., with R. K. Handoo and John Baker, for theplaintiff-respondent.
Cur. adv. vvJJt.
•t
May 1, 1968. [Delivered by Lord MacDermott]—
The litigation out of which this appeal arises began with a Plaint filedby the respondent in the District Gourt of Colombo on 11th January
By this the respondent sought a declaration that she was entitledto the lands arid premises within the Municipality and District of Colombo13 – PP 006137 (98/08) )
08LORD MACDERMOTT—Sheriff r. Laikt
which are described in Schedule “ B ” thereto. She also sought an orderejecting therefrom those she had made defendants, namely, the appellantand his father, one M. Abdul.
The Plaint set out the respondent’s documentary title to the lands. Thistitle was derived from her father, one M. I. Mohamed, who died in 1954.The Plaint also alleged that the defendant, the appellant’s father, hadonce been a tenant of the said lands under a tenancy from the respondent’sfather, and that he, the former tenant, and his son, the appellant, wereacting jointly and in concert in denying the respondent’s title.
The appellant and his father filed a joint Answer to this Plaint on12th July 1961. This Answer alleged that the appellant’s father wasliving with him, the appellant, and that he, the appellant, had beenin prescriptive possession of the lands for well over 15 years. Thesedefendants accordingly asked that the respondent’s suit be dismissedand that the appellant b° declared entitled.
The defendant M. Abdul died on 7th January 1962. His widow andthree children were later substituted as defendants in his place, but theyappear to have taken no active part in the subsequent proceedings.
The case having been heard in the District. Court, the learned DistrictJudge held in favour of the respondent and entered judgment for hersubstantially as sought. The appellant appealed to the Supreme Courtof the Island of Ceylon which dismissed his appeal on 13th September1965, but afterwards granted leave to appeal to Her Majesty in Council.
At the hearing of the appeal before their lordships, counsel for theappellant conceded that the respondent’s paper title to the land in questionwas not in dispute ; that the real issue was whether the appellant hadestablished a prescriptive title ; and that the onus of showing this wasupon him. What has to be shown to support such a claim appears fromthe earlier part of section 3 of the Prescription Ordinance (Chapter 68),which is in these terms : “ Proof of the undisturbed and uninterruptedpossession by a defendant in any action, or by those under whom heclaims, of lands or immovable property, by a title adverse to or inde-pendent of that of the claimant or plaintiff in such action (that is to say apossession unaccompanied by payment of rent or produce, or performanceof service or duty, or by any other act by the possessor, from which anacknowledgment of a right existing in another person would fairly andnaturally be inferred) for ten years previous to the bringing of suchaction shall entitle the defendant to a decree in his favour with costs
In the circumstances already mentioned, it is unnecessary to trace therespondent’s title to the lands. They had been owned by her fatherand they were hers when the Plaint was filed if the appellant’s prescriptiveclaim failed. It is, however, necessary at this point to comment on twoother matters. The first is that, under section 3 of the Ordinance, thecrucial period during which the appellant had to prove his adverse posses-sion, if ho were to succeed, was the. period of fen years before the filing
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1-ORB M A( 'BERMOTT—Sheriff «. Laila
of the Plaint, that is to say, the-period between 11th January 1951, andlllh January 1961. And the second is that the allegations of fact uponwhirli the – appellant founded his case were denied bjr the respondentand were in sharp conflict with the evidence by which she sought torebut his claim. It is unnecessary to detail the evidence at length inorder to demonstrate tliis as the factual nature of the dispute will appearfrom a brief summary of tiic rival contentions.
The appellant alleged that on his marriage in 1941 the respondent’sfather, the said M. I. Mohamcd, promised him certain property situateat Skinner’s Boad as pail; of the dowry ; that this property was sold andthat he had been given the lands now in question instead ; that he wentto reside on these lands in 1942 and had resided there since, paying norent to anyone ; that his father came to live with him on these lands in1959 and had never paid ren* for them ; and that from 1942 he, theappellant, paid the municipal taxes on the lands and had obtained thereceipts produced-which went back to July 1950.
The respondent denied much of this. She said her father had broughtthe appellant’s father to an adjoining plot to act as a watcher and milk-man ; that, when a building was put up on the lands in question, theappellant’s father went into occupation of it and paid rent therefor ;that her father sued him in action No. 30115 in the Court of Requests ;that on the settlement of that suit the appellant’s father agreed toleave the lands by 31st December 1951, but had stayed on ; and that herfather had not promised a dowry or given the lands to the appellant onhis marriage.
The proceedings relating to action No. 30115 were put in evidence onbehalf of the respondent without objection, and their nature must iioavbe described. The Plaint was dated 10th October' 1950. In it therespondent’s father alleged that the appellant’s father held the lands fromhim os tenant at a rent w hich had been paid until the end of October 1949,but not thereafter ; that notice to quit had been served for 31st December1949 ; and that the defendant (that is, the appellant’s father) hadremained on in wrongful occupation. The Plaint sought judgment forrent in arrear. for damages and for possession of the lands in question.In his answer the appellant’s father denied the tenancy and allegedthat the plaintiff (that is, the respondent’s father) had agreed to give thelands to the defendant’s son (that is, the appellant) as dowry in con-sideration of his marriage ; and that he, the respondent’s father, had, afterthe marriage, put the appellant and his wife in possession of the lands.
At the trial on 15th February 1951, the case was settled and the termsof settlement, as recorded, included the following : (i) an admission by the -defendant, the appellant’s father, that he had been in arrears of rent;(ii) a waiver by the plaintiff, the respondent’s father, of all rents andcharges up to 31st January 1951, and of subsequent damages, if vacantpossession Avas given; (iii) that there be judgment on consent for theplaintiff in ejection and for damages at Rs. 5 a month from 1st February
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LORD MACDERMOTT—Sheriff v. Lotto
1951 ; (iv) that the writ of ejectment should not issue until 31st December1951 ; and (v) that a further stay of six months be then considered oncertain conditions, if alternative accommodation should not have beensecured by then. A decree was entered accordingly.
The evidence adduced on behalf of the appellant, including the taxreceipts, was certainly not conclusive, and it is clear that neither theDistrict Judge nor the Court of Appeal was prepared to accept it in itsmaterial parts or to hold that the appellant had in fact been in adversepossession for the necessary ten years—a period which, as alreadymentioned, would have gone back to 11th January 1951, or about a monthbefore the earlier action had ended in the settlement just described.
If the matter had ended there, their Lordships would sec* no grounds, inthe circumstances of the present appeal, to justify a departure from theirusual practice of not disturbing concurrent findings of fact. Counselfor the appellant, however, submitted that this practice should not befollowed in this case, because an important part of the evidence (namely,that relating to the proceedings in action 2vo. 30115) was inadmissible or,alternatively, if admissible, was accorded too much weight by the DistrictJudge.
Their Lordships cannot accede to either limb of this submission. Theearlier proceedings were clearly admissible against the appellant’s fatherand his representatives,for they were relevant as going to show that, beforethe prescriptive period and within the earlier part of it, the defendant’sfather was in one way or another acknowledging the title which has nowpassed to the respondent. Their Lordships are also of opinion that thoseproceedings were no less admissible as against the appellant. They wererelevant not just as including admissions made by his father or as resjudicata, but because they evidenced a transaction that tended to rebutthe appellant’s story that his father was living with him rather than hewith his father, and also because they were incompatible with the wholetenor of the appellant’s case. The truth is that the circumstances weresuch as to make it impossible to segregate the evidence bearing on theposition of the father from that bearing on the position of the son. Itmay be that, as was alleged, the father and son w ere acting in concert inresisting the respondent’s claim ; but whether they were or not, the"position of one was bound to affect that of the other as regards thenature of their occupancy and any claim advanced under the Ordinance.With both living under the same roof, it is, to say the least, difficult tosee how the appellant could have been building up a prescriptive titleduring any part of the relevant period while his father was a tenant ofthe owner, or openly acknowledging his title.
Their Lordships find no ground for the alternative contention that thelearned District Judge placed too much weight on the evidence regardingthe earlier proceedings. It undoubtedly influenced his decision, but thatpoints to its materiality rather than anything else.
LORD PEARSON—lahaJc v. Thowfeck
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For these reasons, their Lordships will humbly advise Her Majestythat the appeal be dismissed. The appellant must pay the costs of theappeal.*
Appeal dismissed.