H. N. G. FERNANDO, J.—ZHngirirnahatmaya v. Balnasekera
Present: Weerasooriya, J., and H. N. G. Fernando, J.P.M. DINGIRTMAHATMAYA, AppeUant, and D. A. RATNASEKERA,
S. G. 469—D. C. Ratnapura, 783
Prescription—Transfer of land—Portion of land not mentioned in conveyance—Right of transferee to avail himself of the earlier possession of the transferor—Scope—Prescription Ordinance, s. 3.,
A person was in possession of Lot 2 for many years in the belief that it formedpart of the very much larger Lot 1 to which he clearly had title. He subse-quently donated to his son a land which corresponded with Lot 1 only. Inother words, even though the donor had been in possession of Lot 2, the deedof gift did not purport to transfer title to that Lot to the donee. In thepresent action the donee, as plaintiff, claimed title to Lot 2 as against a thirdparty.
Held, that, for the purposes of section 3 of the Prescription Ordinance, theplaintiff was not entitled to avail himself of the earlier possession of the donorin respect of Lot 2.
PEAL from a judgment of the District Court, Ratnapura.
W. Jayewardene, Q.G., with J. G. Jayatillehe and G. P. Fernando,for the defendant-appellant.
N. E. Weerasooria, Q.G., with W. D.respondent.
Gunasehera, for the plaintiff-Cur. adv. vult.
March 23, 1960. H. N. G. Fernando, J.—
This is an action for declaration of title to the land shown as Lot 2,in extent 1R. 17P., in the Plan No. 264 filed of record. The plaintiffis the owner of Lot 1 shown in that Plan and the defendant is the ownerof the adjacent Lot 3. It is admitted that the plaintiff has no documentarytitle to Lot 2, and on the other hand that the documentary title is with thedefendant, Lot 2 and 3 together having been at an earlier stage one landbelonging to the defendant and his predecessors in title.
It is clear from the evidence that the plaintiff’s father one D. A. Appu-hamy had been in possession of Lot 2 for many years in the belief thatit formed part of the very much larger Lot 1 to which he clearly hadtitle. A Plan prepared in 1939 at the instance of Appuhamy bears outthe position that Lot 2 had been regarded as a part of PaddadeniyaEstate owned by Appuhamy and consisting of several allotments ofland including inter alia the land described as Lot 1 in the Plan No. 264.•It would seem therefore that, had Appuhamy continued to be in possessionof the Estate, his own claim to a decree under section 3 of the PrescriptionOrdinance in respect of Lot 2 would have been unanswerable.
U. N. G. FERNANDO, J.—L>ingirimahatmaya v. Ratnaeekera
But the plaintiff is not in the same position. The deed of gift in hisfavour from his father Appuhamy was executed on 3rd June 1946 andwhat was conveyed to him was title to a land described in the deed asLot 18 AE in Final Village Plan No. 67 which land corresponds withLot 1 in Plan No. 264. In other words, even though Appuhamy hadbeen in possession of Lot 2, the deed of gift did not purport to transfertitle to that Lot to the plaintiff.
The facts of the present case are very similar to those in the unreportedcase D. C. Kandy No. 48783, S.C. 90/91 (S. C. M. 11th November, 1940).There the plaintiff sued for a declaration of title to a block of landdescribed as Lot A in a Plan Y. The original owner had obtained aCrown grant for a tract of 607 acres and of this an extent of 304 acreswas sold under writ of execution against the owner. This extent of 304acres was ultimately sold to the plaintiff. The District Judge found thatLot A for which the plaintiff sued had not been included in the Crowngrant and did not form part of the 304 acre extent which the plaintiffhad acquired. Wijeyewardene, J., in his judgment in appeal madethe following observations :—
“ After a careful study of the evidence of the surveyors and the plans,
find it difficult to reverse the finding of the learned District Judgethat the Lot A was not included in the grant PI or in the 304 acreblock. That finding of the District Judge necessarily means thatunder P12 the plaintiff company did not get the land A. The vendorsof Pi 2 cannot therefore be regarded as the predecessors in title of theplaintiff company with regard to Lot A. The plaintiff companycould, therefore, rely only on its own possession of A in order to supportits claim to have acquired title by prescriptive possession (VideFernando v. Podi Sinno 1). As the action was filed in July 1937 thecompany have not possessed the land for ten years. ”
In the present case the plaintiff has had possession of the disputed Lot 2only from 3rd June 1946, so that at the time of the filing of the plaint,on 31st December, 1953, he has not had possession for ten years. Sincethe deed of 1946 in bis favour did not purport to transfer to him title toLot 2, he is not, for the purposes of section 3 of the Prescription Ordinance,a person who claims the Lot under Appuhamy, whose earlier possessionis therefore of no avail to him.
I would accordingly hold that the plaintiff’s action was not entitledto succeed. The appeal is allowed and the plaintiff’s action is dismissedwith costs in both Courts.
Weekasoobiya, J.—I agree.
1 (1925) 6 Ceylon Law Recorder 73.
P. M. DINGIRIMAHATMAYA, Appellant, and D. A. RATNASEKERA Respondent