095-NLR-NLR-V-21-ALWIS-v.-PERERA.pdf
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iwa.
[Full Bbnoh.]
Present : Bertram C.J., De Sa^npayo J., and Loos A.J.
ALWIS v. PERERA.
269—D. C. Colombo, 52,257.
Prescription—Transfer of land—Possessionbyvendee andhis heirs
thereafter for sixty years—Adverse possession.
Where tt person transferred hie lands to certain family connec-tions, bnt continued in possession till date of action (sixty years),the Supreme Court held (in the circumstances) that the possessionwas not permissive, but that it shonld be presumed to have becomeadverse.
Tillekeratne v. Bastion1 followed.
Semble, even apart from this presumption, a vendor, who aftersale remains in possession, shonldbeconsidered as possessing
adversely to the purchaser.
^NE Bastian Alwis was the original owner of the land in dispute.
Vy In 1850 he transferred a divided one-fifth share of it to hissister Toronchi, and in 1851 transferred two-fifths to one Don Comelis.Later, in. 1852, he and his sister Toronchi together conveyedthree-fifths of the land to the same Don Comelis. In 1864, Helena,the widow of Don Comelis, transferred the divided one-fifth shareback to Toronchi. Thus, the paper title was partly in Helena andpartly in Toronchi, but the possession of the land remained withBastian Alwis and his family. In 1917, when the land belonging toJohn, a grandson of Don Cornelia, was seized by his creditors, itwas claimed by Sadiris, son of Bastian Alwis. The claim was allowed,and the seizure was withdrawn later. In the same year a portionof this land was sold under the Riot Damages Ordinance as theproperty of the same Sadiris. Later, Sadiris bought it back fromthe purchaser. At this stage the defendant bought a portion ofthe interest of Toronchi and commenced to build a road rightacross the portion which he purported to have acquired. Christina,the daughter of Bastian Alwis, brought this action, and claimed tobe entitled to the land over which the road is being constructed.The District Judge held that the plaintiff occupied it by permissionof the defendants, and dismissed the action.
E. W. Jayawardene (with him Nagalingam), for the plaintiff,appellant.—The possession by the jflaintiff was not permissive atany stage. It is not proved that the plaintiff got into possessionwith the permission of the defendant or his predecessors in title.
[Bertram. C.J.—There may be a presumption of permissivepossession in the case of relatives.]
o
1 (1918) 21 N. L. R. 12.
1#19.
Ahoiev.Perera
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There i3 no evidence that Bastian Alwis and Bon Cornells wererelatives, except that they had the same ge name. Where vendorcontinues to be in possession after his sale, his possession would beadverse. Tew v. Jones;1 Anand Coomari v. Ali Jamin. 2 Bastian.Alwis and his family have been in uninterrupted possession, although,the lands were alienated.
If there be long treatment of possession amounting to ownership,effect must be given tjo such possession. The family of Corneliahad never challenged or disturbed the plaintiff’s rights. When theland was seized as the property of John, it was claimed by Sadiris,and the claim allowed. A portion of this land was also sold underthe Biot Damages Ordinance as the property of Sadiris.
de Zoysa (with him Croos-Ddbrera), for the defendant, respond-ent.—The paper title was in the defendant’s predecessors in title,and the parties are relatives. We only admitted that the plaintiffwas in occupation. There is no evidence of possession by theplaintiff or by Bastian. The claim by Sadiris in 1917 and the saleunder the Biot Damages Ordinance can only point to a period fromwhich prescription may have begun, but no presumption can bedrawn from that regarding previous possession.
There is no evidence to prove the exclusive possession of thewhole land by Bastian.
December 17, 1919. Bertram C.J.—
This is an appeal which was argued before us on materials thatappear to be of a very meagre description. Very little evidence iscalled on either side. The result is that we have a few isolatedfacts spread over a considerable number of years, and these factshave to.be made the basis of conjectual conclusions. I will firstof all. deal with the facts of the case prior to the year 1864.
One Bastian Alwis was the owner of the land. In the years 1850,1851, and 1852 Bastian Alwis executed a series of deeds. On July17,1850, he transferred a divided one-fifth of the land
to his sister Thoronchi, marking off a specific portion with reference tothe rest of the land. On November 3, 1851, he transferred two-fifthsof the land to one Don Cornelis of Colombo, reciting that this wasdone to settle a debt of twenty-five rix-dollars on a bond dated 1843.On August 11, 1852, he and his sister Thronchi joined together inconveying three-fifths of the land to the same Don Cornelis, allegingthat this was done to satisfy a judgment and topay a debt. Nothing happened between 1852 and 1864. But inthat year, Helena, the widow of Don Cornelis, who was marriedin community of property, re-transferred to Toronchi, the sister ofBastian Alwis (who had the same ge name as herself), the dividedone-fifth share which Toronchi in 1852 had joined in conveying to
» (1844) 13 M. <Se W. 12.
* (1885) 11 Cal. 229.
Don Cornelia. Let us, therefore, draw a line at ‘that point. Whatdo we find? We find that the paper title to the land is partly inHelena, the widow of Don Cornelia, and partly in her kinswomanToroncHi. I say the paper title for this reason, that, notwithstand-ing these documents, it is conceded that the possession of the landremained with Bastian Alwis and his family. The form of thesedocuments and the final reconveyance to Toronchi suggest extremelyforcibly that these documents were never intended to be actedupon, and that, having had their effect, which was probably aprotective effect against creditors, no special action was taken toreverse them, but that what was done was all that was necessaryto do. that is to say, a reconveyance was made to Toronchi ofone-fifth. At any rate, that is a very plausible explanation ofthe effect of the series of deeds.
What do we find then? We find the family of Bastian Alwis inpossession. It appears that Bastian Alwis continued in possessiondown to his death, and that after his death his children, the presentplaintiff Christina, and her brother Sadiris, who died a year ago,continued in possession of the property. I use the term “ inpossession ” advisedly. The evidence is that they lived upon theland. I do not understand the District Judge to draw any distinc-tion between the fact that they lived on the land and the fact that,as is alleged, they took the produce. As I read the facts of thecase, they not only lived upon the lan^, but they lived on the landas their own. This continued down to quite recent times, and inthese quite recent times, that is to say, in the last two or three years,there were two incidents. One was a seizure of the land belonging toJohn, a grand son of Don Comelis. On Sadiris asserting title to theproperty, his claim was allowed, and the seizure was withdrawn;The other case was a proceeding under the Biot Damages Ordi-nance, in which a portion of this land was sold as belonging toSadiris. Sadiris dealt with the purchaser and bought back theportion sold. It is very clear, therefore, that on this date, at anyrate, the. family of Bastian Alwis were asserting an adverse title tothe land.
Now, what is the next incident? At this point a strangerappears upon the scene, buys in a certain portion of theinterest originally assigned to Toronchi, and commences to builda road right across the portion which he purports so to haveacquired.
Bastian Alwis, his son and daughter, and the family cf thatdaughter have thus been in continuous possession to a time beyondthe present memory of those belonging to the family. This is thefirst time that any attempt has been- made to challenge or disturbsuch rights as they may be supposed to have enjoyed.
Christina, the plaintiff, brings the action against this disturber,and claims1 to be entitled to the portion of the land over which this
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1918.
Brnga
C.J.
Altoiev.
' Parera
»
rood is.being constructed. >Now, what is the answer to that? Noattempt has been made to establish any effective separate title totiie land originally conveyed to Toronchi. It appears by commonadmission that Toronchi’s portion was never marked off, and thatthe land was treated as a whole.
The defence put forward is based upon the evidence, not of anydescendant of Toronchi, but of the evidence of one Don William,.who is a grandson of Don Comelis. He says: “It is perfectly truethat the plaintiff has always lived upon the land by our permission.”By “ our permission ” he appears to mean the permission of thefamily to which he belonged. The learned District Judge acceptsi that account of the matter. I hardly like to say that he finds it asa fact. He rather adopts it as a theory that all the facts of thecase are best explained by the supposition that Bastion Alwis andhis descendants were allowed to remain upon the land by the permis-sion of the other members of the family, and he says on that, “ it isthe fact that Bastian, in spite of his transfers, lived and died on theland, and the plaintiff has lived there all her life. That alone will notgive her title. The fact that one is permitted to live on the land ofa relative will not give the tenant the title, which can spring onlyfrom adverse possession.’’
On this view of the facts the principle thus laid down by theDistrict Judge is unexceptionable. But it appears to me that (evenif this view be accepted) he has' not taken account of anotherprinciple, the principle which was expounded in the case of Tilleke-ratne v. Bastian, 1 and that is this, that where it is shown that peoplehave been in possession of land for a very considerable length oftime, that fact, taken in conjunction with the other circumstancesof the case, may justify a Court in presuming that the possessionwhich originated in one manner, as, for example, by permission,may have changed its character, and that at some point it becameadverse possession. It does seem to me that this is a case in whichthat presumption oughtjustly to bedrawn. Hereisa family
which for sixty years have been in possession, quite possibly, as theDistrict Judge suggests,originating by permission.Itdoes not
seem to me just that they should be disturbed through a stranger,for purposes of his own,buying in anoutstanding papertitle. In
the circumstances of the,case, I thinkit is just thatitshould be
presumed that the possession at some appropriate date had becomeadverse.
When I say that the principle laid down by the District Judge isunexceptionable, I should like to point out an alternative view ofthe case which deserves consideration. Mr. Jayawardene has citedto us two weighty authorities. One is the case of Tew v. Jones,2which lays down that where a vendor after parting with his interestcontinues to remain in possession, his possession is adverse possession.
i (1918) 21 N. L. R. 12.,* (1844) 13 M. <& W. 1 *
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That view has been adopted in the Indian case, which was alsocited by Mr. Jayawardene: Anand Goomari v. Ali Jamin.J If thatis to be the principal that has to be applied to this case, then BastianAlwis had an adverse possession from the very start, and, on thatview of the case, there would be no occasion to presume a changein the character of the possession, because the possession of BastianAlwis and his heirs would have been adverse from start to finish.
We have been pressed in this case to order a new trial, and at oneperiod in the argument I was disposed to accede to that suggestion-But I wish to draw attention to what is the real matter in disputebetween the parties.
The action is brought with reference to the land marked out forthe new road. It is brought against the purchaser from Sadiris andtPodinona, the children of Toronchi. These persons purported toconvey to the defendant a certain particular strip out of the dividedportion originally conveyed to their mother. The only originalparties to the action were the plaintiff and the defendant. As I saidat the beginning of my judgment, the facts are extremely meagre.There are witnesses on both sides who might have been called. Itis quite possible that if they had been called, we might have hadvery much fuller information on the question of the enjoyment ofthe produce and as to the alleged permission granted to the familyof Bastian Alwis. But these questions could only be fully goneinto if all persons having an interest in the property were joinedand made parties to the action, and if the action were thus convertedinto a land case with regard to the whole. I feel that there wouldbe a certain unfairness in taking this course at this stage of the case.Holding the view I have mentioned as to the justice of making apresumption of adverse possession, and bearing in mind the author-ities cited by Mr. Jayawardene on the alternative point of view,namely, that Bastian Alwis had adverse possession from the start,I have come to the conclusion that the justice of the case does notrequire a new trial. But I would point out that all that our judg-ment determines will be the mutual rights of the plaintiff and thedefendant. It will be open, not only to the descendants of DonCornells in regard to four-fifths of the land, but also to Sadiris andPodinona the children of Toronchi, in regard to the remainder ofthe one-fifth conveyed to their mother when the actual stripassigned to the road is eliminated, if they think fit, to set up anytitle which they may claim to possess; and any judgment that wegive in this case should, I think, be given without prejudice to anyright they may think fit subsequently to assert.
I have only two things to add, and I add them not so much withreference to this particular case, but in regard to actions of thissort generally. I think that in cases of this kind, on which thewhole livelihood of the parties depend—where what has to be decided
1 {1885) 11 Oal. 229.
1919.
BSBZRAir
C.J.
Alwis v.Perera
1919.
OJ.
Abate v.Pteera
C 326 )
is whether they should lose their land for ever—it is much to bedesired that Courts of first instance should thoroughly search outand elucidate the facts; that they should ask questions whichwould give the case a certain body and life which it has not onpaper if the evidence is not fully recorded. A Judge of first instance,particularly one who is familiar with the country, may on the viewof the witnesses feel that he instinctively discerns the true facts ofthe case. A picture may leap at once to his eyes and he may form'a conclusion, which, though instinctive and conjectural, maynevertheless, be the right conclusion. It is much to be desired thata Judge in that position would see that facts are recorded whichwould assist the Court of Appeal to form a similar conception of theactual life of the people engaged upon the land, a conception whichthey are not in the same position to form as the District Judge.
There is also another point. I wish very much that DistrictJudges—I speak not particularly, but generally—when a witnesssays “ I possessed ” or “ we possessed ” or ‘‘we took the produce,”would not confine themselves merely to recording the words, butwould insist on those words being explained and exemplified. Iwish District Judges would abandon the present practice of simplyrecording these words when stated by the witnesses, and wouldsee that such facts, as the witnesses have in their minds, are statedin full, and appear in the record. In making this observation Ifeel sure that I am expressing the mind of all my colleagues on thisBench. I do not think that Judges of first instance realize thestrong feeling which is entertained in this Court as to the recordingof bare expressions of this nature. I wish that every Judge of firstinstance would come to regard it as a personal reproach to himselfif he allows such an expression as “ I possessed ” or ‘‘I took theproduce ” to appear unexplained on his record.
In view of the opinion I have expressed, J would allow the appeal,and give damages for the amount claimed, with costs, both here andbelow.
De Sampayo J.—I agree.
Loos A.J.—
At the close of the argument of this case I was inclined todissent from the opinion of the rest of the Court, but on furtherconsideration of the cases cited I am content to agree with thedecision arrived at in the case.
At the same time I desire to state that I think it would have beenmore satisfactory if the case could have been sent back for a freshtrial and the production of further evidence on both sides, for theevidence now in the record ‘is extremely meagre and somewhatunsatisfactory.
Appeal allowed.