GUNAWARDENE, Appellant, and SAMARAKOON et al., Respondents

122-NLR-NLR-V-60-GUNAWARDENE-Appellant-and-SAMARAKOON-et-al.-Respondents.pdf


BASNAYARE, C.J.—Gunawardene v. Samarakoon
481
1958Present: Basnayake, C.J., and Fulle, J.GUNAWARDENE, Appellant, and SAMARAKOON et al., RespondentsS. G. 12 Iwty.—D. G. TangaUe, P. 60.
Oo-owners—Adverse possession—Ouster—Prescription.
Where a co-owner sought to establish title by prescription by proving that hewas in possession of the common property for thirty-five years—
Held, that possession qua co-owner cannot be ended by any secret intentionin the mind of the possessing co-owner. The possession of one co-owner doesnot become possessipn by a title adverse to or independent of that of the otherstill ouster or something equivalent to ouster takes place.
-A.PPEAL from a judgment of the District Court, Tangalle.
N. E. Weerasooria, Q.C., with W. D. Gunasekera, for 6th Defendant-Appellant.
H. V. Perera, Q.G., with M. L. 8. Jayasekera and Miss MaureenSeneviratne, for 1st and 2nd Plaintiffs- Respondents and for 1st to 5thand 7 th to Ilth Defendants-Respondents.
Gur. adv. vuU.
December 19, 1958. Basnayaxb, C.J.-—
The plaintiffs sought to obtain a decree for the partition of a landdescribed in the plaint as Debarawewakele. The plaint was lateramended and in the amended plaint the land was called Debarawewakelealias Kohombagaha Kumbura situated at Debarawewa in Tissamahafamain extent 9 acres 1 rood and 36 perches. The 0th defendant denied thatthe land was .ever known as Kohombagaha Kumbura and asked that hebe declared entitled to the entire land by virtue of his undisturbed,uninterrupted and exclusive possession for a period of over thirty years.The learned District Judge has decreed a partition as prayed for by theplaintiffs ; blit deolared the 6th defendant (hereinafter referred to as theappellant) entitled to compensation for the cost Of planting a portion ofthe land and compensation for the buildings erected thereon. This appealis against that order.'
Shortly the facts are as followsNaikaluge Don Bastian Gunawardena(hereinafter referred to as Bastian) -who died in May 1918 aged about 90became the owner of a land described as Debarawewakele in extent9 acres 1 rood and 36 perches on a Crown grant 6D1 of 30th August 1897in -favour of himself and Charles Francis Sudiriku Jayawickrema. Theappellant claims that on 6D2 of 26thMay 1896 Bastian succeeded to; theinterests of Jayawickrema in the land is dispute. That deed conveys toBastian, Jayawickrema’s share in a number of lands held by them
21—LX
2—J. If. B S074—1,593 <7/50
482
BASNAYAKE, C.J.—Gunawardene v. Samarakoon
jointly on a Crown grant of 26th April 1895 (the date 26th May 1895 inthe translation is incorrect) and other lands possessed by them without agrant. It is not disputed that the land in question comes under thelatter category.
Besides being a land owner Bastian was a successful business-mancarrying on business at Tissamaharama and Hambantota. At the timeof his death he had three daughters and three sons. They were Sopinona,Nikkonona, Don Andris, Don Pedris, Henderick or Henry Dias, andPunchinona. Some years before his death he appears to have returnedto his native village of Ahangama leaving the management of his lands inthe hands of his second son the appellant. In May, 1915, three yearsbefore his death he gave a power of attorney (P9) to his third sonHenderick or Henry Dias the 7th defendant in this case (hereinafterreferred to as Henderick) to manage all his property both movable andimmovable in the Hambantota District. Bastian was, shortly beforehis death, at the instance of the appellant, adjudged to be of unsoundmind. He left a home-made will executed before five witnesses whiohwas also successfully impugned by the appellant on the ground ofunsoundness of mind of his father. All his children except the appellantand Henderick were dead at the time of the institution of this action.The 1st plaintiff is a daughter of Don Andris, Bastian’s eldest son, andthe 2nd plaintiff is her husband. The 1st, 2nd, 3rd, and 4th defendantsare children of the daughter Nikkonona, the 5th is the widow of DonAndris, and the 8th, 9th, 10th and 11th defendants are children ef thedaughter Punchinona. The 4th defendant, a son of Nikkonona, trans-ferred by deed P5 of 10th October 1949, executed after the institution ofthis action, to the 1st plaintiff the portion of the land to be allotted tohim in the final decree.
The appellant on his own showing was managing the lands of thedeceased till May 1915 when the deceased gave a power of attorney infavour of his younger brother Henderick. Thereafter he appears to havecontinued to look after Bastian’s lands on behalf of Henderick. Hisevidence on this point is however contradictory. At one time he says hecontinued to look after the properties of his father under Henderick, atanother he says he gave up managing the fields upon Henderick’s appoint-ment as attorney. The appellant claims that the land in dispute wasgifted to him orally by Bastian when he visited him with his bride in1916. He also says that his father gave him on that occasion the titledeeds 6D1 and 6D2. He states : “ The land in question was gifted tome orally on two title deeds. The two title deeds were given to me bymy brother. The deeds were handed to my father by my brother and hegave them to me.” Now his brother Henderick does not support hisstory of an oral gift of the land and delivery of the title deeds.
The appellant further claims that he entered into possession and beganto possess the land by virtue of the oral gift from 1916 till the date ofaction to the exclusion of all others. He relies on the following items ofevidence to establish his claim—
(a) his possession of the title deeds 6D1 and 6D2,
BASNAYAKE, C.J.—Gurweardem v. Satnarakoon
483
the non inclusion of a land called Debarawewakele of 9 acres
1 rood and 36 perches in the inventory filed by the administratrixof the estate of Bastian (6D8),
the application by him on 2nd October 1929 (6D12) to the Assistant
Government Agent, Hambantota, for exemption of the land inqnesticn and some other lands from water rates and the reply ofthe Assistant Government Agent of 30th June 1930 (61)13),
the receipt for irrigation rates paid by him in 1925 in respect of
this land (6D15),
the receipt dated 5th April 1946 granted by Appusinno on settle-
ment of his dues for planting the north-eastern portion of theland of about 2 acres (61)21),
(/) the receipt of (Jparis Sixmo dated 22nd February 1945 (6D22) forpayment of compensation due to his deceased father Babunhamyfor planting about one acre of the land and building a tem-porary house,
the inventory filed in his mother’s testamentary case in December1923 (6D23) to show that Debarawewakele as described in 6D1is not included therein,
the recitals in the deed of gift of 3rd January 1947 (6D25) executedby him in favour of his only son who died unmarried andintestate,
(t) his own oral evidence and the evidence of his witnesses Appusinnowho planted about 2 acres of the land in dispute and CparisSinno, the son of Babunhamy who planted about one acre ofthat land, the ex-headman Jayasuriya, and the vel vidaneBatnasara.
The above witnesses supported the appellant’s claim that Debarawewa-kele was never known as Kohombagaha Kumbura. The vel vidanespoke of a Kohombagaha Kumbura about 2 miles away from the land indispute. This evidence was produced to meet the plaintiffs’ case thatthe land in dispute was also known as Kohombagaha Kumbura and wasincluded in the inventory filed in Bastian’s testamentary case.
The plaintiffs relied on the following evidence:—
(а)the 2nd plaintiff’s evidence,
(б)the evidence of Henderick,
the evidence of the 4th defendant,
{d) the evidence of a cultivator oalled Saris who cultivated the land,
the fact that a number of other lands of Bastian had beenpartitioned; but not Kohombagaha Kumbura,
(/) the fact that in thespecification prepared under section 42 (1) of theIrrigation Ordinance No. 45 of 1917 (now repealed by OrdinanceNo. 32 of 1946) Bastian’s heirs are mentioned as the owners ofthe land in dispute and not the appellant,
(g) the receipt 6D15 produced by the appellant,
■484
BASNAYAKE, C.J.—Ounawardme v. Samaralcoon
' On two important questions of fact the learned District Judge has cometo findings adverse to "the appellant. He accepts the 2nd plaintiff’sevidence that the land sought to be partitioned, together with a portionof land in extent 3 acres 2 roods and 35 perches to the east of the land insuit, was also known as Kohombagaha Bumbura, and that these twolots are the identical land shown as item 10 in the inventory filed inBastian’s testamentary case P7. He rejects the appellant’s evidence thatthe land was gifted to him orally and that he began to possess it as hisown as from 1916. He holds that the evidence tends to show that theappellant possessed the land after Bastian’s death, but that he did so onbehalf of the other co-owners.
There is evidence to support the learned Judge’s findings of fact andwe see no reason to disturb them. His mode of approach to some topicswas not without some justification criticised by learned counsel for theappellant, but in fairness to the trial Judge the correctness of his findingsmust be tested in the light of the evidence taken as a whole and with dueregard to the probabilities of the respective cases set up by the opposingparties. For example it was a matter of legitimate comment that theappellant did not, either at the time of the alleged gift, or some timebefore his father’s death, obtain a notarial conveyance of the land in. question.
The appellant’s story of an oral gift is not supported by Henderick theonly other person living who on his own showing was present at the timeof the gift. The learned Judge was therefore right ih approaching theappellant’s evidence as to the gift and delivery of deeds with caution.Where the only person who could prove a fact has a strong motive forasserting it, his evidence must be received with greater caution than thatof a disinterested witness, and every circumstance of legitimate suspicionwhich is found to exist must make any reasonable man less ready toaccept his uncorroborated testimony; Harms and another v. Hinkson hIt is also well understood that when a witness makes a statement againstthe interests of a person who has died so long ago his evidence must he' received with caution especially as it is to his advantage to give such• evidence. Borchards v. Naidoo’s Estate 2; Muththal Achy v. MurugappaChettiar3. Besides in the case of a co-owner the possession of the titledeeds of the land owned in common does not have the same significanceas the possession of the title deeds of a land by a stranger because oo-owners have all an equal right to the custody of the title deeds relatingto the common property. As to possession there is evidence to show thatthe appellant’s possession was not of. the description contemplated insection 3 of the Prescription Ordinance. It is true that the learnedDistrict Judge finds that the appellant possessed the land for thirty:fiveyears. But any presumption of adverse possession arising from longpossession is negatived by the evidence tendered on behalf of the plaintiffswhich the learned Judge has accepted.-
It has been held by the Privy Council in the case of Cr.rea v. Appuhamy *■ and Cadija Vmma v. Dm Manis 5 that the possession of one co-owner is
(1946) W■ N. 118 (Privy Council).3 (1954) 67 N. L. R. 27.
(1955) 3 S. A. L. R. 78.* (1911) 15 N. L. R. 6,5.
5 (1938) 40 N. L. R. 392,f
BASNAYAKE, C.J.—Gunawardene v. Samaralcoon
m
the possession of the other co-owners and that possession qua co-ownercannot be ended by any secret intention in the mind of the possessingco-owner. The latter proposition is in accordance with the maxim Nemosibi causam possessionis mutare potest. The possession of one co-ownerdoes not become possession by a title adverse to or independent of thatof the others till ouster or something equivalent to ouster takes place..Corea v. Appuhamy and Cadija Umma v. Don Mania (supra).
The expressions “ possession ” and “ ouster ” in the following passagein Corea’s case which has been adopted in Cadija Umma’s case need an.explanation:
“ His possession was in law the possession of his co-owners. It wasnot possible for him to put an end to that possession by any secretintention in his mind. Nothing short of ouster or somethingequivalent to ouster could bring about that result.”
These expressions are well known to English law and as the Privy Councilwas construing a section of the Prescription Ordinance which is in themain based on concepts of law familiar to that system the sense in whichthey were used is better ascertained by reference to English caseswherein they have been explained. The cases of Doe v. Prosser1 andPeaceable v. Dead 8 discuss the nature of a co-owner’s possession which isthe possession of the other co-owners and what ouster and adversepossession are. In the former case Lord Mansfield said:
“ So in the case of tenants in common: the possession of one tenantin common, to nomine, as tenant in common, can never bar his com-panion ; because such possession is not adverse to the right of hiscompanion, but in support of their common title; and by paying himhis share, he acknowledges him co-tenant. Nor indeed is a refusal topay of itself sufficient, without denying his title. But if, upon demandby the co-tenant of his moiety, the other denies to pay, and denieshis title, saying he claims the whole and will not pay, and continuesin possession ; such possession is adverse and ouster enough. "
Justice Acton in the same case explains the matter thus :
“ There have been frequent disputes as to how far the possession ofone tenant in common shall be said to be the possession of the other,and what acts of the one shall amount to an actual ouster of his com-panion. As to the first, I think it is only where the one holds posses-sion as such, and receives the rents and profits on account of both.With respect to the second, if no actual ouster is proved, yet it may be.inferred from circumstances, which circumstances are matter ofevidence to be left to a jury. ”
On the subject of ouster Lord Mansfield observes:
“ It is very true that I told the jury, they were warranted by thelength of time in this case, to presume an adverse possession and ousterby one of the tenants in common, of his companion; and I continuestill of the same opinion.—Some ambiguity seems to have arisen fromthe term “ actual ouster ”, as if it meant some act accompanied by real
11 Cow. p. 217, 98 E. E. 1052.3 1 East 509, 102 E. R. 220.
2*J. W. R 8074 (7/59).
486BASNAYAKE, C.J.—Ounawardene v. Samarakoon
force, and as if a turning out by the shoulders were necessary. Butthat is not so. A man may come in by a rightful possession, and yethold over adversely without a title. If he does, such holding over,under circumstances, will be equivalent to an actual ouster. ”
On this same topic Justice Willes states:
“ However strict the notion of actual ouster may formerly have been,. I think adverse possession is now evidence of actual ouster: ”
In the latter case Lord Kenyon C. J. said:
“ I have no hesitation in saying where the line of adverse possessionbegins and where it ends. Prima facie the possession of one tenant incommon is that of another : every case and dictum in the books is tothat effect. But you may shew that one of them has been in possessionand received the rents and profits to his own sole use, without account
to the other, and that the other has acquiesced in this for such alength of time as may induce a jury under all the circumstances topresume an actual ouster of his companion. And there the line ofpresumption ends. ”
In the case of Fairclaim v. Shackleton1, though one tenant in commonalone had received the rent for 26 years no ouster was presumed becausethe title of the other was admitted.
Blackstone discusses the subject of ouster among co-owners under thetitle of deforcement. He says in Vo1. Ill, p. 182 (Kerr’s 1862, 3rd Edn):
" Another species of deforcement is, where two persons have the same,, title to land, and one of them enters and keeps possession against the
other: as where the ancestor dies seized of an estate in fee-simple,
, which descends to two sisters as coparceners, and one of them enters
before the other, and will not suffer her sister to enter and enjoyher moiety; this is also a deforcement. ”
Learned counsel for the respondent stressed the principle laid down byWood V. C. in Thomas v. Thomas2—“that possession is never consideredadverse if it can be referred to a lawful title”. That was a casein whichthe father of minor children entered upon the estates of his minor childrenand claimed the benefit of the statute of limitation. It was held thatprima facie unless there is strong evidence to the contrary his entry mustbe taken to be on behalf of his infant children and as their natural guardian.When applying the above principle to a given case it is advisable tobear in mind the facts of Thomas v. Thomas (supra) and the followingwords of Wood V. C. show with what circumspection he applied it.
“…. but considering the right of the father as the natural
guardian of the infant Plaintiff, and the practice of this Court in makingallowances for maintenance, he having entered and received the' rents and profits, and there being no evidence of his not having dis-! charged the obligation imposed upon Mm of maintaining his children,remembering the fact that they were all under his own charge and were1 5 Burr 2604, 98 E. R. 370. s (1855) 2 K. <S> J. 79 ; 69 E. R. 701 at 70S.
B ASK AY AKE, C.J.—Qunawardene v. Scmarakoon
487
infants, I think that I must reasonably infer that the entiy was an entryon their behalf and as their guardian, and was totally different fromthe case of a mere stranger entering upon property under similarcircumstances. ”
I have quoted at unusual length from the English cases as the reportsof those are not available in most provincial libraries and as questions ofpossession and ouster frequently arise for determination in the provincialCourts.
In the instant case the facts as found by the learned trial Judge donot establish a possession by the appellant by a title independent of andadverse to the other co owners. Nor is there anything in the facts asfound by the learned Judge which establishes an ouster or somethingequivalent to an ouster.
Learned counsel for the appellant strenuously argued that we shouldreverse the findings of fact of the learned trial Judge. The principlesby which an appellate Court should be guided in approaching an appealon questions of fact are well known and have been stated over and overagain. In the instant ease we cannot disturb the findings of fact withoutviolating those principles. It is not necessary to refer to the many deci-sions on the point; but it is sufficient for the purpose of this case to referto the remarks of Viscount Simon in Watt (or Thomas) v. Wall.1
“ Apart from the classes of case in which the powers of the Court ofAppeal are limited to deciding a question of law (for example, on a casestated or on an appeal under the County Courts Acts) an appellatecourt has, of course, jurisdiction to review the record of the evidencein order to determine whether the conclusion originally reached uponthat evidence should stand; but this jurisdiction has to be exercisedwith caution. Ifthere is no evidenceto support a particular conclusion(and this is really a question of law), the appellate court will not hesitateso to decide. But if the evidence as a whole can reasonably be regardedas justifying the conclusion arrived at at the trial, and especially if thatconclusion has been arrived at on conflicting testimony by a tribunalwhich saw and heard the witnesses, the appellate court will bear in mindthat it has not enjoyed this opportunity and that the view of the trialjudge as to where credibility lies is entitled to great weight. This is notto say that the judge of first instance can be treated as infallible indetermining which side is telling the truth or is refraining from exaggera-tion. Like other tribunals, he may go wrong on a question of fact,but it is a cogent circumstance that a judge of first instance, whenestimating the value of verbal testimony, has the advantage (which isdenied to courts of appeal) of having the witnesses before him andobserving the manner in which their evidence is given. ”
The appeal is dismissed with costs payable by the appellant.
Pulle, J.—I agree.
1 (1947) A. G. 484 at 483-488.
Appeal dismissed.