114-NLR-NLR-V-02-EMANIS-v.-SADAPPU-et-al.pdf
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EMANIS v. SADAPPU et al.D. C„ Chile, 2,758.
1898.
June 28.
1897.
February 2,
Prescription—Adverse possession of land—Effect of abortive action forrecovery of such land—Interruption of possession—Roman-DutchLaw as to adverse possession—■Ordinance No. 8 of 1834, s. 2, andOrdinance No. 22 of 1871, s. 3—Effect of unanimous decisionof Collective Court.
Held, by Lawbie and Withers, J.J., following the decision inVnambuwe v. Janohamy (2 G. L. R. 103), that an action for therecovery of land, which had ended in a nonsuit Or other decreeagainst the plaintiff, was not such an interruption of the defendant’sadverse possession of the land as disentitled him to a decree in hisfavour in terms of section 2 of Ordinance No. 8 of 1834, or section 3of Ordinance No. 22 of 1871, in a subsequent action against himfor the same land by the same plaintiff.
Per Bonser, C.J.—-A solemn and unanimous decision of theSupreme Court in its collective capacity on a question of law mustbe treated as a binding authority in all subsequent cases. Evenif the Court as constituted at a later date was unanimouslyof opinion that the original decision was wrong, it would be out ofits power to alter the law as there laid down. That can only bedone by the Privy Council altering such decision, or by an enact*ment of the Legislative Council.
rpHE facts of the case appear in the judgment.
Domhorst, for appellant.
Wendt and Sampayo, for respondent.
2nd Feburary, 1897. Bonser, C.J.—
In this case, which raises a serious question as to the authorityof decisions of the Collective Court, I have the misfortune to differfrom the rest of the Court. That question may be shortly statedthus: Is a solemn and unanimous decision of the Collective Courton a question of law delivered in 1862—a decision which followedprevious decisions of this Court—to be treated as a binding authorityor not ?
Jt is obvious that if this question is to be answered in the negative,it will be impossible in the future to regard any question of lawas finally settled. The result will be that the law, which isproverbially uncertain, will be rendered more uncertain still, andthe passion for litigation, which is one of the curses of this Island,will be fostered. Cases will be instituted and appeals taken onthe chance that the Court will be induced to refuse to follow itsforpier decisions.
Cur. adv. wit.
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1896.June 26.
1897.
February 2.
Bowser, C. J.
The appellant m this case was the defendant in an action reivindicatio, and he appeals against a decision of Mr. Moysey, ActingDistrict judge of Galle, who gave judgment for the plaintiff,overruling the appellant’s plea under Ordinance No. 22 of 1871of ten years’ undisturbed possession.
It appears that the plaintiff had brought a previous actionwithin the ten years, which ended in a nonsuit.
The Acting District Judge held that the possession was therebydisturbed, and the Ordinance prevented from running. In soholding he followed a long chain of authority, which I will shortlystate.
Marshall, C.J., in his valuable treatise published in 1839 underthe title of Judgments of the Supreme Court of Ceylon from 1stOctober, 1833, to March, 1836,* commenting on Ordinance No. 8 of1834, which, so far as is material to the present case, is identical -with Ordinance No. 22 of 1871, thus states his view of the law
“ The question to be asked would seem to be this: Can the“ possession under which the party claims be considered to have“ been undisturbed and uninterrupted by the assertion of other“ claims for the space of ten years ?” And he goes on to say thatwhen Chief Justice he was of opinion that the presenting a peti-tion to the Judicial Commissioner of Kandy (the usual mode ofcommencing actions in that Court) respecting the land in disputewas sufficient to bar a title by prescription.
This opinion of Marshall, C.J., was adopted by Carr, C.J., andTemple, J., in 1854, in the case of Medankara Unanse v. Ecdi-gomua Unanse (D. C., Kurunegala, 12,911 ; Ram. 1843-1855, p. 54).The Court, in delivering judgment, said: “ It has been urged by“ the appellant’s counsel that the defendant (appellant) had a“ prescriptive title from adverse possession for ten years previous“ to the bringing of this case, which was a new action, and not“ a continuance of the' former one. This Court has held, where“ the possession under which a party claims a prescriptive title“ has ineffectually been contested, that this contest would neverthe-“ less be an interruption or disturbance to defeat the claim of“ prescription,” and they sum up the law as follows : “ It is essential“to a title by prescription that the party claiming should have“ for ten years previous to the bringing of the action held the“ peaceable and continued possession without any interruption“ by the true owner, without any acknowledgment by him in“ possession of that person being the owner, and without any“ suit having been instituted agatinst him.”
Page 525.
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On 11th December, 1856, the same two Judges, in case No. 83from the Court of Bequests of Chavakachch&i,* reversed thedecision of the Commissioner mid followed their previous decisiongiving judgment in the following terms: “ It has been decided" by the Supreme Court that ten years’ possession will not give a“ prescriptive title to the land if there has been a suit during“ the period to contest the possessor’s right, although such suit“ may have been discontinued.”
In 1862, in the case of Canepady v. Vatty, D. C., Jaffna, 960,fthe judgment of the Collective Court—Creasy, C.J., Sterlingand Temple, J.J.—was delivered in the following terms : “ The“ Supreme Court held in a. case from Kurunegala (12,911, decided“ 19th July, 1854) that a former suit, although nonsuit, is a bar to“ the Prescriptive Ordinance, and therefore considers the oase“ No. 1,699 by the plaintiff against defendant a bar to defendant’s“ prescription.” True it is that Creasy, C.J., added an expressionof his doubt as to the correctness of the original decision.
The facts, however, that so eminent and learned a Judge asCreasy, C.J., although he doubted, did not venture to differ, butconcurred in the judgment of the Court, shows that he thoughtthat the rule was too firmly established to be shaken, and there-fore is a much stronger authority for the existence of the rulethan if he had merely concurred with the rest of the Court.
Mr. Justice Thomson, in his Institutes of ike Laws of Ceylon,published in 1866, treats the law as settled by these decisions(2 Inst. 18?).
In 1877 this Court again affirmed its former decision in a caseon appeal from the District Court of Galle, No. 37,7054 Thatcase was instituted in 1875 to recover a garden.
The plaintiff had brought an action for the same land in 1860,which ended in a nonsuit in 1869. The District Judge held thatthe defendant had acquired a title by prescription, having been inpossession since 1860, but Clarence and Dias, J.J., reversed thatdecision in these terms:—“ This Court has repeatedly held that“ the institution of a suit is an interruption (No. 12,911, D. C.,
“ Kurunegala, 19th July, 1854).”,
The law thus laid down seems never to have been again in questionuntil the unfortunate decision of this Court in 1892, in thecase of Unambuwe v. Janokamy (2 C. L. B. 106). I say unfortunate,because it was obviously based on a mistake,' as has beenpointed out by my brother Withers, who was a party to it,
* Nell’s C. B. Cases, p. 253. f Bam. 1862, p. 189. f Bam. 1877, p. 133.
1806.
June 26.
1807,
February 2.Bomber C.J.
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1896.
June 26.1867.
February 2.Bonseb.C.J.
and who has expressed his surprise that no one called attention tothe error at the time the judgment was delivered. It is still moresurprising that any editor of Law Reports should have reported thecase. The greatest Judges are liable to err, and Lord Campbell, who,when at the bar, reported in the Court of King’s Bench, which atthat time was presided over by Lord Ellenborough, one ofthe most eminent of the Judges who have occupied the positionof Lord Chief Justice of England, used to say that he hada- drawer full of Lord Ellenborough’s bad law. It is no disrespectto the two Judges who decided the appeal in Unambuwe v. Jano-hamy to say that a judicious reporter would have kept this decisionof theirs in his drawer. It does not appear, however, to havedone much harm, for in the present case the Acting District Judge,recognizing, as any one who read the report with care wouldrecognize, that it was a slip, declined to follow it. And, indeed,my brother Withers in a more recent case (Siman Appu v. ChristianAppu, 1 N. L. R. 288) is reported to have stated without anyqualification that possession is disturbed by an action intendedto remove the possessor from the land—a proposition which is inaccordance with the law as laid down by the previous decisions ofthis Court.
I have not discussed the question as to what our decision wouldbe if the matter were res integra, for such a discussion would, inthe view I take of the effect of those decisions of this Court towhich I have referred, be a fruitless and barren one. If it werenecessary to express an opinion on this point, I should be contentto adopt the view of my brother Withers, whose knowledge ofRomani Dutch Law is so much greater than mine. But in myopinion this question is not open; even if the Court as at presentconstituted was unanimously of opinion that the original decisionwas wrong, it would, I conceive, be out of our power to alter thelaw as laid down by our predecessors.. That can only be done by-the Privy Council reversing those decisions, or by an enactmentof the Legislative Conncil.
Law m k, J.—
I follow the latest decision of this Court on the question, “ What“ constituties an interruption of prescription,” that pronouncedon 13th September, 1892, in the Kandy District Court case, 4,646(reported in 2 C. L. R. 103).
To overrule that decision and to return to the decisions, whichit overruled would be confusing t‘o the public and to the profession,and I could not revert to the former decisions because, asI said when I decided D. C., Kandy, 4,646, I think that
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they were wrong, and that opinion I gave effect to in February, 1896,in a .judgment reported in 1 N.L. R. 288. The older decisions restedon the Dutch Law of Prescription, but it was decided in 1870, inD. C., Colombo, 1,245, and in 1871 in D. C., Galle, 30,015, that theDutch Law of Prescription was abolished by the Ordinances of 1822,1834, and 1871, and that the sole authority in the chapter of lawwas the Ordinance. The decisions as to interruption founded onthe Roman-Dutch Law then ceased to have any weight. We mustconstrue the Ordinances apart from the Dutch Law.
What is undisturbed and uninterrupted possession ? It isdefined in the Ordinance itself: it is a possession unaccompaniedby payment of rent or produce or performance of service or duty,or by any other act by the possessor from which an acknowledg-ment of a right existing in another person would fairly and naturallybe inferred. In the present case the defendant has possessed thelands for more than ten years. He has paid no rent, no produce,nor has he performed any service or duty, nor has he, either inCourt or anywhere else, done any act from which an acknowledg-ment of a right in the plaintiff could fairly and naturally be inferred.
Here the actual possession of the defendant has not been inter*rupted, it has been continuous. He has been twice sued in theDistrict Court by the plaintiff for the recovery of the lands. Inboth actions the plaintiff was nonsuited. His possession hastherefore been proved to have been on a title adverse to orindependent of the plaintiff.
When an action to recover lands is brought against a man inpossession, the currency of that possession in law, though not infact, is arrested so long as the action is pending.
If the plaintiff be unsuccessful, if the action ends by a decreeagainst him or in a nonsuit, then the defendant is in the sameposition as if the action had never been brought—his actualpossession has not been interrupted, the claim on which legalinterruption was founded has not been sustained.
For these reasons I agree with my brother Withers, that thedecree in favour of the plaintiff must be set aside and the actiondismissed with costs.
Withers, J.-^-
ii*
This is an ordinary action rem vindicare. The defendants arein possession of a field called Motamulla, answering to lots A 1, 2,3, 4, Vhich are delineated in the plan filed with the plaint.
1896.
June 26.
1867.
February 2tLa w lilii, J .
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1896.
June 26.
1897.
February 2.Withers, J,
The plaintiff claims to be the owner of this field, and he asks tobe declared the owner of it and to have the field taken over fromthe defendants and given to him.
This field has been the subject of a similar action between theparties or their predecessors in title.
In January, 1883, the present plaintiff joined with his allegedco-heirs in an action to vindicate this field from the present firstdefendant and two others, who, according to the libel, had takenunlawful possession of the same in the latter part of the year 1882.The plaintiffs succeeded in the Court below, but the judgmentin their favour was set aside in appeal, and this Court decreedthat the plaintiffs should be nonsuited on the ground that theevidence of their possession of the disputed field was altogetherinadequate in competition with a Crown grant.
In July, 1886, the same plaintiff and one Dowege Eronis Appujoined in a similar action to the last against the same defendantsto recover what I shall assume is the same land as that in theformer action and as this in the now pending appeal.
By a judgment of the District Court of Galle in November, 1887,the plaintiffs were once more nonsuited. No appeal was takenfrom that judgment.
In April, 1894, the first plaintiff in the former action havingbought up the shares claimed by his alleged co-owner of theproperty, instituted the present action against the first and thirddefendants in the former action to recover the field above mentioned.
It was claimed, inter' alia, for the defendants that for ten yearsprevious to the bringing of the action they had been in possessionof the field under circumstances entitling them to a decree in theirfavour according to the provisions of the. Ordinance No. 22 of1871. And but for the two actions referred to they would have hada decree in their favour, for it is admitted, I understand, that theyhave been in adverse possession of the field for ten years andupwards previous to the bringing of this action.
The District Judge has however held that those actions con-stitute such an interruption to the defendants’ possession as todisqualify them for a decree in their favour. He has furtherheld that the plaintiff’s title is superior to that of the defendants’,and on that issue he has also decided in favour of the plaintiffs.
Thus, two questions – arise for our decision: one a question offact, the other a question pf law. Has the plaintiff found asuperior title ? is a question of fact.
Granting his superior right of property at the times when theprevious actions were instituted, have those actions constituted
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such a disturbance and interruption to the defendants’ possessionduring the ten years previous to the pending action as to defeattheir claim to a decree in their favour under the Ordinance No. 22of 1871 ? This is the question of law. The present case came upin appeal in the first instance before the Chief Justice and myself,and when it appeared that the judgment in the case of Unambuwev. Janohamy, reported in the second volume of the C. L. R. p. 103,was in conflict with previous decisions on the question of the extentof interruption of possession by an unsuccessful suit, it was orderedthat the case should stand over for the Full Court.
The case has since been argued before the Chief Justice, mybrother Lawrie, and myself.
The principal judgment in the case of Unambuwe v. Janohamywas my judgment, and was concurred in by Chief Justice Burnside.That was an action of rem vindicare, and in the course of my judg-ment I used this language:—" The learned Judge (my brother“Lawrie) would himself have given judgment for the defendant“ on this plea (i.e., of prescriptive possession) but for the opinion“ which to his mind was forced on him by judgment of this Court“ to the effect, as he seems to interpret them, that an action of' ejectment against a person in possession interrupts that posses-“ sion and snaps the continuity of- it. But I do not understand“ any decision to go that length. Possession is interrupted, i.e.,
“ held in suspense by an action, and so long as that action subsists“ time is not gained by the occupant against his adversary pending“ the same. But if the action is abandoned or lost and the defend-“ ant remains in possession, the temporary gap of time opened“ during the proceedings closes again, and the period of interrup-“tion by the suit enures to him for whom-time and adverse“ possession are creating a prescriptive title.”
The. decisions referred to are Ramanathan’s Reports for 1854,p. 54 ; for 1862, p. 189 ; for 1877, p. 133 ; Marshall’s Judgments,39, p; 525 ; Nell’s C. R. Cases (1855), 253.
They were fully discussed in the argument before us, and it isplain beyond question that they do go the length of decidingthat the institution of an action does interrupt the growth ofprescriptive possessiop, so that it must, as it were, strike a .freshroot and grow for a full period of ten years in that or any otherinterruption having the like effect.
How I came to state in Unambuwe v. Janohamy that previousdecisions do not go that length, or how Burnside, C.J., came toexpress his assent to that statement, I am quite unable to say. Itis almost as surprising that when the judgments ’were deliveredin Dourt no one called our attention to the statement, nor can I
June 26.
1897.
February 2tWlTHEBS, J.
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1890.June 26.1897.
February 2.Withers, J. understand how I came to make that statement if the full signi-ficance of the previous decisions was made manifest to us at thehearing.
However, I did say so, and I can only confess that my statementwas erroneous. Nor do I care to surmise what our judgmentwould have been if our attention had been called to the error of thestatement. What we have now to dertermine is whether we shoulddeclare the new law to be wrong and the old law to be right, orwhether we shall adhere to the new law.
Even if we came to the conclusion that the new law is right, itmight well be thought proper, for the sake of uniformity, to revertto the law as declared by our predecessors.
I yield to no one in my* recognition of the necessity of a course ofuniform decisions. Justice cannot, be administered if t.be opinionsof Judges are constantly changing. For all that I humbly conceivethat the law as laid down in the case of Unambuwe v. Janohamyis not only right, but that it ought to be followed for the future.
If my colleagues are against me on this point I shall cheerfullyyield to their view and concur with them in retracing our steps.Why I think the new law to be the better law I now proceed toexplain. By the Regulation No. 13 of 1822 it was declared thatall laws theretofore enacted, and all existing customs with respectto the acquiring of rights or the barring of civil actions by pre-scription within and for the maritime districts of the Island, shouldceased to be of any force or effect, and that the same should therebybe wholly repealed.
That and an explanatory Regulation No. 5 of 1825 were repealedby Ordinance No. 8 of 1834, which was afterwards repealed byOrdinance No. 22 of 1871.
It has been held by this Court that the Roman-Dutch Law ofprescription between private persons was swept away by theRegulation of 1822, and the Ordinance No. 8 of 1834 was framedto take its place.
One result of the excision of the Roman-Dutch Law is to abolishthe right of acquiring a title to immovable property by possessionfor length of time and to substitute for it the 'Statute Law of No. 8of 1834 and No. 22 of 1871.
By these laws a plaintiff in possession of land at the time ofbringing suit, and wishing to have his land preserved to him inquiet enjoyment, is entitled to bp,ve a decree in his favour if heproves an undisturbed and uninterrupted possession of the landby an adverse title for ten years previous to the bringing of theaction.
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What is meant by “ previous to the bringing of the action ” hasnever been accurately determined. Plaintiffs have been allowedelastic margin of time between ouster and action.
Again, a defendant who is in possession of a land which a plaintiffseeks to take from him may on proof of similar possession for asimilar period have a decree in his favour for the land in dispute.
The Ordinance No. 8 of 1834 was introduced the year after theenactment of the Beal Property Act of 1833 in England, and seemsto have caught up and framed the definition of adverse possesionas finally determined by TSngKah decisions.
I mention this not to suggest that our Ordinance should beinterpreted by the Law of England. I demand that it shall beconstrued by its own language.
I do protest against its being construed by reference to the verylaw which it has specially repealed. The Roman-Dutch Lawdoctrine that a civil action interrupts the possession so as tonecessitate a fresh possession when the proceedings are terminatedfor the acquisition of a title by prescription was swept away in1822, and to apply that doctrine to the Ordinance of 1834 is topndo that legislation.
The new Ordinance clearly to my mind contemplates by dis-turbance and interruption a physical disturbance and a physicalinterruption of possession.
. To wait for nine years and 364 days and then to file a plaint andserve a summons on the adverse possessor for the purpose ofcompelling him to maintain possession for another period of tenyears would render the new legislation nugatory.
The case of Unambmoe v. Janoharpy disturbs no existing titles :it rather makes for quieting and assuring them. In my humbleopinion then this case should be followed. It follows thereforethat the defendants in the present action should have a decree intheir favour.
1898.June 26.1897.
-February 2.Withkes, J.
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