EDIRISURIYA V. JAYAWARDENE AND ANOTHER

029-SLLR-SLLR-1995-2-EDIRISURIYA-V.-JAYAWARDENE-AND-ANOTHER.pdf


144
Sri Lanka Law Reports
[1995] 2 Sri LR.
EDIRISURIYA
v.
JAYAWARDENE AND ANOTHER
COURT OF APPEAL.
WEERASEKERAJ.,
GREROJ..
A. 243/79 (F)
C. HAMBANTOTA 473/L
MAY 10, 1994 AND JULY 12,1994
Possessory Action – Possession for a Year and a Day – Ouster – Predecessor’spossession – Tack on – Evaluation of evidence.
The plaintiff Appellant instituted possessory action against the Defendant -Respondents. The Defendants denied that they were in unlawful possession. TheLearned District Judge dismissed the plaintiff’s action, on the basis that, theplaintiffs possession was one of 'rare possession' or 'occasional possession' andnot undisturbed possession.
Held:
The plaintiff need not himself have been in possession for the whole of theperiod of one year, and one day, he can be permitted to "tack on" [i.e.to tag] hispredecessors possession to the period of his own possession.
CA
Edirisuriya v. Jayawardene and Another (Dr. Ananda Grero, J.)
145
In the circumstances of this case, the possession of the plaintiffs fatheraccrues to the benefit of the plaintiff Appellant, therefore his father's possessioncan also be added to his possession of the subject matter.
There was no proper evaluation of the Evidence led.
Appeal from the Judgement of the District Court of Hambantota.
Cases referred to:
Silva v. Appuhamy- 15 NLR 297
Raymond v. Wijewardane – 40 NLR 307
A. A. de Silva for Appellant
Defendants-Respondents absent and unrepresented.
Cur. adv. vult.
October 31, 1994.
DR. ANANDA GRERO J.,
The plaintiff-appellant instituted a possessory action against the1st and the 2nd defendant-respondents and claimed the reliefsprayed in the plaint. The subject matter of this action is a land calledPalugahawatta Lot No.445, which is morefully described in theschedule to the plaint. According to the plaint, the defendant-respondents are in unlawful possession of the said subject mattersince 1.12.1975.
The defendant-respondents denied that they were in unlawfulpossession of this subject matter and prayed that the plaintiff-appellant’s action be dismissed.
After trial the Learned District Judge by his judgment dated21.5.79 dismissed the plaintiff-appellant’s action with costs. Thisappeal is preferred to this Court against the aforesaid judgment.
When this matter was taken up for argument, the defendant-respondents were absent and unrepresented, although they werenoticed of the hearing of the appeal.
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A perusal of the judgment of the Learned District Judge revealsthat he was satisfied with the title of the plaintiff-appellant to the landin question; but was not satisfied with his possession of the land asrequired in a possessory action. After considering the evidence ledbefore him he comes to the finding that the plaintiff-appellant’spossession was one of “rare possession" or “occasional possession”and not undisturbed possession. Having held so, he dismissed theplaintiff-appellant’s action.
An examination of the judgment of the Learned District Judgereveals, that this action being a “possessory action” he anticipatedthe plaintiff-appellant to establish possession for a year and a daybefore ouster. According to his findings he has failed to establish so,and therefore he decided to dismiss the plaintiff-appellant’s action.
The Learned Counsel for the plaintiff-appellant contended that theLearned District Judge -has failed to evaluate properly the evidenceplaced before him regarding the possession of the plaintiff- appellant.According to him, there is sufficient evidence to show that theplaintiff-appellant possessed the subject matter for more than therequisite period, and the fact that his father possessed it up to hisdeath in the year 1974, further strengthened the plaintiff’s case.
He further contended that the Learned District Judge’s finding thatthe possession of the plaintiff-appellant was “now and then” was dueto the reasons that he was not living on the land, his visits to the landwere infrequent, he plucked coconuts occasionally, the defendantscultivated maize, and outsiders plucked coconuts could not bejustified in view of the possession of the plaintiff-appellant up to
12.75, when for the 1st time the defendant-respondents cut theboundary fence and claimed title to it.
It appears that the Learned District Judge has placed muchreliance on witness Saranasinghe Edirisuriya, who gave evidence onbehalf of the plaintiff-appellant to come to the finding that the latterdid not possess the land; but it was the defendants who possessedthe land by cultivating maize. A careful scrutiny of Saranasinghe'sevidence reveals,that till 1974, the plaintiff's father one Edirisuriya hadpossessed the subject matter, and it was he who plucked coconuts.
CA
Edirisuriya v. Jayawardene and Another (Dr. Ananda Grero, J.)
147
There were altogether 10 or 11 coconut trees on the land and he(witness) had used his cart to take the nuts to the plaintiff’s father’shouse. His evidence also disclosed that after the death of Edirisuriya,the plaintiff plucked the nuts. His evidence further revealed that thisland is used as a threashing floor (sbSss) and it was in the possessionof the plaintiff-appellant. Even this witness had used it with theplaintiff’s permission. There is evidence to show that other cultivatorstoo used this threashing floor with the permission of the plaintiff.
Witness Saranasinghe’s evidence further disclosed that those whoused the threashing floor and even thieves used to pluck coconuts.ltwas also revealed that the defendants cultivated maize during theyears 1971, 1972 or 1973. He had specifically stated that this couldhave been done with the permission of plaintiff’s farther Edirisuriya. Itis to be noted that Edirisuriya was living at that time and he wastaking the produce of the land.
I am of the view that if the Learned District Judge had a properevaluation of the evidence of witness Saranasinghe he could nothave come to the finding that his evidence established that thedefendants were in possession of this land, and not the plaintiff -appellant. On the contrary his evidence supports the plaintiff’s case.The fact that thieves and those who used the threashing floorplucked coconuts at times would not in anyway affect the plaintiff'spossession. It is to be noted that he was not living on this land; butliving half a mile away from it, and in such circumstances, occasionalplucking of nuts by others without his permission does not affect hispossession.
Professor G. L. Pieris in his book Law of Property, Volume I, atpage 288 states as follows:
“In terms of the development of the law , it is necessary to note forthe sake of completeness that even the decisions which considerpossession for a period of a year and a day essential, make theconcession that the plaintiff need not himself have been inpossession for the whole of this period, but that he can be permittedto “tack on"[i.e. to tag] his predecessor’s possession to the period ofhis own possession." This principle was unhesitatingly applied by
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Lascelles C.J. and Wood Renton J in Silva v. Appuhamy "> and byAbrahams C.J. and Fernando J in Raymond v. WijewardaneP
Thus based on the aforesaid decisions the possession of theplaintiff’s father till 1974, accrues to the benefit of the plaintiff-appellant, in that his father’s possession can also be added to hispossession of the subject matter of this action.
It appears that the Learned District Judge has not placed muchreliance on witness David, who gave evidence on behalf of theplaintiff-appellant. The reason is that he was the tenant cultivator ofthe plaintiff-appellant. The mere fact that he was the plaintiff's tenantcultivator does not by itself pave the way not to place much relianceon him, unless his evidence was so unsatisfactory. A perusal of theevidence of witness David reveals that satisfactory evidence hasbeen given by him which corroborates the evidence of the plaintiff toa greater degree.
According to the plaintiff’s evidence the dispute arose with thecutting of the boundary fence on the eastern boundary by thedefendant-respondents. This according to him had taken place on orabout 1st December 1975. He had made a complaint to the GramaSevaka of the area on 28.12.75. He had visited the land and astatement was recorded from the 2nd defendant-respondent who hadadmitted that they cut the fence which was put up by them. He hadseen some Sooriya stumps that were part of the fence beingburnt.The complaint made by the plaintiff to the Grama Sevaka, P3,reveals that the eastern boundary fence has been cut by thedefendants and the land in question has been encroached by themto their land which is on the eastern side of the subject matter.
The evidence of Grama Sevaka clearly reveals that there was anold fence on the eastern boundary of the land in question and thathas been cut recently. There had been a few manioc plants 2 to 3months old. The Learned District Judge referring to the evidence ofGrama Sevaka regarding the aforesaid manioc plants states, that thisevidence corroborates the evidence of the 1st defendant who alsosaid that he raised a manioc plantation after clearing this land.
CAEdirisuriya v. Jayawardene and Another (Dr. Ananda Grero, J.)149
Even assuming that he had raised the said plantation three monthsprior to 28.12.75, yet the plaintiff’s possession is more than an yearand a day when the possession of his father is added to hispossession. The Learned District Judge has failed to take intoaccount the plaintiff’s father's possession of the land up to 1974.
It appears from the evidence of the 1st defendant that this landhas been purchased by them on 4.3.75 from one Charlie Edirisuriya.It is after this purchase they have cut the eastern boundary fence ofthe land and tagged on to their land which is situated towards theeastern boundary of the subject matter. The Learned District Judgehas come to a finding that the defendant’s deed does not pass anytitle to this land although it is not necessary to go into the question oftitle in a possessory action.
There is overwhelming evidence that this land is used as athreashing floor and there are only a few coconut trees. As and whenthe plaintiff desired to pluck nuts, he had done so. Though he wasnot living on this land he had not given up possession. There isevidence that this threashing floor was in his possession and farmerswith his permission used it during the harvesting seasons. Althoughhe had not visited this land daily, occasionally he did so and whenthe defendants cut the boundary fence, he had made a complaint tothe Grama Sevaka of the area, and further this action was institutedon 24.6.76 within one year of his ouster.
I am of the view that when a proper evaluation of the entireevidence is made, the finding that one could arrive at is that on abalance of probability the plaintiff-appellant has proved his case. Ifsuch an evaluation was done, I am of the view that the LearnedDistrict Judge would have arrived at the finding that the plaintiff-appellant is entitled to succeed in his action.
For the aforesaid reasons, I set aside the judgment of the LearnedDistrict Judge dated 21.5.79 and enter Judgment in favour of theplaintiff-appellant as prayed for in the plaint.
WEERASEKERA, J. – I agree.
Appeal allowed.