Charles Parana and another v. Kotigala
fSomawansa. J.)

The 2nd defendant-appellant in his evidence under cross exam-ination says as follows:
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[2004] 2 Sri L.R

Accordingly it appears that the 2nd defendant-appellant himselfhas admitted in his evidence that the plaintiff-respondent’s prede-cessors who are also predecessors of the witnesses called by the 150defendants-appellants Eddie Perera and Edward Perera were inpossession of the land in suit at least from 1950. In the light of thesaid evidence of the 2nd defendant-appellant and the reasoning inthe judgment of the learned District Judge, the argument of the

Also in page 240 of the brief it is stated:
At pages 236 and 237 is stated:

Charles Perera and another v. Kotigala
(Somawansa. J.)
counsel for the defendants-appellants that the impugned judgmentcannot be supported by the evidence and that there is no properevaluation of the totality of evidence has to fail. It is also to be notedthat the finding of the learned District Judge that the land in suit isMahawatta is well founded not only by the evidence of the plaintiff-respondent but also by the admissions of the 2nd defendant-appel-lant himself. The learned District Judge in his judgment on page272 of the brief makes the following observation:

Counsel for the defendants-appellants also submitted that thetrial Court had not weighed the totality of evidence in the case andthe reasons as to why evidence led on behalf of the plaintiff-respon-dent was trustworthy had not been stipulated in the judgment alsothat there was only a recital of evidence without a rational and log-ical analysis. However on an examination of the evidence led andthe judgement of the learned District Judge, I am unable to agreewith the above submissions, for the learned District Judge has con-sidered and weighed the totality of evidence led in this case andhaving analysed the evidence has come to a correct finding. I mightalso say that the learned District Judge has complied with the pro-visions contained in section 187 of the Civil Procedure Code basedon material available the learned District Judge has on a balance of
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probability come to a correct finding that the land in suit isMahawatta.
While conceding that in a rei vindicatio action the burden is onthe plaintiff to establish his title to the land he claims and not for thedefendant to show that the plaintiff has no title. In the instant action,
I would hold that the learned District Judge has come to a correctfinding that the plaintiff-respondent has proved her title and thelearned District Judge has given adequate reasons for his findings. 200
It is also contended by the counsel for the defendants-appel-lants that the judgment in the instant case was pronounced morethan two years after the evidence was led which would result in fad-ing away the salient points of evidence from the mind of Court. It isto be seen that the judgment has been pronounced more than 2years after evidence it appears to me that the delay has not causedany prejudice to the defendants-appellants, for the learned DistrictJudge has carefully examined and analysed the evidence in com-ing to his findings.
As for the legal title pleaded by the defendants-appellants, I 210would say as stated above the 2nd defendant-appellant himselfadmitted that he has transferred lots C and D in plan No. 2557marked 1V2 to their witnesses Eddie Perera and to his brother’sson before filing the present case. On the other hand again as stat-ed earlier the 2nd defendant-appellant in his evidence has accept-ed that the plaintiff-respondeht’s predecessors were in possessionof the land in suit for a long period of time. In the circumstances the2nd defendant-appellant is not in a position to plead legal title to thesaid lots and as a result his claim in reconvention has to fail.
Counsel has also urged this Court to consider whether the trial 220Judge had applied the principles of law as laid down in Sirajudeen vAbbasP) and Premasiri and others v Kodikara and another<2) when thejudgment was given in favour of the plaintiff-respondent. In the firstcase cited by the counsel for the defendants-appellants Sirajudeen v. Abbas (supra) the Supreme Court dealing with prescriptive title in avindicatory suit held where the evidence, of possession lacked con-sistency the fact that occupation alone or the payment of Municipalrates by itself is insufficient to establish prescriptive possession.However in the instant case, till 12.04.1987 no one had challenged
Charles Perera and another v. Kotigala
(Somawansa. J.)
the possession, title or ownership of the plaintiff-respondent: Hencethe said case has no application to the instant case. For in that casethe paper title of plaintiff was proved and it was for the defendant toprove he had acquired prescriptive title.
In the case of Premasiri v Kodikara {supra) the Court of Appealdealt with the question of paper title and prescription in a declara-tion of title case and held that the 2nd plaintiff could not haveacquired prescriptive title subject to the life interest of the 1st plain-tiff. It was further held that in fact neither the 1 st plaintiff nor the 2ndplaintiff had acquired prescriptive title to the land. Though this find-ing appears to lay down a principle that one cannot acquire pre-scriptive title subject to the life interest of another the facts of thatcase reveal otherwise. In that case the facts were:
"The plaintiffs-respondents instituted this action seeking adeclaration that the 2nd plaintiff-respondent is entitled tothe land described in the schedule to the amended plaintsubject to a life interest in favour of the 1st plaintiff-respon-dent on the basis that one Nandasena Pulasinghe thefather of the 2nd plaintiff-respondent and the husband ofthe 1st plaintiff-respondent and who was subject to theKandyan Law had acquired prescriptive title to the saidland during his life time had died leaving his daughter the2nd plaintiff-respondent and his widow the 1st plaintiff-respondent.”
The learned District Judge in his judgment has held thatNandasena Pulasinghe has not acquired prescriptive title to theland in question but had answered issue No. 1 viz: is the 2nd plain-tiff entitled to the land describe in the schedule to the plaint subjectto a life interest in the 1st plaintiff as set out in the plaint? in the affir-mative and added that he accepts that the 2nd defendant hadacquired prescriptive title subject to a life interest in the 1st plaintiff.In considering the correctness of this finding of the learned DistrictJudge, Edussuriya, J. states at page 342:
“I may add that even though there is a finding by thelearned District Judge that Nandasena Pulasinghe hadno title, learned District Judge has held that the 2nd plain-tiff has title subject to a life interest in the 1 st plaintiff. This
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cannot be, since under the Kandyan Law the 2nd plaintiff(daughter) could have got title subject to life interest inthe 1st plaintiff (widow) only if the land was the acquiredproperty of the deceased. One cannot understand how 270on a finding by the learned District Judge that the 2ndplaintiff had acquired prescriptive title the learned DistrictJudge could have held that the 1st plaintiff had a lifeinterest therein.
In any event, even the finding by the learned DistrictJudge that the 2nd plaintiff had acquired prescriptive titleis confusing since at page 168 of the brief the learnedDistrict Judge has contradicted himself by first holdingthat the 1st plaintiff had acquired prescriptive title andthen holding that the 1st plaintiff had possessed for a 280period of 17 years on behalf of the 2nd plaintiff and thusthe 2nd plaintiff has acquired prescriptive title and thengoing on to state that the parties are subject to KandyanLaw and therefore the 2nd plaintiff (daughter) is entitledto the land subject to a life interest in the 1st plaintiff(widow). At this point the learned District Judge appearsto have lost sight of his finding that he had held thatNandasena Pulasinghe had not acquired title by pre-scription."
It is be seen that in the instant case the plaintiff-respondent is 290not claiming the property as prescriptive title but on deed No. 979dated 03.07.1985 marked P5. However paragraph 9 of the plaintreads as follows:

With regard to the said pleadings in paragraph 5 of the plaint itis relevant to consider the observations of Edussuriya, J. inPremasiri v Kodikara (supra) at page 341:
“In cases where plaintiffs claim “paper” title on the basis 300of a devolution of title either by inheritance or purchase
Charles Perera and another v. Kotigala
fSomawansa. J.)
from a person who had title in order to support that title,often a plea of prescriptive title by virtue of possession bythe plaintiff and his predecessor in title is also pleadedand in consequences of such a plea an issue on the linesof issue 2 above is raised or framed.”
In the circumstances it appears that the case can be distin-guished from the instant action.
The counsel for the defendants-appellants also referred toSideris v SimonM wherein the head note reads:310
“In an action between co-owners the question whether apresumption of ouster may be made from long continuedand undisturbed and in uninterrupted possession is oneof fact, which depends on the circumstances of eachcase.”
However in the instant action the defendants-appellants do notclaim to be co-owners and the said decision has no application tothe instant action.
Another matter being canvassed by the counsel for the defen-dants-appellants is that Vohanis Perera having a life interest in the 320land conveyed by deed No. 979 of 03.07.85 marked P5 (assuminghe had a right but not concluding) should have been made a party.
The failure vitiates the entire proceedings. However I am unable toagree with the counsel. It is conceded that the property in suit hasbeen gifted to the plaintiff-respondent subject to the life interest ofher father. Evidence revealed that the father of the plaintiff-respon-dent was present in court at the trial stage and it appears that theplaintiff-respondent has filed this case not only to safeguard herrights but also to safeguard the life interest of her father and not torefuse, reject or deny the plaintiff-respondent’s father’s rights but to 330uphold such rights. In the circumstances I would hold that failure tomake the life interest holder a party does not vitiate the proceed-ings in the instant case.
In any event, section 17 of the Civil Procedure Code reads asfollows:
“No action shall be defeated by reason of the misjoinderor non-joinder of parties, and the court may in every
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action deal with the matter in controversy so far asregards the rights and interests of the parties actuallybefore it.”340
In Caderv MarikkaW Per Lord Roche at page 262:
“But it is provided by section 17 of the Civil Procedure Codeof Ceylon (Ordinance No. 2 of 1889) that no action shall bedefeated by reason of the misjoinder or nonjoinder of par-ties, and that the court may in every action deal with thematter in controversy so far as regards the rights and inter-ests of the parties actually before it. Section 22 of the sameCode provides that ail objections for want of parties shall betaken at the earliest possible opportunity and in all casesbefore the hearing. It was said with truth on behalf of the 350respondents that the objections now under consideration,unlike the objection which led to the joinder of the defen-dants who are respondents to this appeal, were not sotaken.
Their Lordships do not doubt that in a proper case a defectof necessary parties may be dealt with by the court at anystage but in their view the present is not such a case. Onthe contrary the language of Lord Macnagthen in the caseof Wiliam Brandit’s Sons & Co. v Dunlop Rubber Co. Ltd. S5)is applicable to the present case. The material passage 360from the judgment is as follows:-
“Strictly speaking Kramrisch & Co. or their trustee in bank-ruptcy, should have been brought before the Court. But noaction is now dismissed for want of parties and the trusteein bankruptcy had really no interest in the matter.”
The counsel also submitted that the amicable partition of the landand execution of the partition deed by the plaintiff-respondent’s fatherand other members of her father’s family had left a serious lacuna inthe plaintiff-respondent’s case, that witnesses asserted that one per-son was hospitalized and only eight of the co-owners signed the deed 370whereas the official witness like the Notary Public boldly states that allwere present at the same time. This assertion by witnesses appearsto be incorrect for on an examination of the said deed marked P3, it is
Charles Perera and another v. Kotigala
,(Somawansa. J.)
apparent that all 9 co-owners have signed the deed. Even the wit-nesses called by the defendants-appellants admitted as havingsigned the said deed.
it is also submitted by the counsel for the defendants-appellantsthat documentary and oral evidence in the instant case clearly con-tradicts the intention that there had been an amicable division of thelarger land and contradictory evidence had been unreservedly admit- 380ted by the trial court to the detriment of the defendants-appellants andthe so called partition deed remains unregistered.
In Thiyagarasa v Arunodayam (6) G.P. S. de Silva, J. as he thenwas held that the essential elements of due execution of deed as setout in section 2 of the Prevention of Frauds Ordinance are:
The deed must be signed by the party making it.
It must be signed in the presence of a Licensed NotaryPublic and two or more witnesses.
The Notary Public and the witnesses must be present at the
same time.390
The execution of the deed must be duly attested by theNotary and the witnesses. The Notary is as much an attest-ing witness as the two witnesses themselves.
The fact that parties had not entered into possession even after thedeed of partition and the fact that some had restored to court actionand another who was dissatisfied had protested subsequently doesnot make the deed of partition invalid if essential elements of due exe-cution of the deed as set out in section 02 of the Prevention of FraudsOrdinance are complied with. In the instant case evidence reveal thatthe above requisites have been complied with and the fact that par- 400ties have not entered into possession of their respective lots or that.some have resorted to court action and that one of them had protest-ed as he was dissatisfied does not make the deed marked P3 invalidnor does it matter that the deed was unregistered for the presentaction is not between the co-owners who signed the partition deed butagainst a third party the defendants-appellants.
In the case of Appuhamyv Premalal and Eight othersP) the headnote reads:
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“The plaintiff-appellant filed action to partition a land whichhe claimed was at one time a portion of a larger land whichwas co-owned by two persons who entered into an amica-ble division of that larger land each taking two divided por-tions one of which was the land to be partitioned.
The 4th defendant-respondent denied that there was suchan amicable division of the larger land and averred that thecorpus in this case was an undivided portion of the largerland and prayed for a dismissal of the action:
It was held:
An amicable division to be recognized by law must be adivision that puts, an end to co-ownership of property.
An amicable division can be given effect to—
By a deed of portion and a partition plan where all theco-owners sign agreeing to the division or by a crossconveyance executed by each of the co-ownerswhereby the notarial deeds would be the best evi-dence of the termination of the common ownership, or
By proving that each of the co-owners entered intoseparate possession of the divided portions allotted toeach and that the co-owners possessed their respec-tive divided portions for a period of at least ten yearsundisturbed and uninterrupted so that the commonownership would in law come to and end.
The documentary and oral evidence in this case clearlycontradicts the contention that there had been an amicabledivision of the larger land.”
PerMoonemalle, J. at page 303:
“An amicable division to be recognized by law must be adivision that puts an end to co-ownership of property. Anamicable division can be given effect to by a deed of parti-tion and a partition plan where all the co-owners sign agree-ing to the division‘or by cross conveyances executed byeach of the co-owners, whereby the notarial deeds would
Charles Perera and another v. Kotigala
(Somawansa. J.)
be in the best evidence of the termination of the commonownership. In the present case, the plaintiff-appellant doesnot rely on a partition deed or cross conveyances to estab-lish the amicable division.”
In the instant case amicable division has been given effect to bydeed of partition No. 42 marked P3 with reference to a partition planNo. 371 marked P4. The said deed as well as the evidence reveal thatall the co-owners having agreed to the partitioning of the property 450among themselves have expressed their agreement in signing thesaid deed marked P3. Even the witnesses called by the defendants-appellants have admitted giving the consent and signing the saiddeed. As stated earlier in executing the said deed essential elementsof the due execution of the said deed as set out in section 02 of thePrevention of Frauds Ordinance having been complied with, thelearned District Judge has come to a correct finding that the 9 co-own-ers have amicably partitioned the property. The fact that the said par-tition deed remains unregistered has no bearing to the instant case asthe action is not between co-owners but with an outsider the defen- 460dants-appellant who is not a co-owner. The learned District Jugde’sobservation on this point is as follows:

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In view of the above reasons, I would hold that the learned DistrictJudge has come to a correct finding and see no basis to interfere with 480the judgment of the learned District Judge. Accordingly the appeal willstands dismissed with costs fixed at Rs. 5000/-.
DISSANAYAKE, J.I agreeAppeal dismissed.