Jamis Perera and Another v. Charles Dias and Others
JAMIS PERERA AND ANOTHER
v.CHARLES DIAS AND OTHERS
SUPREME COURTG. P. S. DE SILVA. CJ..
KULATUNGA. J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 10/95
A. NO. 898/82 (F)
C. HOMAGAMA NO. 611/LJANUARY 26, 1996
Prescription – Prescription among co-owners – Division and adverse possessionof co-owned property.
The Stale acquired an extent of IA, OR. 08 P. out of a 6-acre land calledAlubogahawatte which was the Southern portion of the land. Alubogahawatte wasoriginally co-owned. At the trial of the title dispute referred to the District Courtby the Acquiring Officer under s. 10 of-the Land Acquisition Act, it was establishedby oral and documentary evidence that the land which was the subject-matterof the acquisition proceedings was possessed entirely for about 60 years by theparents of the 1st, 2nd and 3rd defendants. Consequently, those defendantsclaimed that they had acquired a prescriptive title to the entire land, which wasthe land in dispute.
There was cogent evidence of separation, division and adverse possession of theland in dispute by the 1st, 2nd and 3rd defendants and their predecessorsin title.
APPEAL from the judgment of the Court of Appeal.
R. K. W. Goonesekera with D. F. H. Gunawardhana for the 5th and 6thdefendants-appellants.
D. R. P. Goonetilleke with S. A. D. Suraweera for the 1st to 3rddefendants-respondents.
Cur. adv. vult.
Sri Lanka Law Reports
11999J 2 Sri LR.
February 1, 1996.
G. P. S. DE SILVA, CJ.
These proceedings relate to a 'reference' made to the District Courtin terms of section 10 of the Land Acquisition Act by the AcquiringOfficer. The dispute (as regards title) was between the 1st, 2nd and3rd defendants-respondents on the one hand and the 5th and 6thdefendants-appellants on the other. The 1st, 2nd and 3rd defendants-respondents claimed that they had acquired a prescriptive title tothe entirety of the land, (the subject-matter of the acquisition proceed-ings), while the 5th and 6th defendants-appellants denied the claimof the defendants-respondents and asserted title to 3/4th share of theland. Both the District Court and the Court of Appeal held with the1 st, 2nd and 3rd defendants on their claim of prescriptive title. Hencethe appeal by the 5th and 6th defendants to this Court.
The State acquired an extent of 1A. OR. 08P. out of a 6-acreland called Alubogahawatte which was originally owned by DavithPerera (a 2/3 share), Luwis Perera and Mango Perera (1/3 share).Davith Perera, in lieu of his undivided 2/3 share, possessed a dividedlot and on his death the said lot devolved on his widow and children.By deed 5DI of 1909 a half-share of the said lot was conveyed tothe daughter Jane and her husband Jamis Silva. By deed 1D2 of1910 the balance half-share was conveyed to another daughter Lousiaand her husband Henderick Dias. Lousia and Henderick are theparents of the 1st, 2nd and 3rd defendants. These facts are notin dispute.
It is the case of the 1st, 2nd and 3rd defendants that Lousia andHenderick, in lieu of the aforesaid 1/2 share possessed the entiretyof the land which is the subject of the acquisition proceedings as adistinct and separate land for a period of about 60 years and thusacquired a prescriptive title thereto. Likewise, Jane and her husbandJamis Silva possessed exclusively the balance 1/2 share which wasto the North of the corpus acquired by the State. The 2nd defendant,
Jamis Perera and Another v. Charles Dias and Others(G. P. S. De Silva, CJ.)
whose evidence was accepted by the District Judge, stated that afterthe execution of 1D2, his parents separated off their portion of theland and possessed it as a distinct lot to the exclusion of all others.He further testified that after the death of his parents he and the1st and 3rd defendants continued to possess the land in dispute asa divided and separate lot.
On a consideration of the documents in the case, it seems to methat there are two deeds which tend to support the oral evidence givenby the 2nd defendant. The first deed is ID6 of 1935. This deed refersto a sale by Jane and Jamis Silva of half an acre of land on thenorthern side. The portion conveyed is the portion on which the schoolstands. The significance of 1D6 is that it shows that as far back as1935 Jane and her husband Jamis Silva sold half an acre from theirrights on the northern side. This is indicative of the division of theland referred to by the 2nd defendant in his evidence.
The other deed which is of relevance is 1D7 of 1944 by whichthe predecessor in title of the 5th and 6th defendants conveyed onerood to Joseline Silva, a sister of the 6th defendant. It is of importanceto note that in this deed (executed about 30 years prior to the presentdispute) the southern boundary of the land conveyed is described asthe "land of P. P. Henderick Dias" (which is the land in dispute).This too is a circumstance which tends to show that the landpossessed by Henderick and Lousia was separate and distinct fromthe land possessed by Jane and Jamis Silva.
The principal point urged by Mr. R. K. W. Goonasekera for the5th and 6th defendants-appellants against the case of dividedpossession relied on by the 1 st to 3rd defendants-respondents is that •the latter claimed rights in the northern portion of the land in twoprevious acquisition proceedings. Mr. Goonesekera submitted that aclaim of that nature could only be on the basis that the entirety ofthe land was co-owned. This submission is not without attraction.However, on a consideration of the evidence on record as a whole
Sri Lanka Law Reports
 2 Sri LR.
it seems to me that the conduct of the 1st to 3rd defendants is notof sufficient weight to displace the cogent evidence of separation,division and adverse possession by the 1st, 2nd and 3rd defendantsand their predecessors in title.
The appeal turns on what are essentially questions of fact. Thefindings of the trial Judge are based on credible evidence, both oraland documentary. The concurrent findings of both courts are againstthe appellants.
I can see no reasonable basis to reverse these findings. In theresult, the appeal fails and is dismissed with costs fixed at Rs. 750.
KULATUNGA, J. – I agree.RAMANATHAN, J. – I agree.