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BANDA et al. v. BANDA.D. C., Kandy, 11,992.
Ordinance No. 22 of 1871, s. 3—“ Possession for ten years previous to the bringingof the action ”—Proof of appointment of assignee in insolvency.
Per Moncreitf, J.—The natural meaning of section 3 of OrdinanceNo. 22 of 1871 is not, in my opinion, that the ten years’ possession mustendure until the bringing of the action. The Words—“ the bringing ofthe action ”—were introduced simply to prevent any dispute as tothe stage in the action before which the ten years’ possession must becomplete. Those words do not confine the ten years to the period nextbefore the bringing of the action.
Per Browne ,A.J.—-1 agree with ray brother’s views, and feel boundby the decision in Nakar v. Sinnatty (Ram. 1860, p. 75).
Silva v. Simon (1 N. L. R. 144), disapproved.
The method of proving the appointment of an assignee in insolvencyexplained.
CTION for ejectment, and that plaintiffs should be placed inpossession of the lands unlawfully held by defendant.
Plaintiff alleged title to an undivided half share in severallands by. right of purchase from one Kumarihamy upon deeddated 19th July, 1897. The action was instituted on the 7thDecember, 1897.
Defendant alleged that Kumarihamy was adjudged an insolventin 1878, and that defendant’s right was by inheritance underBandara Mahatmava and his wife, who died, the former in 1878and the latter in 1895.
The District Judge found that Kumarihamy was declaredinsolvent and an assignee appointed to 'her estate on 6th December,1878, and that therefore the insolvent’s immovable propertyvested in him from that date.
A further issue framed by the District Judge was whether theplaintiff and his predecessor in title had acquired a prescriptiveright by adverse possession for ten years previous to action. TheDistrict Judge found against the plaintiff upon this issue anddismissed the action with costs.
The case came on for argument in appeal on 26th September,1900, before Moncreiff, J., and Browne, A.J
Wendt, Acting A.-G., for appellant.Pieris, for respondent.
Gur. adv. wit.
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22nd October, 1900. The judgment of Moncreiff, J., wasdelivered as follows by Browne, A.J.: —
By deed dated the 19th July, 1897, the plaintiffs bought fromone Kumarihamy one-half of a piece of land situated at Pattipolain Tumpane. Kumarihamy had possessed the land by virtue ofa deed executed in her favour by her father on the 7th October,1807.
Binding the defendant in possession, the plaintiffs brought thisaction for vindication of the land and damages.
The defendant did not think it necessary to go into the wholeof his case, but said that the plaintiffs had no title to sue upon,because their vendor Kumarihamy had become insolvent in 1878,and, upon the appointment of Mr. J. H. Wijenaike as assignee onthe 6th December, 1878, the whole of Kumarihamy's propertyvested in the assignee. The plaintiffs do not admit this, and theysay that, even if it were true, Kumarihamy was left in undis-turbed possession of the land from 1878 to 1895, and acquireda prescriptive title to it.
The case having arrived at this point, the defendant protestedthat the plaintiffs should not be allowed to prove a title acquiredby prescription, because they were out of possession; that by theterms of section 3 of the Prescriptive Ordinance (No. 22 of 1871)they were debarred from setting up a title founded uponundisturbed and uninterrupted possession for ten years, unlessthey were still in possession at the date of the bringing of thisaction. We are asked to say whether the defendant has correctlyinterpreted the section.
The effect of the section—in so far as it relates to this question—is as follows : —
When any plaintiff shall bring his action for the purpose ofbeing quieted in his possession of lands or other immovableproperty, or to prevent encroachment or usurpation thereof, or toestablish his claim in any other manner to such land or otherproperty, proof of undisturbed and uninterrupted possessionby him or by those under whom he claims, by a title adverse to orindependent of that of the defendant, for ten years previous to thebringing of such action, shall entitle the plaintiff to a decree in hisfavour with costs.
What is the meaning of “ for ten years previous to?” If theexpression had been “ for the ten years,” or “ for ten yearspreceding,” there could have been no doubt. But the mere words“ten years previous to ” do not necessarily mean the ten yearsnext preceding the point of time indicated.
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But the' further question must be answered. Why did thewords of the section not run “ previous to the action?’* Why wasthe Legislature particular enough to say “ previous to the bringingof the action?” Certainly to give precision to something. Butthe natural meaning of the mere words does not confine theten years to the period next before the bringing of the action. Ibelieve that the words “ the bringing of ” the action wereintroduced simply to prevent any dispute as to the stage inthe action before which the ten years’ possession must becomplete.
Now it is urged, on the one hand, that a plaintiff under thissection must have completed his ten years’ possession, and havebeen actually in possession at and down to the moment at whichhe brings his action. That appears to have been the view ofthe Chief Justice in Silva v. Siman Q4 N. L. R. 144). The pro-vision is supposed to be prompted by a desire that persons; oustedfrom property, should not lie by for a longer period than a year.To prevent any injustice resulting to ousted persons, section 4 wasintroduced by which they are enabled to return to possession uponsimple proof of dispossession. I do not altogether understandwhy persons ousted from possession should be more deservingthan other litigants of being restricted in the proof of their claims,why they are debarred from proving a title to land, unless theytake certain steps within a year. I find no| special reason forsuch a provision in the fact that the title to be set up is one ofprescriptive possession.
It is to be noted that section 3 deals with three classes ofplaintiffs: —
Those who wish to be quieted in possession;
Those who wish to prevent usurpation and encroachment;
Those who wish to establish their claims in any other
The first two classes are in possession; if they have been ousted,they have come back into possession under section 4. But thethird class is, I should imagine, composed of persons who are notin possession. And what is the position of those persons if theycannot prove prescriptive possession without showing that theirten years’ possession extended to the bringing of the action? Arethey introduced simply to be excluded from the advantage of thesection ?
I am disposed to think that section 4 was introduced to preventdispossession by violence, and attempts to regain possession byviolence. And I do not see ’ why the fact that section 4 gives asummary method of regaining possession indicates an intention
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that ousted parties who have not availed themselves of the sectionshould not be permitted to prove prescriptive possession.
The natural meaning of the words of the section is not, in myopinion, that the ten years’ possession must endure until thebringing of the action, and I do not find sufficient reason in thecircumstances for imposing that meaning upon the words.
As to the other point, the validity of the assignee’s title, I thinkthat the appointment of the assignee has not been proved. Itshould have been proved according to the ordinary rules ofevidence. The mere production of the proceedings under thepetition for adjudication is not enough, unless provision to thateffect is made in the Ordinance (Muskett v. Drummond, 10
& C. 153). Section 143 of the Insolvent Estates Ordinanceprovides that in actions by assignees the Gazette shall be sufficientproof, if the insolvent does not dispute his insolvency. Andsection 144 dispenses with proof in certain other cases, but it doesnot touch this matter. Moreover, there were other deficienciesin the proof. The District Judge found that the appointmentof the assignee was proved. I do not agree with him.
Even if this view be mistaken, it is clear that Kumarihamywas in unmolested possession for many years before 1895, andtherefore in the view I take of the law she acquired a title whichwas good as against her assignee (if there really was an assignee),and which entitles her transferee, the plaintiff, to maintain thisaction. I think that the decision of the District Judge should beset aside and judgment entered for the plaintiff.
The trial of this action was rather abruptly terminated at itsvery close. The father of the vendor to plaintiffs had undoubted-ly been originally entitled to the land in claims. His childrenwere plaintiffis’ vendor and defendant. He donated half to theformer, leaving defendant entitled by inheritance to half. Butdefendant seeks not only to claim title to that donated half by hisown adverse possession of it, but also to destroy plaintiffs’ titleto it by alleging (1) that the vendor married in diga, (2) that thevendor became insolvent and her title passed to her assignee,and (3) that her assignee sold the lands to others.
The one issue which would embrace the latter two defences wasbut roughly framed. In argument before us Mr. Attorney desiredto expand it into yet another direction, whether there had everbeen a valid adjudication of insolvency made when it was of threepersons who were not partners. We are, indeed, now concerned
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only with one issue, on which, per sc, has been given a decision fatalto plaintiffs’ claim: whether, being without possession for threeyears prior to the bringing of this action, they can declare andrecover upon a title in their vendor by ber adverse possession forover ten years at any time prior to such loss of possession, so long asthe defendant or any other during her absence from possession didnot acquire title in that wise or in any other way. If in reversingthat decision we had been obliged to remit the action for furtherhearing, it might perhaps have been found possible, and indeedfundamentally necessary to any questions arising out of the allegedinsolvency, to ascertain whether there ever had been a validadjudication.
On the question of title by prescriptive possession and theconstruction of the words “ previous to bringing of the action,”I venture still to eonsiler myself bound by the decisionpronounced in 41, C. R., Point Pedro (Bam, 1860, p. 79), in presenceof, if not by, all the members of the Collective Court, whichdecision was overlooked in the argument in both Courts, of 87,427,D. C., Colombo (8 S. C. G. 31). The discovery of that omission,however, caused this Court in 934, D. C., Colombo (9 S. G. G. 48),and 6,371, D .C., Kegalla (2 G. L. B. 43), to indicate that thedecision in 87,427, D. C., Colombo, was not necessarily conclusive;and though I believe that Withers, J., was (e.g., 447, D. C.,Kurunegala, S. C. M. 3rd November, 1895, though he may possiblyhave had only section 4 then in view) of the same opinion asthat which my Lord the Chief Justice has expressed in 5,625,
R., Colombo (4 N. L. R. 144), I, with all due deference, say I feelmyself bound by that earliest pronouncement both as a bindingprecedent and because I agree in my brother’s views thereon.To his remarks I would add, that if only a possessory action wasever open to a plaintiff out of possession, I cannot see why theenactment in section 3 respecting plaintiffs who wished ‘‘ toestablish their claims in any other manner ” should have beenmade. For a person dispossessed of possession to bring hispossessory action under section 4 it is not necessary that heshould have had more than, say, a day’s possession beforedispossessed. The remedy that section 3 gave to a plaintiff whohad held over ten years’ possession was one of a larger purposethan to be merely reinstated in possession. In my judgment itwas the power to vindicate the title which (as till the doubtsexpressed in or arising out of the decisions in 8 S. C. 0. and4 N. L. R.), I, for nearly thirty years, have always understoodcould be acquired by such undisturbed possession. Even if thatview as to title were wrong, 1 would still feel concluded by it
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for the reason so expatiated upon in another judgment byCreasy, C.J. (28,256, D. C., Ualle, Vand. 276), lest “ to reverse it“ suddenly would be to shake the titles to many properties and to“ cause great and general inconvenience.”
I would therefore hold it was open to plaintiffs to plead andprove, as they did, that their vendor had at any time previous toher sale to them and to the institution of this action adverse, &c.,possession as under section 3, and that having proved the samethe title is in them like title adverse to that vendor, or titlededuced aliter from her not having been proved by defendant,nor that any title she so acquired accrued to the benefit of anycreditors of her insolvent estate under section 71 of OrdinanceNo. 7 of 1853, and that judgment be entered for plaintiffsaccordingly with costs.
October 22.Browns, A.J.
BANDA et al. v. BANDA