392$IR GEORGE RANKIN.—Cadija Umma v. S. Don Manis Appu.
Present: Lord Atkin, Lord Macmillan, Lord Porter, Sir Lancelot Sanderson,
and Sir George Rankin.
L. M. CADIJA UMMA AND ANOTHER v. S. DONMANIS APPU AND OTHERS.
Prescription—Adverse possession—Meaning of parenthetical clause—Roman
The words in section 3 of the Prescription Ordinance, viz., by a “ titleadverse to or independent of the claimant or plaintiff ” cannot beconstrued as introducing the requirement known to the Roman law asjustus titulus or justa causa.
The purpose of the parenthetical clause in the section, viz., “ possessionunaccompanied by payment of rent or produce or performance of serviceor 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 ” is to explain the character of the possession which, if heldwithout disturbance or interruption for ten years, will result inprescription.
The dictum of Bertram C.J. in Tillekeratne v. Bastion (21 N. L. R. 12)that the parenthesis has no bearing on the meaning of the words“ adverse possession ”, disapproved.
L. M. D. de Silva, K.C. (with him Stephen Chapman), for appellant.
No appearance for respondent.
November 17,1938. Delivered by Sim George Rankin.—
The appellants on April 16 and 25, 1930, brought in the District Courtof Colombo two actions to recover possession of two contiguous plots ofland measuring in the aggregate 2 acres and 38 perches and forming atriangular area to the north of land which is admittedly theirs. The
[In the Privy Council.]
PPEAL from a judgment of the Supreme Court.
SIR GEORGE RANKIN.—Cadija Umma v. S. Don Manis Appu.
disputed land is known as Maha Ettambagahakuimbura. In the firstsuit they impleaded four defendants as being in wrongful possession,S. Don Manis Appu being the first defendant. In the second suit he wasthe sole defendant. The District Judge dismissed both actions onMarch 23, 1933, finding against the appellants on the issue as to titleand also on the question whether the first defendant had acquired aprescriptive title under Ordinance XXII. of 1871. The Supreme Courton January 22, 1936, affirmed the decrees of the District Judge. Withoutpronouncing upon the issue as to the appellants’ title the learned Judgesof the Supreme Court proceeded solely upon the ground of prescriptionunder the Ordinance. The defendants have not appeared at the hearingof this appeal by the Board.
The two acres (or thereabouts) now in dispute are said by the DistrictJudge to be to a great extent swamp on which lotus grows : he statesthat on the portion which is' not swampy there is a little wild 'grass,and buildings which have been put up from time to time. Akbar J.(with whose judgment Poyser J. agreed) says that the fact appears to bethat the portion in dispute was at one time liable to be flooded and water-logged, but that now, owing to a bund built by the Government, thefloods do not seem to affect the portion in dispute.
Section 3 of Ordinance No. XXII. of 1871, so far as applicable to thiscase, is in the following terms: —
“ Proof of the undisturbed and uninterrupted possession by adefendant in any action, or by those under whom he claims, of lands orimmovable property, by a title adverse to or independent of that ofthe claimant or plaintiff in such action (that is to say, a possessionunaccompanied by payment of rent or produce or performance ofservice or duty, or by any other act by the possessor, from which anacknowledgment of a right existing in another person would fairly andnaturally be inferred) for ten years previous to the bringing of suchaction, shall entitle the defendant to a decree in his favour with costs.And in like manner, when any plaintiff shall bring his action, or anythird party shall intervene in any action for the purpose of beingquieted in his possession of lands or other immovable property, or toprevent encroachment or usurpation thereof, or to establish his claimin any other manner to such land or other property, proof of suchundisturbed and uninterrupted possession as hereinbefore explained,by such plaintiff or intervenient, or by those under whom he claims,shall entitle such plaintiff or intervenient to a decree in his favourwith costs. Provided that the said period of ten years shall onlybegin to run against parties claiming estates in remainder or reversionfrom the time when the parties so claiming acquired a right of possessionto the property in dispute.”
Both Courts are in agreement on certain important facts affecting theapplicability of this section. In particular both accept the evidence of awitness called Podi Singho who deposed that from 1911 he had grassfrom the disputed land cut by his own servants and paid the firstdefendant’s mother (Getho Hamy) for it at the rate of ten cents for a bag
394 SIR GEORGE RANKIN.—Cadija Umma v. S. Don Manis Appu.
of grass: This, according to his statements, continued for five or sixyears from 1911 until Getho Hamy was taken to the leper asylum; andthereafter he paid the money to the first defendant until 1930 or there-abouts when the land began to be more occupied and there was no grassto be cut. Both Courts have likewise accepted as true the evidence ofthe second defendant Abraham that for the last ten or eleven years(that is from 1922-3) he had been living on the disputed land with thepermission of Getho Hamy and put up a house for himself thereon at aground rent paid to her and afterwards to the first defendant. Thiswitness further stated that besides his own there are eight houses on theland in suit of which three were put up by himself at Getho Hamy’srequest about 1925, and three by the first defendant about 1929-30.The District Judge has expressly accepted these statements as true.
On these facts the Supreme Court considered that "it was impossibleto say that the District Judge had come to a wrong conclusion in holdingthat the first defendant and his mother had been in adverse possessionfor the period required by law. It has been argued before their Lord-ships that as the buildings are not shown to have come into existencebefore 1922 or 1923 the ten years before action are not covered by thispart of the evidence, which to satisfy the Ordinance would require toextend so far back as 1920. Also that the mere taking of wild grassbeing conduct which an owner of swampy land would not necessarily beminded to resist is an insufficient foundation for a finding of possessionin the earlier years, especially as grass cannot be cut all the year roundbut only (as the second defendant stated) for six or eight months accord-ing to weather. Mr. dfe Silva for the appellants has sought very reasonablyto lay stress upon the facts that his clients appear to have paid municipalrates upon the disputed land as part of their total holding until 1929,and that in 1912 they exercised their right of occupation in the disputectland by obtaining a consent decree against a third party in ejectment.
While recognizing that the sufficiency of the defendants’ evidence ofpossession for the first two or three years after 1920 is debatable, theirLordships are not of opinion that in this case the concurrent findings ofthe Courts below should be departed from. The evidence as to thecutting of grass is not merely that the first defendant and his motherwere allowed to take some grass, but that they were allowed to sell it tothe overseer in charge of the cattle segregation camp ; and that this wascontinued over a number of years and at a time when the grass was theonly, or at least the main, advantage accruing from *the land. Theevidence as to buildings put upon the land after 1923 is, if believed,very strong to show possession and is not without a bearing upon theearlier years as interpreting the acts of the first defendant and his motherwith respect to the grass, even if these might otherwise be thought to beambiguous.
Taking the evidence fairly and ’ as a whole, their Lordships see noreason to think that the Courts in Ceylon have misinterpreted it: indeedthe question of the value of the taking of the grass as evidence of posses-sion is one on which the opinion of the local Courts is entitled to some.
SIR GEORGE RANKIN.—Cadija Umma v. S. Don Manis Appu. 395
special weight owing to their familiarity with the conditions of lifeand the habits and ideas of the people. It cannot be held that theCourts in Ceylon were obliged to regard the evidence as establishingno more, in respect of the earlier years, than a permissive taking of grassby or on behalf of the first defendant and his mother. The finding ofpossession for ten years before suit must therefore be upheld. It follows,in their*Lordships ’ opinion, that the appellant :s suit must fail, since thecharacter of the possession held by the first defendant and his motherwas clearly adverse to the appellants and satisfies section 3 of theOrdinance.
Mr. de Silva contended, however, that the section should be construedas introducing the requirement known to the Roman law as Justus titulusor justa causa—the words “ by a title adverse to or independant of thatof the claimant or plaintiff ” being construed as requiring the defendantto prove that his possession was on the footing of some title, howeverimperfect and not wholly without right, learned Counsel had however,to admit that the law of Ceylon recognized no such doctrine at the dateof the passing of the Ordinance, and their Lordships find it impossible tointerpret the section as introducing it.
This opinion does not rest solely upon the words enclosed in bracketsby way of explanation or definition—“ (that is to say, a possession ..
. . inferred) ” but is supported also by the absence of any wordscalculated to define or assert the special doctrine of justa causa. Thereis a passage in the judgment of the Board delivered by Lord" Macnaghteriin Corea v. Appuhamy' which supports (without discussion of the matter)the opinion that the parenthetical clause above mentioned is intended .as an explanation of the words " undisturbed and uninterruptedpossession1’ and not as a statement of what is meant by the full phrase-previously employed “ possessionby a title adverse to or
independant of that of the claimant or plaintiff ”. It appears that thelate Mr. Justice Walter Pereira in his work on the “ Laws of Ceylon ”suggested as a possible view that the words in parenthesis were intendedto be explanatory of the expression ‘ possession’ only ” ; but that hisown opinion was that they “ do not contain an illustration but are bythemselves a full and. self-contained definition of the expression ‘ possessionby a title adverse to and independant of that of others ’ ” (2 ed. pp. 388,390). Departing widely from this learned author’s opinion, Bertram C.J.(in Tillekeratne v. Bastian relying on Lord Macnaghten’s language inCorea ’s case, held that “ the parenthesis has no bearing on the meaningof the words ‘ adverse title ’: it may henceforth be left out of accountin the discussion of the question Their Lordships cannot acceptthis dictum of the learned Chief Justice. The section in its second halfdiscloses the standpoint of the draftsmen by a phrase to which LordMacnaghten’s words may perhaps be attributed—“ proof of suchundisturbed and uninterrupted possession as hereinbefore explainedby such plaintiff …. shall entitle such plaintiff ….to a decree in his favour with costs”. The explanation thus pointed toincludes not merely the requirement of adverse or independent title* L. B. (191A. C. 230.* (1918) 21 N. L. R. 12 A 17.
Beebee Ammal v. Ibrahim Saibo.
but also the period of ten years. The words “undisturbed anduninterrupted ” are, however, repeated: indeed the parenthetical clausedoes not seem to contain any direct reference to acts other than acts ofthe possessor having a bearing upon the question of an acknowledgmentby him. Their Lordships are unable to doubt that the purpose—perhaps the somewhat ambitious purpose—of the parenthetical clauseis to explain the character of the possession which, if held withoutdisturbance or interruption for ten years, will result in prescription.While, however, the clause is no mere illustration, it is not so completely,successful an attempt to achieve the “ full and self-contained definition ”as might be wished. A phrase having been introduced and then defined,the definition prima facie must entirely determine the application of thephrase; but the definition must itself be interpreted before it is applied?and interpreted, in case of doubt, in a sense appropriate to the phrasedefined and to the general purpose of the enactment. Thus in a casewhere A’s possession has been on behalf of B or has been the possessionof B (whether by reason of agency or co-ownership) it seems impossible toapply this definition clause as between B and A so as to defeat the rightsof B. , It cannot be applied to defeat the rights of a person in possession.Under what conditions an agent or co-owner can be heard to say that hispossession has been an ouster of his principal or co-sharer is a matterwhich need not here be examined. Ouster apart, from a man’s possessionby his agent is not dispossession by his agent. The like is true betweenco-owners in Ceylon, and is the ground of decision in Corea’s case.
Their Lordships will humbly advise His Majesty that this consolidatedappeal fails and should be dismissed. The respondents not havingappeared there will be no order as to costs.