G. SIMON PERERA, Appellant, and D. J. JAYATUNGA et al., Respondents

075-NLR-NLR-V-71-G.-SIMON-PERERA-Appellant-and-D.-J.-JAYATUNGA-et-al.-Respondents.pdf


338
Simon Perera v. Jayatunga
1987Present: Tamblah, J., and Siva Supramanlam, J.
V
G. SIMON PERERA, Appellant, and D. J. JAYATUNGA et al.,
Respondents
. S. C. 1/66 {Inti/.)—D. G. Panadura, 8551jP
Partition action—Amicable division of property without execution of deeds—Prescrip/ tion as between the co-owners thereafter—Ouster—Quantum of evidence.
The question whether a co-owner has acquired prescriptive title to a dividedlot as against the othor co-owners is one of fact and has to be determined by thecircumstances of each case.
TAMBtAH, J.—Simon Per era v. Jayatunga
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A land was owned in common by members of one family. An undivided one-third share of it was purchased by one B, an outsider, who was already theowner of an adjoining land. Thereafter, without execution of any deedB therewas an amicable division among the co-owners in pursuance of which Bpossessed a divided lot exclusively for nearly thirty years in lieu of herundivided share. She had not only annexed this lot to her own adjoiningland blit had also separated it off from the rest of the common land by erectinga parapet wall of a permanent nature.
Held, that there was sufficient evidence of ouster and that B had acquired, asHgainst the other co-owners, prescriptive title from the time of ouster inrespect of the lot which she possessed exclusively in pursuance of the amicabledivision.
.A.PPEAL from an order of the District Court, Pauadura.
C. Thiagalingam, Q.C., with Ralph de Silva, for the plaintiff-appellant.
N.E. Weerasooria, Q.C., with S. W. Walpita, for the 2nd defendant-respondent.
Cur. adv. vuli.
June 20, 1967. Tambiah, J.—
I am in agreement with the views expressed by my brother SivaSupramaniam J. It is unnecessary to recapitulate the facts whichhave already been dealt with by him, but I wish to add my ownobservations on the question of law raised by Mr. Thiagalingam.
The question as to whether a co-owner has prescribed to a particularlot is one of fact in each case. The rule laid down by Their Lordshipsof the Privy Council in Corea v. Appuhamy 1 and in Brito v. Mutu-iiayagam2 that if possession is referable to a lawful title it cannot betreated as adverse, is however modified by the theory of counterpresumption set out in TiUekeratne v. Bastian 8 by a Full Bench ofthis Court.
In TiUekeratne v. Bastian (supra) Bertram C.J. succinctly stated theprinciple as follows (at page 24) :—
“ It is, in short, a question of fact, wherever long-continued exclusivepossession by one co-owner is proved to have existed, whether it isnot just and reasonable, in all the circumstances "of the case that theparties should be treated as though it had been proved that thatseparate, and exclusive possession had become adverse at some datemore than ten years before action brought.**
(1911) 16 N. L. R. 65.• (1918) A. O. 895, 20 N. L. R. 327.
• (1$18) 21 N. L. R. 12. •
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340
TAMBIAH, J.—<Simon Per era v. Jayatunga
In Hameedu Lebbe v. Oanitha 1 it was contended that the ruling inTillekeraine. v. Bastian (supra) was inconsistent with the decision inBrito v. Mutunayagam (supra). However, in that case, the DivisionalCourt held that there was no inconsistency in the principles laid downin these two cases. Where a co-owner seeks to establish prescriptivetitle against another co-owner by reason of Jong and continued possessionit is a question of fact depending on each case for a court to decidewhether it is reasonable to presume an ouster from the exclusive posses-sion by a co-owner for a long period of time. This principle had beenapplied in Rajapakse v. Hendrick Singho 2.
The limits of the rule that possession by a co-owner is not adversepossession was defined in Culley v. Deod Taylerson 3 as follows :—
“ Generally speaking, one tenant-in-common cannot maintainan ejectment against another tenant-in-common, because the posses-sion of one tenant-in-common is the possession of the other and toenable the party complaining to maintain an ejectment, there mustbe an ouster of the party complaining. But where the claimant,tenant-in-common, has not been in the participation of the rentsand profits for a considerable length of time, and other circumstancesconcur, the Judge will direct the jury to take into consideration whether
they will presume that there has been an ouster..and if the
jury finds an ouster, then the right of the lessor of the plaintiff to anundivided share will be decided exactly in tho same way as if he hadbrought his ejectment for an entirety.”
This dictum was cited with approval by Viscount Cave who deliveredthe opinion of the Privy Council in the case of Varada Pillai v.Jeevarathnammal 4.
In the instant case, the learned District Judge has found that afterBaby Nona purchased a share there had been an amicable division amongthe co-owners in pursuance of which Baby Nona possessed lot 3 in plan Xfiled of record as her exclusive property. She not only annexed thislot to the land on the East, which was her property, but also constructeda wall, which is in the nature of a permanent structure to a length of144 feet and possessed this portion exclusively without paying anyrent or acknowledging title in others for a period of nearly thirty years.
In view of these findings the learned District Judge has legitimatelycome to the conclusion that there has been an ouster and the seconddefendant and his predecessors have exclusively possessed this land forthe prescriptive period from the time of ouster. There is no . reasonfor us to disturb this finding of fact.
For these reasons I hold that the learned District Judge was rightin excluding lot 3 from the land sought to be partitioned in this caseand I dismiss this appeal with costs in both courts.
(1020) 27 N. L. B. 33.* (1959) 61 N. L. B. 32. –
(1840) 11 Ad. dk E. 1088 ; 9 L. J. Q. B. 288 ; 3 P. ds D. 539.
* (1919) A. l.B. (P. O.) 44 at 47.-
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SIVA SUPRAMANIAM, J.—Simon Perera v. JayatungaSiva Stjframaniam, J.—
This is an appeal from the order of the District Judge excluding adivided portion from the land sought to be partitioned on tho groundthat the 2nd defendant who had originally been a co-owner of the landhad acquired prescriptive title to that portion subsequent to an amicabledivision of the land.
Lots 1-5 on plan No. 654 (marked X) depict the land sought to bepartitioned in this case. The land comprising these lots (hereinafterreferred to as the said land) is shown as divided lot 2 on plan 1D3.
It is common ground that Kossinage Podinonahamy became entitledto the said land as well as to the land shown as lot 3 on the said plan1D3 upon deed No. 1209 dated 21.9.1919 (PI). By deed No. 18326of 26.12.1919 (1D1), she transferred an undivided 2/3 share of the saidland to R. V. Don Jamis and R. V. Dona Nonahamy (3rd defendant).By deed No. 18327 of the same date she transferred her interests in thedivided lot 3 to Baby Nona (7th defendant) wife of Don Haramanis(6th defendant). By deed No. 8744 dated 14.3.1934 (2D1) R. V. DonaNonahamy transferred her 1/3 share in the said land to the aforesaidBaby Nona who by deed No. 13167 of 15.6.1961 (2D2) donated herrights to P. D. Ariyawardena (2nd defendant) subject to life interest infavour of herself and her husband. R. V. Don James died in 1954leaving as heirs to his 1 /3 share the afore-mentioned R. V. Dona Nonahamyand Kossinage Podinonahamy both of whom by deed No. 462 dated3.9.1959 (1D2) donated that share to Don Themis – Jayatunge (1stdefendant). By deed No. 12026 of 14.8.1958 (P2) Podinonahamytransferred a 1/3 share (which remained after the execution of 1D1)to Turin Perera who by deed No. 16682 of i4.12.1962 (P3) transferredthe same to Simon Perera/ the plaintiff. The plaintiff instituted thisaction for a partition of the said land on the basis of the afore-mentionedshares and interests.
It is in evidence that Babynona was an outsider while the other co-owners were members of one family. When she purchased a 1/3 shareof the said land she was already the owner of the eastern land (thedivided lot 3 of plan 1D3). The 2nd defendant s case was that bycommon consent of the co-owners the said land had been amicablydivided in 1935, that Babynona’s share had been separated off fromthe rest of the land and that thereafter Babynona had exclusivelypossessed lot 3 (on plan X) along with the eastern land as her separateproperty and had acquired prescriptive title to the said lot. Afterthe separation of a divided lot in lieu of her interests, Babynona haderected a parapet wall along part of the boundary between lots 2 and 3(on plan X) and a barbed wire fence along the remainder of the boundary.The 2nd defendant claimed an exclusion of lot 3 (on plan X) from theland sought to be partitioned. The learned trial Judge upheld thecontention of the 2nd defendant and ordered the exclusion of lot 3.
—J 1631 (2/09)
342
SIVA SUPRAMANIAM, J.—Simon Perera v. Jayatunga
Learned Counsel for the appellant canvassed the correctness of thefinding on the following grounds :—
(а)That the alleged amicable division was of no avail in law andcould not form the starting point of prescription by Babynona,as James, one of the co-owners, was of unsound mind at thattime and was incapable of giving his consent to such division.
(б)That the possession of lot 3 by Babynona was referable to lawfultitle and was therefore not adverse to the other co-owners.
That no deeds were executed to confirm the alleged division, and
Podinonahamy and Nonahamy dealt with undivided shares ofthe land even after the date of the alleged division.
As regards ground (a) learned Counsel for the appellant relied oncertain answers given under cross-examination by Nonahamy (3rddefendant), Haramanis (6th defendant) and a witness named DonDavith.
Nonahamy’s evidence was as follows :—
XXd. “ Q. He (Don James) was as a matter of fact insane ?
A. Yes.
Q.A good time of his life he was chained to a bed ?
A. Yes.”
Haramanis stated as follows :—:
XXd. “ Q. She (Nonahamy) gave evidence stating right through thather brother was insane.
A. He was not insane all throughout.
Q. He was most of the time insane ?
A. Now and then he was insane.”
Don Davith gave the following evidence :—
XXd. “ Q. For what period of time was James insane *A. About 25 years.
Q. He died in 1954 ?
A. Yes.
Q. He was mad from 1929 ?
A. Yes.”
To Court.
Q. From 1929 till he died he was mentally unsound ?A. From 1930 he was a little better in his senses.
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BIVA SUPRAMANIAM, J.—Simon Perera v. Jayattmga
XXd. Q. You stated he was right through ill ?
A. He became insane in about 1912 or 1913. From 1930 hewas a little better/'
It is not possible to draw an inference from the evidence quoted abovethat in 1935, at the time of the alleged amicable division of the land,James was of unsound mind and was incapable of giving his consent tosuch division or that prescription could not begin to run against him byreason of such incapacity. The burden was on the plaintiff to establishsuch incapacity. The question should have been specifically raised as oneof the points of contest between the parties. Even at the stage at whichthe evidence referred to above was given by the witnesses, the plaintiffrefrained from raising it as a point of contest. The vague evidence givenby the witnesses under cross-examination was insufficient for the plaintiffto discharge the burden that lay on her. The learned trial Judge was' therefore justified in not adverting to this question in the course of hisjudgment,, before arriving at his finding on the issue of prescription.
It was also submitted by learned Counsel for the appellant that in hispleadings the 2nd defendant had not mentioned James as one of thepersons who had given his consent to the amicable division. But thesworn testimony of Nonahamy, Haramanis and Don Davith was that allthe co-owners, were parties to the amicablo^division and this testimony hasbeen accepted by the trial Judge.
The question whether one of the co-owners has acquired prescriptivetitle to a divided lot is one of fact and has to be determined by thecircumstances of each case. A reference to undivided shares in deedsexecuted after the date of the alleged division is not conclusive of thequestion (vide Danton Obeyesekere v. Endoris1). An amicable divisionamong the co-owners can be the starting point of prescription althoughno cross conveyances or. other document have been executed by them.
^ Unlike a fence, a parapet wall is of a permanent nature and the fact thatBabynona and Haramanis constructed a parapet wall 144 feet in length(though not covering the entire length of the boundary) between theirdivided portion and the rest of the land and that they incorporated thatdivided portion with the eastern land of which they were owners andexclusively possessed the whole as one entity for nearly 30 years arecircumstances from which ouster of the other co-owners from the dividedlot can reasonably be inferred.—
In the instant case, as stated above, the trial Judge has, in addition,accepted the evidence that the exclusive possession of the divided lot wasafter an amicable division of the land by the co-owners.
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11962) 66 N. L. B. 457.
344
Fernando v. Fernando
There is a farther circumstance which strengthens the case of the 2nddefendant. The transfer deed P 3 in favour of the plaintiff describes theshare purchased by her as follows:—
“ The undivided 1 /3 share belonging to Pulikkuttige Haramanis Baasbeing excluded, an undivided half share of the soil of the remaining.undivided 2/3 share.”
The deed P2 in favour of the plaintiff’s vendor by Podinonohamydescribed the excluded portion as being on the eastern side.
Learned Counsel for the appellant laid stress on the fact that the deedsP2 and P3 do not refer to the portion excluded as a divided share. Thedescription in the deeds is, no doubt, inaccurate but apparently what wasmeant was that a portion representing the undivided 1/3 share was beingexcluded. This is made clear by the fact that what the plaintiff purchasedwas not an undivided 1 /3 share of the whole land (which would have beenthe description if. the land was stiff undivided) but " an undivided halfof the remaining 2/3 share ”,i.e., the portion representing the remaining2/3 share after the exclusion of Haramanis’s share on the eastern side.
It is also clear from the evidence that in 1962 when the plaintiff andthe 1st defendant got Surveyor Atureliya to survey the land of whichthey were the co-owners, they excluded the portion to the east of theparapet wall from the corpus and it was only when the plaintiff foundthat there was a short fall in the extent in the corpus to the west of theparapet waff that she decided to take up the position that the wholeland was still undivided.
For the foregoing reasons I am of the opinion that the learned Judgewas right in excluding lot 3 (on plan X) from the land sought to bepartitioned in this case.
I dismiss the appeal with costs.
Appeal dismissed-