Perera and Attale.
1944Present: Howard C.J. and de Kretser J.PERERA, Appellant, and ATTALE, Respondent.
221—D. C. Colombo, 2,392.
Partition Ordinance, s. 17.
Where an action was instituted for the partition of a land and was■dismissed onthe gTound thatthe landwas possesseddividedlyand not
Held, that the sale of an “ undivided ” share by one of the ownerspending theaction was notobnoxiousto section 17of thePartition
Defendant was ousted by plaintiff in November. 1910, of a land-when he could claim a little over nine years’ possession. He brought apossessory action against the plaintiff and decree was entered in February,1942, declaring him entitled to the possession of the land.
Held, that defendant’s possession was interrupted by the ouster andthe decree in the possessory action did not give him de jure possessionof the land from the date of ouster.
PPEAL from a judgment of the District Judge of Colombo. Thefacts are stated by the District Judge as follows:—It is common
ground that Liyanage alias Pathirage Cornelia Perera was the originalowner of the land which is the subject-matter of this action. In 1928Case No. 24,427 of this Court was instituted for the partition of the entirecorpus shown in the plan. By deed No. 841 dated July 20,1931,
Cornelia Perera transferred her interests to one Alice Perera. Thoseinterests are described in the deed as an undivided J of 3/5 of the wholeland. Alice Perera by deed No. 440 dated April 5, 1933, conveyed thoseinterests to one Lawrence Perera, who in turn by deed No. 952 datedAugust 9, 1940, conveyed them to the defendant in this ease. CorneliaPerera was the seventh defendant in the partition case. The presentdefendant intervened and was made seventy-ninth defendant. Theaction was dismissed on the ground that the land was held dividedlyand not in common.
By deed No. 740 of February 27, 1938, shortly after the dismissal ofthe partition action, Cornelia Perera purported to convey her interests to
DE EIUBTSEE J.—Perera and Attale.
one Dharmadasa who, by deed No. 115 dated November 5, 1941, conveyedthem to the plaintiff. In these deeds the description given is “ anundivided ^ of 3/5, now a defined portion ”.
. A. Rajapakse (with him K. Herat), for plaintiff, appellant.
H. V. Perera, K.C. (with him Cyril E. S. Perera), for defendant,respondent.
Cur. adv. vult„
March 22, 1944. de Kretser J.—
There are three questions for decision in this case—
Was the sale to Alice Perera void by reason of section 17 of the
If valid, did it convey more than three-tenths of lot K, the subject
matter of this action?
Has defendant acquired a title by prescriptive possession?
Of these the second presents no difficulties. Mr. Perera admitted hecould not Support the learned trial Judge’s view that the maxim falsademonstrate non nocet applied and further that decisions of this Courtwere against him. If valid, the deed purporting to convey three-tenthsof the larger corpus would operate to the extent of conveying only three-tenths of lot K.
In my opinion the first question must be answered in the negative.Section 17 renders void only the alienation of shares of a land which isproperly the subject of a partition action, i.e., land belonging in commonand nut land alleged to belong in common. The words “ as aforesaid ”refer so back to section 2, and section 2 only contemplates an action topartition land really belonging in common to two or more persons. Thesale prohibited is one of an undivided share in such a land. To holdotherwise might work manifest injustice. A person owning the entiretyof a land might well be ignorant that third parties had instituted anaction to partition his land on a false allegation that they owned it. Hewould no doubt be affected by a partition decree if they did obtain oneand might intervene to protect his rights but that would not alter thefact that the whole land was his and it would be manifestly unjust toprevent him from dealing with what was his merely because third partieshad brought a partition action.
In Jango Appu v. Somawathi1 this Court dealt with this question, andPereira J. said that section 17 did not apply where the alienation wasnot of a share but of the entire corpus. He added the words “ any of theowners ” clearly imply that the case contemplated is a case of propertyowned by several owmers, and hence the word “ interest ” can only meansome interest short of absolute ownership of the entirety of the property,de Sampayo J. agreed on the same lines.*
The present is a case of many separate lands being included in apartition action and the action was dismissed on the ground that the landwas not held in common. Each owner of each lot was not thereforeaffected by the abortive partition action and was free to dispose of hisland as he chose. As Wood-Hen ton J. remarked in Abeysekera v. Silva21 2 C. A. C. 166.* 1 C. A. G. 37.
DE KRETSBE J.—Perera and Attale.
“undivided ’’ in section 17 means undivided in the eyes of the law.Here the larger land had long ceased to be undivided in the eyes of thelaw.
The third question seemed to present more difficulty but on considera-tion it seems to me that the difficulties were more seeming than real.Defendant was ousted by plaintiff in November, 1940, when he couldclaim a little over nine years’ possession. He brought a possessory actionagainst the present plaintiff and decree was entered in his favour inFebruary, 1942, decreeing him entitled to possession of the land. Mr.Perera contended that whilst from November, 1940, plaintiff was inde facto occupation the effect of the decree was to give the defendantde jure possession from that day and so he had had possession for overthe prescriptive possession. Apart from the fact that there is noevidence as to the date when the possessory action was brought, thedecree did not declare defendant entitled to possession from the dateof the ouster or from the date of the action but from the date of thedecree. There was thus no foundation for one part of the argument.Mr. Perera asked in whom possession was during the action and answeredit himself at one time by saying it was in the Court, through its agent theplaintiff. If that view be correct, and think it is, then it was in neitherthe plaintiff nor the defendant and the defendant remained where hewas with regard to prescriptive possession.
Assuming that the effect of the decree was to declare that the defendanthad been unlawfully ousted, he argued that the Court had therefore heldthat defendant was the person entitled to possession and both plaintiffand defendant could not be in legal possession at one time. The answeris that Court declared him entitled to be restored to possession and thatplaintiff' was in occupation ut dominus, i.e., his possession was legalpossession, such a possession as section 3 of the Prescriptive Ordinancecontemplates. What he had done was to take possession in a mannerwhich the law did not favour and so defendant was restored to possession,hut in the interval there can be no doubt that the plaintiff was in possessionand that defendant’s possession had been interrupted. Had the Courtawarded damages the position would not be different for the Courtwould 'only be making the plaintiff pay for his wrongful act, but makinghim pay on .the footing that he had been in possession.
The case of an action rei vindicatio stands on a different footing andthe case of Wimalasekera v. Dingiri Mahatmeya1 is perhaps against thedefendant. All that case decided was that a decree declaring A, theplaintiff, entitled to a land decides the rights of parties as at that dateand necessarily wipes out all accumulations in B, the defendant’s favour.Had the present defendant brought an action rei vindicatio and succeeded,of course plaintiff’s possession for two years would have been wiped outbut that does not mean that the defendant had possession during thependency of the action. If Mr. Perera’s contention be correct, suppose A,the plaintiff, after nine years’ possession, brought an action rei vindicatiowhich lasted two years and supposing B had taken forcible possession,A would be entitled to be restored in a possessory action and might, whenhis title failed, urge that as he was entitled to be restored to possession
1 39 N. L. R. 25.
DE EEETSEE J.—Perera and Attale.
lie was therefore in de jure possession and so he had acquired a pre-scriptive title. Such a plea has never been urged and would not succeed,if urged. Mr. Perera would say that was because the parties’ rights aredecided as at the date of action filed. Quite so. A might have gotdamages for B’s possession pendente lite but A’s rights by possessionwould be decided as at the date of action. Can it be urged that A’srights are enlarged if he brings a possessory action, which decides, notthat be is entitled to possession because he is the owner but only thathe was wrongfully ousted and must be restored? The argument thatthe man who seeks constitutional redress must be protected is met withthe answer, that if he chose a particular form of redress he must take thatredress and no more. In this case there was nothing to prevent defendantfrom bringing an action rei vindicatio and then the rights of parties wouldbe decided as at the date of action. He chose to get back into possessionand have the advantage o± being the defendant, if plaintiff sought tovindicate title, or of remaining in possession, if he did not. It must beremembered that the plaintiff was entitled to look after his own rightsand if he found the defendant prescribing against him he was entitledto interrupt that possession, and what he did in this case was to slip intopossession with the aid of a recalcitrant tenant of the defendant. Therewas nothing wrong in his doing so.
Van Leeuwen in his commentaries (bk. II., chap. 8, s. 3) where he dealswith prescription says that if a person who is ousted regains possessionwithout delay his possession is not considered to have been interrupted.
A few days were allowed him to make ready and to gather his friendsor weapons or otherwise exert, his zeal to assist him in protecting hispossession. It would seem to follow that a greater delay meant thathis possession was interrupted and then his remedies were a possessoryaction or an action rei vindicatio. We have been referred to no authority,and I know of none, which says that success in a possessory action meantthat he was considered to have continuous possession, and in fact thereasoning would appear to be to the contrary. The Dutch law seems tohave recognized that a person could not only retain possession butregain it vi et armis. We are not concerned with the criminal aspect ofthe matter but with the effect of the interruption on possession. Ifthe person ousted regained possession in a few days his possession wouldbe continuous and not otherwise. The interrupter may be punishedcriminally and he may be condemned in damages for the wrong, but theinterruption would remain. Note also that it is only when a mar. regainspossession that his possession is continuous. In the case before us,the defendant did not regain possession. His possession was not merelyinterrupted but finally broken or stopped. It is interesting to note thatVan Ijeeuwen (bk V., chap. 12, s. 3) says a possessory action relatesonly tc provisional possession and failure does not mean loss of the rightto possession but the losing party may bring a full' action. This passagesupports the view that a possessory action does not decide rights ofpossession but only restores the person wrongfully ousted, and sode jure possession cannot in this case be said to have been decreed to thedefendant but only de facto possession.
DE KRETSER J.—Perera and A'Ltale.
There is nothing which I can see which compels us to take the simplefacts of the case in any but their natural meaning and that means thatthe defendant did not acquire title by prescriptive possession.
Accordingly, the plaintiff must be declared entitled to seven-tenthsof the land. Its. 15 a month for the whole land was agreed upon asdamages. Plaintiff has remained in possession throughout. Defendant,on his claim in reconvention, will be declared entitled to three-tenths^and will get three-tenths of Us. 15 or Ps. 4.50 a month from November,1940, till he is given possession, with legal interest on the amount dueup to this date. Plaintiff will get half costs in the Court below and inthis Cour?.
Howard C.J.—I agree.
PERERA , Appellants, and ATTALE, Respondent