The learned Commissioner, in a carefully considered judgment,upheld the claim of the plaintiffs, that they had acquired a titleby prescription. He held that Joronis had acquired this right byprescription before the date when he sold to the plaintiffs, and that,therefore, the user by the plaintiffs was adverse to the defendants.
It was contended on appeal that Joronis’ user was not adversefor two reasons. It would appear that Joronis and the firstplaintiff were married to two sisters of the second plaintiff. Itwas contended that the first plaintiff was, as a planter, in possession,of defendants’ land, and was also co-owner with the defendant, inthat he was entitled to a share of the soil as a planter, and thatJoronis was permitted by the first plaintiff, because of their relation-ship to use the path in question, but, although this contentionreceives some support from the fact that first plaintiff and Joroniswere related to one another, yet there is no evidence to supportthe contention, inasmuch as the first plaintiff does not say thatJoronis was permitted by him to use the path in question, nor isthere any other evidence to the effect.
It was next contended that the first plaintiff was the actualperson in possession of the defendants’ land during the period oftime at which Joronis used the path in question, and that, therefore,Joronis could not acquire prescriptive rights over the' land asagainst Paiappu. The contention was that the first plaintiffmust be regarded as having b.een a lessee of the land under Paiappu.I nm unable to uphold this contention for the reason that a planteris on the land for a limited purpose, namely, the planting of theland, and that the possession, in fact and in law, is with the ownerof the land, and that, therefore, rights acquired against the landwould be adverse to the owner as well as to the planter, in so far asthe planter’s interests are concerned in the land.
It was then contended that the user by the plaintiffs since October,1911, cannot, be said to be adverse to the defendants or theirpredecessor, because the first plaintiff was a co-owner with thedefendants’ predecessor in the defendents’ land. It was contendedthat the first plaintiff vras entitled as such co-owner to use thepath in question over the defendants* land. It seems to me thatthis contention, too, is not sound. In the first place, there are twoplaintiffs who claim the right of' servitude in this case. The secondplaintiff is not a co-owner with the defendants’ predecessor. There-fore, user by the second plaintiff was obviously adverse to thedefendant’ predecessor and the defendant. As regards the userby the fii*st plaintiff, too, I would regard it as adverse to thedefendants’ predecessor, because the first plaintiff used the track,not in his capacity as co-owner with the defendants* predecessor intitle, but in his capacity as owner of his own land, that is of the
dominant tenement.
1 therefore dismiss the appeal, with costs.
Appeal dismissed.