H. W. Jayewardene, Q.G., with JD. R. P. GoonetilleJce, for Defendants.Respondents.
June 1, 19G0. Basnayake, C.J.—
The only question that arises for decision in this case is whether ajudgment-debtor against whom a decree for ejectment from a landhas been passed acquires a right to a decree under section 3 of thePrescription Ordinance by continuing to remain therein for a period ofover 10 years after the date of the decree without doing any act bywhich he directly or indirectly acknowledges a right in the judgment-creditor or any other person.
Shortly the facts are as follows :—On 22nd October 1934 K. M. P.Kumarappa Chettiyar and K. M. P. R. Periya Carup'pen Chettiyar, asplaintiffs, instituted in D. C. Ivurunegala Case No. 17767 an actionagainst Jalathpedige Ruben the 2nd defendant to this action, and hisfather Jalathpedige Unga. They alleged that by deed No. 2383 of22—EXIT
2—J. N. R 10720—2033 (4/01).
13ASNAYAJ£E, C.J.—Samuel v. Dhartnasiri
10th May 1932 Unga and Ruben, the defendants, sold and transferred• to them the shares in the lands described in the schedule to the plaintand that on the same day the defendants entered into a deed of agreementwhereby they undertook to pay to the plaintiffs a sum of Rs. 6,000/-within a period of four years, on receipt of which payment the plaintiffsundertook to transfer the said shares in the lands to the defendants.They also alleged that it was agreed that the defendants should remainin possession of the said shares in the lands paying interest on the sumof Rs. 6,000/- at the rate of 10 per cent, per annum, and that if theyfailed to pay the capital or the interest on the due dates, the agreementshould be declared null and void and that the defendants should handover possession of the said shares in the lands to the plaintiffs. Asthe defendants had failed to pay the interest and upon such defaulthad failed to quit and deliver possession of the lands as agreed uponby them, the plaintiffs prayed that the agreement be declared null andvoid, that the defendants be ejected from the said lands, and that theybe placed in quiet possession. They also asked that the defendantsbe ordered to pay jointly and severally damages in a sum of Rs. 500/-and continuing damages in a sum of Rs. 500/- per annum till they wererestored to possession. The plaintiffs succeeded in that action and on16th December 1935 a decree was entered in their favour ordering anddecreeing that the agreement dated 10th May 1932 be declared nulland void. The decree further ordered that the defendants be ejectedfrom the lands described in the schedule to the decree and that theplaintiffs be placed in quiet possession thereof. The defendants werealso ordered jointly and severally to pay to the plaintiffs the sum ofRs. 500/- as damages and continuing damages at the rate of Rs. 500/- ’•per annum till the plaintiffs were restored to possession of the said lands.On 20th February 1936 the plaintiffs moved for a writ of possessionagainst the defendants and the application was allowed. On 29thJune 1936 the Deputy Fiscal, Kurunegala, returned the writ of possessionand reported that the plaintiffs did not attend to take delivery of posses-sion of the lands. No further attempt appears to have been made toexecute the decree till 7th November 1940, when another application .was made for the issue of a writ of possession. On this application theCourt ordered that affidavits should be filed and that notice be issuedon the defendants. No further steps appear to have been taken onthat application, because on 6th February 1942 another applicationwas made by the plaintiffs for a writ of possession. An affidavit fromthe plaintiffs’ attorney was filed and the plaintiffs’ Proctor moved thatthe writ of possession be re-issued for execution and that it be againstRuben alone, because by that time his father Unga had died. TheCourt ordered notice to issue on the 2nd defendant. Though noticewas served and order for a writ of possession was made, no steps weretaken by the plaintiffs till 19th October 1942 when they moved forexecution of the writ of possession. Objection was taken to that appli-cation by the 2nd defendant on. the ground that he had acquired a rightto a decree in his favour under section 3 of the Prescription Ordinance
J3ASNAYAKE, C.J.—Samuel v. Dftarma&irt
in respect of the lands in dispute, and that the plaintiffs had failed toexercise due diligence to procure satisfaction of the decree and that10 years had elapsed from the date of the decree. The learned trialJudge refused the application for execution of the 'writ on the groundthat it was barred by the operation of section 337 (1) of the Civil ProcedureCode.
The instant action was instituted by the plaintiffs, MutunayakageSamuel, to whom Reena Meiyappa Chettiar, the attorney of KumarappaChettiar and Caruppen Chettiar, had sold their interests. He prayedthat he be declared entitled to £ share of the said land and that the landbe partitioned in terms of the provision's of the Partition Ordinance.The defendants resisted the action and asked that it be dismissed. Themain issue tried by the learned Judge is one of prescription which hehas held in favour of the defendants. In his judgment he observes that“ it is perfectly clear that from the date of the decree in D. C. KurunegalaCase Ho. 17767 ordering the ejectment of Unga and Reuban, the posses-sion of Unga and Reuban became adverse. That their possessioncontinued to be adverse is proved by the fact that various applicationswere made for a writ of possession by the chetties, and attempts weremade by them to obtain possession
The learned District Judge has rejected the evidence that the defendantsgave the Chetties a share of the produce. Learned counsel for theappellant confined his arguments to the question of law. It is commonground that after the decree in D. C. Kurunegala Case Ho. 17767 thedefendants continued to be in possession of the lands and to enjoy theproduce. The 2nd defendant was (the 1st having died) in possessionof them even at the time of this action. It is urged that a judgment-debtor who remains on a land which is the subject-matter of the actiondoes not become entitled to claim the benefit of section 3 of the Prescrip-tion Ordinance by so remaining, and that in. the instant case the factthat when the plaintiffs sought to obtain possession of the lands, thedefendants urged that no due diligence had been shown in executingthe writ of possession was an indication of a right existing in anotherperson.
We have been referred to the cases of Wimalasekera v. Dingirimahat-maya1, Fernando v. Wijesooriya3, and Jane Nona v. Gunawardena3.In the first of those cases it was held that a successful action fordeclaration of title to land is an interruption of defendant’s adversepossession of the land (p.28). In the second case Canekeratne
J.observed :
“ Another essential requisite to constitute such an adverse possessionas will be of efficacy under the statute is continuity ; and whethera possession is ‘ undisturbed and uninterrupted ’ depends much uponthe circumstances. If the continuity of possession is broken before
‘ ^937) 39 JV. £. It. 25.2 (1947) 4S JV. L. It. 320 at 325-32G.
3 (194S) 49 JV. L. R. 522.
BASNAYAJCE, C.J.—Samuel v. Dharmasiri
the expiration of the period of time limited by the statute, the seisinof the true owner is restored'; in such a case to gain a title under thestatute a new adverse possession for the time limited must be had.Where there is a contest as regards the title to a land if the claimof the parties is brought before a Court for its decision and there isan assumption that meanwhile the party occupying shall remain inpossession, the running of the statute in favour of the defendant issuspended ; otherwise a bar will all the while be running which theplaintiff could by no means avert. If the plaintiff fails in his actionthere has been no break in the continuity of possession of the defendant.
If the plaintiff succeeds the continuity of possession of the one whowas keeping the rightful owner out of his possession is broken ; theresult of the finding of the Court is to restore the seisin of the plaintiff.”
In the third case (Jane Nona v. Gunawardenci) it was held followingM'uMul Caruppen et al. v. Ran Kira et al.1 that a judgment-debtor canby adverse possession for the requisite period after he has lost his title bythe sale in execution obtain a decree declaring him entitled to the land.
The question whether the defendant to an action is entitled to a decreein his favour by virtue of undisturbed and uninterrupted possessionby a title adverse to or independent of that of the plaintiff is one thatfalls to be determined on the facts of each case. No hard and fast rulecan be laid down. If the facts establish an undisturbed and uninterruptedpossession for ten years previous to the bringing of the action unaccom-panied by payment of rent or produce, or performance of service or duty,or by any other act by the possessor, from which an acknowledgmentof a right existing in another person would fairly and naturally be inferred,then the defendant is entitled to a decree in his favour. In the instantcase it is not disputed that the 2nd defendant had undisturbed anduninterrupted possession for ten years previous to the bringing of theaction. There is no claim that any rent was paid by him ; and the claimthat he paid a share of the produce to the plaintiff’s predecessor hasbeen rejected by the learned District Judge and we see no reason todisagree with that conclusion.
The only remaining question then is whether there is any other actof the 2nd defendant from which an acknowledgment of a right existingin the plaintiff or his predecessors in title may fairly and naturally beinferred. The evidence is that though the plaintiff’s predecessorsobtained a writ of possession on 20th February 1936 they did not attendto take delivery of possession of the lands. Four years later, on 7thNovember 1940, another application was made for writ of possessionand though notice of it was given to the 2nd defendant no steps weretaken till 19th October 1942 when the plaintiffs moved for executionof the writ of possession. The 2nd defendant objected to that appli-cation and claimed that he was entitled to the land by virtue of hispossession. It would appear therefore that the only act of the. 2nd
1 {1910) 13 N. If. R. 326.
In re Ensa
defendant was a denial of the right of the plaintiff’s predecessors to theland. fTis act is therefore not an act from which an acknowledgmentof a right existing in the plaintiff’s predecessors may fairly and naturallybe inferred and he is entitled to the decree he asks for.
We are of opinion that the appeal should be dismissed with costs andwe accordingly do so.
Sansoni, J.—I agree.
Appeal dismissed.