008-SLLR-SLLR-1993-1-LIVINIS-SILVA-AND-ANOTHER-v.-WILLIAM-FERNANDO-AND-ANOTHER.pdf
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Lrvinis Silva and another v. Fernando and another
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LIVINIS SILVA AND ANOTHER
v.
WILLIAM FERNANDO AND ANOTHER
SUPREME COURT.
G. P. S. DE SILVA. C.J., KULATUNGA, J.
AND RAMANATHAN, J.
SC APPEAL NO. 44/90.
CA NO. 500/82F.
DC MOUNT LAVINIA NO. 229/ZLMARCH 01, 18 AND 19, 1993.
Vindicatory suit – Prescription between co-owners – Ouster – Adverse andexclusive possession.
The corpus sued upon by the plaintiffs had been claimed as a divided portionin partition action No. 3381 IP in 1944 by Thegis, the predecessor in title of theplaintiffs on the basis of exclusive possession. From his statement of claim inthe partition action the co-owners became aware of the adverse claim. It wasnot a secret intention but an outright assertion of exclusive possession and thecommencement of ouster.
Held:
The facts established adverse and exclusive possession of the land in suit againstthe rights of the other co-owners sufficient to justify the plaintiffs claim of titleto the land by Prescription.
Cases referred to :
Tillekeratne v. Bastian 21 NLR 12 (FB), 24, 26, 27.
Corea v. Appuhamy 15 NLR 65.
Abdul Majeed v. Ummu Zaneera 61 NLR 361, 371-372.
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(1993) 1 Sri L.R.
APPEAL from a judgment of the Court of Appeal.
P. A. D. Samarasekera, P.C., with N. Singaravel and Jayantha Almeida deGunaratne for defendant-appellants.
N. ft M. Daluwatta, P.C., with Manohara de Silva and P. Keerthisinghe forthe plaintiffs-respondents.
Cur. adv. vult.
April 28, 1993.
G. P. S. DE SILVA, C. J.
The plaintiffs instituted these proceedings for a declaration of title toa separate portion of the land called Maragahawatta referred to asLot B in Plan No. 16 of 1933 which was marked at the trial as P6.The plaintiffs also sought the ejectment of the 1st and 2nddefendants and claimed damages.
The plaintiffs averred that Thegis Fernando was the original ownerof the corpus by virtue of purchase and prescriptive possession andthat he by deed of gift No. 1041 of 1951 (P10) donated the sameto the 1st plaintiff and to Simon Fernando. The latter by deedNo. 193 of 1956 (P11) sold his rights to the 2nd plaintiff andthus the plaintiffs became the sole owners of the property andpossessed it until 19.2.77 when the 1st and 2nd defendantswrongfully entered their land.
The defendants in their answer averred that Thegis Fernandoreferred to in the plaintiffs pedigree was only a co-owner of thecorpus and had no exclusive and adverse possession of any dividedportion of the land as pleaded in the plaint. The 1st defendant claimedthat he had purchased an undivided 1/8th share of the corpus ondeed No. 2590 of 03.01.75 (V7) from Laisa, a sister of ThegisFernando. It was therefore the position of the defendants that theplaintiffs are only co-owners of the land along with the 1st defendantand others.
The District Judge held that Thegis Fernando prescribed to theland in suit and entered judgment for the plaintiffs. The defendantsappealed to the Court of Appeal and the Court of Appeal too heldwith the plaintiffs. The 1st defendant and his son the 2nd defendanthave now preferred an appeal to this Court.
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Livinis Silva and another v. Fernando and another
(G. P. S. de Silva, C.J.)
99
Mr. Manohara de Silva, for the plaintiffs-respondents contendedat the outset that the deed V7 (transfer from Laisa to the 1stdefendant-appellant) does not apply to the corpus and therefore theplea of the 1 st defendant that he is a co-owner of the corpus alongwith the plaintiffs fails. As rightly submitted by Mr. Samarasekerafor the defendants-appellants, this contention cannot succeed for thereason that the plaintiffs did not at the trial raise any issue as towhether V7 dealt with a different land although the defendantshad specifically pleaded V7 which is a transfer by Laisa, the sisterof Thegis Fernando. The matter does not rest there. The 1st defendantgave evidence and also called Laisa. However, it was not suggestedto either of them that V7 did not apply to the land in suit. It wouldappear that the case for the plaintiffs at the trial was that V7 didnot convey rights because Laisa's brother Thegis Fernando hadprescribed to lot B in plan P6. Therefore it was not the case forthe plaintiffs as presented at the trial that V7 did not apply to thecorpus.
The evidence establishes that the land in suit was a co-ownedproperty and among the co-owners was Thegis Fernando, thepredecessor in title of the plaintiffs and Laisa, the predecessor in titleof the 1st defendant. The principal submission of Mr. Samarasekerafor the defendants-appellants was that there is no evidence of theseparation and the division of lot B in P6 as claimed by the plaintiffsand there is no proof of ouster. At the trial the plaintiffs relied largelyon P6 for proof of the separation and the division of lot B. However,as rightly submitted by Mr. Samarasekera, P6 has not been signedby the parties who are alleged to have taken part in the division ofthe land. There is no deed of partition nor cross conveyances followingupon P6. The line of division between lots A and B is by a dottedline which indicates that it is an indefinite boundary ; there is nophysical feature which corresponds to that line. The plaintiffs failedto take out a commission to show that the alleged division is physicallyon the ground. Therefore the Court of Appeal has rightly reachedthe finding that" the so called amicable division in P6 had not beenacted upon or recognised by the co-owners''.
Although there was no actual division and separate possessionfollowing upon P6, yet, as pointed out by the Court of Appeal, therewas the earlier partition action No. 3381/P of the District Court ofColombo, which was filed in 1944. The 1st defendant in that casewas Laisa, and the 2nd defendant was Thegis Fernando. The plaint
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(P3), the final partition plan P7, the superimposition of plan P6 onP7 (marked P8) were produced at the trial. And more importantly,the answer filed by Thegis Fernando, was produced as P4. Whatis of relevance for present purposes are the averments in paragraphs4, 5 and 7 of P4 which read as follows
"(4) Further answering this defendant says that the original landwas an extent of soil sufficient to plant 100 coconut plants andthe same was possessed in two equally divided portions, thedivision having taken place according to plan No. 16 dated23.04.1933 made by J. W. de Silva, Licensed Surveyor, at therequest of all the co-owners.
In the said plan No. 16 Lot B which is the eastern portion,was possessed by this defendant and he is living in the saidLot B. A portion of the said Lot B has been included in thepreliminary plan filed of record together with his residing houseNo. 5 in the said plan. The said portion containing the said houseNo. 5 built by him 15 years ago is an encroachment on the saidLot B and should be excluded from the partition.
(7) This defendant and his predecessors in title have been inthe undisturbed and uninterrupted possession of the portionencroached upon for over 10 years by a title adverse to andindependent of that of everybody else and claims the benefit ofsection 3 of the Ordinance No. 22 of 1871".
On a consideration of the aforesaid averments in the answer filedon 21.03.1945, it is clear that there is here an explicit and categoricalassertion by Thegis Fernando of separate and exclusive possessionof Lot B in plan P6. The Court of Appeal in its judgment hasaddressed its mind to this important aspect of the case and, in myview, rightly concluded, “The statement of claim was that he pos-sessed exclusively. Therefore the co-owners became aware of hisadverse claim. This was not a secret intention but an outrightassertion of exclusive possession and the commencement of ouster".(The emphasis is mine).
Mr. Samerasekera, however, urged that despite this assertion inthe answer, the proceedings in the partition action show that ThegisFernando has in fact abandoned his claim of exclusive possession.
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Livinis Silva and another v. Fernando and another
(G. P. S. de Silva, C.J.)
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I find myself unable to agree with this contention. It was only avery small portion of Lot B in P6 that was included in the corpussought to be partitioned (see plan 8). House No. 5 which was thehouse in which Thegis Fernando was living together with share ofthe land was allotted to him at the trial. In the plan (P7) Lot 8 andhouse No. 5 were allotted to Thegis Fernando and this was verynearly the portion of Lot B in P6 which was included in the corpus.It cannot be fairly said that Thegis Fernando abandoned his claimto Lot B at the trial.
It was in 1948 that the partition action was concluded. There isstrong evidence to establish that since 1948 Thegis Fernando alonehad adverse and exclusive possession of the land in suit against therights of the other co-owners. This was the finding reached by theCourt of Appeal, a finding which is amply supported by thedocumentary and oral evidence on record. I accordingly dismiss theappeal with costs fixed at Rs. 1500.
RAMANATHAN, J. – I agree.
KULATUNGA, J.
I am in agreement with the judgment of my Lord the Chief Justiceand wish to add that the claim of the plaintiffs-respondents issupported by the evidence in the case and the principle stated inthe Full Bench decision in Tillekeratne v. Bastian (,) (cited by Mr.Manohara de Silva, Counsel for the plaintiffs-respondents) where itwas held that it is open to the Court, from the lapse of time inconjunction with the circumstances of the case, to presume that apossession originally that of a co-owner has since become adverse.
Bertram, C. J. said (p. 24) –
"It is a question of fact, whenever long continued exclusivepossession by one co-owner is proved to have existed, whetherit is not just and reasonable in all the circumstances of the casethat the parties should be treated as though it had been provedthat separate and exclusive possession had become adverse atsome date more than ten years before action was brought.”
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Shaw, J. (p. 26) referred to the presumption as : "the presumptionof ouster" and added that this has been recognised by the PrivyCouncil in Corea v. Appuhamy (2)
De Sampayo, J. said (p. 27) :
"A presumption of adverse possession may, I think, be drawnfrom the fact of exclusive possession by one co-owner extendingover such a long period as to render non-possession bythe other co-owner inexplicable, except upon the theory ofacquiescence in an adverse claim.“
Mr. Samarasekera, P.C. for the defendants-appellants in hiswritten submissions, in reply to the written submissions forthe plaintiffs-respondents, states that Tillekeratne's case has noapplication to the facts of this case ; and that in any event, thepresumption referred to in that case must be understood in the lightof "the explanation" of that case by K. D. de Silva, J. in AbdulMajeed v. Ummu Zaneera (3>.
The plaintiffs claimed exclusive rights to a separate portion ofthe land called Maragahawatte depicted as Lot 'B' in plan No. 16of 1933 (P6). The balance portion of the said land is depicted asLot 'A' in the said plan. The evidence of the 1st plaintiff and hiswitness Rodrigo (Grama Sevaka) and Barabos, defendants' witnessclearly support the finding that since 1948 it was Thegis (the fatherof the plaintiffs) and thereafter the plaintiffs who had the exclusivepossession of the land in dispute until 1977 when the defendantsentered the land and forcibly constructed a house overnight, on thestrength of a purchase of an undivided 1/8 share thereof from Laisa,the sister of Thegis on deed No. 2590 of 03.01.75 (V7).
The other co-owners were no parties to the division of the landshown in the said plan P6 ; and hence the exclusive possession ofLot 'B' in that plan by itself would not constitute an ouster againstthem. However, the partition action 3381 filed in 1944 (P3) in whichLaisa was the 1 st defendant, the answer of Thegis, the 2nd defendant(P4), the final plan (P7) and the final decree (P12) together with theplan P8 which is the superimposition of P6 on P7, are relevant.Thus whilst the total extent of Maragahawatte as per plan P6 wasOA. 3R. 15.62-P., the corpus of the partition action as per plan P7
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Livinis Silva and another v. Fernando and another
(G. P. S. de Silva, C. J.)
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was 0A. 1R. 34.06-P. which constitutes the entirety of lot 'A' in thesaid plan P6 plus about 6-7 P. out of Lot ’B' in extent 0A. 1R. 27.81 P,claimed by Thegis. This led to the complaint by Thegis that a partof the land exclusively claimed by him had been included in thecorpus. This dispute was not pursued as the case was concludedwithout a contest and an extent of 6.75 P. was allotted to Thegis.
It seems to me that by excluding almost the entirety of Lot 'B‘from the corpus of the partition, the co-owners, including Laisa,acquiesced in the claim of Thegis to Lot ’B' which continued to bepossessed exclusively by Thegis and his successors from 1948and without any disturbance, until 1977 ; and the circumstances ofthe instant case appear to amount to something more thanpresumption of ouster in that the conduct of the other co-owners inthe partition action and thereafter for so long a period warrantsthe inference that the possession of Thegis and his successorsconstitutes "ouster or something equivalent to an ouster" referred toin Corea's case (supra).
I do not agree that the dicta of K. D. de Silva, J. in Abdul Majeed'scase (supra) have any application to the case before us. Thatwas a case in which the land in dispute consisted of 12.61 P. inextent and a building covering practically the whole land. It washeld that proof that one of the co-heirs let out the premises andappropriated to himself the entire rent (which was not much) for 37years was insufficient, by itself, to bring the case within s. 3 of thePrescription Ordinance. The criteria specified by K. D. de Silva, J.for considering whether the presumption of ouster may be drawnmust be understood in the context of that case. At the same timecertain comments of de Silva, J. to the effect that in drawing thepresumption (which was adopted from English law) regard must behad to the fact that common ownership of lands is rampanthere whereas it is comparatively rare in England, etc. were notintended to place any general constraint in the matter; for as HisLordship himself said : “whether the presumption of ouster is to bedrawn or not depends on the circumstances of each case" supra.
I therefore agree that the appeal should be dismissed with costsfixed at Rs. 1,500.
Appeal dismissed.