Mustapha v. Rajapaksa
MUSTAPHA ASMA UMMA
COURT OF APPEAL.
H. A. G. DE SILVA, J. AND G. P. S. DE SILVA. J.
CA. 40/75 (Inty.) – D.C. GAMPAHA 15202/P.
AUGUST 29 AND 30. 1984.
Partition suit – Claim of prescriptive title to specific lot by recipients of undivided sharesfrom co-owner who is alleged to have prescribed to it.
In a partition suit it was alleged that a co-owner had prescribed to a specific lot of thecorpus on the basis of ouster or something equivalent to ouster. Jhis co-ownerhowever conveyed undivided shares to the contesting defendants in 1962. Thepartition action was filed in 1969 and the contesting defendants claimed a specific lotto which they alleged their predecessor had prescribed.
Even if the predecessor in title of the contesting defendants had prescnbed to a specificlot of the corpus yet as the deed on which they acquired title was for undivided sharesthey could not rely on the prescriptive title of their predecessor. They would have toestablish prescription by their own possession for over the prescriptive period. But herethe partition suit had been filed before they could have prescribed to the specific lot; asthey have not acquired prescriptive title, they must be bound by the terms of their owndeed.
Cases referred to:
Fernando v. Podisinno (1925) 6 Ceylon Law. Rec. 73.
Carolisappu v. Anagihamy etalfl 949) 51 NLR 355, 356.
APPEAL from a Judgment of the District Court of Gempola.
J. W. Subasinghe, P.C. with Miss. S. N. S. Edirisinghe. for 12th defendant-appellant.
H. W. Jayewardene, O.C: with Miss Seneviratne, for plaintiff-respondent.
Cur. adv. vult
Sri Lanka Law Reports
 2 Sri LR.
October 12, 1984.
P. S. DE SILVA, J.
The plaintiff brought-this action in March 1969 to partition the fieldcalled Iriyagahakumbura described in the Schedule to the plaint anddepicted as lots 'A and B' in Plan No. 918 dated 12.12.1969 filedof record. He averred in his amended plaint that Balaya, Lapaya. Kiriyaand Pina were the original owners in the proportion of 1/3, 1/3, 1/6and 1/6 shares respectively. Balaya and Lapaya on P 1 of 1888transferred their 2/3 share to Hitanu who died intestate leaving asheirs her husband Puhula and two children Ungi and Labuna. Puhulathen became entitled to an undivided 1/3 share and an undivided 1/6share devolved on each of the children, Ungi and Labuna. The 1/3share of Puhula ultimately devolved on the plaintiff and it is not indispute that the plaintiff has legal title to a 1/3 share.
Ungi purported to convey on 12D1 of 1930 an undivided 1/3 shareto Mustapha Lebbe and Labuna on 12 D2 of 1931 purported toconvey an undivided 1 /3 share to the said Mustapha Lebbe who on12D3 of 1962 purported to convey an undivided 2/3 share to the2nd, 3rd and 4th defendants who are the contesting defendants.These defendants being minors, the 12th defendant was appointed astheir guardian ad litem and it is the 12th defendant who is theappellant before us. I wish to add that the devolution of the shares ofthe other two original owners, namely, Kiriya and Pina, is not relevantto this appeal. '
One of the points of contest raised on behalf of the appellant waswhether the 2nd, 3rd and 4th defendants and their predecessors intitle had prescribed to lot 'A' in the aforesaid Plan No. 918. The extentof lot 'A' is 121 perches and the extent of lot 'B' is 65 perches. Aspointed out by Mr. Subasinghe. Counsel for the appellant, lot A’constitutes almost 2/3 share of the field. The finding of the trial Judgewas that the 2nd, 3rd and 4th defendants had failed to establish aprescriptive title to lot "A". Mr. Subasinghe strenuously contended thatthis finding cannot be supported on the evidence and invited us to holdthat these defendants have prescribed to lot 'A'. It was Counsel'scdhtention thai on the strength of 12D1 and 12D2 Mustapha Lebbepossessed a 2/3 share since 1930 and his possession has crystallised
Mustapha v. Rajapaksa (G. P. S..De. Silva. J.)
into lot 'A' as a separate entity. While conceding that Mustapha Lebbewas a co-owner, Mr. Subasinghe maintained that there was sufficientevidence to prove an ouster or something equivalent to an ouster.
Mr. Jayewardene, Counsel for the plaintiff-respondent, on. the otherhand, raised a short point which, in my view, militates against thecontesting defendant's plea of prescription. Although MustaphaLebbe purported to purchase a 2/3 share, on 12D1 and 12D2,Mr. Subasinghe conceded that what actually passed on these twodeeds was only a 1/3 share. Therefore Mustapha Lebbe had legal titleto a 1/3 share of the corpus which was conveyed to the 2nd, 3rd and4th defendants on 12D3.
What is important to note is that in the first place Mustapha Lebbeon 12D1 and 12D2 bought undivided shares of the field. Secondly on12D3 he purported to convey an undivided 2/3 share of the wholefield. Mr. Jayewardene submitted that assuming (without conceding)Mustapha Lebbe had prescribed to a 2/3 share of the corpus, yet on12D3 the 2nd, 3rd and 4th defendants cannot claim title to thespecific lot 'A' as a separate entity. In support of this propositionMr. Jayewardene relied very strongly on Fernando v. Padisinno (1)wherein Bertram, C.J. enunciated the relevant principle in thefollowing terms : ■
“If persons who are entitled by prescription of a land persist, afterthey have acquired that title in conveying an undivided share of thewhole land of which what they have possessed is a part; and if thepersons so deriving title pass on the same title to others, then thepersons claiming under that title, unless they can show that theythemselves have acquired a title by prescription must be bound bythe terms of their deeds". (The emphasis is mine)
Nagalingam, J. in Carolisappu v. Anagihamy et al (2) had occasionto refer to Fernando v. Podisinno (supra) and the learned Judge lucidlyexplained its ratio decidendi thus :
'the facts were that a co-owner who had possessed in
lieu of his undivided share certain divided portions of the commonland and acquired a prescriptive title to the divided portions intransferring his interests conveyed not the specific allotments to
Sri Lanka Law Reports
11985] 2 Sri LR.
■ which he had acquired a prescriptive title but his undivided interest. in the entirety of the land. On a contest as to the right of thetransferee to the specific allotments to which the vendor hadacquired a title by prescription it was held that the transferee wasnot entitled to take advantage of the possession of his vendor butthat if he relied upon prescription for his title he had to show that hispossession had been for the required prescriptive period. Thereason underlying the judgment is easy to see. The vendor did notconvey the specific portions of his land and it cannot be said that thetransferee was a person who was claiming under the vendor in sofar as the specific allotments which he claimed were concerned.This case, therefore, is authority for the proposition that a personwho does not derive his right to the land from another cannot fallback on the possession of that other in order to establish aprescriptive title but that he would have to establish it by hispossession for over the prescriptive period”. (The emphasis is mine)
Applying the above principle to the instant case, it will be seen thatwhat Mustapha Lebbe conveyed on 12D3 of 1962 to the 2nd, 3rdand 4th defendants was not a specific allotment (to which it is nowclaimed he had acquired a prescriptive title) but his undivided interestsin the whole field. The transferees on 12D3 are bound by the terms of. their deed unless they can show that they themselves had been inpossession for the required prescriptive period. Their possession,however, was only from 1962 to the date of action, namely 1969,which is a period less than 10 years. Therefore their plea ofprescription is not entitled to succeed.
In this view of the matter, it is not necessary to consider thequestion whether Mustapha Lebbe as a co-owner has prescribed to lot'A'. It is right to add that Mr. Subasinghe very properly conceded thatthe principle laid down in Fernando v. Podisinno (supra) applied to thefacts of the instant case.
For these reasons, the appeal fails and is dismissed with costs.
A. G. DE SILVA, J. – I agree.