Maria Perera v. Albert Perera
COURT OF APPEAL
E. DE SILVA. J. AND G. P. S. DE SILVA. J.
A. (S.C.) NO. 426/75 (F)
C. KALUTARA NO. L/199710. 11 OCTOBER 1983.
Partition — Amicable partition — Ouster — Prescription
An amicable partition can be a starting-point of prescription even though nodeed of partition or cross deeds or other documents have been executed. Butinclusive possession by a co-owner for a period of 10 years alone cannot giverise to prescriptive title. There must be the further important element of a” change of circumstances from which an inference could reasonably be drawnthat such possession is adverse to and independent of" all other co-owners.There must be proof of circumstances from which a reasonable inference couldbe drawn that such possession had become adverse at some date ten yearsbefore action was brought. Mere exclusive possession for 20 years (by takingthe natural produce of the land) on a plan not signed by any of the co-owners towhom the plaintiff claimed lots were allotted cannot constitute proof of ouster.The possession of a co-owner would not become adverse to the rights of theother co-owners until there is an act of ouster or something equivalent to ouster.
Cues referred to:
Ponnambalam v. Vaitialingam and another (1978-79) 2 Sri LR 166
Obeysekera v. Endoris and others 66 NLR 457
Simon Perera v. Jayatunga 71 NLR 338
Nonis v. Peththa 73 NLR 1
Ram Menika v. Ram Menika 2 SCC 153
Mensi Nona v. Nimalhamy 10 Ceylon Law Recorder 159
AbdulMajeed v. Ummu Zaneera 61 NLR 361
Sri Lanka Law Reports
[198312 Sri L. R.
APPEAL from Judgment of the District Judge of Kalutara.
D. R. P. GunatHaka with R. S. Tillakaratne for defendant-appellant.
J.W. Subasinghe. S. A. with Miss £. M. S. Edirisinghefor plaintiff-respondent.
Cur. adv. vult
November 18. 1983
P. S. DE SILVA. J.
The plaintiff brought this action against the defendant on 2ndMay. 1972 for a declaration of title, damages and ejectment inrespect of the land described in Schedule B to the plaint. The titleset out in the plaint was
that on deed No. 55 of 1928, the person called MartinMunasinghe became entitled to an undivided 63/144shares of the land called Hewawatta alias Mahawatte inextent A1. R2. PO, described in Schedule A :
that the said land was amicably partitioned between thefour co-owners in the year 1951 and the said MartinMunasinghe was allotted Lot D in plan 46. dated12.4.51, and that he entered into possession of the saidLot D and possessed it from 1951 (vide paragraph 3 ofthe plaint): the plan of partition was produced markedP 2';
Martin Munasinghe died intestate, leaving as his heirs, hiswidow Luvie Perera and four children who sold theirrights on P 3. dated 27th February. 1961. to Millie Nonawho thus became entitled to Lot D ;
that Millie Nona possessed Lot D and acquired aprescriptive title to it;
Marta Perera v. Albert Perera (G. P. S. de Silva. J.)
that Millie Nona by P4 of 23rd March. 1971. sold aportion of Lot D (shown as Lot A in plan P1 of 12th April.1967) to the plaintiff.
After trial, the District Judge entered judgment for the plaintiffand the defendant has now appealed. Mr. D. R. P. Gunatilake.Counsel for the defendant-appellant, pointed out that inparagraph 3 of the amended Answer, the defendant has averredthat
" the purported amicable partition mentioned in paragraph3 is fnvalid and is ineffective in law as all co-owners,including the plaintiff's predecessors in title, have not joinedsame and on the ground that no valid deed of partition hasbeen executed. "
Mr. Gunatilake submitted that the foundation of the title relied onby the plaintiff was the amicable partition of 1951 ; that in theabsence of a deed of partition or of cross conveyances, theamicable partition did not confer title on Martin Munasinghe toLot D in the plan P2, and therefore, the entire case for theplaintiff necessarily failed. Counsel’s submission was that thisbeing a rei vindicatio action, the burden is on the plaintiff toprove his title as set out in the plaint. On the other hand,Mr. Subasinghe, Counsel for the plaintiff-respondent, whilstconceding that the execution of P2. the plan of partition, in1951, did not terminate co-ownership, strenuously contendedfirstly that the amicable partition of 1951 was the starting-pointof prescription amongstthe co-owners, and that the evidence ledon behalf of the plaintiff was sufficient to establish title to Lot Dshown in P2 by prescription.
I am in entire agreement with Mr. Subasinghe's submissionthat an amicable partition amongst the co-owners can be astarting-point of prescription even though no deed of partition orcross deeds or other documents have been executed. However,it is to be noted that P2 has not been signed by any of
Sri Lanka Law Reports
 2 Sri L. R.
the co-owners to whom the plaintiff claims lots were allotted atthe division in 1951. As observed by Ranasinghe. J.. InPonnambalam v. Vaitialingam and another (1) :—
" The termination of common ownership without theexpress consent of all the co-owners could take placewhere one or more parties — either a complete stranger oreven one who is in the pedigree — claim that they haveprescribed to either the entirety or a specific portion of thecommon land. Such a termination could take place only onthe basis of unbroken and uninterrupted adversepossession by such claimant or claimants for at least aperiod of ten years … Proof of such termination would be aquestion of fact depending on evidence, direct and orcircumstantial. "
The question that arises for decision in this case is whether,upon the evidence, it could be said that the plaintiff and hispredecessors in title have acquired a prescriptive title to Lot D inplan P2. Mr. Subasinghe urged that upon the evidence of MillieNona and specially Neris Perera called on behalf of the plaintiff,there was sufficient evidence to establish title by prescription. Ihave perused the evidence of Neris Perera in regard topossession, and his evidence, at most, would show that his fatherMichael Perera, D. N. Perera, the deceased husband of thedefendant, Martin Munasinghe, and Annie Nona who wereallotted separate lots, possessed their lots separately. Millie Nonain her evidence, stated that she possessed the land after herpurchase on P3 in February 1961. She further stated that MartinMunasinghe was in possession of Lot D and after his death, hiswidow and children possessed it.
Thus, it is seen that the evidence accepted by the DistrictJudge, establishes the fact of possession of the divided Lot D inP2 for a period of 20 years. Possession was by taking the naturalproduce of the land. The possession of a co-owner would notbecome adverse to the rights of the other co-owners until thereis an act of ouster or something equivalent to ouster.Ranasinghe, J„ in Ponnambalam v. Vaitialingam and another
Maria Perera v. Albert Perera (G. P. S. de Silva. J.j
(supra), after a very careful consideration of the authoritiesdealing with the question of prescription among co-owners,expressed himself thus
" …. that the inference of ouster could only be drawn infavour of a co-owner upon proof of circumstancesadditional to mere long possession: that proof of suchadditional circumstances has been regarded in our courtsas a sine qua non where a co-owner sought to invoke thepresumption of ouster."
In my view, the evidence of possession relied on by plaintiff, doesnot show any circumstances from which the inference could bedrawn that the separate possession of Lot D had becomeadverse at some point of time more than ten years before theinstitution of the action.
On the other hand, there are circumstances which tend toindicate the contrary. It is of some significance that P3 ofFebruary 1961 upon which Millie Nona purchased the land,makes no reference whatever to the plan of partition P2. If. infact, Lot D in P2 was possessed as a distinct and separate lot, itis strange that there was no reference to P2 in the deed P3.Moreover, there is the evidence of Millie Nona that after herpurchase in 1961. the defendant claimed that she was entitled to1/12 share of the land. Millie Nona's testimony is that, since thedefendant was worrying her, she got surveyor U. M. de Silva toprepare the plan P1, dated 12.4.67, and gave the defendant 7.2perches out of her land (Lot B in P1). This, in my view, is acircumstance that goes against the plaintiff's case, for it is arecognition of the defendant's claim to rights in the land indispute.
Finally, I wish to refer to the cases relied on by Mr.Subasinghe. Mr. Subasinghe cited the case of Obeysekera v.Endoris and others (2). Ranasinghe. J., In Ponnambalam v.Vaitialingam (supra), referring to this case, stated :—
" The additional circumstance that was required wassupplied by the 1st defendant's prosecution of the
Sri Lanka Law Reports
 2 Sri L. R.
2nd defendant for destroying the barbed wire fence whichhad been erected to separate off the portion which was thenbeing separately possessed by the 1st defendant. "
Mr. Subasinghe next cited Simon Perera v. Jayatunga. (3).Here, too, there was an additional circumstance
" In the instant case, the learned District Judge has foundthat after Baby Nona purchased a share, there had been anamicable division among the co-owners in pursuance ofwhich Baby Nona possessed lot 3 in plan X filed of recordas her exclusive property. She not only annexed this lot tothe land on the East, which was her property, but alsoconstructed a wall which is in the nature of a permanentstructure to a length of 144ft. and possessed this portionexclusively … for a period of nearly 30 years. " (Theemphasis is mine)
Another case cited before us was the decision of the PrivyCouncil in Nonis v. Peththa (4). In this case, the " informalpartition " which involved an exchange of lands amongst the co-owners was evidence by a document which had been signed byall three co-owners. The judgment does not refer to the preciseevidence relating to possession but the Privy Councilobserved
It was clear from the evidence, that the document, so farfrom being intended to preserve the status quo. was drawnup as part of an arrangement which was meant to resolvecertain difficulties betwen the co-owners, by attributing tothe 1st respondent on the one hand, and to Sekera and the2nd respondent on the other, separate properties whichthenceforth would be separately enjoyed."
Mr. Subasinghe'also relied on the case of Ram Menika v. RamMenika (5), and invited our attention to the following passage inthe judgment
It need hardly be added that exclusive possession originally .referable in the way just indicated to the consent of the Co-
Maria Perera v. Albert Perera (G. P. S. de Silva. J.)
proprietors may sometimes by change of circumstancesbecome a holding adverse to and independent of all co-owners such as may. by lapse of time, give rise to aprescriptive right. "
This passage is not an authority for the proposition that exclusivepossession by a co-owner for a period of 10 years is alonesufficient to give rise to a prescriptive title. There must be thefurther important element of a " change of circumstances ", fromwhich an inference could reasonably be drawn that suchpossession is "adverse to and independent of" all otherco-owners.
Before I conclude. I wish to refer to the case of Mensi Nona v.Nimalhamy (6), which appears to contain dicta that tend tosupport the contention of the plaintiff-respondent. But it isimportant to note that this was a case where there was clear andcogent evidence that the land " had been amicably partitionedbetween the then co-owners as far back as 1895 … It has alsobeen clearly established by the evidence of the surveyor, Mr.Weeraratne. that in 1895. at the instance of the then co-owners.he surveyed and blocked out the land and handed to each of thepersons then in possession a plan of the block allotted inseveralty to him. " (The emphasis is mine.) Thus, it is clear thatthe division took place with the knowledge of all the co-ownersand the possession of the separate lots thereafter was on apermanent basis, and not on grounds of convenience. In theappeal before us, however, there is no evidence as to thecircumstances in which P2 came to be prepared. As statedearlier, it has not even been signed by any of the co-owners andNoris Perera stated in cross-examination, that he does not knowupon which plan the amicable partition was effected.
On a consideration of these cases, it seems to me that there isno departure from the principle that exclusive possession of aseparate lot alone is not sufficient, and that there must be proofof circumstances from which a reasonable inference could bedrawn that such possession had become adverse at.some dateten years before action was brought — a principle which was
Sri Lanka Law Reports
 2 Sri L. R.
emphasized in the judgments of K. D. de Silva, J. and H. N. G.Fernando, J. in the decision of the Divisional Bench in AbdulMajeedv. Ummu Zaneera (7). It is this essential requirement thatthe plaintiff has failed to prove in the instant case.
For these reasons, I am of the opinion that the plaintiff hasfailed to establish title by prescription to the land in suit. Theappeal is accordingly allowed, the judgment and decree of theDistrict Court are set aside and the plaintiff's action is dismissedwith costs.
The defendant-appellant is entitled to the costs of appeal.
E. DE SILVA, J. — I agree