039-NLR-NLR-V-17-AYANAHAMY-v.-SILVA.pdf
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Present: Pereira J.
AYANAHAMY v. SILVA.
417-418—€. B. Balapitiya, 9,394.
Undertaking to abide by the ruling of the Court—Restriction—Advenepossession.
An undertaking by a /party to an action to abide by a ruling ofthe Court is of no avail, unless the opposite1 party is himself prepared1to acquiesce in the decision.
A person who possesses land of another without being awarethat it belongs to that other person may still acquire as againsthim prescriptive rights in respect of the land.
Observations on the term “ adverse possession " as understoodunder our law.v
T
HIS was. an action for declaration of title. The learned Com-. missioner held that the defendant had acquired title to. the
land by prescription, but ordered him nevertheless to pay plaintiffIts. 25. Both parties appealed.
A. St. V. Jayewardene, for the plaintiff.—The defendant consentedto abide by the order of the Court. He has no right to appealagainst the judgment of the Court. See Babunhamy v. Andris'Appu,1 Gooneratne v. Andradi.2
The defendant possessed the land by mistake. He did not know' that the land belonged to the plaintiff. He did not intend to*possess it adversely to the plaintiff. Under these circumstances itcould not be said that he had acquired title by prescription. SeeFernando v. Menika,s Angel on Limitation 399.
E. W. Jayewardene, for the defendant.—The defendant did notformally constitute the Judge an arbitrator. In' answer to aquestion he said, “ If I have even by mistake gone and planted theland, I am prepared to abide by the order of the Court.” Theplaintiff in this case did not himself consent to abide by the orderof the Judge. On the other hand, the plaintiff himself has appealed.In the case cited both parties undertook to abide by she orderof the Court. There was either tacit or express agreement to bebound by the order.
The fact that defendant did not know that it was plaintiff’s landdoes not affect the question whether the possession was adverseor not.
1 5 Bat. 89.* 3 C. A. C. 69.* 3 Bat. ITS.
1M8.
1 124 )
1918.
Ayanahamyv. Silva
In the passage cited from Angell on Limitation 399 the party inpossession did not have an intention to claim title. It does notmatter whether the possession is bona fide or mala fide. Adversepossession is defined in section 3 of the Prescription Ordinance,No. 22 of 1871. See also Carrim v. DhoU.1
On the finding of the Commissioner the defendant has acquiredtitle by prescription. The order to pay Rs. 25 to plaintiff is wrongand inconsistent with the finding.
A. St. V. Jayewardene, in reply.
Cur. adv. vilit.
December 1, 1913. Pereira J.—
There are cross appeals in this case. The Commissioner declaredthe defendant entitled to lot A on figure of survey No. 141, andcondemned him to pay the plaintiff Rs. 25. Each party hasappealed against the part of the decree that is adverse to himself,and I shall deal with both the appeals in one judgment. TheCommissioner has held that the defendant has had possession ofthe portion of land in claim for over the prescriptive period.I have read the evidence carefully, and on this point I need onlysay that the balance of testimony appears to me to support theCommissioner’s finding. Two points have been urged by theplaintiff’s counsel : (1) that the defendant had no right to appeal,inasmuch as he had consented to abide by the order of the Courton the question as to possession ; (2) that the defendant could notbe said to have had adverse possession of the land in claim, inasmuchas he possessed the land by mistake, that is to say, in ignoranceof the fact that it belonged to the plaintiff. It has been soughtto support the first contention by a reference to the defendant'sevidence, where he says, " If I have even by mistake gone andplanted that land. 1 am prepared to abide by the order of theCourt."
In the first place, an undertaking of this nature, to have a bindingeffect, should, in my opinion, be given in a* more formal and solemnmanner than in the shape of a casual answer to a question put bythe Court in the course of the examination of a party as a witness.In this connection' I may observe that the Commissioner in hisjudgment says that in spite of the defendant’s undertaking biscounsel urged the plea of prescription, and that plea the Commis-sioner has in effect upheld. In the next place, such an undertakingas that mentioned above can be of no avail, unless the oppositeparty is prepared to accept the.decision of the Judge. The plaintiff,in the present instance, did not acquiesce in the decision. Theabove two conditions appear to have been fulfilled in the casescited as authorities in support of the contention.
I 2C. L. R. 12.( 125 }
As regards the second point pressed, it .seems to me that thefact that the defendant was not, at the time of his possession ofthe land in claim, aware that it belonged to the plaintiff, ratherstrengthens his claim based upon prescription. He was a bond fidepossessor, and while a mala fide possessor might, just as well as abona fide possessor, maintain a claim by prescription, it is manifestin the case of ,the latter, that the possession was a possessionon his own account. It has been argued that the possessionof a person possessing in the belief that the thing possessed isnot the property of another is not adverse possession, and Englishauthorities have been cited. We have nothing to do with thedefinition in English law of either the term “ possession ” or theterm “ adverse possession." Both these terms are fully discussedin the Encyclopaedia of Laws, vol. /., p. 160, and vol. X., p. 229[1st edition), and it will be found that there are points of essentialdifference in what is laid down there and our own conception, ofthe terms. Possession under the Roman-Dutch law is eitherpossessio civilis or possessio naturalis. Possessio civilis is detentioanimo domini. It is this possession that is necessary to be provedwhere a person seeks either any of the possessory remedies or toestablish a claim by prescription. Where a person is in occupationof property in the bona fide (albeit mistake) belief that the propertyis his own and belongs to nobody else, clearly he has the detentioanimo domini. The next question is whether his possession isadverse. As to that we have to look for guidance within the fourcomers of our own Ordinance relating to prescription of actions.The words in section 3—“ A possession unaccompanied by paymentof rent or produce or performance of service or duty or by anyother act by the possessor from which an acknowledgment of aright existing in another person would fairly and naturally be
inferred ’’—have been held by this Court to contain not an illus-'
tration, but a definition of “ adverse possession ’’ (see Daniel v.Markar,1 Vand. Rep. 44, Canim v. Dholl 2. The possession by thedefendant in the present case manifestly answers to the descriptiongiven in the definition mentioned above.
I set aside the judgment appealed from, dismiss the plaintiff’sclaim, and enter judgment for the defendant for lot A. The defend-ant will have his costs in both Courts.
Set aside.
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1 Ram. 1843-55, 2.
1 2 C,L. R. 12.
1918.
Pereira. J.
A yanahamyv. Silva