006-SLLR-SLLR-2006-V-2-LESLIN-JAYASINGHE-vs.-ILLANGARATNE.pdf
CA
Leslin Jayasinghe vs
lllangaratne
39
LESLIN JAYASINGHEVSPartition Action-Evidence Ordinance, section 103-Burden of proof-PrescriptionOrdinance, No. 22 of 1871-section 3-Symbolic Possession-section 31,section 33,-Notaries Ordinance-Due Execution?-Notaries failure to observe
ILLANGARATNECOURT OF APPEALEKANAYAKEJ.
W. L.R SILVA J.
CA 895/97 (F).
DC KURUNEGALA 5185/P.
JULY 19, 2005.
OCTOBER 18, 2005.
DECEMBER 1,2005.
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(2006) 2 Sri L R
his duties with regard to formalities ?- Registration of Documents Ordinancesection 7-Prior Registration-Can it be raised in appeal ?- Mixed question oflaw and fact ? – Co-owners Rights ?-Ouster vital.
The plaintiff-respondent sought to partition the land in question, and did notgive any shares to the 6th defendant-appellant. The 6th defendant-appellantclaimed the entirety on a different chain of title. The Trial Judge held with theplaintiff-respondent, and gave the 6th defendant-appellant only a building andrejected his deed 6V6. on Appeal —
HELD:
The onus was on the appellant to prove his pedigree- section 103Evidence Ordinance, but he had failed to summon any of hispredecessors in title or produce any deed or document.
Notary’s failure to observe his duties with regard to formalities whichare not essential to due execution so far as the parties are concerneddoes not vitiate a deed.
The various facts and factors that persuaded the trial Judge not toplace any reliance on Deed 6V6 are sound.
Whether a particular deed is earlier in time and gets priority over another,deed by prior registration under section 7 of the Registration ofDocuments Ordinance is a mixed question of fact and law-and cannotbe raised for the first time in appeal.
It is only a pure question of law that can be raised in appeal for the firsttime, but if it is a mixed question of fact and law it cannot be done.
Per Ranjith Silva J.
“As the appellant raised issues based on the provisions of section 7-Registration of Documents Ordinance consequent upon such issues thequestion whether in spite of the fiscal conveyance the judgment debtorcontinued his possession and thus prescribed to the land would have beenan inevitable issue”
Even assuming that 6V6 was a valid deed and that it gets priority overthe plaintiff's deeds still that will only make the appellant a co-owner.
A co-owner’s possession in law is the possession of other co-owners-nothing short of ouster or something equivalent to ouster is necessaryto make possession adverse to end co-ownership.
CA
Leslin Jayasinghe vs
lllangaratne (Ranjith Silva, J.)
41
APPEAL from the judgment of the District Court of Kurunegala.
Cases referred to:Weeraratne vs. Ranmenika-21 NLR 287
Hemathilake vs. Allina – 2003 1 Sri LR 144 at 151
Wijeratne vs. Somawathie – 2002 1 Sri LR 93 at 98
Seetha vs. Weerakone – 49 NLR 225
Jayawardana vs. Silva 76 NLR 427
Leachman Company Ltd., vs. Rangfalli Consolidated Ltd-1981 2 SriLR 37
Candappa vs. Ponnambalampillai – 13 NLR 326
Muthu Caruppaen vs. Rankira – 13 NLR 326
Jane Nona vs. Gunewardene – 49 NLR 522
Emanis vs. Sudappu – 2 NLR 261
Siman Appu vs. Christian Appu -1 NLR 288
Emanis vs. Sadappu 2 NLR 261
Alwis vs. Perera-21 NLR 321
Maria Fernando vs. Anthony Fernando -1997 2 Sri LR
Seetiya vs. Ukku-1986 1 Sri LR 225
Thiiakaratne vs. Bastian – 21 NLR 12
Ameresekera vs. Ranmenike- 3 NLR 137
N. R. M. Daluwatte, PC, with Gamini Silva for 6th defendant-appellantBimal Rajapakse for plaintiff-respondent.
cur.adv. vult.
May 26,2006.
RANJITH SILVA, J.The Plaintiff-Respondent who shall hereinafter be referred to as theRespondent filed plaint dated 11.11.1973 bearing number 5185-P in theDistrict Court of Kurunegala seeking inter alia a partition of the land calledThalagahayaya Modarawatte alias Ambalanpitiye Watte (which shallhereinafter be referred to as the Land) containing in extent Acres O. Roods
Perches 21 depicted in plan marked “x”. The report to the plan is markedas“X1".
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The respondent pleaded title from Perris Perera and Soyza Haminewho according to the Respondent and the 1 st – 5th Defendant-Respondentswere the original owners of the Land. It was the case for the Respondentthat according to the chain of title and the series of deeds as mentioned inthe Plaint title to the land devolved on the Respondent and the 1-5thDefendant-Respondents who became entitled to undivided shares of theLand as pleaded in the Plaint and the statements of 1-5 Defendant-Respondents.
At the trial in the District Court of Kurunegala the 6th Defendant whoshall hereinafter be referred to as “the Appellant” claimed the entirety ofthe Land on a different chain of title. He pleaded inter alia that CharlesPerera and Edward Abeyrathna were the original owners of the Land andthat on a decree entered against the said Edward Abeyratne in case No.14131 a fiscal sale took place on 07.03.1930 consequent to which thefiscal conveyance marked as 6v4 was granted in favour of one KaruppanaChettiar who by deed No. 3742 of 23.12.1939 (marked 6v5) transferred thesame to Natchiappa Chettiar who died leaving his son Sangrapille whotransferred the Land by Deed No. 6984 of 13.08.1968 (marked as 6v6), tothe Appellant and the Appellant thus became-entitled to the entire landwhich is depicted in the plan marked “X”.
According to section 103 of the Evidence Ordinance which reads asfollows
“The burden of proof as to any particular fact lies on that person whowishes the court to believe in its existence, unless it is provided by anylaw that the proof of the fact shall lie on any particular person”.
The onus was on the Appellant to prove his pedigree. But the Appellant. failed to summon any of his predecessors in title or produce any documentor any other proof in order to prove that Sangarapille was indeed a son ofNatchiappa Chettiar. What’s more the wife of the Appellant has candidlyadmitted that she did not know and was not aware as to where Sangarapilleor Natchiappa Chettiar was residing. At page 342 of the typed brief shehas mentioned that Sangarapille was the adopted son of Natchiappa Chettiaralthough it is mistakenly recorded in the proceedings that the Appellantwas adopted by Nachiappa Chettiar. It should read as Sangarapille
Leslin Jayasinghe vs
lllangaratne (Ranjith Silva, J.)
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was adopted by Natchiappa Chettiar. To read otherwise will be meaninglessin the context.
None of the parties disputed the identity of the corpus. The identity ofthe subject matter was never in issue. The appellant claimed title to theLand on the strength of the deed marked 6v6. In addition to that theAppellant claimed prescriptive rights to the entire Land and the buildjngsincluding the building marked'(a) in plan X, as well. After trial the learnedDistrict Judge rejected the Appellant’s claim based on 6v6 stating that hewould not place any reliance on deed 6v6, that he was not prepared to acton 6v6, that no title passed to the Appellant on 6v6 and rejected the claimof prescriptive rights put forward by the Appellant holding that the Appellanthad only succeeded in proving that he has prescribed to the building marked(8) shown in Plan X.
Aggrieved by the said judgment of the learned District Judge ofKurunegala dated 22.10.1997 the Appellant has preferred this appeal tothis Court praying inter alia for reversal of the judgment for the reasons setout in the Petition of Appeal and the oral and written submissions tenderedon his behalf.
On a perusal of the pleadings and the judgment of the learned DistrictJudge it appears to this court that this court is called upon to answer twoissues namely-
Whether deed 6D4 gets priority over deed P2 and thus 6D6 onwhich the Appellant claims title gets priority by registration overdeed P2, according to section 7 of the Registration of DocumentsOrdinance.
Whether the learned District Judge was wrong in rejecting the claimof the Appellant that the Appellant acquired prescriptive title to theentire Land by prescriptive possession based on section 3 of thePrescription Ordinance No. 22 of 1871 as amended thereafter.
The Appellant, citing Weerarathna vs Ranmenika(1) where it was heldI quote “… It is well settled that a notary’s failure to observe his-dutieswith regard to formalities which are not essential to due execution so far
2- CM 8091
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as the parties are concerned, does not vitiate a deed. For instance, theabsence of the attestation clause does not render a deed invalid. If theabsence of an attestation clause does not render a deed invalid, similarlyI think the failure on the part of the notary to have a deed executed induplicate does not affect its operation as a deed”. Argued, that by thesame token, any other error or slipperiness as observed by the learnedDistrict Judge in the instant case couldn’t invalidate a deed. The sameargument was cited with approval by Somawansa, J., in Hemathilake vsAllina<2> at 151 where Somawansa, J. observed “In any event if in fact thenotary has failed to comply with any provision in section 31 of the Notary'sOrdinance it’s well settled law that the validity of the deed is not therebyaffected in view of section 33 of the Notary’s Ordinance. The Appellant hasalso cited Wijeratne vs. Somawathiem where itwas held by Udalagama,J. I quote” It is my view that the essential elements of due execution is tocomply with the provisions of section 2 of the Prevention of FraudsOrdinance. There is no evidence that section 2 has been violated and thatsection enacts that it shall be –
in writing
signed by the Party making the same
in the presence of a Licensed Notary Public
and two or more witnesses
present at the same time and
the deed is duly attested by the Notary and the witnesses.”
Therefore it was argued on behalf of the Appellant that 6V6 showed that allthose requirements have been complied with and that there was no vitiatingfact or factor in respect of deed 6v6. The Appellant further contended thatthe learned District Judges’s finding to the effect that the 6th Defendant(Appellant) had not proved that he obtained rights under the said deed 6v6’was erroneous as the learned District Judge arrived at that finding mainlyinfluenced by the following facts 1
(1)By considering the discrepancies between the evidence of thewitnesses and the contents of the attestation clause in 6V6.
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Leslin Jayasinghe vs
lllangaratne (Ftanjith Silva, J.)
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The attestation clause does not reveal that the two attestingwitnesses either knew or did not know the executants ?
The evidence of the Appellants as to the mode of payment of theconsideration was contradictory to what is stated by the Notary inthe attestation clause to the deed, namely that the 6th Defendantstated in his evidence that he paid Rs. 500 by cheque and thebalance in ten 100 rupee notes whereas according to the attestationclause it is stated that Rs. 250 was paid in- cash, Rs. 500 bycheque and Rs. 750 on a promissory note.
Although I agree with the law cited I find that the contentions of the Appellanton the facts are not sound. The question of due execution was not theonly issue even though it is inextricably mixed with the other facts. TheAppellant has failed or deliberately refrained from stating in his submissionsthe other various facts or factors that persuaded the learned District Judgenot to place any reliance on 6v6. Some of them amongst others are:
The fact that 6v6 was executed in a hurry on 13.08.1968 long afterthe dispute arose between the parties and that too was after thedispute was referred to the Conciliation Board. The instant casewas instituted on 11.11.1973.
The fact that there is no proof to say that Sangarapille was the sonof Natchiappa Chettiar although it’s so stated in 6v6. Even theNotary has not mentioned that the executant was known to him.
The fact that the deed 6v6 does not state that Sangarapille or anyof his predecessors were in possession of the Land at any time.
That the evidence of the Appellant or his witnesses did not disclosethat Sangarapille or any of his predecessors in title was inpossession of the Land at any time.
The fact that the evidence given on behalf of the Appellant disclosedthat the Appellant had together with Paulis Perera the husband ofthe 7th Defendant constructed a boutique on this Land.
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The fact that by 1953 long before the execution of 6v6, the Appellantwas in possession of the boutique marked (3) in plan X and hadreceived a part of the rent paid in respect of the same having leasedout the same to one Jayathissa (Vide 6v1 ) even prior to the executionof6v6.
The fact that although the Appellant was in possession of building
long before the execution of 6v6 he failed or refrained fromindicating to court on what right he happened to come intopossession of the said building as his initial possession of thisbuilding was certainly not on the strength of 6v6 since that deedwas not even in existence when he first came into possession/occupation of the boutique marked (8).
The fact that there were suspicious circumstances surrounding thehurried execution of 6v6 which appeared to the learned DistrictJudge as a self serving deed.
In all the circumstances adumbrated above it’s my considered viewthat the learned District Judge cannot be faulted for deciding not to placeany reliance on 6v6.
Whether 6D4 which is earlier in time and one of the deeds in the chainof title through which the Appellant is said to have acquired title which isclaimed to be a preclude to 6D6 gets priority over P2 by prior registrationunder section 7 of the Registration of Documents Ordinance is a mixedquestion of law and fact and is raised for the first time in this court by theAppellant.
Section 7(1) of the Registration of Documents Ordinance reads thus“An instrument executed or made on or after the 1 st day of January, 1864,whether before or after the commencement of this Ordinance shall, unlessit is duly registered under this chapter or, if the Land has come within theoperation of the Land Registration Ordinance … be void as against allparties claiming an adverse interest there to on valuable consideration byvirtue of any subsequent instrument which is duly registered under thischapter, if the land has come within the operation ….”
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Leslin Jayasinghe vs
Hiangaratne (Ranjith Silva, J.)
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7(2) “But fraud or collusion in obtaining such subsequent instrument orin securing the prior registration thereof shall defeat the priority of theperson claiming there under”
7(3)….
7(4) Registration of an instrument under this chapter shall not cure anydefect in the instrument or confer upon it any effect or validity which itwould not otherwise have except the priority conferredon it by this section.
The learned District Judge in deciding this case had no occasion to tryany issue based on section 7 and the subsections as the parties did notplead or raise a single issue on the subject of prior registration.
I find that a substantial part of the written submissions of the Appellanthas been devoted to the issue of ‘prior registration’. This is not a subjectthe parties have contemplated, pleaded or put in issue at the trial in theDistrict Court. It’s now too late in the day for the Appellant to raise suchissues for the 1st time in appeal, having failed to agitate the same in theDistrict Court, as it is not a pure question of law that could be agitated forthe 1 st time in appeal.
In Seetha vs Weerakoon(4) it was held that a new point which was notraised in the issues or in the course of the trial cannot be raised for thefirst time in appeal, unless such point might have been raised at the trialunder one of the issues framed, and the Court of Appeal has before it allthe requisite material for deciding the point or the question is one of lawand nothing more.
In Jayawickrema vs Silva(S> it was held that a pure question of law canbe raised in appeal for the first time, but if it’s a mixed question of fact andlaw it cannot be done.
In Leachmen Company Ltd vs Rangfalle Consolidated Ltd.(6> it was heldthat a pure question of law which does not require the ascertainment ofnew facts can be raised for the first time in appeal.
In Candappa vs Ponnambalampillai(7>, it was held that a party cannotbe permitted to present in appeal a case different from that presented in
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the trial court where matters of fact involved which were not in issue at thetrial, such case not being one which raises a pure question of law.
The question of prior registration of 6v4 over P2 (P2 is one of the deedsthat links the chain of the devolution of title of the Respondent) is a questionof mixed fact and law. If the parties had raised an issue on prior registrationinevitably the District Court would have gone in to or would have beencompelled to go in to the following several connected issues among otherssuch as,
Whether the deeds P2 and 6D4 emanate from the same source.
Whether 6D4 was executed for valuable consideration.
Whether 6D4 was registered in the correct folio.
Whether 6D4 was executed fraudulently or with collusion etc…
None of these issues were raised at the trial.
On the other hand whether the judgment debtor, against whom it isalleged that a decree was entered in case No. 14131 and thereafter thefiscal conveyance No. 10892 dated 31.05.1934 (6V4) was granted in favourof Karuppan Chettiar, continued to remain in possession of the Land inspite of the fact that a fiscal conveyance was executed depriving him ofhis Land, is also a question of fact that would have been raised as aconsequential issue if the above mentioned issues were raised by theAppellant.
Assuming without conceding that the Chettiyars owned the subjectmatter on the strength of V3-V5 the evidence disclosed that they only hadpaper title and no physical possession even for a day. The Appellant hasnot led any evidence to give the slightest indication let alone proof that hispredecessors had even a day’s possession of the Land.
6V6 was executed in 1968. The relevant fiscal conveyance 6V4 wasexecuted on 31.05.1934. From 1934 up to 1968 the Respondents theirpredecessors and even the Appellant were in possession of this Land.The possession of this land by the appellant during this period was not ontitle based on 6V6. The Respondents and their predecessors possessed
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Leslin Jayasinghe vs
lllangaratne (Ranjith Silva, J.)
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this Land and are in possession of this Land in their rights. What mattersis that the Respondents are in possession of the Land to date in their ownrights irrespective of the fact whether at a given point of time one of thepredecessors in title who had an undivided share of the Land lost hisrights to his undivided share of the land or not.
It was held in Muttu Caruppen vs. Rankira w where the question aroseas to whether a judgment debtor who has been in possession of the Landfor more than 10 years after fiscal’s sale can claim prescriptive title.Hutchinson C. J. decided that there is nothing in sections 289 and 291 ofthe Civil Procedure Code which debars a judgment-debtor from claimingtitle for such Land by prescription.
In Jane Nona vs. Gunewardene(9> Basnayake, J. decided that a judgmentdebtor who continues in adverse possession after a sale in execution canacquire title by prescription. The symbolical possession by a purchaser at acourt sale is not an interruption of such possession. There must be aninterruption of actual physical possession (vide Emanis vs. Sudappu(9a>),MuttuCaruppen vs. Rankira (supra) Simon Appu vs. Christian Appu (supra),
Therefore it is seen that had the Appellant raised issues based on theprovisions of section 7 of the Registration of Documents Ordinanceconsequent upon such issues the question whether in spite of the fiscalconveyance 6v4 the judgment debtor continued his possession and thusprescribed to the Land would have been an inevitable issue. If there hadbeen an issue to that effect the District Judge would have certainly answeredthat issue in the affirmative in all the circumstances of this case.
The Counsel for the Appellant at the stage of arguments in this Courtconveyed on behalf of the Appellant that the Appellant did not have title tothe entire Land and confined his claim only to a l/4th share of the Land.This was on the basis that his predecessor in title, Edward Abeyratneonly had an undivided 1/4 share of the corpus. This shows a clear recognitionor an admission on the part of the Appellant that the Respondents werealso co-owners of the Land. If that stance is correct then the rights of theRespondent have not been wiped out by 6v6, if at all would only limit theirrights. But in fairness to the appellant it must be stated that the deed 6V6is not in respect of undivided shares but the entirety of the land.
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Assuming without conceding that 6V6 was a valid deed and that it getspriority over P2 still that will only make the Appellant a co-owner.
A co-owner’s possession is in law the possession of other co owners.Every co owner is presumed to be in possession in his capacity as coowner. A co-owner cannot put an end to his possession as co owner by asecret intention formed in his mind. Nothing short of ouster or somethingequivalent to ouster could bring about that result. (Vide Alvis vs Perera)(,3!
Judgment in Maria Fernando vs. Anthony Fernando <’4>. is applicable tothe facts of this case. It was held in that long possession, payment ofrates and taxes, enjoyment of produce, filing suit without making the adverseparty, a party, preparing plans and building houses on the land and rentingit, are not enough to establish prescription among co owners in the absenceof an overt act of ouster.
It was held in Seetiya vs UkkJ,s> that nothing short of an ouster orsomething equivalent to ouster is necessary to make possession adverseto end co ownership. Although it is open to a court from long lapse of timein conjunction with other circumstances of a case to presume thatpossession originally that of a co-owner had later became adverse, thefact of co owners possessing different lots, fencing them and plantingthem with a plantation of coconut trees which is a common plantation inthe area cannot make such possession adverse.
In Thilakaratne vs. Bastiai¥’6> at page 12 it was held I quote; “It is aquestion of fact, wherever long continued possession by one cowner isproved to have existed, whether it is not just and equitable in all thecircumstances of the case that the parties should be treated as though ithad been proved that separate and exclusive possession had becomeadverse at some date more than 10 years before action was brought.
In Amerasekera vs Ranmenika °7> it was held that among co ownersthe strongest evidence of adverse possession should be given. In thiscase there is none.
For this reason my view is that the Respondent need not necessarilyprove prescriptive title in addition to the paper title they relied on at the trial
CA
Wickramasinghe vsKumara
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to succeed in the case. On the other hand the Appellant having claimedtitle to the entire Land and later limited his claim to 1/4th share of the landon 6V6 8 also claimed prescriptive rights to the entire Land includingbuilding. This was the conclusion drawn by the learned District Judge.Therefore the learned District Judge has held that the Appellant was entitledonly to building (B) and the land covered by the building namely an area of20 square feet in extent. In all the circumstances of this case I cannot seeany fault in the reasoning or the findings of the learned District Judge withregard to the issue of prescription.
For all the reasons I have enumerated I find no justification to interferewith any of the findings of the learned District Judge. I find no merit in thisappeal and the same is hereby dismissed with costs fixed at Rs. 7500 tobe paid to the Plaintiff Respondent (Respondent) by the 6th Defendant-Appellant (Appellant).
EKANAYAKE J. -I agree.
Appeal dismissed.
Editor's Note : The Supreme Court in SC sp La 172/06 on 13.09.2006 refused specialleave to the Supreme Court