088-NLR-NLR-V-47-BANDARA-Appellant-and-SINNAPPU-et-al-Respondent.pdf
Sandora v. Sinnappu,
249
1946Present :■ Howard C.J.BANDARA, Appellant, and SINNAPPU et ai., Respondents.171—C. M. Matnapura, 1,244.
Co-owners—Possession of specific portions of the common land by the variousco-oumers—Title by prescription.
Where a Gan Panguwa consisted of gardens, deniyas and chenasand it was established that these, deniyas were assweddumized by thevarious co-owners and possessed separately by them without interferenceby the other co-owners for a period of over twenty years—
Held, that each co-owner acquired a title by prescription to the specificportion in his possession.
260
HOWARD O.J.—Bandara v. Sinvappu.
A
PPEAL from a judgment of the Commissioner of Requests ofRatnapura.
H. V. Perera, K.C. (with him O. P. J. Kurukulasooriya), for the plaintiff,appellant.—This is a case where one co-owner merely cultivated a fieldand took the produce to the exclusion of the other co-owners. Nothingshort of ouster or something equivalent to an ouster is sufficient for oneco-owner to dispossess another. In Cadija Umma v. Don Mania Appu 1the Privy Council held that one co-heir’s possession enures to thebenefit of his co-heirs, unless ouster or something equivalent toan ouster is proved. This was followed in Ummu Ham v. Koch ®,where it was held that mere possession and execution of deeds were notsufficient to constitute an ouster. See also Fernando 'v. Fernando andanother s. It is a question of fact in each case, and the question whetherfrom long continued, undisturbed and uninterrupted possession oustermay be presumed depends on all the circumstances of the case. In thiscase the respondent has only put the land to its natural use, and it shouldbe distinguished from a case where the nature of the land is altered,as for the digging of plumbago—See Sideris v. Simon 4.
N.E. Weerasooria, K.C. (with him II. Deheragoda), for the defendants,respondents.—In this case the respondents have assweddumized the land,and a case of assweddumizing should be distinguished from mere cultivationand the taking of natural produce ; as assweddumization involves theconversion of high land into low land it should he analogous to the diggingof plumbago.
There is also evidence that the respondents were possessing this landin lieu of their undivided interests in other lands of the same “ gan-panguwa ”, and that other co-owners were similarly possessing otherlands in lieu of their undivided shares. This type of possession is oftenattributable to an express or tacit division of family property among theheirs and is sufficient to prove an ouster—MaiIvaganam v. Kandaiya s.Whether this division is done by arrangement or not, under suchcircumstances one co-owner can prescribe against the other within aperiod of ten years—De Mel v. De Alwis 6. Ouster can also be presumedwhere one co-owner enters a land and takes the profits exclusively andcontinuously for a very long period—Subramaniam v. Sivaraja 7.
H. V. Perera, K.C., in reply.—An improving co-owner is entitled tothe fruits of the improvements effected by him—Podi Sinno v. Alans 8.Hence plaintiff could not in law enjoy the frUits of the improvementsmade by the defendants.
Cur. adv. vuU.
June 20, 1946. Howard C.J.—
The appellant in this case appeals from a judgment of the Commissionerof Requests, Ratnapura, dismissing bis action with costs. The appellantsought to be declared entitled to 1 /24th share of a field called WereneyCumbure Ihala Asseddumdeke which was described in the schedule to the
1 (1938) 40 N. L. R. 392 at p. 396.5 (1915) 1 C. W.R. 175.
* (1946) 47 N. L. R. 107.• (1934) 13 G. L. ReZ. 207 at 209.
» (1944) 27 C. L. W. 71.7 (1945) 46 N. L. R. 540 at p.543.
* (1945) 46 N. L. B. 273 at p. 275.• (1926) 28 N. L. R. 401.
HOWARD O.J—Bandara v. Sinnappu.
261
plaint. The Commissioner held that the plaintiff is entitled to l/24thshare of the lands specified in the plaint, but the defendants have acquiredtitle to lot 1 by prescription. The evidence established that threebrothers by name W. A. Vidane, W. A. Madduappu, and W. A. Punchiralawere entitled to a £ share of the field in question. W. A. Vidane who wasthus entitled to £th died, leaving two children Naidehamy and Dingiri-hamy. Naidehamy’s l/12th share devolved on his two childrenDantahamy and Kaluhamy. Dantahamy’s l/24th share devolved-onhis sole child Menikh&my who died leaving Siriwardenahamy who bydeed No. 5550 of February 7, 1914 (P 1), sold this l/24th share togetherwith other lands to Punchimahatmaya. The latter sold this 1 /24thshare with other lands by deed 1171 of June 10,1937 (P 2), to the plaintiff.The defendants traced their title to Kaluhamy who died leaving the firstdefendant and three others. The first defendant maintained that in lieuof a part of his undivided interest in the Weerasinghe Aratchillage GanPanguwa he entered into possession of Wereney Chimbure Deniya, whichis lot l, about 20 years ago, assweddumized it and has been in exclusivepossession of it ever since. By deed No. 15124 of November 30, 1931(D 1), the first defendant sold lot 1, known as Pambeyakumbura, after itwas assweddumized, to his son in-law and daughter, the second and thirddefendants, who have been in possession ever since. The plaintiff notonly claimed the land in question by virtue of his paper title but alsomaintained that he and his predecessors in title had been in possession oflot 1. This contention was rejected and in my opinion rightly rejectedby the Commissioner. The latter has accepted the evidence of the firstdefendant that he entered into possession of lot 1 as co-owner ofWeerasinghe Aratchillage Gan Panguwa, that he started assweddumizingit little by little without any interference by any other shareholders ofthe Gan Panguwa, that certain co-owners of chenas and fields of this GanPanguwa had been in the habit of possessing certain lands exclusivelyin lieu of their shares in all the lands, that lot 1 was possessed by himin that manner, and that he has been in exclusive possession of this lotfor over 20 years without any interference by any one else. There is nodoubt ample evidence to support the Commissioner’s findings of factin regard to the previous history of lot 1. Thus Punchimahatmaya,the plaintiff’s predecessor in title, states on p. 15 as follows :—
“ This panguwa is in extent about 300 acres. I am a Kandyan.If there are deniyas the various co-owners assweddumize them andpossess separately. Similarly they possess chenas also. I do notknow who assweddumized those lots but when I bought they werefields. There were Vel Vidanes at that time also. They used to makea list of the fields and the cultivator.”
Again at pp. 13 and 14 Bandara, another of the plaintiff’s witnesses,states as follows :—
“ Weerasinghe Aratchige Gan Panguwa consisted of gardens anddeniyas and chenas, The whole panguwa is about 200 to 300 acres.”The first defendant on p. 17 states :—
“ The land in dispute was a chena. When I first entered it was over-grown with pamba and weraniya sticks. Because of the pamba jungle
262
HOWARD C.J.—Bandara v. Sinnappu.
it was called Pambagahakumbura. When the Land Commissionercame I gave Pambakumbura to this field. I entered this land about40 years ago and started assweddumizing it. I have not completedassweddumizing it. There are about one laha yet to be assweddumized.For the last 40 years I am assweddumizing. After I started assweddu-mizing I did not allow any co-owners to possess it …
When that was put about 12 lahas had been assweddumized andafter that I assweddumized the rest. My brothers have assweddumized.Dodampe Mudalihamy has assweddumized. His mother is Lokuetana.Lokuetana is Punchirala’s daughter or Naidehamy’s daughter. Sheis not a descendant of Vidane, Madduma Appu or Punchirala.Mudalihamy has assweddumized Suduwelikandedeniya. He has alsoplanted £ acre of Gonnamaladeniya pahalakella and adjoining thesehe has assweddumized 5 lahas. The two portions of high land and thefield of Suduwelikandegodella is l£ acres high land and 3 pelas paddy.That Mudalihamy did not allow any other co-owner to possess.”and again at p. 18 :—
“ It is not correct to say that I entered this land 20 years ago asstated in my answer. The other shareholders had other lands toassweddumize. I have assweddumized the entirety of this chena anddeniya. There is one laha more to be assweddumized.”
On pp. 22 and 23 Thomas Singho states as follows :—
“ I know this land in dispute for the last 30 years. When I came toknow it first this land was in deniya. This first defendant assweddu-mized this deniya. He may have taken 10 or 15 years to assweddumizethe whole field. He used to assweddumize it year after year. No oneelse possessed this field- for the last 30 years besides first defendantand his son-in-law. Plaintiff never possessed. In 1942 plaintiffclaimed this field for the first time. This land belongs to WeerasingheAratchillage Panguwa. This panguwa may be about 100 acres bothhigh and low. There are other co-owners of this Panguwa. Theyassweddumize different portions and possess them. Wastuhamy ispossessing ‘ Gode Deniye Kumbura ’ which he assweddumized. It. isabout 6 lahas in extent. Menikrala also has assweddumized intwo places and he is possessing them. First defendant is possessingthe land called Godadeniyewatta in its entirety. Appuhamy ispossessing the land called “ Godedeniye Udahakella ”. The chenasare also worked by different co-owners in different blocks. I livewithin J mile of this field in question. I have worked this field alsofor 2 years as cultivator under first defendant. These years firstdefendant took the landowner’s share.”
It has, therefore, been established that (a) the lot in dispute was part ofa panguwa of 200 to 300 acres consisting of gardens, deniyas and chenas,(6) that these deniyas were, assweddumized by the various co-owners andpossessed separately by them without interference by the other co-ownersfor a period of over twenty years. The question, therefore, arises asto whether this possession is sufficient in law to confer on the 2r.d and 3rddefendants a title by prescription. Mr. Perera has contended that it
HOWARD C.J.—Bandara v. Sinnappu.
263
does not inasmuch as there has been no ouster and the possession of thedefendants is that of their co-owners. In support of this contentionMr. Perera has relied on the cases of Ummu Ham v. Koch 1, Sideris v.Simon a, Fernando v. Fernando 1 2 3, and Cadija Umma v. Don Mania Appu *.All these cases followed the well known Privy Council case of Corea v.AppuhamyB. Mr Perera, however, concedes that, on the principleestablished in Podi Sinno v. A hois6, the defendants as improvingco-owners would be entitled in a partition action to the fruits of theimprovements effected- by them. In spite of Mr. Perera’s contentionI am of opinion that it is impossible to distinguish the facts in this casefrom those in De Mel v. De Allots 7, the headnote of which is as follows :—“ Each of two co-owners of two contiguous lands was entitled toan undivided half share of the first land, and an undivided third ofthe second. One of them allocated to himself the entirety of thefirst land and a portion of the second adjoining the first. The remain-ing portion of the second land passed into the exclusive possessionof the other co-owner. The portions thus allocated were roughlythe equivalents of their respective fractional interests in the two lands.Each of the areas thus separated was incorporated with certain interestsof which each co-owner was sole owner. These> consolidated areaswere possessed as distinct and separate lands for well over ten years.In the action between the representative in interest of one co-ownerand the successors in title, by purchase, of the other, the trial Judgerejected the plea of prescription on which the defendant relied. Inappeal this judgment was reversed.
Held : That, where co-owners enter into possession of a specificportion of a land and remain in exclusive and adverse possession thereoffor a period of ten years, each co-owner acquires a title by prescriptionto the specific portion in his possession. ”
The dictum of De Sampayo J. in Mailvaganam v. Kandaiya 8, is also verymuch in point so far as the facts of this case are concerned. This dictumis as follows :—
“ The Commissioner has found that possession has all along beenwith the plaintiff and his predecessors in title and that Sabapathyfrom whom the 1st defendant derives title never had any possession,but he has not given effect to that finding on the ground that there wasno ouster of Sabapathy, who was a co-owner. It seems to me thatthe Commissioner has misunderstood the nature of ouster required forthe purpose of prescription among co-owners and of the evidencenecessary to prove such ouster. There is no physical disturbance ofpossession necessary—it is sufficient if one co-owner has to the know-ledge of the others taken the land for himself and begun to possessit as his own exclusively. This sole possession is often attributableto an express or tacit division of family property among the heirs,and tjie adverse character of exclusive possession may be inferredfrom circumstances. ”
1(1946) 47 N. L. R. 107.
2(1945) 46 N. L. R. 273.
8 (1944) 27 C. L. W. 71.
8 (1912) A. O. 230.
* (1938) 40 N. L. R. at p. 396.
• (1926) 28 N. L. R. 401.» (1934) 13 C. L. R. 207.
« (1915) 1 O. W. R. 175.
254
CANEKERATNE J.—AnthonipW-ai o. Thyirainethan.
The judgment of Canekeratne J. in Subramaniam v. Sivaraja 1, whichdeals with the circumstances in which an ouster may be presumed isanother decision that supports the principle which Mr. Weerasooriacontends is applicable to the facts of this case.
For the reasons I have given I have come to the conclusion that theCommissioner came to the right decision and the appeal is dismissedwith ooBts.
Appeal dismissed.