( 198 )
The defendants admitted that Dingiri Appu Hangidiya was theunde of Ban Naide and. .the great-grand-unde of Muhandirama,but they denied that he was their adoptive father. They furtherstated that the heirs of Dingiri Appu Hangidiya were Dingiri Appuand Punohi Menika, who had mortgaged the lands in dispute to thefourth defendant on the 1st December, 1882, and given him posses-sion thereof in lieu of interest; that Punchi Menika died intestateleaving as her heirs the first and second defendants, who becameentitled to a half share; and that they and the heirs of DingiriAppu were in possession, the fourth defendant being in occupationas mortgagee.
The District Judge found that Dingiri Appu, as administratorof Dingiri Appu Hangidiya’s estate, conveyed in 1877 a half shareof these lands to Punchi Menika, the mother of the first and seconddefendants, and that five years afterwards Dingiri Appu and PunchiMenika executed a usufructuary mortgage of these lands in favourof the fourth defendant; that Ban Naide and Muhandirama werethe adopted sons-of Dingiri Appu Hangidiya; that there was noproof that Ban Naide and Muhandirama were ever placed in posses-sion under the decree in their favour in suit No. 74,171; and thatplaintiff and his predecessors had no prescriptive possession of thelands vindicated.
He therefore dismissed the plaintiff’s action.
The plaintiff appealed.
Van Langenberg, for appellant.
Dornhorst, K.C., for respondent.
Cut. adv. vult.
March 13
and. 19.
,19th March, 1908. Moncreiff, J.—
Ban Naide and Muhandirama claimed the lands in question byinheritance from their adoptive father Dingiri Appu Hangidiya.In 1876 Ban Naide transferred an undivided half to Muhandirama.In 1877 they entered a suit against Dingiri Appu, the adminis-trator of the estate of Dingiri Appu. Hangidiya, their adoptivefather; and in 1884, on the joint motion of the parties, judgmentwas entered in favour of them as heirs of the deceased Dingiri AppuHangidiya for a declaration of title to the lands in question, andfor possession of them. A year or two later a writ of possessionissued, but there is no proof of its execution.
In 1895 Muhandirama conveyed all the lands to the plaintiff,who complains of an ouster in 1899.
The defendants dispute the title set out by the plaintiff. Thefourth defendant says that he has long been in possession under a
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usufructuary mortgage of the lands executedbyDingiriAppu, the
administrator, and his sister Punohi Menika,whoallegedtheywere
the heirs of Dingiri Appu Hangidiya. The first and second defend-ants said they were entitled to half of the lands, as children andheirs of Punohi Menika; they also saythattheyandtheir
predecessors in title, and the heirs of DingiriAppuandtheir
predecessors in title, have a right to idle lands by prescriptivepossession “through the fourth defendant.” The third defendantdisclaims.
Assume that Muhandirama conveyed a good title to the plaintiff;assume that Dingiri Appu and Punohi. Menika ha'd no interest tomortgage to the fourth defendant; assume that they and thoseclaiming under them by the mortgage executed pendente life arebound by the consent judgment of the 18th August, 1884, inNo. 74,171] (see 8 S. C. C. 95 and 3 Browne, 82). Still the Judgefinds in favour of the defendants on the question of possession.What then is the position of the parties?
If it be said that the possession of the fourth defendant is that ofthe plaintiff’s usufructuary mortgagee, and therefore not adverse tothe plaintiff, the plaintiff should have proceeded to free the landfrom the mortgage and the usufructuary, and should not havesued for a declaration of tile. If the fourth defendant is not theplaintiff’s mortgagee, his possession is that of one who professes topossess under a mortgage which isnot valid.He hassetup
however a right by prescriptive possession, not on his own accountbut on account of his mortgagors and their heirs.
I do not, understand that a defendant setting up his possessionas usufructuary mortgagee for ten years previous to action oan availhimself of section 3 of Ordinance No. 22 of 1871. He acknowledgesthe existence of a right in anotherperson.Lawrie,J.,in
Punchiralo v. Andris Appuhamy (3 8.C.R. 151),says: “Canthe
defendant plead his own possessionascreating'a titleforhis
lessor, although the possession creates no title for himself? ThePrescription Ordinance contemplates possession by a party gettingjudgment, his own possession or that of his predecessors in title.It is to be a judgment declaratory of the right of property in aparty to the action, not of a stranger. Because it is proved thatthe defendant’s lessor had no title when she leased, and when heentered into occupation, his possession, even if it has exceededten years, cannot be pleaded by him as creating title in a personwho is not, a party to the action, and against whom therefore nojudgment can here be entered.”
This decision was approved by Bonser C.J., and Withers andBrowne, J.J., in Terunanse v. Menika (1 N. L. R. 200).
March 13
and 19.
1908.March 13and 19.
( 200 )
It would appear then that, in order that a person may avail him,self of section 3 of the Prescription Ordinance, No. 22 of 1871—
Possession must be shown from which a right in another
person cannot be fairly or naturally inferred.
Possession required by the section must be shown on the
part of the party litigating or by those under whomhe claims. ’'
The possession of those under whom the party claims
means possession by his .predecessors in title.
Judgment must be for a person who is a party to the
action and not for one who sets up the possession ofanother person, who is neither his predecessor in titlenor a party to the action.
Now, it has not been shown that Dingiri Appu and PunchiMenika had any title to the land. Dingiri Appu was bound byNo. 74,171. Punchi Menika was not a party to No. 74,171, butthe conveyance to her by Dingiri Appu is dated 15th October,1877, ten days later than the institution of No. 74,171. Herconveyance is therefore void as against the decree in No. 74,171.Both appear to have died intestate. From paragraph 3 of theplaint Dingiri Appu seems to have left heirs. They are -notparties to this action, and the fourth defendant cannot make useof them for the purpose of defeating the action.
The first and second defendants, who • married the third andfourth defendants, are the daughters and heirs of Punchi Menika,and as they are parties to the action, the fourth defendant's posses-sion may enure to them for their undivided half. They claim anundivided half “ under ” the fourth defendant. Their mother,Punchi Menika, let the fourth defendant into the lands on themortgage, which was void against the decree in No. 74,171. Theyand their mother had no more title to the land than strangers.Still a man claiming under them has been in possession for tenyears; his possession is theirs; and, if his possession was adverse,they have a right to an undivided half by prescription. The fourthdefendant’s possession was I think adverse, but, inasmuch as hispossession of the other undivided half was on behalf of personswho were not parties to the action, it seems to me that the plaintiffmust succeed to that extent. I think the plaintiff is entitled tohave his costs here and in the District Court.
Layard, C.J.—I. agree.