038-NLR-NLR-V-46-PABILIS-APPUHAMY-et-al.-Applicants-and-PEIRIS-Respondent.pdf
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KEUNKMAN J.—Pabilis Appuhamy and Petrie.
1949Present. Keuneman J. and Jayetileke J.
PABILIS APPUHAMY et al. Applicants, and PEIRIS, Respondent.
2Q1—D. C. Colombo, 2,531.
Prescription—Possession of property by usufructuary mortgagee—Possessionenures for benefit of owner or successor—Prima fade presumption.
There is a prima facie presumption that the possession of a usufructuarymortgagee enures to the benefit of the true owner, whether it be theperson who actually gave him the usufructuary mortgage or the succes-sor of that person.
Jl^ PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera, K.C. (with him H. TV. Jayawardene and V, Wijetunge)for the defendants, appellants.
N. Nadarajah, K C. (with E. B. Wikremanayake and K. Herat), for theplaintiff, respondent.
.February 15, 1945. Keuneman J.—
Although questions relating to- registration of deeds and to res adjudicatahave been raised in this appeal, I do not think it is necessary to discussthose matters. The whole of this case can be decided on the issue of• prescription. The facts are as follows:—The plaintiff claims lot B in theplan on a transfer from Salonchiya in 1942. The defendants state thatSalonchiya in 1925 had lot B, as well as lots A and C sold against him inexecution and that these lots were purchased by Deonis Perera on Fiscal’stransfer. D2 of 1925. Deonis’ rights passed on D7 of 1938 to Pabilis andfrom Pabilis on Dll of 1942 to the 1st and 2nd defendants. Salonchiyabefore he had entered into any of these transactions had executed ausufructuary mortgage bond in 1918, in favour of Elias who in point offact possessed lot B until 1942. The question is as to whether the
Medhananda Therunarue and Dhammananda Then
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possession of Elias enured to the benefit of Salonchiya or Deonis PereraI think there is a prima facie presumption that the possession of a usu-fructuary mortgagee enures to the benefit of the true owner whether it be theperson who actually gave him the usufructuary mortgage or the successorof that person. Now in this case Deonis Perera was undoubtedly thetrue owner in 1925 and he continued to be the true owner till 1938. Ithink the possession of Elias during this period must be taken to haveenured to the benefit of Deonis Perera. At any rate there are nocircumstances in this case which appear to rebut the presumption whichI have already mentioned. I think one must take it therefore that apartfrom his paper title Deonis Perera had added to himself a title by pres-cription and. that that title by prescription has now descended to the 1stthe 2nd defendants. It is immaterial therefore, to consider whetherthe deed PI by prior registration is superior to D2 or other muniments oftitle of the defendants and it is also unnecessary to consider whether thedecree in favour of Deonis against Salonchiya obtained in 1935 is bindingbetween the parties and operates as a res adjudicata. In any event thetitle has now passed to the 1st and 2nd defendants in respect of lots A, Band C.
In the circumstances I set aside the judgment of the learned DistrictJudge, I allow the appeal with costs and dismiss the plaintiff’s actionwith costs.
Jayatileke J.—•! agree.
Appeal allowed.