010-NLR-NLR-V-71-K.-D.-EDWIN-PEERIS-and-another-Appellants-and-S.-KIRILAMAYA-Respondent.pdf
Peeris v. kirHamayd
52
Present: T. S. Fernando, A.CJL, and Siva Supramanlam, J.K.D. EDWIN PEERIS and another. Appellants,and S. KIRILAMAYA, RespondentS. C. 211 of 1965—D. C. Ratnapura, 4870
Prescription—Hiwel ande—Nature oj tenure—Usufructuary mortgagee—Date ofcommencement of adverse possession by him—Addition of parties—Judgmentin favour of a person who is not a party—Invalidity.
Where a hiwel andekaraya mortgages the hiwel ande of a field to be held andpoeeeaBed by the mortgagee in lieu of interest, the mortgage is of the usufructuarykind and prescriptive possession of the field by the mortgagee against themortgagor cannot commence until the mortgage bond is discharged.
A Court can give judgment only in favou r of a person who is a party to theaction and not in favour of some other person who is neither his predecessorin title nor a party to the action.
A.PPEAL from a judgment of the District Court, Ratnapura.
Ranganathan, Q.C., with O. P. J. Kurubulasooriya, for plaintiffs-appellants.
A. C. Ghoneratne, Q.C., with R. C. Qooneratne, for defendant -respondent.
Our. adv. vult.
T. S. FERNANDO, A.U.J.- Pceru c. Kirilutnaya53
October 22, 1967. T. S. Fernando. A.C.J.—
This was an action rei vindtcatio filed on the 29th June 1962 againstthe defendant-respondent by the 1st and 2nd plaintiffs-appellants claiminga declaration of title to and 5/16ths shares respectively of a field calledGalpotto Kumbura more fully described in the schedule to their plaint .The defendant prayed for a dismissal of the action claiming that the titleto this field had passed to his two daughters Premawathie and Bandu-wathie on a title somewhat different to that relied on by tho plaintiffsas well as by prescriptive possession.
Although the learned trial judge hold tliat the plaintiffs have establishedthe title they pleaded, he dismissed the action on two grounds, (1) thatthe two children above-named of the defendant have succeeded to therights of one of the original shareholders of the land, a. man by tho nameof Sinduwa, who began to possess this field long ago after an amicabledivision of the lands of a certain Panguwa which included this field aswell, and (2) that these two children and their predecessors in title hadacquired a title to this field by prescription.
The claim put forward by the defendant that title passed to Sinduwaat an amicable division of the lands of the Panguwa was attempted tobe rebutted by the plaintiffs by showing that tho defendant himself hadacknowledged the validity of the title relied on by the plaintiffs. Theypointed to throe deeds, P12, P13 and P14, and it is necessary to oxaminethe nature of these documents. By P12 of 1869, one Ukkulamaya,proved to bo one of the original shareholders in the plaintiffs* chainof title, reciting that he had received from one Sudantha a sum of £3,and reserving to himself one half-share of the paraveni ande mortgagedthe hiwd ande of this field to the said Sudantha to be held and possessedby the latter in lieu of interest on the said amount. It may correctlybe described as an instrument approximating to a usufructuary mortgagebond. Sudantha by P13 of 1911 assigned his rights under P12 to oneBankiriya and his heirs, and, Rankiriya having died, his only sonKiridinga, by P14 of 1939, in turn assigned his rights under P12 andP13 to the defendant. According to the evidence, the bond in thedefendant’s favour was discharged only in 1957. The defendant himselfconceded in the course of his evidence that tho person who had given theusufructuary bond, viz., Ukkulamaya, had the right to cultivate, andthat it was this right that was passed on to him by P14. That the rightsof a hiwel andekaraya consist of a right to cultivate and to take a shareof the cultivated crop gains some support from a reference to hiwd andecontained in the judgment of Keuneman, J. in Banduldhamy v. Tikiri-hamy 1 where it is stated that “ undoubtedly it is a term in use.Codrington in his Glossary of Native, Foreign and Anglicized Wordsdescribes hewelande as (1) cultivator’s share of the produce of a field,being half of the erdp after deducting various payments calledWar awe(2) paddy paid for hire of cattle, (3) share of the
* (1941) 44 N. L. R. at p. 543.
54
Ruby General Insurance Co. Lid. v. Yasapala de SUva
crops to which a person is entitled for the trouble of ploughing.” If,therefore, the defendant’s possession prior to 1957 was referable to hisrights to possess on the strength of the hiwel ande, there was not in anyevent sufficient time between 1957 and the date of institution of thisaction for rights to be acquired by prescription. Although the learnedtrial judge found title as claimed by the plaintiffs established, his laterfinding that Sinduwa was the owner of the entirety is inconsistent withthat finding. In the light of the defendant’s own conduct which showsan acceptance by him of the title as claimed for the plaintiff's, the findingin favour of the plaintiffs, viz., the answers to issues (1) to (6) must nowbe regarded as unqualified.
In regard to the issue of prescription which has been answered in favour■of the children of the defendant and their predecessors in title, it isrelevant to note that, whereas title is said to have passed to the childrenby deeds of 1956 and 1961 respectively, and this action was institutedonly thereafter (June 1962), no attempt was made at any stage of thistrial to have the daughters of the defendant added as parties. It wasnot open to the defendant to rely on the possession of strangers to theaction and their predecessors in title. A court can give judgment onlyin favour of a person who is a party to the action ana .^t in favour ofsome other person who is neither his predecessor in title nor a party tothe action. This is a view which has consistently been taken in ourcourts over a long period of time—vide Timothy David v. Ibrahim l.
The judgment of the District Court dismissing the action institutedby the plaintiffs against the defendant cannot therefore be maintained.It is accordingly set aside, and we direct that judgment be entereddeclaring each of the plaintiffs entitled to the respective shares claimedby them in their plaint, for ejectment of.the defendant and for damagesat the agreed rate of Rs. 100 per annum from date of action tillrestoration of possession. The plaintiffs are entitled to the costs of thisaction and of this appeal.
.Siva Supramaniam, J.—I agree.
Appeal allowed.