. His observation reveals that except for a recently built house onthe southern boundary facing the public road there was no otherbuilding on the land and that except where the house stood the entirecorpus was covered with thorny bushes and shrub jungle. He furthersays that there were unidentified people engaged in brewing illicitliquor. These observations would clearly point to the irresistibleconclusion that in the year 1986 there was no one in occupation orpossession of the land except may be for the occupant of therecently built house the rest of the land was abandoned and coveredwith jungle. As the Surveyor could not survey the land he had goneagain to the land on 14.06.89 and having surveyed the land on thatday he described the buildings and plantation on the land as follows.

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Dissanayake v Dissanayake and others
(Somawansa, J.)
It is to be seen that except for improvements I and 2, the rest ofthe improvements viz; item 3 to 7 have been made within a periodof 3 years from the date of the survey on 14.06.89.He also statesthat on the second occasion when he went to survey the land someareas had been cleared and a temporary plantation was to be seen.It appears according to his report that the7th defendant-respondentwho on 29.05.86 accepted the claim of the other parties thatplantation should go in common receded from the said stand andclaimed the entire plantation to the exclusion of the other parties on14.06.89.
With reference to the surveyor's observations that except wherethe house stood the entire corpus was covered with thorny bushesand shrub jungle, the Counsel for the 20th defendant-appellantsubmits that the Surveyor had gone to the land about 8 monthsafter the action was instituted and that there is a common tendencyamongst the people to neglect land in respect of which there islitigation. I cannot agree with this submission for on the contrarythey would do everything possible to manifest their rights to theland. Counsel also submitted that the list of the plantation on theland which the Surveyor has given at pages 231 and 232 of thebrief belies his statement earlier that the entire corpus was coveredwith thorny bushes and shrub jungle. Here again, I am unable toagree with the aforesaid submission for the reason that at theearlier occasion the corpus was not surveyed because the entirecorpus was covered with thorny bushes and shrub jungle. Onlywhen the land was cleared that the Surveyor was able to do asurvey and one cannot expect the Surveyor to creep through thethorny bushes and shrub jungle and count the number of trees onthe land. Also his submission that the 7th defendant-respondent’sstatement that the plantation should go in common could well meanthat it has to be shared between the 7th defendant-respondent andher family members is untenable for the reason that according tothe Surveyor when the other parties claimed the plantation incommon the 7th defendant-respondent had accepted their claim.The indication is clear that the plantation should go in common asbetween the 7th defendant-respondent and the other parties to theaction and not between the 7th defendant and his family members.I would say that the Surveyor’s report marked X1 is clear andprecise and could be relied upon.
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As stated above, the main complaint of the Counsel for the 20thdefendant-appellant is that the learned District Judge has notevaluated the evidence on the question of possession and that hehas in about 9 sentences disposed the question of prescriptivepossession by merely stating that prescription must be establishedby more cogent evidence, that he has failed to appreciate theplaintiff-respondent's admission and the 20th defendant-appellant's 240unchallenged evidence which established ouster. While concedingthat the learned District Judge has failed to evaluate the evidenceplaced before him on the question of prescriptive rights of thecontesting defendants, it appears to me that on an examination ofthe totality of evidence, he has come to a correct finding. For theSurveyor's report clearly shows that except for the recently builthouse on the southern boundary facing the road the rest of the landwas abandoned, neglected and not possessed by any of the partiesto the instant action including the contesting defendants. It must benoted that the occupant of the recently built house could only set up 250a claim to the house but not to the rest of the land which wasabandoned but used by some unidentified person to brew illicitliquor.
It is to be seen that the plaintiff-respondents, as well as the 1stto 6th and 8th to 15th defendants-respondents had paper title tothe land to be partitioned and the 7th defendant-respondent toohad paper title to 9 perches of the corpus. The 18th, 19th, 21 st and22nd defendants-respondents and the 20th defendant-appellantthough they were children of the 7th defendant-respondent did nothave any paper title to the corpus. They sought to rely on 260prescriptive title of their father Abraham Dissanayake. Howeverthere is no sufficient evidence to establish this fact except the ipsidixit of the 20th defendant-appellant. In the circumstances, the onlyconclusion would be that Abraham Dissanayake and SerpinuDissanayake along with Simon and Milli Dissanayake who wereco-owners dealt with their shares separately as set out in theplaintiff-respondent's pedigree Accordingly the 7th defendant-respondent being a co-owner and if she and her children are tosucceed in their claim to the corpus based on prescription theburden is on them to prove their exclusive and adverse possession 270against other co-owners and it appears the contesting defendantshave failed to discharge the said burden.
Dissanayake v Dissanayake and others
(Somawansa, J.)
In the well known case of Corea v Appuham^Hhe head notereads:
“Possession by a co-heir enures to the benefit of his co-owners.
A co-owner’s possession is in law the possession of his co-owners. It is not possible for him to put an end to thatpossession by any secret intention in his mind Nothing shortof ouster or something equivalent to ouster could bring aboutthat result”280
In Tillekeratne v BastiaiH2) the head note reads:
"It is open to the Court, from lapse of time in conjunction withthe circumstances of the case, to presume that a possessionoriginally that of a co-owner has since become adverse.
It is a question of fact, wherever jong-continued exclusivepossession by one co-owner is proved to have existed,whether it is not just and reasonable in all the circumstancesof the case that the parties should be treated as though it hadbeen proved that that separate and exclusive possession hadbecome adverse at some date more than ten years before 290action brought."
Also in Hamidu Lebbe v Ganitha<3) the head note reads:
"Where a co-owner of land seeks to establish a prescriptivetitle against another by reason of long-continued exclusivepossession, it depends on the circumstances of each casewhether it is reasonable to presume an ouster from suchexclusive possession".
In Dias Abeysinghe v Dias Abeysinghe and Two Others^4) held:
“(i)That, where a co-owner erects a new building on thecommon land and remains in possession thereof for over ten 300years, he does not acquire a prescriptive right to the buildingand the soil on which it stands as against the other co-ownersmerely by such possession.
(ii) That where the co-owners are members of one family verystrong evidence of exclusive possession is necessary toestablish prescription.”
In Juliana Hamine v Don Thomastf5) held:
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In an action instituted under the Partition Act No.16 of 1951-
“That section 25 of the Act makes it obligatory onthe Court to scrutinize, quite independently of what the 310parties may or may not do, the title of each party beforeany share is allotted to him. Where a party fails toproduce his material documents of title, or omits toprove his title, the procedure prescribed in sections 20and 61 of the Act should be followed.
Held further, that when a witness giving evidence ofprescriptive possession states “I possessed” or “Wepossessed”, the Court should insist on those wordsbeing explained and exemplified”.
Applying the principles laid down in the aforesaid decisions to 320the facts of the instant action, I would hold that the contestingdefendants have failed to establish their claim based onprescription.
Another matter raised by the counsel for the 20th defendant-appellant is that the learned trial Judge has failed to investigatetitle of parties properly in that Milli Dissanayake and ThomasPerera got rights on deed No. 15807 marked P2 is patentlywrong. But he submits that this was the plaintiff-respondent'sevidence as well as the learned trial Judge's finding and that boththe evidence and the findings are clearly erroneous. Evidence of 330the plaintiff-respondent found on pages 108 and 109 of the brief isas follows:

Dissanayake v Dissanayake and others
(Somawansa, J.)
From the aforesaid evidence, it appears that possession of theplaintiff-respondent is that by deed No 15807 tvvo acres of land had 350been transferred to Milli Dissanayake and Thomas Perera andThomas Perera by deed No. 355 marked P4 transeferred 1 acre tothe 1st and 2nd defendants-respondents. However as per the saiddeed marked P2 it is seen that 2 acres had been transferred only toMilli Dissanayake. Hence the evidence and the finding that by virtueof deed marked P2 Thomas Perera also became entitled to a sharein the corpus is incorrect. However in terms of deed No. 355marked P4 by which the said Thomas Perera transferred his rightsto the 1 st and 2nd defendants-respondents it is to be noted that inthe 4th schedule to the said deed it is specifically stated that what 360he is transferring are the rights he inherited from his deceased wifeMilli Dissanayake. There is no reference in the said deed to anyrights the said Thomas Perera got from deed marked P2 .Thus it isto be seen that on the death of Milli Dissanayake, Thomas Pererawho was the husband of Milli Dissanayake became entitled to 1/2 ofthe rights of Milli Dissanayake and the balance 1/2 devolved on theirchildren who were the 1st to 6th defendants-respondents and oneRomanis Perera. Each became entitled to 1/7 share and 1/7 thshare of Romanis Perera was transferred to the plaintiff-respondentby deed No. 2328 marked P3 and the said Thomas Perera by deed 370marked P4 transferred his rights which he inherited from his wifeMilli Dissanayake to 1st and 2nd defendants-respondents who inaddition to 1/7 share they inherited from their mother also becameentitled to 2 roods. This is the basis on which the shares have beenallotted to the plaintiff-respondent and the 1st to 6th defendants-respondents. Not on the basis that Thomas Perera became entitledto 1 acre in terms of the deed marked P2.
Counsel for the 20th defendant-appellant again referred toanother instance where the learned trial Judge had failed to

The learned trial Judge in his Judgement says as follows atpage 167 of the brief;
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investigate title. He submits that by deed No. 30271 dated 23.05.49 380marked 7V8 Simon Dissanayake has executed a conditionaltransfer of his shares in favour of one Rosaline Kariyapperumawhich has not been redeemed and there is no evidence of itsredemption. Hence the subsequent purported transfer by SimonDissanayake by deed No. 34616 of 24.07.61 marked P7 passes notitle no the 8th and 9th defendants-respondents. Furthermore, hesubmits there is reference to a redemption of the said conditionaltransfer and Simon Dissanayake bases his title on the said deedNo. 15809 marked P6 bases his title on the said deed No. 15809marked P6.390
It is to be noted that during the argument counsel for theplaintiff-respondent sought to produce deed No. 2602? dated04.05.52 in order to show that the said conditional transfer hadbeen redeemed which was objected to by counsel for the 20thdefendant-appellant on the basis of violation of accepted standardsof fair procedure and contended that Court should not consider thesaid deed or attach any weight whatsoever to it and should rejectthe said deed totally out of consideration. If not for the objectiontaken by counsel for the 20th defendant-appellant this issue couldhave been laid to rest by examining the said deed. However it is to 400be seen that no issue has been raised on this point at the trialstage. Also the declaration under section 12 of the Partition Law,
No. 21 of 1977 has been filed and if any rights of the said RosalinKariyapperuma did exist at the time of the institution of the action,it would have certainly come to light and she would have beenadded as a party to the instant action. The relevant provision inSection 12 of the Partition Law is as follows;1
12.(1) “After a partition action is registered as a lis pendensunder the Registration of Documents Ordinance and after thereturn of the duplicate referred to in section 11, the plaintiff in 4iothe action shall file or cause to be filed in court a declarationunder the hand of an Attorney-at-law certifying that all suchentries in the register maintained under that Ordinance asrelate to the land –
constituting the subject matter of the action have beenpersonally inspected by that Attorney-at -law after theregistration-
Dissanayake v Dissanayake and others
(Somawansa, J.)__
of the action as a lis pendens, and containing a statement ofthe name of every person found upon the inspection of thoseentries –
to be a person whom the plaintiff is required by section 5 toinclude in the plaint as a party to the action and also, if anaddress of that person is registered in the aforesaid register,that address.
12.(2)(a) ‘if the aforesaid declaration discloses any personwho is not mentioned in the plaint as a party to the action butwho should be made such a party under section 5, anamended plaint including therein that person as a party to theaction, which amended plaint shall be deemed for all purposesto be the plaint in the action."
It was contended by the Counsel for the 20th defendant-appellant that the declaration under section 12 is no more than aprocedural step in the institution and prosecution of a partitioncase. The Court therefore in considering the evidence before itdoes not consider the matters stated in section 12 declaration andsection 12 declaration does not furnish conclusive proof of thematters stated therein. In the circumstances he contends thatextracts from the Land Registry should have been produced inorder to enable Court to effectively investigate title and that if thematerial for a proper investigation of title is not placed before Courtthe action should be dismissed.
Be that as it may, I do not agree that this action should bedismissed merely because the extract from the Land Registry havenot been produced. For in the circumstances I would rely on thesection 12 declaration. In any event, the 20th defendant-appellantis not prejudiced by non addition of Rosalin Kariyapperuma as aparty to the action for they do not claim any rights, title or interestfrom her but relies solely on prescriptive possession. Furthermore,deed No. 30271 dated 23.05.49 marked 7V8 had been in thecustody of the 7th defendant-appellant and it was the 20thdefendant-appellant who produced it at the trial. The fact thatSimon Dissanayake had executed a conditional transfer in favourof Rosalin Kariyapperuma Hamine was within the knowledge of the7th defendant-respondent as well as the 20th defendant-appellant.
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However as stated above they did not venture to raise an issue onthis point nor did they disclose the rights of the said RosalinKariyapperuma Hamine or take necessary steps to add her as anecessary party of the action. The only logical conclusion would bethat as disclosed by section 12 declaration she was not entitled toany rights in the corpus. Also the reason why the Notary who 460attested deed. No. 34616 marked P7 makes no mention of a deedof redemption may well be that the conditional transfer executed bydeed marked 7V8 had been redeemed.
I might also say that by producing the said deed No. 30271dated 23.05.49 marked 7V8 itself contradict the position taken bythe contesting defendants and the 20th defendant-appellant, thatAbraham and Serpinu were in exclusive possession of the corpusfor according to the said deed Simon Dissanayake and his motherRosanona were in possession of the corpus in 1949.
Another matter raised by the counsel for the 20th defendant- 470appellant is that the 11th to 15th defendants-respondents do notget any rights in the corpus because they have failed to prove thatthe 11th, 12th and 13th defendants-respondents and CharlotteNona (who was the mother of the 14th and 15th defendants-respondents) are the legitimate children of Serpinu Dissanayakeand the 10th defendant-respondent Rosaline Nona. The 12thdefendant-respondent gave evidence but did not produce his birthcertificate instead produced what is called a doubtful certificate ofage marked 12V 7 which serves no purpose but only valid forexamination and employment purposes nor were the birth 480certificates of the 11th, 13th defendants-respondents and ofCharlotte Nona produced. Also the marriage certificate of the 10thdefendant-appellant and Serpinu Dissanayake marked 12VI is ofno help because it only evidences their marriage on 23.12.77.
The learned District Judge fell into a grave error in acceptingthat the 11th,12th,13th defendants-respondents and CharlotteNona are the children of the 10th defendant Rosalin Nona, SerpinuDissanayake and awarding the 11th, 12th, 13th defendants-respondents and the 14th and 15th defendants-respondents whoare the children of Charlotte Nona shares in the corpus.490
Dissanayake v Dissanayake and others
(Somawansa, J.)
On an examination of the evidence, it is to be seen that theplaintiff-respondent in his evidence has accepted the fact that 11thto 15th defendants-respondents are the heirs of SerpinuDissanayake and 10th defendant-respondent and that all therelations, neighbours and the villagers accepted them as childrenof Serpinu Dissanayake. The 12th defendant-respondent stated inhis evidence that he along with the 11th, 13th defendants-respondents and Charlotte Nona are the children of Serpinu andthe 10th defendant. In addition, to the marriage certificate ofSerpinu Dissanayake and 10th defendant-respondent dated soo23.12.1977 which was marked 12V1, the 12th defendant-respondent also produced Electoral Register extracts for the years1966,1967, 1968,1970 and 1971 marked 12V2 to 12V6respectively. These documents would show that at least from 1966they were living together with the children in one house as a family.
As observed by the learned District Judge, it is quite possible thatSerpinu and Rosalin Nona did not register their marriage at thebeginning. However for reasons best known to them they have inthe year 1977 decided to register their marriage.
It is to be seen that 12th defendant-respondent has produced 510proceeding in two partition actions D.C. Gampaha case No.28232/P marked 12V8 and D.C.Gampaha case No.28233/Pmarked 12V9. These two partition cases dealt with adjoining landsand no party to the said two action denied that the 11th 13thdefendants-respondents and Charlotte Nona are heirs of SerpinuDissanayake and 11th to 15th defendants-respondents wereparties to both these actions. Though there was no contest and 7thdefendant-respondent was not a party to the said actions still theparties to the said two actions have accepted the 11th and 13thdefendants-respondents and Charlotte Nona as children of 520Serpinu. If as the 7th, 18th,19th,21st,and 22nd defendants-respondents and the 20th defendant-appellant that SerpinuDissanayake's rights devolved on them, they should haveintervened and set up their claims in the said two partition actions.
The 20th defendant-appellant in the course of his evidenceproduced a birth certificate of one Serpinu born in year 1930. Itappears that the 20th defendant-appellant produced the said birthcertificate in order to establish that the 10th defendant-respondentwas married to one Simon earlier. However as submitted by the
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counsel for the plaintiff-respondent in the marriage certificate of 53010th defendant-respondent and Serpinu Dissanayake dated23.12.1977 marked 12V1 the 10th defendant-respondents age isgiven as 55 years and when counting backwards she would havebeen born in the year 1922. Hence the 10th defendant-respondentwas only 8 years in the year 1930 and could not have given birth toa child. On the other hand, age of the 10th defendant-respondentgiven in 12V1 tallies with the age of 11th, 12th, and 13thdefendants-respondents as stated by 12th defendant-respondent.
At this point it would be relevant to refer to section 50 of theEvidence Ordinance which reads as follows;540
"When the Court has to form an opinion as to the relationshipof person to another, the opinion, expressed by conduct, as to theexistence of such relationship of any person who as a member ofthe family or otherwise, has special means of knowledge on thesubject, is a relevant fact:
Illustration (a) the question is, whether A and B were married.
The fact that they were usually received and treated by theirfriends as husband and wife is relevant.
(b) The question is, whether A was the legitimate son of B.
The fact that A was always treated as such by members 550of the family is relevant,"
In the circumstances,it appears that the 11 th to 15th defendants-respondents have established the fact that they are the legal heirsof Serpinu. On an examination of the evidence and the judgment ofthe learned District Judge it appears to me, that the learned DistrictJudge has on a balance of probability come to a correct finding.Accordingly. I see no basis to interfere with the judgement of thelearned District Judge. The appeal will stand dismissed with costsfixed at Rs. 5000/-
MS. EKANAYAKE, J. – I agree.
Application dismissed.