PATHMASIRI AND ANOTHER vs. BABY AND ANOTHER

006-SLLR-SLLR-2006-V-1-PATHMASIRI-AND-ANOTHER-vs.-BABY-AND-ANOTHER.pdf


CAPathmasiri and another vs Baby and another (Somawansa, J.)35
PATHMASIRI AND ANOTHERVSBABY AND ANOTHERCOURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA 160/90F DC KEGALLE No.: 22142/PAPRIL, 11 ANDJUNE 12, 2003 ANDOCTOBER 3, 2004
Partition Law, No. 21 of 1977 – Exclusion sought – Prescriptive possession -Co-owners possession – Acquiring of rights to a divided lot? – Adversepossession – Ouster
The plaintiff respondent instituted action to partition the land in question. Thecontesting 2nd and 3rd defendant appellants sought an exclusion of the lotsthey were in possession on the basis that the lots consist of a different land.The trial court held with the plaintiff respondent.
On appeal:
Held:
Mere possession of a specified portion of co-owned property for conveniencecannot constitute an adverse possession although he possessed the specifiedportion for more than 50 years.
APPEAL from the judgment of the District Court of Kegalle.
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(2006) 1 Sri L R.
Cases referred to:
Tilakaratne vs. Bastian – 21 NLR 114 (FB)
Corea vs Appuhamy – 15 NLR 65
Hamidu Lebbe vs Ganitha – 27 NLR 33
Simon Perera vs. Jayatunga -71 NLR 338
Sediris Appuhamy vs. Jamis Appuhamy – 60 NLR 297
Gunawardena v Samara Koon – 60 NLR 481
J.C. Boange for 2A and 3A defendant appellants.
Mahinda Nanayakkara for plaintiff respondent.
Cur. adv. vult.
October 03, 2003.
A.M. SOMAWANSA.J.The plaintiff – respondent instituted the instant action in the District Courtof Kegalle seeking a partition of the land called and known as“Badaheladeniya Hena” morefully described in the schedule to the plaintand depicted as lots 1 to 5 in plan No. 4056 dated 10.05.1979 prepared byC.K. Badewella marked X. The contesting 2nd and 3rd defendantsappellants (now substituted) sought an exclusion of the lots 1 and 2 fromthe corpus on the basis that the said lots 1 and 2 consist of another landcalled and known as “Peellagawahena”. They also averred that Siri, Meniki,Kudaduraya and Hapu mentioned in the plaint as the plaintiff-respondent svendors by deed No. 42857 marked 2D2 conveyed this land to Sittiya thefather of the 2nd and 3rd defendants – appellants and on the basis ofexclusive possession by the said Sittiya and on his death by the 2nd and3rd defendants -appellants that they have acquired prescriptive rights tolots 1 and 2 in plan marked X.
Parties went to trial on 11 points of contest and at the conclusion of thetrial the learned District Judge by his judgment dated 22.02.90 held withthe plaintiff – respondent. It is from the said judgment that the 2nd and 3rddefendants – appellants (now substituted) have preferred this appeal.
At the hearing of this appeal the counsel for the 2nd and 3rd defendants-appellants contended that the learned District Judge erred and misdirectedhimself when he stated that there is no evidence of execution of deeds orpossession according to a plan and accordingly the land remains co-owned and so ordered a partition of the entire land. He submits that there
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is no necessity to have cross deeds or a partition plan but the question ofouster has to be decided as a question of fact. That in the instant casethere are distinct boundaries and long continued possession in additionanother name, thus justifying an inference of ouster or that it is a separateland.
On an examination of the evidence led in this case it is to be seen thatthe only evidence available to show that lots 1 and 2 in plan marked x is aseparate land called "Peelagawahena” is that of the 2nd defendant -appellant’s evidence and the deed No. 42857 marked 2V2. It is to be notedthat Peelagahawahena as described in the schedule' to the statement ofclaim of the 2nd and 3rd defendants is bounded on the east by rock ridgeof Badahaladeniya hena south by Rock of Dangollawatta west and northby ela. However the land described in the schedule to deed No. 42857marked 2V2 does not tally with the boundaries given in the schedule tothe statement of claims nor do they tally with the boundaries shown in theplan marked X. According to the schedule to the statement of claimPeelagawahena which is alleged to be depicted as lots 1 and 2 in planmarked X is bounded on the south by the Rock of Dangollawatta. Howeveraccording to the plan marked X Dangollawatta is shown as the northeastern boundary of the corpus and certainly not shown as southernboundary of lots 1 and 2. The southern boundary of lots 1 and 2 are shownas Nugawelamulahena. Therefore it appears that when comparing theboundaries of Peelagahawahena as given in the schedule to the statementof claim as well as deed 2V2 and 2V3 with the boundaries shown in thepreliminary plan marked X it is apparent that they do not tally.
It appears that the 2nd defendant-appellant under cross examinationadmits that northern and western boundaries given in the deeds pertainingto Badahaladeniya hena are correct. Another factor that came to lightunder cross examination is that the extent of the land described'in thedeeds marked 2V2 and 2V3 when compared with the extent of lots 1 and2 in plan marked X there is a vast difference.
On a consideration of the evidence led in this case, It appears that the2nd and 3rd defendants have failed to establish that lots 1 and 2 depictedin plan marked X do not form part of the corpus but is a separate landcalled Peelagawahena. The learned District Judge has addressed his mindto the issues at hand and I would say he has come to a correct finding thatlots 1 and 2 are is not separate land but forms part of the corpus sought tobe partitioned.
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The other matter that needs consideration is the prescriptive rights ofthe 2nd and 3rd defendants – appellants to lots 1 and 2 depicted in planmarked X. However it appears that the only evidence available on thisclaim of acquiring prescriptive title to lots 1 and 2 in plan marked X is theipse dixit of the 2nd defendant – appellant who said that on the death of hisfather in 1962 he alone took the produce and possessed lots 1 and 2. Asstated above, lots 1 and 2 form part of the corpus and it is admitted by theplaintiff respondent that the 2nd and 3rd defendants – appellants are entitledto certain shares in the land in view of certain deeds which convey rightsto the 2nd and 3rd defendants – appellants. Therefore it follows that the2nd and 3rd defendants – appellants are co-owners to the land sought tobe partitioned. Except for the ipse dixit evidence of the 2nd defendant -appellant there was no other evidence forthcoming to establish that hehad prescribed to these two lots. It is very relevant to note that nosuggestions and for that matter no questions were put to the plaintiff-respondent or the 1st defendant – appellant on the basis of prescriptiverights claimed by the 2nd and 3rd defendants – appellants.
In the case of Tillekeratne vs. Bastian 0) full Bench of the SupremeCourt considered the meaning of “adverse possession” in an exhaustivemanner. Possession by one of the co-owners is presumed as thepossession on behalf of all the co-owners however much the length oftime. For one co-owner to acquire prescriptive title against the other co-owners. he shall prove ten years exclusive possession after changing thenature of the possession to one adverse to the title of others.
The leading case on the question of prescriptive possession by co-owners is that of Corea vs. Appuhamy<2)in which the Privy Council heldthat possession by a co-heir ensures to the benefit of his co-heirs. It wasfurther held that;
“A co-owner‘s possession is in law the possession of his co-owners,It is not possible for him to put an end to that possession by any secretintention in his mind. Nothing short of ouster or something equivalent toouster could bring about that result. The whole law of limitation is nowcontained in Ordinance, No. 22 of 1871.”
In that case the property was belonging to four co-owners jointly. OneElias Appuhamy who was the owner of certain lands died in July 1878. He
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was not married and died intestate. His heirs were his brother Iseris andthree sisters. His brother Iseris also joined him when he was 10 years oldto look after the interest of property of the deceased. After the death ofsome of the sisters of Elais their shares were devolved on their children.Thereafter when an action was filed to partition the land among co-owners.Iseris Appuhamy claimedprescriptive title to the subject matter. His claimwas upheld by the District Court and Supreme Court.
But the Privy Council set aside the judgment and directed to enterdecree for the partition of the land.
Lord Mac Naghten pronouncing the opinion of the Privy Council held asfollows :
“Assuming that the possession of Iseris has been undisturbed anduninterrupted since the date of his entry, the question remains, Has hegiven proof as he was bound to do, of adverse or independent title? Histitle certainly was not independent. The title was common to Iseris andto his three sisters. On the death of Elias, his heirs had unity of title aswell as unity of possession. Then comes the question, Was thepossession of Iseris adverse? The District Judge held that Iseris “enteredin the character of sole heir or plunderer. Whichever it was, says thelearned Judge, “so he continued, and acknowledged no title in any oneelse. He has acquired a good prescriptive title. “ It is difficult to understandwhy it should be suggested that Iseris may have entered as “plunderer.”He was not without his faults. He is described by the learned Judgewho decided in his favour as “ a convicted forger and thief, and “expertnot only in crime and incarceration, but also in perjury”. But it is perhapsgoing too far to hold that he was so fond of crooked ways and doingwrong that he may have scorned to take advantage of a good legal titleand may have preferred to masquerade as a robber or a bandit, and todrive away the officers of the Court in that character. It is not a likelystory. But would such conduct, were it conceivable, have profited himentering into possession, and having a lawful title to enter, he could notdivest himself of that title by pretending that he had no title at all. Hismust have enured for the benefit of his co-proprietors. The principlerecognized by Wood V.C. in Thomas Vs. Thomas holds good : “possession is never considered adverse if it can be referred to a lawfultitle.”
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In the case of Hamidu Lebbevs. GanithsP* which was a case filed bythe plaintiff for a declaration of title to a half share of a particular land,which originally belonged to one Kirihatana and in the course of the casehe died leaving two sons, the defendant Ganitha and Suddana. Suddanahad two children Rankira and Ukku, who in 1921 sold to the plaintiff. TrialJudge dismissed the plaintiffs action on the basis that plaintiff’s claimmust fail on the issue of prescription.
In appeal to the Supreme Court Ennis A.C.J. said that:
“Where a co-owner of a land seeks to establish prescriptive titleagainst another by reason of long- continued exclusive possession itdepends on the circumstances of each case where it is reasonable topresume an ouster from such exclusive possession.”
In the written submissions tendered on behalf of the 2nd and 3rddefendants – appellants counsel has brought to our notice the decision inSimon Perera vs. Jayatungat4) the head note reads as follows:
‘The question whether a co-owner has acquired prescriptive title to adivided lot as against the other co-owners is one of fact and has to bedetermined by the circumstances of each case.”
The facts were:
“ A land was owned in common by members of one family. Anundivided one third share of it was purchased by one B, an outsider,who was already the owner of an adjoining land. Thereafter, withoutexecution of any deeds there was an amicable division among the co-owners in pursuance of which B possessed a divided lot exclusively fornearly thirty years in lieu of her undivided share. She had not onlyannexed this lot to her own adjoining land but had also separated it offfrom the rest of the common land by erecting a parapet wall of apermanent nature.”
It was held:
“ That there was sufficient evidence of ouster and that B had acquired,as against the other co-owners, prescriptive title from the time of ousterin respect of the lot which she possessed exclusively in pursuance ofthe amicable division.”
CAPathmasiri and another vs Baby and another (Somawansa, J.)41
That case can be distinguished from the instant case for in the instantaction other than the bare statement of the 2nd defendant – appellant thathe possessed and took the produce. There is no other evidence like inthat case where a permanent parapet wall had been erected.
In Sediris Appuhamyys. James Appuhamy*5' Sinnathamby, J wenton to affirm the position that the mere possession of a specific portion ofco-owned property for convenience cannot constitute an adverse possessionalthough he possessed the specific portion for more than fifty years. Asimilar principle was followed in Gunawardenevs. Samarakoon<6)
I must say that unlike me the learned District Judge had the greateradvantage of seeing, hearing and observing the demeanour of the witnesseswho gave evidence. Having analysed and evaluated the evidence led, itappears to me that on a balance of probability he has come to a correctfinding.
In view of the above reasons, I would dismiss the appeal with costsfixed at Rs. 5,000.
The Registrar is directed to send the case record to the appropriateDistrict Court forthwith.
DISSANAYAKE, J. -1 agree,
Appeal dismissed.