ANGELA FERNANDO vs. DEVADEEPTHI FERNANDO AND OTHERS

021-SLLR-SLLR-2006-V-2-ANGELA-FERNANDO-vs.-DEVADEEPTHI-FERNANDO-AND-OTHERS.pdf


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ANGELAFERNANDOVS.DEVADEEPTHI FERNANDO AND OTHERSSUPREME COURT.
BANDARANAYAKE, J.
WEERASUR1YA. J.
FERNANDO, J.
SC 48/2003.
CA 98/94 (F).
DC MT. LAVINIA1236/P.
DECEMBER 02, 2004.
MARCH 02, 2005.
SEPTEMBER 21,2005.
Partition Law, No. 21 of 1977, sections 2(1) and 25(1) – If land is not commonlyowned is investigation of title necessary? – Ouster – Possession becomingadverse – Long continued possession byaco- owner? – Counter presumptionof ouster.
Plaintiffs action to partition the corpus was dismissed as the parties whowere said to be entitled to rights in the corpus in fact had separately possessedwith clear and permanent boundaries the Lots depicted in the preliminary planfor a long period of time. The Court of Appeal reversed the judgment on thegrounds—
that the District Court has failed to investigate title.
that the parties had failed to prove ouster to claim prescription.
HELD:
It is imperative that the investigation of title must be proceeded by acareful examination of the preliminary issue, whether the land soughtto be partitioned is commonly owned as required under section 2 (1).The District Judge having carefully examined the question had correctlyheld that the land was dividedly possessed as from 1938 andproceeded to dismiss the action without resorting to a full andexhaustive investigation as to the rights of the parties which in thecircumstances was lawful and justified.
Held further:
Adverse possession as between co-owners may arise by absoluteexclusion of one of the co-owners or by conversion of undivided sharesinto divided shares in an informal manner.
Ouster does not necessarily involve the actual application of force.The presumption of ouster is drawn in certain circumstances whereexclusive possession has been so long continued that it is notreasonable to call upon the party who relies on it to adduce evidence
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Angela Fernando vs. Devadeepthi Fernando
and Others (Weerasuriya, J.)
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that at a specific point of time in the distant part there was in fact adenial of the rights of the other co-owners.
Per Weerasuriya, J.
“The decision in Tilakaratne vs. Bastian recognizes an exception to thegeneral rule and permits adversity of possession to be presumed in thepresence of special circumstances additional to the fact of undisturbed anduninterrupted possession for the requisite period”.
The presumption that possession is never considered adverse if itcan be referable to a lawful title may sometimes be displaced by thecounter presumption of ouster in appropriate' circumstances.
The Court of Appeal failed to appreciate the salient feature in theevidence adverted to by the District Judge in respect of the corpus andtheir relevancy on the question of ouster.
APPEAL from the judgment of the Court of Appeal.
Cases referred to
Corea vs. Iseris Appuhamy- 1911 15 NLR 65 (PC)
Tilakaratne vs. Bastian -21 NLR 12
Orderis vs. Mendis – 1910 13 NLR at 315, 316
William Singho vs. Ran Naide 1915 1 CWR 92
Mailvaganam vs. Kandiah 1915 1 CWR 175
ASP vs. Cassim 1914 2 Bal Notes 40
Kapuruhami vs. Appu Singho 3 NLR 144
Ran Menike vs. Ran Manike 2 SCC 153
Selenchi Appuhamy vs. Luvinia 9 NLR 59
Obeysekera vs. Endoris 66 NLR 457
Simon Perera vs. Jayatunga 71 NLR 338
Nonis vs. Peththa 73 NLR 1
Abdul Majeed vs. Umma Zaneera 61 NLR 361 at 374
Rohan Sahabandu for substituted 10A defendant respondent -appellant.N. B. D. S Wijesekara for substituted plaintiff appellant – respondent.
Cur. adv. vult.
May 04, 2006.
WEERASURIYA, J.
The (deceased) plaintiff by his amended plaint dated 28.03.1988 soughtto partition the land called Lot E of Badullagahawatta alias Kahatagahawattasituated at Karagampitiya within the Dehiwala-Mount Lavinia MunicipalCouncil limits, in Palle Pattu of Salpiti Korale of the Colombo District inthe Western Province and depicted as a divided lot in plan No. 191 dated20.12.1905 made by Licensed Surveyor H. G. Dias, containing in extent 1.Acre and 36 perches less 23.73 perches to the North.
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The trial in this case which commenced before the District Court ofMount Lavinia on 15.09.1992 was concluded on 30.11.1993 and the learnedDistrict Judge by his judgment dated 11.02.1994 dismissed the actionwith costs. Thereafter the substituted plaintiff appealed from the aforesaidjudgment to the Court of Appeal and this appeal was taken up for hearingon 19.08.2002. On 08.11.2002 the Court of Appeal delivered the judgmentallowing the appeal and directed that a fresh trial be held.
The substituted 10A Defendant-Respondent-Appellant sought specialleave to appeal from the aforesaid judgment of the Court of Appeal and thisCourt granted special leave to appeal on the following questions of law:
Did the Court of Appeal err in holding that the District Court hasnot investigated title?
Did the Court of Appeal err in holding that the defendants had notproved ouster?
Did the Court of Appeal misinterpret section 25(1) of the PartitionLaw when in fact on a question of fact the District Court had heldthat the plaintiff has not proved his title or that the property is co-owned?
Did the Court of Appeal err in law in ordering a trial de novo andalso permitting the plaintiff to institute a fresh action which iscontradictory?
Did the Court of Appeal err in coming to the conclusion that theDistrict Court erred in law and in fact?
Is the judgment of the Court of Appeal valid and legal?
In the circumstances of this case is the judgment of the DistrictCourt lawful, valid and according to law?
Could the Court of Appeal interfere with the judgment of the DistrictCourt which was based on a question of fact when the judgment isnot perverse?
As the partition action has been instituted in 1981, is it just andreasonable to order a retrial after 21 years when most of the partiesand witnesses are dead and gone and further as it is admitted thatthe contesting defendants have been in possession/occupationfor over 50 years now?
Learned District Judge had dismissed the action on two grounds namelythat the corpus was not commonly owned and that the parties had acquiredprescriptive rights to the lots they possess.
The Court of Appeal has reversed the judgment of the District Court onthe following grounds:- 1
(1) that the District Court had failed to investigate the title of theparties and
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Angela Fernando vs. Devadeepthi Fernando
and Others (Weerasuriya, J.)
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(2) that the parties had failed to prove ouster to claim prescription.
Therefore this appeal raises the question of prescription among co-ownerswhich had received careful and exhaustive consideration both by theSupreme Court and the Privy Council in previous cases.
Investigation of Title (Question No. 1)
Section 25(1) of the Partition law provides that “On the date fixed for thetrial of a partition action or on any other date to which the trial may bepostponed, or adjourned, the Court shall examine the title of each partyand shall hear and receive evidence in support thereof and shall try anddetermine all questions of law and fact arising in that action in regard tothe right, share or interest of each party of, or in the land to which thataction relates, and shall consider and decide which of the orders mentionedin sub section 26 should be made”.
In terms of this section, it is obligatory on the District Court to carefullyinvestigate title of all the parties in the action at the trial and decide ontheir rights. The binding and conclusive character of a partition decreemakes it imperative that the investigation of the title by Court must be full
and exhaustive.
It will not be possible for a plaintiff to prove his title by the mere productionof several deeds and to merely rely on the shares which the deeds purportto convey. It is significant that there must be clear proof as to how theexecutant of a deed was entitled to the share which the deed purports toconvey. It is not uncommon in this country for a deed of conveyance topurport to convey interests either more or less than what the vendor isentitled to.
Learned District Judge in the course of his judgment had made specificreference to the inconclusive and uncertain nature of the evidence of the16th defendant who chose to testify on behalf of the plaintiff in respect ofthe pedigree pleaded by him. It was revealed that the 16th defendant in thecourse of his evidence had adverted to the disposing of the rights of somepersons twice without realizing that with the first transaction all their rightswould have been exhausted. In certain instances he had failed to state asto how some persons were entitled to the shares which they purport toclaim.
It was conceded that the 16th defendant had no claim to soil rights butwas pursuing a claim for a roadway over Lot 9 in the preliminary plan. Ona careful examination of the totality of his evidence learned District Judgewas justified in stating that his evidence was inconclusive and devoid ofcertainty and clarity in regard to the question of devolution of title.
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The inability of the 16th defendant to give conclusive evidence on thepedigree pleaded by the plaintiff stems mainly from the fact that he was anoutsider insofar as the pedigree pleaded by the plaintiff is concerned. Hisevidence which consisted mainly of bare assertions as to the relationshipand other matters of pedigree, reflected his lack of personal knowledge inrespect of such matters.
It is a prerequisite to every partition action that the land sought to bepartitioned must be held in common as seen from the provisions of section2(1) of the Partition Law. What is understood as common ownership iswhere persons do not hold on separate and distinct titles or where land isnot held as separate and divided lots. When land is not held in commonbut exclusively by a party even though under prescriptive title, no actioncan be maintained to partition such land.
It is imperative that the investigation of title must be preceded by acareful examination of the preliminary issue whether the land sought to bepartitoned is commonly owned as required by section 2 (1) of the PartitionLaw. Learned District Judge having carefully examined this question hadcorrectly held that the land was dividedly possessed as from 1938 andproceeded to dismiss the action without resorting to a full and exhaustiveinvestigation as to the rights of the parties, which in the circumstanceswas lawful and justified.
Ouster and the Judgments of the District Court and the Court ofAppeal
(Questions (ii), (iii), (v), (vi), (vii) and (viii))
The general principle recognized by our law in respect of co-owners isthat the possession of one co-owner is in law the possession of other co-owners as well.
In Corea vs. Iseris Appuhamy1> – the Privy Council laid down (a) thatevery co-owner is presumed to be possessing in the capacity of a co-owner (b) that it was not possible for a co-owner to put an end to suchpossession by a secret intention in his mind and (c) that nothing short ofan ouster or something equivalent to ouster could bring about that result.
Thereafter in 1918 a Full Bench of the Supreme Court in the case ofTillekaratne vs Bastian – was called upon to apply the principles laiddown in Corea Vs Iseris Appuhamy (supra) and to consider the meaningand the application of the English law principle of presumption of ouster,and it was held (a) that it is open to the court from lapse of time inconjunction with the circumstances of the case to presume that apossession originally that of a co-owner has since become adverse and(b) that it is a question of fact whenever long continued exclusive possessionby one co-owner is proved to have existed, whether it is not just and
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reasonable in all the circumstances of the case that the parties should betreated as though it had been proved that separate and exclusivepossession had become adverse at some date more than ten years beforethe institution of the action.
On the facts of Tillekaratne vs. Bastian (supra) the Court was able todistinguish the decision in Corea vs. Iseris Appuhamy (supra) and to holdthat the co-owner in physical control of the land had ‘ousted’ the other co-owners by a series of overt unequivocal acts.
At page 21 of the judgment Bertram C. J. observed that “where it isfound that presumption of law leads to an artificial result it will generally befound that law itself provides for such a situation by means of counterpresumption” In these circumstances the presumption in regard to thecontinuity of common possession may be effectually negatived by a counterpresumption of ouster.
In Corea vs. Iseris Appuhamy (supra) the Privy Council made referenceto this principle but did not declare that it must be considered as beingapplicable in Sri Lanka as a corollary of the general principle as to continuityof common possession of the undivided property by co-owners.Nevertheless a principle analogous and indistinguishable from the doctrinerelating to ouster was explicitly recognized by Middleton J in Odiris vs.Mendis{ – at 315 and 316 even before the decision in Corea vs. IserisAppuhamy (supra) and thereafter it was consistently applied in a series ofjudgments of the Supreme Court (Vide William Singho vs. Ran Naide)Mailvaganam vs. Kandiya – A. S. P. vs. Cassim.{6)
In certain circumstances adverse possession as between co-ownersmay arise either by absolute exclusion of one of the co-owners or byconversion of undivided shares into divided shares in an informal manner.
This approach had been adopted in the case of Kapuruhami vs.Appusinno – which was decided in 1898. In that case Bonser C. J.observed that where co-owners had verbally agreed among themselves tohold the common property in divided shares, each co-owner may prescribein respect of his own divided share and that such possession will give himan absolute title against the other co-owners to the divided shares heldseparately by him.
/o
In Ran Menika vs. Ran Menika – the Supreme Court reiterated thegeneral rule that the possession of a co-owner is not adverse but a commonconcurrent possession in that the original title being the same, thepossession of one is the possession of all. However, it was pointed out inthe judgment that exclusive possession referable to the consent of the co-owners may sometimes by change of circumstances become a holding
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adverse to and independent of other co-owners and such a holding may bylapse of time give rise to a prescriptive right. SelenchiAppuhamy vs. Luvinia*>
– was a similar case where it was held that the partition suit was notmaintainable since there was no common possession between the twoco-owners, each party having acquired a prescriptive right to a dividedportion of the land. In all the cases referred to in this page, it was apparentthat Court considered the attendant circumstances would warrant aninference to be drawn as to ouster.
It is a common occurrence that co-owners possess specific portions ofland in lieu of their undivided extents in a larger corpus. This type ofpossession attributable to an express or classic division of family propertyamong the heirs is sufficient to prove an ouster provided that the division isregarded as binding by all the co-owners and not looked upon solely as anarrangement of convenience This position was accepte^and acted uponin Mailvaganamys. Kandiaya – Obeyseke^ vs. Endoris – Simon Pereravs. Jayatunga ' – and Nonis vs. Peththa .
Ouster does not necessarily involve the actual application of force. Thepresumption of ouster is drawn in certain circumstances when exclusivepossession has been so long continued that it is not reasonable to callupon the party who relies on it to adduce evidence that at a specific pointof time in the distant past there was in fact a denial of the rights of theother co-owners.
It has to be reiterated that the decision in Tillakeratne vs. Bastian (supra)recognizes an exception to the general rule and permits adversity ofpossession to be presumed in the presence of special circumstancesadditional to the fact of undisturbed and uninterrupted possession for therequisite period.
The presumption that possession is never considered adverse if it canbe referable to a lawful title may sometimes be displaced by the counterpresumption of ouster in appropriate circumstances. Nevertheless thiscounter presumption should not be invoked lightly. “It should be applied if,and only if, the long continued possession by a co-owner and hispredecessors in interest cannot be explained by any reasonableexplanation other than that at some point of time in the distant past thepossession became adver^to the rights of the co-owners”. (vide AbdulMajeed vs. Ummu Zaneera ' – at 374.
Having regard to the principles set out above I shall now proceed toconsider, the findings by the trial judge that the corpus sought to bepartitioned was dividedly possessed for a long period of time and thereforeit had ceased to be owned in common and that the parties had prescribedto the lots they possess before the plaintiff instituted this action.
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Angela Fernando vs. Devadeepthi Fernando
and Others (Weerasuriya, J.)
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The trial Judge had found that the parties who are said to be entitled torights in the corpus in fact had separately possessed with clear andpermanent boundaries the lots depicted in the preliminary plan for a longperiod of time. He had observed further that the land sought to be partitionedand depicted in preliminary plan (X) at a glance seems to be the landshown in plan No. 2153 made by A. M. Fernando, Licensed Surveyor on23.08.1938.
This observation by the learned Trial Judge has some significance onthis question despite the discrepancy in respect of the extent by nearly 27perches. It will be relevant to note that the extent of land described as anallotment of land called Badullagahawatta in Fiscal conveyance bearingNo. 19755 dated 26.04.1944 is a divided portion towards the West of thelarger land called Badullagahawatta which was in extent 2 Acres 3 Roodsand 27 Perches.
This Fiscal conveyance had been executed on 26.04.1944 in favour ofCarolis Fernando after his purchase of the land at the public sale held bythe Fiscal in execution of the writ issued by the District Court of Colomboin Case No. L293 against Seemon Peiris, :Piyaseeli Peiris and KarunapaliPeiris in place of the deceased plaintiff Rosalin Fernando in the abovecase.
It is noteworthy that the operative plan for the Fiscal conveyance wasPlan No. 625 dated 11.02.1944 made by Licensed Surveyor R. S.Dissanayake. Nevertheless the Fiscal had chosen to describe it inaccordance with the earlier plan made in 1938 for purposes of correctdescription of the land.
The deceased plaintiff too had described this land in the schedule to theplaint as a divided lot towards the West of the larger land calledBadullagahawatta and shown as lot E in the plan bearing No. 191 madeby Licensed Surveyor H. G. Dias dated 20.12.1905.
On the above material it is clear that Carolis Fernando by Fiscalconveyance (P8) had secured title to a divided portion towards the West ofthe land called Badullagahawatta in extent 1 Acre 9.87 perches anddepicted in Plan No. 625 (P8X) as Lots A, B, and C. Therefore as from1938 this land was considered a divided and distinct land separated offfrom the larger land as evident from the Fiscal conveyance.
The division of the larger land prior to the execution of the writ in caseNo. L 293 as evident from the plan No. 2153 made in the year 1938 andthe subsequent survey of the land just prior to the execution of the FiscalConveyance on 26.04.1944 for the operative plan 625, would be a clearindication to all the co-owners that the undivided shares of Rosalin Fernandohad undergone a change to become divided shares before the execution
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of the Fiscal Conveyance. The evidence of the contesting defendants inthis case were to the effect that this land ceased to be commonly ownedwith the purchase of the interests of Rosalin Fernando by Carolis Fernandoon account of the execution of the writ against her by order of the DistrictCourt of Colombo.
As discussed in the earlier paragraph the presumption of ouster of the co-owners in respect of this corpus could be drawn by the additional factorwhich had taken effect with the seizure and execution of the writ afterascertaining the rights of Rosalin Fernando in lieu of her undivided rights.The 16th defendant in his testimony before the District Court did not allegethat plans bearing Nos. 2153 made in 1938 and 625 made in 1944 referredto in the Fiscal Conveyance had been made and the divisions had beeneffected without the knowledge and acquiescence of other co-owners. It isto be noted that Carolis Fernando thereafter by deed marked (P9) dealtwith property as a divided portion solely owned by him and that subsequentlythis land had undergone further sub-divisions at the instance of the parties.
In the light of the above material, I hold that the learned District Judgehad correctly arrived at a finding that the corpus had ceased to be commonlyowned before the plaintiff instituted this action. The Court of Appeal hadfailed to appreciate the salient features in the evidence adverted to by theDistrict Judge in respect of the corpus and their relevancy on the questionof ouster.
Questions Nos. (iv) and (ix)
In view of the conclusions drawn in the foregoing paragraphs in respectof the issues involved in questions (i), (ii), (iii), (v), (vi), (vii) and (viii) it wouldbe futile to discuss matters pertaining to these two questions.
For the aforesaid reasons, I set aside the judgment of the Court ofAppeal dated 08.11.2002 and allow this appeal.
Having considered all the circumstances of this case, I make no orderas to costs.
SHIRANIBANDARANAYAKE, J. -I agree.
RAJA FERNANDO, J. -I agree.
Appeal allowed.