KARUNAWATHIE AND 2 OTHERSV.
COURT OF APPEAL.
A. 112/88 (F).
C. KEGALLE 19771/P.
JULY 17, 1996.
Partition – Partition Act – Co-owned land – Exclusive Possession – Ouster -Presumption – Adverse Possession.
The Plaintiffs instituted action to partition the land in question. The contest-ing Defendants contended that the Corpus was exclusively possessed bythem and that the Plaintiffs had no rights to the Corpus .The District Judgerejected the contention of the Defendants. On appeal-
There was overwhelming evidence that the Defendants, since 1955 tookthe produce to the exclusion of the Plaintiffs and their predecessors in titleand gave him no share of the produce or paid them a share of the profitsnor any rent and did no act from which an acknowledgement of a rightexisting and there would fairly and naturally be inferred.
Per Senanayake, J.
"In considering whether or not a presumption of ouster should be drawn byreason of long continued possession alone, of the property owned in com-mon, it is relevant to consider (a) the income derived from the property (b)the value of the property (c) the relationship of the co-owners and wherethey reside in relation to the situation of the corpus.0
AN APPEAL from the judgment of the District Court of Kegalle.
Cases referred to:
Corea v. Iseris Appuhamy 15 NLR 65 (P.C.)
Subramaniam v. Sivaraja 46 NLR 540.
Rajapakse v. Hendrick Singho 61 NLR 33.
Abdul Majid v. Umma Zaneer 61 NLR 361.
N.R.M. Daluwatie, P.C. with Faiz Mushtapha, P.C. J.A. de Gunaratne andU.R. Hewage for 4th Defendant-Appellant.
P.A.D. Samarasekare, P.C. with Yasa Jayasekare for 2,3 and 5th Plaintiffs-Respondents.
Cur. adv. vult.
August 23, 1996.
This is an appeal from the judgment oflhe learned District Judgeof Kegalle allowing the Partition of the land called Thennapitiyahena.
The Plaintiffs instituted this action on 13.10.1972 to partition theland described in the schedule to the plaint and depicted as 'X' inplan 3079 dated 26.04.73 made by Surveyor, L.B. Beddawella. Therewas no dispute regarding the corpus as all parties agreed that cor-pus consist of lots 1, 2 and 13.
It was the contention of the learned Counsel for the Defendants-Appellants that the corpus was exclusively possessed by the con-testing Defendants and the Plaintiffs had no rights to the corpus.
The Plaintiffs position was that the original owners of the landwere Yapathhamy, Tikkiri Appu, Mudalihamy and Punchirale eachentitled to 1/4 share. Yapathhamy and Tikkiri Appu had an associatedmarriage and died intestate leaving as heirs Appuhamy and Mudiyanseand Mudiyanse died intestate and issueless leaving his brotherAppuhamy as his heir. Thus Appuhamy was entitled 1/2 share of theland. In 1943 Appuhamy conveyed 1/4 of the share by Deed 'P-1* toBramphy Appuhamy and subsequently the balanced 1/4 share wasinherited by the said Bramphy Appuhamy who died intestate in 1955.His Estate was administrated by his widow Dingiri Mahatmaya asproved by 'P-3' and 'P-4'. On the death of Bramphy Appuhamy thePlaintiffs were entitled to 1/4 share of the land and the widow DingiriMahatmaya to 1/4 who subsequently transferred her share subjectto her life interest. Therefore the Plaintiffs claim 1/2 the share of thecorpus. It was the contention of the learned Counsel for the Plaintiffsthat the Thennepitiyahena was one of the lands held in common bythe original owners as admitted in the Partition Action 4192 'P-5' in1949 where the parties and the predecessor to the title in the instantcase had agreed that the corpus was held in common. Therefore itwas the contention of the Counsel for the Plaintiffs-Respondents thatthe parties were co-owners and there was no adverse possessionand ouster by the contesting Defendants. The contesting Defendantsclaimed title from one of the original owners Mudilihamy and from hisdaughter Kusalahamy.
The learned Counsel for the Defendant-Appellant contended thatthe Appellant had advefse possession. He contended the Plaintiffsdid not have even a days possession of the corpus and the Defend-ants predecessor in title Kusalahamy had possessed this lot as aseparate land and the 4th Defendant-Appellant, Podi Amma and herfather possessed the corpus exclusively. He contended that thelearned District Judge erred in law when he held that the Defendantshad not established ouster and adverse possession.
If one were to examine the corpus, the entire West North andEast of the corpus of lots 'V and '2' consist of a barbwire and livefence and in the South there is the Ela which excludes lots '3' to '11'and lot No: 13 consist of a large Rock. The 3rd Plaintiff was the onlywitness who gave evidence on behalf of the Plaintiffs. He had admit-ted in page '187' that he had no possession and he had categoricallystated that he had no possession of this corpus. At the time he gaveevidence he was 50 years old he was born in 1934 and admitted thathe had not gone to the land and that the 4th Defendent was in pos-session of the corpus. He had further stated in evidence that "afterour father’s death we did not possess” (vide page 213). It was anadmitted fact that his father died in 1955. In 1955 he was 21 yearsold and admitted that the produce was exclusively taken by the 4thDefendant-Appellant and that she was forcibly possessing. There wasno evidence led by the Plaintiffs that their predecessors in title wereenjoying the produce of the said lots. The Plaintiff conceded that dueto the forceful possession of the lots '1' and '2' by the 4th Defendantthat he had not gone to the land. The Plaintiff failed to lead the evi-dence of his. mother Dingiri Mahatthaya who was the widow of BramphyAppuhamy to establish that they had possession and enjoyed theproduce of the land or that some payments was made to them as anadmission of co-ownership, though the land was included in the in-
ventory of his father’s testamentary case. There was no evidence toshow that the Plaintiffs had common ownership except paper title.Though it is well settled law that possession by a co-heir enures tothe benefit of his co-heirs vide Corea v. Iseris Appuham/') "a co-owner's possession is in law the possession of his co-owners. It isnot possible for him to put an end to that possession by any secretintention in his mind. Nothing short of ouster or something equivalentto ouster could bring about that result."
In the instant case according to 'X-lithe Commissioner's Reportthere were over 1,031 coconut trees between the ages of 20-50 years.According to the evidence of the 4th Defendent the entire producefrom the coconut and other trees were enjoyed by the 4th Defendant.The 4th Defendant had challenged the report 'X-1' and in her state-ment of claim and in her evidence she had claimed the entire planta-tion of lot '1' and lot '2'. In the instant case there was overwhelmingevidence that the Defendants since the year 1955 took the produceto the exclusion of the Plaintiffs and their predecessors in title andgave them no share of the produce or paid them a share of the profitsfrom the rubber nor any rent and did no act from which an acknowl-edgement of a right existing in there would fairly and naturally beinferred. The Plaintiff's own evidence was that from 1955 they had nopossession or any acknowledgement of their rights. On the other handthere was defiance on the part of the 4th Defendant-Appellant. Herevidence was corroborated by the other Defendant's evidence. ThePlaintiff confessed that he had no possession nor did he give evi-dence to establish that his father Bramphy Appuhamy took the pro-duce. Vide Subramaniam v. Sivaraja(2) where it was held if one entersand take the profits exclusively and continuously for a very long pe-riod under circumstances which indicate a denial of a right in anyother co-tenant to receive them as by not accounting with the acqui-escence of the other cotenants an ouster may be proved.
It was also held in Rajapakse v. Hendrick Singho.(3) That exclu-sive possession of the common property by some co-owners the ef-fect of ouster could be asserted. In the said case Basnayake, C.J.had considered and referred to number of authorities regarding theexpression actual ouster at page '35' he observed "The expressionactual ouster need explanation, and as it is an expression used by
both Lord Mansfield and Lord Kenyon in the cases referred to aboveI cannot do better than explain it in the very words of Lord Mansfieldquote", Some ambiguity seems to have arisen from the term actualouster as if it meant some act accompanied by real force and as if aturning out by shoulders were necessary. But that it is not so".
It would appear therefore that on the facts of the instant case thePlaintiffs cannot claim the benefit^of the Defendant-Appellant pos-session as she has possessed not on their behalf but for herself with-out giving them the share Qf the produce nor acknowledging theirrights she was possessing exclusively and it was in adverse and indefiance of the rights of the Plaintiffs. This is not a case where a richbrother or a close relation had allowed a person in penury to enjoythe produce and to possess the land by permissive user. One maysay our social customs and family ties have some bearing on thepossession of immovable property owned in common and should notbe lost sight of many of our people consider it below dignity to alien-ate ancestral lands to strangers. Those who are in more affluent con-ditions permit their less fortunate relatives to take the incqme of theancestral property owned in common. But it would be different if aperson who had left the ancestral lands for more luxurious Residencein a salubrious climate and obtain a high post in the State with amonthly sinecure fails even to go to the ancestral land and exercisehis symbolic right to the property even by getting some one to plucka king coconut or a young coconut for his own benefit. The questionis could he return to the ancestral land after his retirement after heloses all the perks and the sinecure from the State and claim hisrights to the ancestral land. I am of the view that the poor relativeswho were living on the ancestral property would treat him as an inter-loper or trespasser since for number of years he had failed to visit hisancestral land and those who were in possession will not tolerate himas he by his own conduct had abandoned whatever interest he had tothe common property. Therefore his poor relatives would be possess-ing adversely to his interest unless he could establish that he hadclose connection with the ancestral land and the others paid him rentor gave part of the produce or acknowledged his rights. It is time thatwe understood that with the open market economy and the commer-cial development and with the influence of Adam's Smith principles oflaisses-faire had revolutionized our traditional social concepts. If onewere to realistically view this problem today we see that there is abreak down of our traditional social concepts for eg. we know thatpersons holding very high office in the Country would leave their agedparents in Homes for the aged. These were unheard in the past. Thereis no question of poor relatives who were prepared to do the biddingof high and mighty. We must not live in seclusion and fail to realizethe momentum of changes taking place in the economy and therebyeroding the traditional social values and concepts. We must realizethat we are now living in a money^oriented society.
In considering whether or not a presumption of ouster should bedrawn by reason of long continued possession alone of the propertyowned in common, it is relevant to consider (a) the income derivedfrom the property (b) the value of the property (c) the relationship ofthe co-owners and where they reside in relation to the situation of thecorpus.
In the instant case, the income from the Coconut and other treeswould have been considerable and income from the Rubber planta-tion would have been high, this was a valuable piece of property andthe 4th Defendant-Appellant was the only person who was residing inthe corpus and the corpus was fenced on three sides which establishthe exclusive possession. There was not an iota of evidence that thePlaintiffs had plucked even a Coconut or jak fruit or that he receivedeven a Coconut husk from the 4th Defendant. If the income that theproperty yields is considerable and the whole of it is appropriated byone co-owner during a long period it is a circumstance which wouldweigh heavily in favour of adverse possession on the part of the co-owner. The 4th Defendant is not closely related to the Plaintiffs thoughthey have a common pedigree. Though the report marked 'X-1' statesthat there were more that 1100 Coconut trees over 20 years and theCourt has to presume that income from Coconut would be consider-able. The report does not state that they were barren trees. Furtherthere was evidence that Rubber plantation in lot '2' was yielding anincome and it was exclusively taken by the 4th Defendant-Appellant.The Plaintiffs have done nothing to assert a claim to any share of theproperty on his own confession positively from 1955 till the filing ofthe Action in 1972. Nor was there any positive evidence led to indi-cate that his father asserted any claim to the property. On the otherhand there was specific evidence of the 4th Defendant of exclusivepossession vide page '259' and '306'. She was born in the housesituated in the corpus and she had lived with her mother and fatheron this land without admitting any rights of the Plaintiffs or concedingany rights to them and her claim was adverse though she was a co-owner nevertheless she had put an end to common possession byouster and by forceful occupation of the corpus from 1955.
Each case has to be viewed on its own facts. In this case there isvery clear and strong evidence of buster the Plaintiff's own evidencewas at least from 1955 the 4th Defendant-Appellant was forcefullypossessing the said lots, the possession was adverse and this wasnot a separate possession on grounds of convenience. The posses-sion of the 4th Defendant-Appellant was in defiance to the claims ofthe Plaintiffs. There was no evidence led to show that the fencing ofthe lots was for convenience of possession. As H.N.G. Fernando. J.observed in Abdul Majied v. Umma ZaneetA) that "by proving that al-though his entry was by virtue of his lawful title as a co-owner never-theless it had put an end to his possession in that capacity by ousteror something equivalent to ouster and that therefore and thereafterhis possession had been adverse'. The confession by the Plaintiffthat 4th Defendant was possessing it forecefully and that he had notstepped onto the land at any stage even after his father's death in1955 conclusively prove, that there was adverse possession by the4th Defendant-Appellant. Each case depends on the facts and onecannot apply decisions of other cases if the facts differs, at least from1955 the possession of the 4th Defendant-Appellant was adverse tothe rights of the Plaintiffs.
It was contended on behalf of the Respondent that the Appel-lant's case was Kusalahamy had adverse possession and had pre-scribed to it but that settlement of 1949 cuts across the position ofthe Appellant. However where the Appellant established ouster andadverse possession thereafter for a period exceeding 10 years forthe reasons hereinbefore given by me, can a Court deny the rightsacquired by the Appellant.
In the circumstances, I set aside the judgment of the learnedDistrict judge and allow the appeal with, costs fixed at Rs. 10,500/-.
EDUSSURIYA. J. – I agree.