The original owner of Irawellahena had obtained a Crown Grant forthis land, and the Title Plan Pi A clearly shows that lot 1 is a part ofIrawellahena.
The learned District Judge though he correctly held that lot 1 was apart of the^plaintiff’s land, held further that the contesting defendantshad prescribed to it.v
Title to the entire corpus being in the plaintiff and her co-owners, theburden was on the contesting defendants to prove that they had gained aprescriptive title to a part of that land.
The contestants based their title on an auctioneer’s conveyance, 2D4of 1932.
On this deed (2D4 of 1932) the southern and western boundaries ofKosgahawatta are described as the land appearing in the plaintiff’s titlePlan (PI A) showing clearly that lot 1 was not a part of the land conveyedby 2D4. The defendants relied strongly on a Plan they had made in1933 which took in lot 1. The reason for making such a Plan is not
SIRTMANE, J.— Perera v. Roealin Nona
at all clear, as the auction sale at which the 2nd defendant’s brotherpurchased Kosgahawatta was held in 1931. There is no evidence thatany of the co-owners of Irawellahena knew anything about this plan.
Despite thjp Plan, in 1937, the 2nd defendant took an assignment of alease of an undivided share in the entirety of Irawellahena including lot 1,(P17). Thereafter he obtained two more leases from the plaintiff’spredecessors in title on the same basis, P18 and P19, the second of whichexpired in 1949, so that the possession of the 2nd defendant which isnot disputed is referable to these leases.
The plaintiff also called as a witness, one Jamis Fernando, 82 years ofage, who is a brother of the original owner, who had planted and possessedthe land from the time his brother purchased it in 1914 till about 1936.. His wife Amaritha Fernando had taken a lease of this land from theplaintiff’s predecessors for a period of 8 years, on P15 of 1933, and subletit to one Dingiri Menika on P16 of 1936. It was an assignment of thislease that the 2nd defendant obtained on PI 7 in 1937. His evidenceshowed that he possessed lot 1 as a part of Irawellahena, and thaj. thehouse in which he lived is now occupied by the 2nd defendant. Thelearned District Judge has not rejected his evidence, but merely statedthat he knows nothing of the land after 1936, but that is surely sufficientfor the purposes of the plaintiff’s case. There was also the evidence ofthe 5th defendant, the owner of an adjoining land, who gave evidenceagainst the plaintiff with reference to another contest which is not thesubject matter of this appeal. He stated in cross-examination that the2nd defendant had been in possession of lot 1 from about 1940.
It is also significant that at the preliminary survey the 2nd defendantdid not claim an exclusion of lot 1. According to the surveyor’s report,he claimed some of the plantations on lot 1 without specifying them,and also stated that the rest were in common.
The learned District Judge has apparently not accepted the 2nddefendant’s version that he had been in adverse possession of lot 1prior to 1949, when his lease (P19) expired. He holds that when the2nd defendant handed back possession to the plaintiff’s predecessors,he did not give up lot 1, and goes on to hold that he had been in adversepossession from that date. This action was filed in 1963.
When title to a land is in the plaintiff, and a defendant’s possessionof a part of it is referable to leases from the plaintiff’s predecessors intitle, there must be proof of some definite act or acts of ouster whichshow that the possession of the contesting defendants has changed itsoriginal character. The learned District Judge has not addressed hismind to this aspect of the matter, nor is there evidence to support suchan inferences. The mere fact that the contesting defendants continuedto remain in possession of a part of the land after the expiry of the leasefor a period of about 14 years is in my opinion insufficient to claim titleby prescriptive possession
Hettiarachchi v. VidyalanJcara University
The Plan X shows that the land had been possessed in lots, divided byfences, and the mere possession of one of these lots by the lessees of thetrue owners after their lease has expired, in the absence of any definitedenial by them of the true owners’ rights cannot be looked upon asadverse possession giving rise to prescriptive rights.
The order of the learned District Judge allowing an exclusion of. lot 1, and the interlocutory decree entered in this case are set aside.
The interlocutory decree filed in the case gives directions for theallotment of specific lots in the preliminary plan. These directionsare unnecessary and confusing.
A fresh interlocutory decree must be filed in accordance with theplaintiff’s evidence, allotting an undivided extent of one acre of the soilout of the entire corpus depicted in Plan X to the 1st defendant-, and thebalance to the plaintiff. The buildings and plantations should be allottedaccording to the findings in the judgment and where there is no definitefinding in accordance with the claims made before the surveyor.
The Commissioner will thereafter divide the land in a just andequitable manner in accordance with sections 31 and 33 of the PartitionAct. The plaintiff is entitled to pro rata costs fixed at Rs. 1,000plus costs of both surveys and also to costs of appeal against the contestingdefendants.
The order for costs against 5th defendant in the lower Court will stand.Sameb-awiokkame, J.—I agree.
Interlocutory decree set aside. •