023-SLLR-SLLR-1987-1-DONA-CECILIA-v.-CECILIA-PERERA-AND-OTHERS.pdf
DONA CECILIA
v.CECILIA PERERA AND OTHERS
SUPREME COURT.
WANASUNDERA. J., L. H. DE ALWIS, J. AND SENEVIRATNE, J.
S.C. APPEAL No. 3/86.
C. A. APPEAL No. 239/78{F).
NOVEMBER 20. 1986.
Partition Action-Amicable division-Possession of divided lots-Prescription.
Where a land is divided with the consent of all the co-owners but no cross conveyancesare executed in respect of the lots, co-ownership terminates only after undisturbed,uninterrupted and exclusive possession of the divided lots for a period of over ten years.
Where a land was divided in the presence of all the co-owners who acquiesced in thedivision and possessed their divided lots exclusively taking the produce thereofeverything points to an intention to partition the land permanently and not just forconvenience of possession and although the plan of division was not signed by theco-owners and no cross conveyances were executed, with ten years of suchpossession the co-owners would acquire prescriptive title to their respective lots. Thesuccessor to a co-owner could tack on the period of possession of his predecessor inproving his prescriptive title.
Cases referred to:
Githohamy v. Karanagoda – (1954) 56 NLR 250.
Dias v. Dias – (1959) 61 NLR 116.
Simpson v. Omeru Lebbe – (1947) 48 NLR 112.
Carolisappu v. Anagihamy – (1949) 51 NLR 355.
APPEAL from judgment of the Court of Appeal.
D. R. P. Goonetilleke with K. S. Tillekeratne and Nihal Perera for plaintiff-appellant.
T. B. Dissanayake. P.C. with Bimal Rajapakse and Piyatissa Abeykoon for 2, 3. 5 and 6defendant-respondents.
January 22, 1 £87.
L. H. DE ALWIS, J.
The plaintiff-appellant instituted this action to partition 2/3 part of aland called Pelakelle and 1/8 part of Uskelle of Kongahawattedepicted as Lots A, B & C in Plan No. 749 made by LicensedSurveyor, C. C. Wickremasinghe, on 22.6.68, marked X.
The plaintiff filed plaint on the basis that she was entitled to anundivided 80/120 share of the land and the 1st defendant to thebalance 40/120 share. The 2nd and 3rd defendants were madeparties to the action since they were in possession of a portion of theland. They filed a statement of claim claiming title to a divided portionof the land towards the west (which is depicted as Lot A in Plan X) andstated that they had gifted it to the 5th and 6th defendants on DeedNo. 31492 of 28.8.57 (2D6). The 5th and 6th defendants filedstatement of claim setting out their title to Lot A in Plan X on deedsand by prescriptive possession. The 8th defendant filed statement ofclaim, claiming Lot C in Plan X, on the title pleaded therein.
The position taken up by the 2nd and 3rd defendants was that theland was possessed in divided lots and the plaintiff's action for itspartition therefore must be dismissed. The 5th and 6th defendantsand the 8th defendant prayed that lots A & C which they respectivelypossessed should be excluded from the corpus.
The 5th, 6th and 8th contesting defendants, raised points ofcontest on these lines. The learned trial judge answered the issues intheir favour and heid that lots A & C should be excluded from thecorpus in favour of the 5th & 6th defendants and the 8th defendantrespectively.
The 1st defendant, who is the aunt of the plaintiff did not file astatement of claim and tacitly accepted the shares in the land allottedto her by the plaintiff according to the devolution of title pleaded in theplaint. A point of contest was raised by the plaintiff in regard to theprescriptive rights of parties, and the learned trial judge in answering itheld that the 8th defendant, the 5th & 6th defendants and the 1stdefendant had prescribed to their lots in the land, that is, to lots C, A &B respectively. In the result he held that the plaintiff had no rights in thecorpus depicted in Plan X and dismissed her action. It is from thisjudgment that the plaintiff now appeals with the special leave of thiscourt.
After the appeal was filed in the Court of Appeal on 13.9.78 the 1 stdefendant died on 21.10.78 and the appellant filed papers in theCourt of Appeal for the substitution of her name as legalrepresentative in the place of the 1 st defendant and the applicationwas allowed. The caption to the petition of appeal in the Court ofAppeal and in this court, however, has not been amended accordingly.The amendment is now made.
The contesting defendants claim that the corpus was amicablydivided among the co-owners in 1935 and Plan No. 161 (2D5) wasmade on 15.2.1935 giving effect to the partition. According to themthe land was divided into lots A, B & C. Lot A was allotted to the 2nd& 3rd defendants, Lot B to Jeramias and Lot C to Isabella and Ceciliya,who are the predecessors in title to the 8th defendant.
In regard to Lot C the plaintiff had agreed to exclude Lot C from thecorpus when the case was first taken up for trial. But when it wascommenced de novo, she made no such concession and points ofcontest were raised as to whether the plaintiff had earlier agreed to itsexclusion and if so, whether she could now include it in the corpus shesought to partition. A further point of contest was also raised as towhether the 8th defendant, on her deeds possessed Lot C as aseparate land. All these points of contest were answered in favour ofthe 8th defendant who was declared entitled to Lot C.
The 2nd and 3rd defendants claimed title to an undivided extent of76/150 of Kongahawatte on Deed(256 of 2.2.33(2D4). That wastwo years before the amicable partition on Plan 2D5. In the trial courtthis deed was attacked as a forgery but the learned District Judge heldit was not. At the hearing of the appeal learned counsel for appellant
stated that he was not challenging the genuineness of the Deed. The2nd and 3rd defendants have gifted their rights in the land to the 5thand 6th defendants on Deed No. 31492 of 28.8.1957 (2D6). In thatdeed the land is described as Lot A in Plan 161 of 19.2.35(2D5).
The contesting defendants therefore took up the position that theland was amicably divided in 1935 after the death of theirpredecessor in title, Anthony Perera. Thereafter their predecessors intitle fenced off their respective lots and possessed themindependently, and exclusively and took the produce of the land. Thelearned trial judge has accepted their evidence in regard to theirpossession.
The plaintiff had purchased interests in the land only in 1960 andknew very little about it. She admitted that she knew nothing about therights of the other co-owners, except her own. Her witnesses also hadnot much knowledge of the land and the trial judge was of the viewthat their evidence could not be accepted. These findings of fact werenot canvassed in this court.
The only matter argued before us was that there was no proof of anamicable division of the land in 1935 as depicted in Plan 2D5. It wassubmitted that all the co-owners at the time had not signed the plansignifying their consent to the division of the land into the lots A, B &C. The case of Githohamy v. Karanagoda (1) was strongly relied on bylearned counsel for the appellant. There it was held that a plan madeat the instance of a co-owner purporting to cause a division of thecommon land of which the other co-owners apparently had no noticedoes not form the basis of divided possession. Exclusive possessionon the footing of such a plan does not terminate the co-ownership ofthe land, and no presumption of an ouster can be inferred from suchpossession. When a land is amicably partitioned among co-owners itis usual to execute cross deeds among themselves or at least theco-owners should sign the plan of partition.
In that case apart from the plan, there was no evidence to show thatthe land was in fact partitioned on the occasion the plan wasprepared. There was also no evidence that all the co-owners hadacquiesced in the preparation of the plan, nor were aware of itspreparation. Besides, the evidence of exclusive possession led in thecase was insufficient to establish a prescriptive title in the co-owners
to their several lots. Learned counsel also cited the case of Dias v.Dias (2), which held that where a co-owner conveys his interest byreference to a particular portion or koratuwa of which.he has been in 'possession the deed can be considered as effective in law to conveyhis undivided interest in the whole land. But in that case the divisiontook place without the knowledge of all the co-owners.
Separate possession on grounds of convenience cannot beregarded as adverse possession for the purpose of establishingprescriptive title. In Simpson v. Omeru Lebbe (3) relied upon bycounsel for the appellant, there was no documentary evidence of anydivision of the land as in the present case, and in those circumstancesvery clear and strong evidence of an ouster and of adverse possessionwas called for. In the present case on the other hand, according to the3rd defendant all the co-owners of the land were present at the timethe plan was made. They were herself and her husband Jusey,Isabella, Ushettige Cecilia Perera and Theodorisa. The 3rd defendantand her husband were allotted Lot A, Jeramias Lot B and others Lot C.The plaintiff's vendors on P1 were not called to testify to the contrary.The learned trial judge has accepted the 3rd defendant's evidence andfound that there was an amicable division of the land in 1935. Thatfinding has not been disturbed by the Court of Appeal. After thedivision, live fences were erected along the boundaries separating onelot from the other. At the time the preliminary plan X was prepared in ’1968, the Surveyor found fences separating the lots and has depictedthem in the plan. This evidence has been accepted by the learned trialjudge. Although the Plan 2D5 was not signed by the co-owners theevidence clearly showed that they were present and were aware of thedivision of the land and acquiesced in it. Thereafter they hadpossessed their divided lots exclusively and had taken the produce.Everything pointed to an intention on their part to partition the landpermanently and not just for convenience of possession.
Where a land is divided with the consent of all the co-owners but nocross conveyances are executed in respect of the lots, co-ownershipterminates only after undisturbed, uninterrupted and exclusivepossession of the divided lots for a period of over ten years.
The 2nd and 3rd defendants who were allotted Lot A in Plan 2D5on the amicable division in 1935 possessed it and gifted it to theirdaughter the 5D and hfer husband 6D in August 1957 on Deed 2D6.This action was filed by the plaintiff to partition the land in June 1966.
Learned counsel therefore submitted that the 5th and 6th defendantswho became owners of Lot A in 1957 have not had ten yearspossession of Lot A in order to establish a prescriptive title to it. Buttheir transferors, the 2nd and 3rd defendants had been in possessionof the divided Lot A from the time of the amicable partition in 1935 till1957 and it is open to the 5th and 6th defendants to rely on thepossession of the persons from whom they derived title in order toestablish a prescriptive title to the land. In Carolisappu v. Anagihamy(4) it was held that the period of possession of an intestate person canbe tacked on to the possession of his heirs for the purpose ofcomputing the period of ten years required to acquire prescriptive titleunder section 3 of the Prescription Ordinance.
In the present case the 5th and 6th defendants and theirpredecessors in title have been in exclusive possession of Lot A from1935, that is, for over a period of over 30 years before action wasfiled and have acquired a prescriptive title to that lot. The learned trialJudge accordingly held that Lot A was a divided portion of the landand that the 5th and 6th defendants have prescribed to it. This findinghas been rightly affirmed by the Court of Appeal.
The finding of the learned District Judge that the 8th defendant isentitled to Lot C was not challenged at the hearing. In fact at thepreliminary survey the plaintiff, according to the Surveyor's Report 'X',admitted that Lot C belonged to the 8th defendant, and at the trial hadno objection to it being allotted to the 8th defendant. This concession' by the plaintiff is tantamount to an acknowledgment of the amicabledivision in 1935. Lot C was therefore rightly excluded from thecorpus, as being a separate lot belonging to the 8th defendant.
As regards Lot B the learned trial judge in answering issue No. 4relating to the prescriptive rights of parties, has held that the 1stdefendant had prescribed to Lot B. But it does not appear from thejudgment that he has scrutinized the evidence with a view toascertaining whether the 1 st defendant has prescribed to Lot B.Indeed there, is no evidence to support the Judge's finding except theSurveyor's Report 'X1' which shows that the 1st defendant was inpossession of Lot B at the time of the survey in 1968, that is, afteraction had been filed. But as to when she entered into possession ofLot B, there is no evidence
At the amicable division of the land in 1935, Lot B was allotted toJeramias, who possessed it until he transferred his rights to theplaintiff on 15.2.1960 by Deed No. 1041 (P1). Isabella who also hadinterests in the land joined in the transfer P1. As Jeramias was inpossession of Lot B until he transferred his rights to the plaintiff on P1,the 1 st defendant could not have commenced possessing it before1960. Since action was filed in 1 966, she could not have acquired aprescriptive title to it. The learned judge has thus erred in holding thatthe 1st defendant has prescribed to Lot B. The 1st defendant did notfile a statement of claim contesting the plaintiff's claim nor did sheparticipate in the trial. She was prepared to accept the share alloted toher by the plaintiff. In the plaint, the plaintiff claimed an 80/120 or a2/3 share of the entire land on P1 and conceded a 40/120 or a 1/3share to the 1 st defendant. Now that lots A & C have been excludedfrom the corpus, there remains only Lot B to be partitioned. Theplaintiff and the 1st defendant, therefore will be entitled to theirrespective shares in Lot B only.
Point of contest No. 4 must now be amended to read as follows:
"The 5th and 6th defendants have prescribed to Lot A the 8thdefendant to Lot C, and the plaintiff and the 1st defendant areentitled to rights in Lot B. Issue No. 2 consequently should beconfined to Lot B in Plan 749 and answered in the affirmative."
I set aside the judgment of the Court of Appeal and direct thatinterlocutory decree for the partition of Lot B only in Plan X be enteredaccording to the shares allotted to the plaintiff and the 1 st defendantin the plaint. The plaintiff will be entitled to costs of partition and thesurveys pro rata from the 1 st defendant.
The plaintiff however will pay each set of contesting defendants,namely, the 5th and 6th defendants, and the 8th defendant nominalcosts of contest in the District Court fixed at Rs. 210, costs in theCourt of Appeal fixed at Rs. 315 and costs in this Court fixed atRs. 420.
The appeal is allowed subject to this variation.
WANASUNDERA, J.-l agree.
SENEVIRATNE, J.-l agree.
Appeal allowed.