001-NLR-NLR-V-73-P.-K.-J.-NONIS-Appellant-and-H.-D.-PETHTHA-alias-Peththa-Veda-and-another-R.pdf
THE
NEW LAW REPORTSOF CEYLONVOLUME LXXIII[Pkivt Couscil]
1969 Present: Lord Morris of Borth-y-Gest, Lord Donovan,Lord Wilberforce, Lord Pearson, and Lord DiplockP.K. J. NONIS, Appellant, and H. D. PETHTHA (alias Peththa Veda)and another, Reporidcnts
Privy Council Appeal No. 32 of 196S
<S'. C. 436/64 (F)—D. C. Kuliyapiliya, 784/P
Co-owners—Informal partition of a number of lands—Exclusive possession, by oneco-owner, of a specified land thereunder—Adverse possession—PrescriptionOrdinance (Cap. CS), s. 3.
In consequence of an informal partition of a number of lands which belongedto three co-owners in equal one third undivided shares, the first respondent,who was one of the co-owners, was in exclusive possession for ten yearsthereafter of a specified land which was allotted to him under tho informaldocument.
Held, that the first respondent acquired prescriptive title to the specified landas against tho other co-owners.
.A.PPEAL from a judgment of the Supremo Court.
F. N. Gratiaen, Q.G., with Brian Sinclair, for the plaintiff-appellant.SB. P. Solomon, for the defendants-respondents.
y'
Cur. adv. vult.
. X* — J 132S5 (4/70)
2LORD WILBER FORCE—Xoiu's r. Pdhtha
December 2, 1069. [Delivered by Lord Wilherfokce}—
The action in respect of which this appeal is brought was a partitionaction, brought by the appellant against the two respondents, seeking adeclaration that the appellant was entitled to an undivided one third shareof certain land described in the Plaint and for partition of the land. Thisclaim was rejected by the District Court of Ivuliyapitiya and, on appeal,by the Supreme Court of Cejdon.
The lands in question which consisted of some 7 acres comprisedin three Crown Grants dated 20th September 1913, 20lh February 1914and 10<h May 1919, had belonged, at the. last mentioned date toHoratalpedi Durayalage Peruma who amalgamated them into a singleparcel. By a Deed of Gift No. 2452 dated 15th July 1924 Peruma giftedthem in equal undivided shares to his children the first respondent, thosecond respondent and one Sekara. Sckara, by Deed No. 29662 datedISth March 1960, sold his share to one Sumanadasa, who in turn byDeed No. S20 dated 26th July 1962, sold it to the appellant. Thus,according to the documentary title, the appellant and the two respondentswere each entitled to a one third undivided share. The first respondenthowever contended that he had become entitled to the whole of the7 acres in question by prescription.
Before the year 1947 it appears that the 7 acres in question werein the occupation of and were fanned by the first respondent. .Theappellant’s predecessor, Sckara, and the second respondent were inoccupation of, and farming, other lands, specified in the Statement ofthe first respondent dated 17th July 1963, of approximately 14 acres, which,it appears, had also been derived from Peruma. These 14 acres, accordingto the first respondent, and this does not seem to be disputed, weresimilarly owned in one third undivided shares by the three sons of Peruma.
It is not contended that prior to 1947 any of the three brothers hadacquired any separate title either to the 7 acres now in dispute or to the14 acres.
The contention of the first respondent was that on 26th June 1947 aninformal partition occurred by which the first respondent was allottedthe 7 acres in dispute, and the appellant’s predecessor, Sekara, and thesecond respondent, jointly, the 14 acres ; that this was acted upon so thatthereafter the 7 acres were possessed and enjoyed by the first respondentto the total exclusion of the other two co-owners. In consequence, as thefirst respondent claimed, he became, prior to the date of the Plaint (namely7th December 1962), entitled to the 7 acres by prescription.
Prescription under the Law of Ceylon is regulated by the PrescriptionOrdinance (1956), Cap. 68. Section 3 contains the following provision :
. " 3. Proof of the undisturbed and uninterrupted possession by adefendant in any action, or by those under whom he claim's, oflands or immovable property, by a title adverse to or independent ofthat 'of the claimant or plaintiff in such action (that is to say, a
LORD WILBERFORCE—.Yom'a c. Pcththa3
possession unaccompanied by payment of rent or produce, orperformance of service or duty, or by a 113- other act by the possessor,from which an acknowledgment of a right existing in another personwould fairly and naturally be inferred) for 10 3'cars previous to thebringing of such action, shall entitle the defendant to a decree in hisfavour with costs. ..
It will be observed that this contains, by the words in parenthesis, whatis in effect a definition of what is commonly, for convenience, referred toas adverse possession.
In relating this provision to the case of co-owners, it must be bornein mind that separate possession by an individual co-owner of part ofthe property in common ownership may, and often does, occur andcontinue for. a considerable period, purely for'reasons of convenience,and that in order to displace the title of the other co-owners, clear andstrong evidence of possession exclusive of the other co-owners, andinconsistent with the continuation of the co-owncrship is required. (SeeSimpson v. Omeru Lcbbe 1 per Socrtsz S.P.J.). And, as was explained byLord Macuaghtcn in delivering the Board’s judgment in Corea v.Apjnihamy 2, a mere intention in the mind of one co-owner to displace theothers is not sufficient to constitute “adverse ” possession.
But, side by side with this basic ride, the Courts of Ceylon haverecognised that acts of an informal character, filling short of a partitioneffective in law, may be sufficient to found a prescriptive claim.
In Tillekeratne v. Bastion 3 it was held to be a question of fact, whereverlong continued exclusive possession by one co-owner is proved to haveexisted, whether it is not just and reasonable in all the circumstances ofthe ease that the parties should be treated as though it had been provedthat separate and exclusive possession had become adverse at some datemore than 10 years before action brought. And in Kirimenika v.Mcnikhamy4 the alternatives were contrasted of, on the one hand, aninformal but definite partition, where each party enters into possession ofhis share and, on the other, a permissive arrangement. I11 the first case,title by prescription might be acquired, and even in the second case thismight follow if the arrangement continued so long that on equitablegrounds it might be presumed that possession became adverse. Thesedecisions have been followed and applied in later cases—see He .11 el v. DeAim's s; Bandara r. Sinnappu*. The latter ease cites with approval apassage from the judgment of De Sam pay o J. in Mailvajnnmn r.Kundaiya " which is apposite to the present ease :
“There is no physical disturbance of possession necessary—it is
sufficient if one co-owner has to the knowledge of the others taken
.the landfor himself andbegunto jjosscss it as his own exclusively.
» (1917)4S.V. /,. Ii. 111.* (1911) 22 X. L. R. S10.
* (1912).4.C. HO, 2-16 ; 75 .V. L. It. r.:,.* (1931) 13 C. h. lice. 207.
» (19IS)21iV. L. R. 12.« (7376) 47 X. L. R. 249.
7 (7975) 7 C. IK. R. 775.
4LORD W1LBERFORCE—Xonis r. Pahtha
This sole possession is often attributable to an express or tacitdivision of family property among the heirs, and the adverse characterof exclusive possession may be inferred from circumstances. ”
To apply these authorities to the present case: it was pleaded by thefirst respondent that on 2Gth June 1947 the three brothers exchangedwith one another their interests and that on this exchange the disputed7 acres were allotted to him. The issues as framed b}' the learned districtjudge contained the following :
“ (4) Did Petta the first defendant, Sekera and YVattmva exchangetheir lands as described in para. 5 of the statements of the firstdefendant.
As a result of such exchange, are the premises in suit, in theexclusive possession of Petta the first defendant. ”
The first (defendant) respondent gave evidence in support of h is contentionthat there had been an exchange in 1947 and produced a document, signedby all three brothers on 2Gth June 1947, which evidenced the division.Neither the appellant, nor the second respondent gave evidence, and t hejudge accepted the first respondent’s evidence. He answered the twoissues (4) and (5) in the affirmative. His judgment was upheld on appeal;and not surprisingly it was argued that there were such concurrent findingsof fact as should preclude their re-examination by the Board.
The argument of the appellant was based upon the terms of thedocument of 26th June 1947. This, it was said, merety continued apre-existing state of affairs—the parties “agree to possess as possessedearlier until deeds are executed. ” It contemplated a future partition bynotarially attested deeds: meanwhile the co-ownership was to bepreserved,the first respondent’s possession was never adverse but was, as it hadpreviously been, on behalf of the co-owners.
There are arguments upon the language of the document alone whichcast doubt upon the validity of this contention, but their Lordships arereluctant to place much -weight upon verbal expressions in a writing ofthis character, prepared as it was by a coconut dealer who was the uncleof Sumanadasa, and written in Sinhalese from which a translated versionwas before the Court-. It was clear from the evidence, that the document,so far from being intended to preserve the status quo, was drawn up aspart of an arrangement which was meant to resolve certain difficultiesbetween the co-owners, by attributing to the first respondent on the onehand, and to Sekara and the second respondent on the other, separateproperties which thenceforth would be separately enjoyed.
The learned district judge accepted this view of the matter and heldthat thereafter; in fact-, the lands in dispute, as well as the other lands,were to be and were exclusively enjoyed by the first respondent and byhis brothers respective^'. There was ample evidence on which he couldso hold.. The case is, in the opinion of their Lordships, clearly one of
Colombo Apothttorict Company, v. WijesooriyoS
an informal partition, acted upon by the assumption, as from June 1947,of exclusive possession. This exclusive possession having continued formore than 10 years prior to the issue of the Plaint, the first respondentsucceeded in establishing a title by prescription.
Their Lordships will therefore humbly ad rise Her Majesty that thisappeal be dismissed. The appellant must pay the costs of theappeal.
Appeal dismissed.