180-NLR-NLR-V-47-ABEYESINGHE-et-al-Appellants-and-ABEYESINGHE-Respondent.pdf
KEUNEMAN 8.P.J.—Abeyetingfte v. Abeyesinghe.
509
1946Present: Keuneman S.P.J. and Canekeratne J.ABEYESINGHE et al., Appellants, and ABEYESINGHE, Respondent.
2 Inly.—D. C. Negombo, 13,066.
Partition action—Cannot be brought in respect of portion of the proper corpus—Prescription between co-owners.
Action cannot be brought to partition a corpus which in itself is anundivided portion of a larger common land.
When a co-owner who has erected a new building on the commonland remains in possession of that building such possession does notnecessarily mature into a prescriptive title to the building and the soilon which it stands as against the remaining co-owners.
The mere fact of execution, by co-owners, of deeds dealing withspecific or divided portions of a common land does not per se establishthat there was an arrangement arrived at by the co-owners to dividethe land in such a manner that title wets to be affected.
PPEAL from a judgment of the District Judge of Negombo.
L. A. Rajapakae, K.C. (with him Kingsley Herat and DharmakirtiPeiris), for the defendants, appellants.
N. Nadarajah, K.C. (with him J. A. Obeyesekere), for the plaintiff,respondent.
Cur. adv. wit.
November 8, 1946. Keuneman S.P.J.—
This is a partition action brought by the plaintiff in respect of premisesdepicted in Plan No. 127 of 1944 (marked X) made by L. H. CroosDabrera, Licensed Surveyor, of the extent of 23.25 perches. The maincontest of the defendants was that this was only an undivided portionof a larger extent of 3 roods 38 perches depicted in Plan No. 166 of 1944(marked Y) made by the same Surveyor, and that plaintiff’s action wasmisconceived and unmaintainable. In the latter plan (marked Y) theland of which the plaintiff sought partition is the central block marked Athereon, but the plan shows other portions of land both on the west andon the east of Lot A.
It is not in contest now that the original land was that depicted inPlan Y, and that the original owner was J. P. S. Wijesinghe. This landwas known as the Kotugoda Walauwa, the building standing in thecentre of the land. J. P. S. Wijesinghe on his death left three children,Abraham, Francis, and Johanna, who became entitled each to anundivided one-third of the land.
William Charles Amarasekera, a son of Johanna, became the ownerof her one-third share by deed P2 of 1895 from his mother, and added aneastern wing to the Original Walauwa and remained in possession of theeastern wing. By P3 of 1895 William Charles Amarasekera conveyedthe undivided one-third share of the whole land to Albert, one of thechildren of Abraham, who by P4 of 1902 conveyed the same share toJane who was a child of Abraham and the widow of William CharlesAmarasekera. Jane by P5 of 1934 conveyed to Angelina who was her
1*J. N. A 06092 (11/46)
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KEXINBMAN S.P.J.—Abeycsinghe v. Abeyeainghe.
adopted daughter. That deed described the premises conveyed as theeastern portion of the land and as containing in extent 266 feet in lengthfrom north to south and 61 feet in width from east to west. Engelinaby P6 of 1936 conveyed to the plaintiff, with the same description.
Plaintiff further contended that the share of Francis, the one-thirdowner, passed to Albert the son of Abraham, but no deed was producedin support. Albert added a west wing to the original Walauwa andpossessed the west wing and died about 1910. After his death his widowand some of the children purported to convey by the deeds P7, P8 andP9 of the years 1923, 1923 and 1928, but these deeds are not very clearas to the corpus or the extent of the land sold. Some of the deeds referto lots depicted on Plan 1094 of the 17th February 1924, made by H. S.Perera, but that plan has not been produced and I am not able to find thatthe deeds relate to a defined western block of the original land. The deedswere in favour of Aldon Abeyasinghe who is said to be a brother of theplaintiff. By P10 of 1928 Shelton (who appears to be the same as Aldon)is said to have acquired another share. Shelton conveyed by Pll of 1929to the plaintiff the whole of a divided portion of the land, the extentgiven being “ about one and a half acres”. The eastern boundary isgiven as “ the other portion of the Walauwa ”.
The claim of the plaintifF is that by prescription the eastern and thewestern blocks have passed absolutely to him, and that the only portionof the land now remaining is the central block depicted in Plan X alreadyreferred to.
I may also state that Jane (already mentioned) who was entitled to athird share of Abraham’s rights, by P16 of 1936 purported to convey toplaintiff and his brother the 1st defendant one-third of a defined portionof land which may be regarded as the land depicted in Plan X, mentioningas the extent 266 feet in length from north to south and 25 feet in breadthfrom east to west. In this deed Jane reserved a life interest which shesubsequently conveyed by P17 of 1938.
Also Ellen the 3rd defendant-appellant herself by deed P19 of 1939purported to convey to the 1st defendant a seven-twelfth share of adefined block which can be identified as that depicted in Plan X. Thelength is given as 266 feet and the breadth as 25 feet.
I may now deal with the issue of prescription. Plaintiff claims thathe and his predecessors have prescribed to the eastern and the westernblocks of the original land, and that all that remains to be partitionedis the central block, i.e. the land in Plan X. It has been established thatWilliam Charles Amarasekera built the eastern wing and that Albertbuilt the western wing, and that they and their successors including theplaintiff have been in possession of those wings. On the other hand itis not unusual for one co-owner who has erected a new building on thecommon land to remain in possession of that building, and he may wellhave a right to do so. The exercise of that right would not necessarilymature into a prescriptive title to the building and the soil on which itstands as against the remaining co-owners. It is further to he notedthat William Charles Amarasekera and Albert who'acquired his interestdid not purport to deal with a divided eastern block {vide P3 and P4)bat only with an undivided share, and it was not till 1934 that Janetheir successor in her deed P5 asserted such a claim. As regards the
KEUNEMCAN 8.P.J.—Abeyesinghe v. Abegesinghe.
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western wing said to have been erected by Albert, I cannot draw anycertain inference from the deeds that a claim to this block as a dividedblock was asserted until plaintiff received his deed in 1929.
It is also true that Jane by PI6 of 1935 purported to deal with a dividedcentral block—which may be identified as the lot in Plan X, and the 3rddefendant by P19 of 1939 purported to do the same. The 1st defendantwas the grantee under those deeds, and we may assume that when itsuited their purpose all the parties in this action adopted the attdiudethat the original land had been divided into three defined blocks.' Infact the 3rd defendant at One stage adopted this view in her answer also.
But I do not think we can decide this case on the deeds in view of thefeet that all the co-owners possessed portions of the original land. Ithas not been established in this case that there was an arrangementarrived at by the co-owners to divide the land in such a manner thattitle was to be affected, and the difficulty is to discover anything whichis the equivalent of ouster.
I may point out that the larger premises in question contained a frontand a back compound. As regards the front compound on the north,there is positive evidence that this was never divided up and that it wasused in common by all the co-owners. In fact, access to all the houseswas obtained by means of a circular drive which extended well to theeast and to the west of the land depicted in Plan X. This was admittedby the plaintiff, and the District Judge has held that “ it is clear that thedrive was possessed in common.” He however added that this was forconvenience and not because it was the common property of the threesets of owners. In my opinion the District Judge has misunderstood theposition. There was no evidence whatever that the front compoundwas dividedly possessed at any time, and the only evidence was that allalong it was possessed in common, and I think this feet goes very far tonullify the contention of the plaintiff that there ever was dividedpossession of the larger corpus that resulted in the obtaining of aprescriptive title.
As regards the back compound to the south, there was evidence thatit was divided into three blocks by fences which were ten years old atleast, but it is not clem: whether the division was intended to be exclusiveor was merely adopted for the purpose of convenience.
A further point of importance is that the co-owners are all membersof one family, and very strong evidence of exclusive possession wasnecessary to establish prescription. Also, action in this case wasinstituted on the 15th June, 1944. The facts from which we can presumeany acknowledgment of the alleged division by the 1st and 3rddefendants were in 1935 and 1939—see deeds P16 and P19-^-t.e., withinthe prescriptive period.
On the evidence I do not think it is possible to hold that the plaintiffhas prescribed to the eastern and the western blocks of the larger premises.It therefore results that the plaintiff has sought partition of an undividedportion of the proper corpus. This cannot be allowed. I do not thinkany useful purpose will be served by sending this case back so that theproper corpus may be included. In the circumstances I allow the appeal,
612
DIAS J.—Simeon Fernando v. Oooneaeiera.
set aside the judgment appealed against, and dismiss the plaintiff’saction with costs in both courts ; but I reserve the right to the plaintiffto bring a proper partition or other action relating to the correct corpus.
Canbkeratne J.—I agree.Appeal allowed.