FERNANDO, Appellant, and WIJESOORIYA et al., Respondents

103-NLR-NLR-V-48-FERNANDO-Appellant-and-WIJESOORIYA-et-al.-Respondents.pdf


320
Fernando v. Wijesooriya.
1947Present: Jayetileke and Canekeratne JJ.
FERNANDO, Appellant, and WIJESOORIYA et al., Respondents.
S. C. 123—D. C. Kandy, 799.
Prescription—Action -for declaration of title to land—Dismissal of action—Whether interruption of possession—Prescription Ordinance.
The appellant entered into possession of a certain block of land undera deed in 1926. When he brought an action for declaration of title to asmall portion (lot B) of that land, about 14 acres in extent, in 1933, theplaintiff-respondent denied the appellant’s right to this portion and
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CANEKERATNE J.—Fernando v. Wijesooriya.
claimed in reconvention title to a block 9 acres in extent which includedfor B. The appellant’s action was dismissed simpliciter. The appellantcontinued in possession inter alia of lot B till the institution of this actionin 1942.
Held, that the dismissal of the previous action was not an interruption,of possession and that the appellant had acquired a prescriptive title tolot.B.
^^FPEAL, from a judgment of the District Judge of Kandy.
H. V. Perera, K.C. (with him E. B. Wikramanayake and H. W.Jayewardene), for the ninth defendant, appellant.
N. E. Weerasooria, K.C. (with him S. R. Wijayatilake), for theplaintiff, respondent.
Cyril E. S. Perera (with him Vernon Wijetunge), for the first defendant,respondent.
H. W. Thambiah (with him L. G. Weeramantry), for the third, fourth,and sixth defendants, respondents.
L. G. Weeramantry, for the seventh defendant, respondent.
Cur. adv. vult.
July 1, 1947. CANEKERATNE J.
This is an appeal by the ninth defendant from a judgment ordering apartition of a land called Waljambugahamulahena among the repondents,the plaintiff and the first to the eighth defendants. The land to bepartitioned is shown in plan No. 32/42; it is correctly described,according to the Judge, in title plan No. 51,686.
The Crown appears to have conveyed to Don Andris de Silva, NotaryPublic, by a grant dated July 19, 1867, an allotment of land in extent9 acres, excluding a path 8 links wide ; title plan 51,686 was annexed to hisgrant. A copy of this title plan, D 8, and an exhibit D 8a, a schedulefrom T. P. Register were produced by the respondents. D 8a gives in onecolumn the number of the title plan—51,686, and in the opposite column,the name of the purchaser—D. Andris de Silva.
The appellant contends that D. Andris de Silva, later known as D. A. deSilva Wickramasinghe Karunaratne, who owned various allotments ofland contiguous to one another consolidated all these lands and dealt withthem as one estate called Rikillagasgoda estate. He mortgaged the estateincluding the tract of land described in his title plan to two Chettiars.At the sale in execution under the mortgage decree the estate waspurchased by D. A. de Perera Appuhamy, the primary mortgagee of theestate who obtained Fiscal's transfer No. 9,047 dated February 5, 1879—a deed, as the Judge states, not produced at the hearing. D. A. de PereraAppuhamy transferred the estate by deed No. 525 of October 27, 1886(9D) to G, Angohamy, the wife of G. V. Singho Appu.
The respondents’ case is that on the death of D. Andris de SilvaWickramasinghe Karunaratne, one Wijeykoon Nona and KarunaratnaNona, his daughters, transferred the land called Waljambugahamulahena,
u
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lANEKERATNE J.—Fernando v. Wijesooriya.
acres ad 14 perches in extent, which they held and possessed by rightof inheritance from their father, to G. V. Singho Appu by deed No. 11131of July 16, 1883 (F 5). G. V. Singho Appu died leaving a daughterCaronchihamy by his first wife, G. Angohamy his second wife, theplaintiff and the second defendant his children by his second wife.Angohamy married again and the third to the eigth defendant-respondents are the children of Angohamy. Caronchihamy sold herinterests in this land to the first defendant.
Caronchihamy obtained judgment against Angohamy as administratrixof her father’s estate, and in execution of the decree the estate calledRikillagasgoda estate was sold by the Fiscal to the appellant by Fiscal’stransfer No. 21,601 of December 15, 1926 (9 D3); to the Fiscal’s transferis attached a sketch 9 D4—this sketch shows the extent as 110 A. 2 R. 28 P.,a certified copy issued by C. L. Barsenbach, has been produced markedS Dl. As the judge states—“According to this sketch, the land shownin title plan No. 51,686 is within it; it is thus clear that the land shownin the title plan 51,686 falls within the sketch attached to the Fiscal’stransfer on which the ninth defendant based his title”.
At the trial there were 11 issues, or points in dispute, framedbut only three need be considered now.
Did G. V. Singho Appu by deed No. 11,131 dated July 16, 1883,become entitled to the land called Waljambugahamulahena? TheJudge held that Singho Appu became entitled to the land called Wal-gahamulahena of 3 A. 0 R. 14 P. He and his successors in title lateracquired title by prescription to the entire land called Waljambugaha-mulahena of 9 acres.
Is the judgment and decree in D. C., Kandy, case No. 44,545 resjudicata between the plaintiff and the defendants 1 to 8 on the one handand the ninth defendant on the other ?
Prescriptive rights of parties.
The Judge decided both these issues in favour of the respondents.
Action No. 44,545 was one instituted on November 22, 1933, by theappellant against the plaintiff-respondent. The appellant pleaded thathe was the owner of the land called Rikillagasgodawatta about 100 acresin extent, depicted in the sketch plan filed with the plaint, under Fiscal’stransfer No. 21,601 dated December 15, 1926, arid that the defendant(plaintiff in the present action) has been, since the date of purchase,in the wrongful and forcible possession of the encroachment marked 1,about li acres in extent in the sketch plan. He prayed for declaration oftitle to this portion. Answer was filed by the defendant on February 28,
He prayed for the dismissal of the action and for a declaration thatdefendant and one Caronchihamy (here-in-before mentioned) and oneCaroline Abeysekere (the first added defendant) be declared entitled tothe land Rikillagasgoda of nine acres, that plaintiff be ejected therefromand for damages against the plaintiff. The. action was heard onDecember 4, 1935. A plan made by Surveyor Schokman dated July 9,
was produced, plan marked X in the case. It purports to be a truecopy from plan made by C. L. Barsenbach, dated December 5, 1928—
CANEKERATNE J.—Fernando v. Wijesooriya.
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it is stated to be a copy of plan of T. P. 51,686 (portion, of Rikilligasgodaestate of Mr. Fernando’s). The portion marked 1 of the sketch plan,filed with the plaint corresponds to lot A in plan X.
Fifteen issues were framed at the hearing. One issue (No. 6) is-prescriptive rights of parties. Another (No. 7) is damages. A third(No. 12) is : Did the plaintiff take wrongful possession of lot B in plan Xafter 1927 ?
The Judge held that the plaintiff failed to prove that the land conveyedto D. Andris de Silva Wickramasinghe Karunaratne by the Crown passedto D. A. de Perera Appuhamy on deed No. 9,047 ; he dismissed the actionfinding against the plaintiff also on the question of prescriptive title.He states : “ Plaintiff asks me to presume on the facts disclosed inplaintiff’s chain of deeds that the 9 acres shown in plan X are takenin by these deeds. In my view it would be presumption so to hold on thefacts disclosed by an examination of these deeds …. I have nohesitation in holding that the evidence is insufficient to justify a findingthat plaintiff’s deeds P 1, P 3 and P 4 conveyed, paper title to the9 acres depicted in plan X . . . . Has the defendant paper title ?
. . . . As I understand the defence, D 1 refers to the nine acres,and that the reference to 3 A. 0 R. 14 P. is a mistake for nine acres.This is absurd and cannot be entertained for a moment .. We have
the defendant’s own evidence … where he places the nine acres
away from Jambugahamulawatta …. On the defendant’s deedstoo it is impossible to locate these nine acres ….' The defendants
and not the plaintiff have prescriptive title ”. The answer to issue No. 7(damages) was Nil and issue No. 12 was “ yes ”.
The appellant contended at the argument that he had proved his titleto the entirety of the land in dispute, that the decision in the earlieraction was not res judicata, and that in any case he had acquired aprescriptive title to lot 1, including the house B. The respondentssupported the judgment of the trial Judge ; it was also contended bythem that the house B, the post office, stood on the portion of land inrespect of which an order of dismissal was entered by the Judge.
It was agreed that the record of the proceedings in case No. 44,545 besent for and the plan filed therein be examined. If one turns to theplan X filed in action No. 44,545 it will be seen that lot A corresponds tolot 3 in plan 32/42 ; the house marked 2 in plan X corresponds to thehouse marked C in plan 32/42, lot A 1 is a portion of lot B in plan X andlot B corresponds to lot 1 in plan 32/42. It is clear that the house B wasnot included in the portion of land which was the subject matter of theplaintiff’s claim in that action.
The statutory rules relating to res judicata are contained in sections 34,207 of the Code of Civil Procedure (Ch. 2 C. L. E.) ; these rules are notexhaustive and the principles of the English law on the subject appearto form part of the law in Ceylon.
Mr. Thambiah contended that the judgment in the action also must beexamined in considering the question of res judicata. He referred in thisconnection to Caspersz on Estoppel p. 77 (3rd. Ed.) where it is statedthat the decree is not the test of res judicata. Caspersz p. 49 states—The rule in this country appears to be that, although the decree in a
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CANEKERATNE J.—Fernando ». Wijesooriya.
former suit operates as res judicata, the decree is to be construed withreference to the pleadings, and the record, in order to see what was inissue. The judgment- must also be looked at to see what was in issuein the suit or what has been heard and determined, because the decreeonly states the relief granted or other determination of the suit. Eventhe acts of the parties immediately after the decree are very importantto fix the meaning of indefinite terms in the decree.
The rule of res judicata applies in two classes of cases, in one of which asubsequent action is wholly barred by the decision in a former actionby reason of the subject matter of the two actions being the same, and inthe other the trial of one issue in a subsequent action is barred byadjudication upon the same issue in a former action, though the subjectmatter of the two actions is different—Dingiri Menika v. PunchiMdhatmaya
In action No. 44,545 the appellant tried to get possession of lot 3 inplan 32/42 and the portion of land below the ela, including the house C.He failed in that action against the plaintiff respondent and the first andsecond defendant-respondents. He cannot bring a second action for thistract of land even though he has found new material for re-litigating hisclaim. That action was finally decided between these parties. There isno pretence that the appellant had possession of this tract of land at anylime between 1927 and 1942 and his right thereto is extinguished. Theplaintiff and the first and second respondents have recognized the thirdto eighth respondents as co-owners of this tract and given them a share.It is not necessary to discuss whether the decision is res judicata as againstthose respondents.
The position of the appellant in the previous action was that he wasin possession of lot 1 ; the evidence of the plaintiff confirms this, he saidlot B and A 1 are possessed by plaintiff today, he pathetically addedat the end, he (i.e., the plaintiff) forcibly took it (see 1 D7). Althoughthe plaintiff preferred a claim in reconvention to this lot the Judgeomitted to give him the relief he claimed. It would be impossible tohold that the plaintiff-respondent was declared entitled to this lot.
As there was an examination of the title of the appellant to the allot-ment of land in extent 9 acres and the Judge came to a view adverseto the appellant on this question, it may be contended that he is precludedfrom trying to establish in this action that the title which D. Andris deSilva Wickramasinghe Karunaratne acquired by the Crown grant passedto him. It is not necessary to express an opinion on that point, butassuming it to be correct it would not necessarily conclude the rights ofthe parties in this case. The question of prescription has now to bediscussed.
The appellant, as the Judge finds, got into possession of the rest of theland purchased by him in 1926 or 1927. He holds that, notwithstandingthe decision in the previous action which was entered on April 8, 1936,tiie ninth defendant continued to be in possession of lot 1 and the houseB on lot 1. The evidence fully justifies the view that the appellant hasbeen in possession of this lot from about the end of 1926 or from 1927.The view taken by the Judge was that the ninth defendant-appellant
• (1910) 13 N. L. B. 59.
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■was in forcible or wrongful possession of lot B and that his wrongfulpossession got disturbed by the decree in action No. 44,545 entered onApril 8, 1936, and that as the ninth defendant was added as a party onlyon June 30, 1943—though the present action was filed on February 24,1942—he cannot avail himself of his possession since the date of thatdecree as against the plaintiff and the first and second defendants. Hereferred to the case of Wimalasekera Dingirimahatmayal, and held thatthat decision was an interruption of the ninth defendant’s possessioneven against the persons who were not parties to the previous action.
The whole law of prescription is to be found in Ordinance No. 22 of3871 (Ch. 55 of C. L. E.). It is not necessary to prove that the possessorhad some title to the land at the time of entry; the requirement knownby the Roman law as justus titulus or justa causa need not be proved inCeylon—Cadija Umma v. Don Manis A man may come in by right-ful possession, and yet hold over adversely without a title ; and, if hedoes, such holding over, under circumstances, would be equivalent to anactual ouster—Doe v. Prosser *.
There must be a corporeal occupation of land attended with a manifestintention to hold and continue it and when the intent plainly is to holdthe land against the claim of all other persons, the possession is hostileor adverse to the rights of the true owner. It is the intention to claim1he title which makes the possession of the holder of the land adverse ;if it be clear that there is no such intention there can be no pretence of anadverse possession. It is necessary to inquire in what manner the personwho had been in possession during the time held it, if he held in a characterincompatible with the idea that the title remained in the claimant to theproperty it would follow that the possession in such character was adverse.But it was otherwise if he held in a character compatible with the claim-ant’s title—his possession may be on behalf of the claimant or may bethe possession of the claimant (p. 396 of 40 N. L. R.) or from the conductof the party’s possession an acknowledgment of a right existing in theclaimant could fairly and naturally be inferred. To prevent the operationcf the statute, a parol acknowledgment of the adverse possession by theperson in possession must be such as to show that he intends to holdno longer under a claim of right; but declarations made merely with aview to compromise a dispute are not sufficient—Angel on Limitationp. 388.
The appellant entered into possession of Rikillagasgoda estate and,therefore, of lot 1 in 1926 or 1927 under a deed ; his possession from 1927till the decision of the old action was under colour of title ; he continuedthereafter in actual and exclusive possession of the premises with theintention of keeping all other persons out of the land.
Another essential requisite to constitute such an adverse possessionas will be of efficacy under the statute is continuity ; and whether apossession is “ undisturbed and uninterrupted ” depends much upon thecircumstances. If the continuity of possession is broken before theexpiration of the period of time limited by the statute, the seisin of thetrue owner is restored; in such a case to gain a title under the statute
» {1937) 39 S. L. R. 25.3 (1938) P. C. 49 A L. R. 392.
' Cowp. 217.
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Joseph v. Kasupathy.
a new adverse possession for the time limited must be had. Where thereis a contest as regards the title to a land if the claim of the parties isbrought before a Court for its decision and there is an assumption thatmeanwhile the party occupying shall remain in possession, the runningof the statute in favour of the defendant is suspended ; otherwise a baT willall the while be running which the plaintiff could by no means avert.If the plaintiff fails in his action there has been no break in the continuityof possession of the defendant. If the plaintiff succeeds the continuityof possession of the one who was keeping the rightful owner out of hispossession is broken ; the result of the finding of the Court is to restorethe seisin of the plaintiff. In Wimalasekere v. Dingirimahatmaya (supra),the plaintiff instituted an action against the defendants in 1925 fordeclaration of title to a portion of land, lot 6 ; there was no prayer forpossession ; on January 25, 1928, he was declared entitled to this lot.He filed another action in 1934 seeking a declaration of title in respect oflot 6, possession thereof and the ejectment of the defendants. Thedefendants’ plea that they had acquired a title by prescription foundfavour with the trial Judge but in appeal this view was not upheld. Theactual decision that there was an interruption of the defendants’ posses-sion appears to be right. It may, perhaps, become necessary hereafterto examine some of the dicta contained in the judgment. That decisiondoes not support the inference drawn by the Judge in the present case.
The appeal of the ninth defendant as regards lot 1, including the housemarked B on the plan (32/42) is allowed ; the judgment of the DistrictCourt as regards lot 3 and the house marked C, is affirmed. The appellanthas succeeded to a great extent in appeal and is entitled to the costs ofappeal. Each party will bear his own costs in the District Court.
Jayetileke J.—I agree.
Appeal allowed.