PERERA et al., Appellants, and WIJESURIYA et al., Respondents

114-NLR-NLR-V-59-PERERA-et-al.-Appellants-and-WIJESURIYA-et-al.-Respondents.pdf

Perera v. IVijesuriya
529
1957Present:Basnayake, C.J., and Pulle, J.PERERA el al., Appellants, and WIJESURIYA et a-l., RespondentsS. G. 411—412—D. G. Panadura, 2S36
Possessory action—Prescription Ordinance (Cap. So), s. 4—Trespass without ouster—Can it amount to “dispossession ” ?—acquirement oj possession for a yearand a day.■
Trespass without ouster may, in appropriate circumstances, amount todispossession within the meaning of section 4 of the Prescription Ordinance.
The land in dispute in this action was part Of a larger land and had beenin the possession of tho plaintiff for over 25 years. On Juno 13, 1951, thodefendants (husband and wife) entered tho land after cutting down tho livofence which formed ono of its boundaries. When tho plaintiff informed thoPolice, tho-latter advised tho rival parties to submit their dispute for adjudica-tion by a Court of law and to abstain from tho oxerciso of any rights in respectof tho land in tho meanwhile. On Juno 22, 1951, however, tho 2nd defendantand several others entered tho land and commenced to construct a hut thereon.They were again warned by the Police against a breach of the pcaco and proceed-ings wero instituted in tho Magistrate’s Court on tho next day to have thowrongdoers bound over to keep the pcaco. Tho proceedings in tho Magistrate’s
■ Court were withdrawn by tho Police on July 2S, 1951, in consequence of anundertaking given to Court by tho 2nd defendant not to enter tho portionin dispute “ pending tho decision of this matter in a suitable action ”, whichcivil action was to bo filed by the plaintiff within two months from July 2S,1951. Pending the proceedings in tho Magistrate’s Court, the plaintiff eroctedon Juno 23, 1951, two mud huts on tho land and placed jicr agents therein.Subsequently, in accordance with tho undertaking given in tho Magistrate’sCourt, tho plaintiff instituted the present action on August 24, 1951, claiminga possessory decree to provent the defendants from entering tho land again.
Held, that, although the plaintiff was in possession of tho land on tho datoof tho institution of tho action, tho acts of the defendants on tho 13th and 22ndJune, 1951, amounted to dispossession of the plaintiff within tho meaning ofsection 4 of tho Prescription Ordinance. The plaintiff, therefore, having been 'in possession of tho land for over a year and a day prior to 13th June, 1951,was entitled to maintain a possessory action.
. Pattirigey Carlina Hamy v. Jll ugegodagey Charles de Silva (1SS3) 5 S. C. C.140, not followed.
Obiter, per B.tsxAY.iKK, C.J.—“ There is no binding decision of this Courtthat an action under section 4 of tho Proscription Ordinance cannot bo main-tained unless tho plaintiff had had possession for a year and a day.”
A PPEALS from a judgment of the District Court, Panadura.
P. J. Kurukulasnriya, for 2nd Defendant-Appellant in S. C. 411
and 2nd Defendant-Respondent in S. C. 412..'
N.E. IVeerasooria, Q.G., with Titus Goonelilleke, for 1st Defendant- -Appellant in S. C. 412 and 1st Defendant-Respondent in S. C. 411.
V. Perera, Q.G., with A. G. Gooneratne and E. Goonerctliie, forPlaintiff-Respondent ‘ in both appeals.
.‘ C-nr. adv. vull.
. 2?-LIX-.. 'r
>y. X. B C0J3-I,S03;S/5S)‘
530
BASNAYAKLE, C.J.—JPerera v. Wijesuriya
August 28, 1957. Bassayake, C.J.—•
This is, an appeal from a decree under section 4 of the Prescription. Ordinance declaring the plaintiff entitled to be restored to the possessionof an allotment of land called Delgahawatte in extent about acres.
Learned counsel for the 1st defendant contended firstly that the plain-tiff had not been dispossessed of her land and secondly that even if theplaintiff had been dispossessed, having at the date of the action regainedpossession, she is not entitled to maintain this action.
Shortly the facts are as follows : The land in dispute was once a partof a larger land known as Delgahawatte several acres in extent. Forover 25 years it has been in the possession of the plaintiff and has been aseparate entity of about 1£ acres in extent with barbed wire fences allround. Adjoining it on the west is the plaintiff's land and on the souththe.land of the defendants.
In October 1945 the first defendant who is the wife of the second defend-ant purchased some undivided shares in the larger land Delgahawatte.On 6th June 1946 she instituted a partition action in respect of that landnaming the plaintiff as the 1st defendant to that action. About 7thJune 1951 the partition action was withdrawn. On 13th June 1951 thedefendants cut the barbed wire and the trees of the fence that separatedtheir land from the land in question. The plaintiff informed the Policeand the Village Headman, both of whom visited the land and observedthat the fence had been cut. The defendants admitted to the Headmanthat they had cut the fence to take earth from the land in dispute. Thesecond defendant also claimed the right to cut the fence on the groundthat he had erected it. The police advised the rival parties to submittheir dispute for adjudication by a Court of law, and to abstain from theexercise of any rights in respect thereof in the meanwhile. Thereafternothing untoward occurred till 22nd June 1951 when the 2nd defendantand several others entered the land at about 9.30 at night and with theaid of powerful lights commenced to construct a hut thereon. Theplaintiff again informed the Police who came immediately and took stepsto prevent a breach of the peace. Some of those assisting the 2nd defend-ant were reconvicted criminals. They were warned against a breachof the peace and proceedings were instituted in the Magistrate’s Courtthe very next day to have the wrongdoers bound over to keep the peace.The proceedings dragged on till 2Sth July 1951 when the application tohave them bound over was withdrawn in view' of an undertaking givenby the 2nd defendant and his associates not to enter the land pendingcivil legal proceedings by the plaintiff. The record by the Magistrate ofthe understanding reached on that day reads as follows :—
“ It is agreed that respondents 1-6 will remain within the presentfence on Lot No. 10. Itis further agreed that neither these respondentsnor anyone else on their behalf will (not) enter Lot 10 on the southernside of the fence pending the decision of this matter in a suitable civilaction. It is also further agreed that neither the respondents norWijesuriya will interfere with the existing fence as they said today.Mr. Wijesuriya undertakes to bring an appropriate civil action to assert
BASNAYAKE, C.J.—Percra v. Wijcsuriya
53)
his rights to that portion of Lot 10 or any portion thereof, within two-months from today. If this action i3 not brought within two months:or is not prosecuted with due diligence, it is agreed that this presentagreement would cease to have any binding force on the respondents.
"The respondents 7-10 are outsiders. They are severally warnednot to enter this land or take any part in these transactions hereafter. ”
While these proceedings were pending on 23rd June the pla-ntiff erectedtwo mud huts on the land and placed her agents therein. The plaintiff’sson giving evidence for her said :
“ We have been in possession even today and for many years. Ourcomplaint is that on 13th June 1951 the defendants forcibly enteredour land and cut our fence, and thereafter on 22nd Jnnel931 they onceagain forcibly entered our land. This action is to prevent the defend-ants from doing so again. There were no mud huts on the disputedportion before. ”
The events of 13th and 22nd June are not seriously disputed. Thesecond defendant claimed that he was asserting the 1st defendant’srights over the land.
The learned District Judge has held that the land in dispute was notheld in common and that the plaintiff was in exclusive possession of itfor over a year and a day prior to the 13th June 1951. He answered infavour of the plaintiff the following issues framed at the trial:—
Was the plaintiff in possession of the land depicted in Plan No. 1,263
dated 2Sth January 1952 which is the same as Lot 10a in PlanHo. 1,617 of 2Sth Jamiary 1952 for over a year and a day priorto 13th June 1951 ?
If so, is the plaintiff entitled to a possessory decree in respect of the
said land ?,
I shall now deal with the submissio s on law of learned counsel for theappellant. Learned counsel submit: xl that the cutting down of thefence and the attempt to erect a hut >n the land did not amount to dis-possession of the plaintiff. He submi ted that they were acts of trespassand did not entitle the plaintiff to a ieeree under section 4 of the Pres-cription Ordinance. He cited the c ise of Paltirigey Carlina Hamy v.Mugegodagey Charles de Silva.1 in s pport of his submission. In thatcase Burnside C.J. who delivered thr judgment of this Court stated :—
. “It is clear that the dispossess’ n referred to in this section (s. 4)consists of an amover or deprivati n of possession, or in another word- well known, to the law, ‘ an ouster '. Acts which merely amount to atrespass without ‘ ouster ’ do not mount to dispossession. ”'
The defendant in that case in the osence of the plaintiff entered hisland and erected a fence separating he portion on w’hich he lived from-t lie rest and plucked the nuts of the portion so separated. The plaintiffthereafter did not receive the fruit of the separated portion". On this
1 (1SS3) 5 E 'J.C. 140.‘•
532BASWAYAKE, C.J.—Percra v.IVijesuriya
material it was held tliat the acts of the defendant did not amount to. 'dispossession of the plaintiff. With great respect I find myself unableto agree with- that decision.
In the first place it is necessary to ascertain the content and meaningof the expression “ dispossession ” in section 4 of the PrescriptionOrdinance.
Under the Roman Law the remedies against unlawful disturbanceor deprivation of immovable property were the interdicts of Uli possi-detis and Unde vi. The former interdict Mas issued when a person’spossession was disturbed. The corresponding Roman Dutch remedywas known as Mandament van Maintenue. The latter interdict wasissued when a person was unlawfully deprived of his possession of im-movable property either by violence, fraud or any other means. Thecorresponding Roman Dutch remedy was known as Mandament vanSjwlie. As ovu- section 4 uses only the expressions “ dispossessed ” and“ dispossession ” and does not expressly" refer to “ disturbance ”, thequestion arises whether the Roman Dutch remedy of Mandament vanMaintenue (uti possidetis of Roman Law') is caught up by it or not. Ifit is not, can a person whose possession is disturbed seek that remedy ?Tho answer to the question whether a person who is not deprived of butis only disturbed in his possession is entitled to seek the remedy providedby the section depends on the meaning of the word “ dispossessed ”in the context. The ordinary meaning of the word ” dispossessed ” is“ to put out of possession ”, “ to deprive of possession ”, and “ to oust ”.
Next it is necessary to ascertain when a person can be said to be “ putout of possession ” or ” deprived of possession ” or “ ousted ”. Whatis possession ? Savigny (On Possession, pago 2) defines it thus :
” By the possession of a thing, we always conceive the condition, inwhich not only one’s own dealing with the thing is physically possible,but every other person’s dealing with it is capable of being excluded. ”
Possession in this connexion is defined by Voet in Book XLI, Tit. 2,Section 12, of his Pandects. He says :.
“ Possession is kept (i) By mind and body together ; or (ii) Evenby the mind alone, so much so that, although another has seized pos-session by stealth in the absence of the possessor, nevertheless theearlier possessor does not cease to possess until, being aware that thoother has made an entry, he has not had the courage to go back intopossession, because he fears superior force. In such a case he whoseized possession appears to possess rather by force than by stealth. ”
Any act which prevents a person from exercising his rights of possessionwould be a deprivation of his possession or an ouster of him. In thatsense the defendants’ acts amount to a dispossession of the plaintiff,because on both occasions she was by fear of superior force compelled toseek tho aid of the Police and refrain from entering on the land. Section 4also speaks of a “ restoration of such possession ”. The question of
BASXAYAKE, C.J.—Perera v. JYijtsuriya
533
restoration of possession does not arise unless a person has been deprivedof it. It would appoar therefore that the word “ dispossession ” bears insection 4 of the Ordinance the meaning of “put out of possession " or“ deprived of possession ” or “ ouster
Thero is a difference of opinion among the writers on Roman DutchDaw as to whether actual violence of a physical nature was necessaryfor the Mandament van Spolie, but the better view is that neither force■ nor fraud is necessary. The essence of the action lay in unlawful dis-possession. This is the view adopted in the leading South African caseon this point (Nino Bonino v. De Lange,1), which holds that tire essenceof the remedy of Spolie lies in unlawful dispossession committed againstthe will of the plaintiff and neither force nor fraud is necessary. Oursection 4 seems to adopt this view for it gives the remedy thereunder to“ any person who shall have been dispossessed of any immovable propertyotherwise than by process of law Section 4 therefore affords no •authority for an action on the lines of uti possidetis or Mandament vanMainienue. Does it exclude such an action ? I think not. Section-3 indicates that the Prescription Ordinance did not intend to take away aperson’s right to bring an action for the purpose of being quieted in hispossession of immovable property. The purpose of the Roman remedyof uti possidetis and the Roman Dutch remedy of Mandament van Mainte- •nue was to give a right of action in cases of mere disturbance of or threatto possession so that the plaintiff may continue in his possession quietand undisturbed.'' ■
Voet defines disturbance of iiossession in Book XLIII, Tit. 17, Section 3.Re says :
“ This interdict is granted against those who maintain that they alsohave possession, and who under that pretext disturb one who abidesin possession. They may do this by. bringing force to bear upon him,or by not allowing the possessor to use at his discretion what he pos-sesses, whether they do so by sowing, or bj- ploughing, or by buildingor repairing something or by doing anything at all by which theydo not leave the free possession to their opi>oncnt. This applieswhether they do these things by themselves, or bid them to he cloneby their agent or household, or ratify the act when done, in tho sameway as that in which I have said in iny title on ‘ The Interdict as toForce and Force with Arms’ that this rule holds good with the interdictagainst force. ”
The next question is whether the plaintiff must fail merely becauseshe regained possession on the 23rd June and was at the time the actionwas brought in possession of the land. I think not. As sta.tcd above,the remedy is designed to prevent persons taking the law into their ownhands. Although the plaintiff got back her possession on the 23rd slipwas entitled on the facts of this, case to institute an action against thoperson who dispossessed her on 13th and 22nd June and ask for a decree
1 ( 1906 ) r. S. 120..
2*-r. X. JJ 6CMS (3,5' )
-o34
BASXAYAKE, C. J.—Pere.ro. v. Wijesuriya.
-against that person for the restoration of her possession. -Without sucha;decree she is likely to be deprived of her possession oneo more by thedefendants who have agreed not to enter on the land only until the disputeas to possession is decided by a competent Court of civil jurisdiction. Ifthere is a dispute as to title that must be fought in a separate action. Themaxim is spoliatus ante omnia reslituendus est and the fact that she' liasbeen able to enter on the land and remain there by virtue of the under-taking given by the defendants not to enter on it themselves pending thoaction, is no ground for refusing the plaintiff the decree sho is declared-by the statute to be entitled to on the facts established in this case.
Though the question does not arise for decision in this case, I wish torefer to another aspect of section. 4 -which was. argued before us. Doesit. require that tho plaintiff at the time of dispossession should have pos-sessed for a year and a day? There are decisions of this Court which regardthe proviso to the section as importing into our section the requirementof a year and a day’s possession as in the case of the Roman Dutch remedyof Mandamenl van Complainte. The words of the proviso are “ Providedthat nothing herein contained shall be held to affect the other require-ments of the law as respects possessory cases. ” Now what are the re-quirements applicable to possessory cases. Complainte required a yearand a day’s possession but not the other two remedies of Mandamenl vanMainlenue and.Spolie. Neither of the Roman Law remedies of nti possidetisand unde vi required a year and a day’s possession. I am therefore notinclined to regard the proviso as introducing the requirement of a yearand a day’s possession of Mandamenl van Complainte especially becausethe special procedure of that remedy had in later years fallen into desue-tude. Then what are the other requirements referred to in the proviso ?They cannot be the procedural requirements of the Roman Dutch Lawas the Roman Dutch procedure has since the procedural enactments ofthe early days of the British ceased to be in force. The only requirementscommon to all possessory cases following dispossession were that the pos-session of the plaintiff should havo been obtained nec vi, nec clam, or necprecario. That requirement runs through all the Mandaments—Com-plainle, Maintenue, and Spolie—and even the Roman Law remedies ofwide vi and uti possidetis. In the case of Gooneicardena v. Pereira 1 Bonser
J. stated :
“ As regards possession for a year and a day, speaking for my ownpart, I am not prepared to assent to the proposition that, where thereis an ouster by violence of the person who is in possession of the pro-perty, anything more is required to be proved by him than that hewas in possession and that he was violently ousted. ”
As no reasons are given for the opinion it is not clear on what theopinion is founded. Neither section 4 nor the remedy of Spolie requiresthat the ouster should be by violence. Wendt J. the other member ofthe Bench expressed no opinion on the question of the requirement ofpossession for a year and a day.
-> [1002) 5 iY. L. P. 320,
B.-YSXAYAKI3, C.J.—Per era v. Wijesuriya
535
the later ease ol Abdul Aziz v. Abdul Rahim 1, (a judgment of a Benchof three Judges), Hutchinson C.J. expressed the following view :—
“ The Roman-Dutch law requires the plaintiff in a possessory actionto have had quiet and undisturbed possession for a year and a day ;and the requisites of ‘ possession ’ arc the power to deal with the pro-perty as he pleases, to the exclusion of every other person, and theanimus domini, i.e., the intention of holding it as his own. ”
Here too no reasons are given for the opinion that a j’ear and a da3r’spossession is a prerequisite to a possessory action. Middleton J. quotesthe following passage from Kotze’s translation of fan Leeiuren :—
*' Possession is only a bare and naked apprehension and detentionof a thing with the intention of using it as one’s own. It consists inthis that a person having so possessed anything or right for a year and aday is entitled to retain the possession until somebody else who dis-putes his possession has lawfully established his right of property ”.
This passage occurs in the chapter on Possession and Prescription andrefers to the ohl period of prescription for a year and a day. The passageitself indicates that the erudite commentator is nob dealing with thepossessory action ; but with rights of propert}', for, lie says that thepossessor who has had a year and a day’s possession is entitled to retainthe possession until someone has lawfully established his right of property.He is not here dealing with the right of a person who has been dispossessedwithout legal process to be restored to possession. The passage is there-fore not an authority for the proposition that possession for a year and aday is a prerequisite to a possessor action. Middleton J.’s statementlater on in his judgment that the right to bring a possessory actiondepends on p>roof of jiossession for the time limited finds no support amongthe writers cited by him, nor is it supported by section 4 of our Ordinance.Wood Renton J. the other Judge who formed the Bench did not dealwith the question of possession for a year and a day as it did not arisefor decision in the case ; but confined himself to the real issue, viz., thenature of possession necessary to enable a disj^ossessed person to institutean action under section 4.
' In the later case of Silva v. JDingiri JMeniha ct al. 2, where the questionwhether a year and a day’s possession was necessary to enable a dis-possessed person to institute a possessory action arose, Hutchinson C.J.and Middleton J. two of the Jugcs who decided the case of Abdul Aziz v.Abdul Rahim, {supra) held that it was not necessary. Ho reference wasmade to their judgments in Abdul Aziz’s case, but reference was madeto tho judgment of Da uric J. in the case of Pcrera v. Fernando 3, wherehe held that possession’ for a year and a day was necessary to enable adispossessed plaintiff to institute an action under section 4. He reliedon Van der linden for his view. In the passage referred to Van derLinden speaks of Alandamcnt van Complainle. He says (Juta’s trans-lation, page 100) that several legal proceeding^ with regard to possession
1 (1000) 12 Ar. D. R. 330.- (1010) 13 A. P. R. 170.
– (1392J 1 S. C. 7f. 320,
536
PULLE, J.—Per era v. IVijcsuriya
have been introduced in the practice of Holland. He then goes on toenumerate the proceedings of 3Iandament van Immissie, 31andament vanMaintenue, and .thirdly 31 and ament van Complainte, and describes the’last named thus :—
“ 3. To recover lost possession. This is called Writ of Complainte(Mandamenl van Complainte). In order to obtain this remedy a personmust have been in quiet and peaceful possession for more than a yearand a day, and must have been ousted within the year. For the benefitof persons who have been ousted from possession with violence, wehave adopted in our practice the remedy of the Canon Common Lawknown as the Writ of Spolie Mandament van Spolie.
Van der Linden therefore affords no authority for saying that in anaction under section 4 possession for a year and a day must be proved.
From the foregoing it is clear that there is no binding decision of thisCourt that an action under section 4 of the Prescription Ordinancecannot be maintained unless the plaintiff had had possession for a yearand a day..
The appeals are dismissed with costs. ’
PULLE, J.
The appeals of the two defendants which arise out of an action insti-tuted on the 24th August, 1951, relate to aland called Delgahawattaof the extent of 1A. 1R. 3SP. shewn on apian, marked P2, and datedthe 2Sth January, 1952. The plaintiff sought a possessory decreealleging that she had possession of the land in her own right for overa year and a day, that the defendants on the 13th June, 1951, enteredthe land after cutting down the live fence which formed its northernboundary and that on the 22nd June, 1951, they attempted forciblyto construct a hut on the land. The first defendant is the wife of thesecond. The defence Mas that the first defendant was by right ofpurchase on a deed marked HI? dated 12th October, 1945, the ownerof certain undivided interests in a land called Delgahawatta of theextent IGA. 2R. 37P. shewn on the plan dated ISth May, 1946, markedD2, and that in lieu of those undivided interests she was in possessionof lot 10 in that plan and that the portion in respect of which t he plaintiffsought a possessory' decree was itself an undivided portion of lot 10.A point of law pressed both in the trial court and in appeal is pleadedby each of the defendants as follows :—
“ The plaintiff is not entitled to maintain a possessory actionagainst this defendant as she is in possession of the interestsclaimed by her in this action.”
It may be stated that the evidence called by the defence amountedto an allegation of forcible deprivation of possession of the defendantsby the plaintiff’s agents from the land which is the subject matter ofthis action.
rULI/E, J.—Pcrcra v. W'ijesuriya
537
The principal issue which was tried was whether the plaintiff wasin possession of the land depicted in P2 (which is identical with lot 10ain another plan D1 also prepared for this case at the instance of thedefendants) for more than a year and a day prior to 13th June, 1951.
The learned trial Judge’s findings on all the material questions of factwere in favour of the plaintiff. He was quito satisfied on the evidencethat for several years prior to the conveyance D17 of 1945 in favourof the 1st defendant the plaintiff had exclusive possession of the Jotin dispute without acknowledging any rights of co-ownership in eitherthe defendants or any one else. There was ample evidence to supporthis findings and I see no reason to differ from them. All that remainsto be considered is the submission on behalf of the appellants that evenif one accepts all the evidence called for the plaintiff the learnedJudge was wrong in granting a possessor}' decree. The argument wasbased principally on the case of Patlirigey Carlina Hamy v. MagegodageyCharles de Silva 1 which is to the effect that acts which merely amountto trespass without ouster do not amount to dispossession for the purposeof section 4 of the Prescription Ordinance. The defendants say thatit is a pre requisite to the passing of a decree under section 4 that aplaintiff should have lost possession and that in the present case therewas no question of restoration of possession because the plaintiff, when 'she came to court, was already in possession.
It is submitted on behalf of the plaintiff that there was a dispossessionsuch as contemplated by section 4 and that, in any event, the plaintiffwas disturbed in her possession and that under the common law shewas entitled to be quieted in possession.
Por the purpose of dealing with the submissions on behalf of bothparties it is necessary to state in some detail the events which led upto the institution of the present action.'
To the north of the portion of Delgahawatta which is in dispute isanother portion of land of the same name in the occupation of thedefendants. A live fence separated the two portions and this wasadmittedly cut by the first defendant on 13th June, 1951. When thevillage headman to whom a complaint was made on the same day wentto the land the first defendant stated that the fence had been put upby her and that she cub it " as it was necessary to take the clay for theconstruction of the house.” Throughout the trial the defendantsstrenuously maintained that the portion in dispute was never in thepossession of the plaintiff and that the fence was erected by them toprotect some plantain bushes and to prevent theft from a buildingstanding on the portion to the north of the fence. An incident of amore serious character occurred on the night of 22nd June, 1951. Aparty of people, of whom some were reconvicted criminals, entered withlights the portion in dispute in the company of the second defendantand commenced to build a hut. On a complaint made by the plaintiff’sson the Inspector of Police, Mount Lavinia, arrived at about 10 p.m.
1 (1SS3) 5 S.C.O. uo.
53S
PULLE, J.—JPerera v, Wijcsuriya
and saw the second defendant and nine others putting up a cadjan hut.
■ He feared a breach of the peace and moved the Magistrate’s Courton the 23rd June, 1931, for an order binding over the second defendantand nine others to keep the peace. The application was withdrawnon the 28th July', 1951, in view of what is recorded in those proceedingsas an “ agreement ” entered into by the parties. The second defendantand five others agreed not to enter the portion in dispute “ pending thedecision of this matter in a suitable civil action ”, which civil action. was to be filed by the plaintiff within two months reckoned from 2SthJuly, 1951. It was further provided, “ If this action is not broughtwithin two months or is not prosecuted with due diligence, it is agreedthat this present agreement would cease to have any binding force onthe respondents.”
The attempt of the defendants to put up forcibly a hut on the disputedportion was frustrated by the counter action of the plaintiff who startedto erect two mud huts on the 23rd June and placed watchers in them.The plaintiff’s position is that, but for the events which occurred onthe 13th and 22nd June, her possession was complete and undisturbed.Her son who gave evidence stated,
“ We have been in possession even today and for many years.Our complaint is that on the 13th June, 1951, the defendants forciblyentered our land and cut our fence. Thereafter on 22nd June, 1951,they once again forcibly entered our land. The action is to preventthe defendants from doing so again.”.
Referring to the attempt of the defendants to build a hut on the nightof 22nd June, 1951, the witness said
“The defendants tried to put up a hut. That.could not be com-pleted when the Police came on the scene and they were asked notto proceed with the work. There was nothing to demolish. It wasin the process of being made when they abandoned it and went.”
It was strongly urged on us that on this evidence the plaintiff couldnot claim to have been “ dispossessed” within the meaning of section 4tof the Prescription Ordinance and was, therefore, not entitled to therelief provided by that section.
There appears to bo some force in the submission on behalf of thedefendant that the plaintiff cannot maintain that, at the date of theaction, she stood dispossessed, in the sense of having suffered an ouster,and that she required a decree of court to be restored to possession.But I think this argument fails in the light of the very special circum-stances in which the action was instituted. Even prior to the con-veyance D17 in favour of the first defendant the plaintiff was in securepossession of the lot in dispute. It- was fenced on the north, west andsouth and the land immediately to the east is admittedly the plaintiff's-On the 13th June, 1951, the defendants used force by.cutting the fenceon the north, which was nothing less than a symbolic act of annexation.When the plaintiff complained to the authorities the defendants did not
PXTI^LE, J.—Pcrcra v. Wijesuriya
530
desist but went a step further. With t]ie aid of some criminals theydug up the ground a few days afterwards and attempted to build a hut.It is true that the plaintiff herself began to build two huts but in thoproceedings taken in tho Magistrate’s Court tlie plaintiff had to agreeto remain on her land with an assurance that she would not be turnedout of it, if within two months she filed a civil action to vindicate herrights. In other words the acts of the defendants resulted in her havingto vindicate that the forcible ouster which began on the 13th Juneand culminated on the 22nd June was wrong and to ask that she borestored to the fullness of the jmssession she enjoyed without any distur-bance prior to 13th June. If, as it has turned out to be, that thodefendants did not have a single day’s possession of the lot in disputeprior to 13th June, 1951, and by their acts compelled the plaintiff to-assert and prove in a court of lay that she was not liable to suffer forcibleeviction at their hands, then itsccms to met hat the remedy of a possessorysuit granted by tho Roman. Dutch Law recognized bj' section 4.of thePrescription Ordinance is available to the plaintiff.
. If the opinion which I have just expressed is erroneous I would holdthat the equivalent of the possessory remedy “uli possidetis” is availableto the plaintiff to be quieted in possession against acts of disturbance.In the case of Prclapctantrige Miguel Perera v. Gangcboda Valage Sobana 1Burnside, C. J., states
“ Possessory actions in this Colony rest upon the edicts unde viand uti passidciis of the Roman Law as adopted by the Dutch Law,the former relating to the forcible deprivation of possession, thelatter to the disturbance of possession.”
Voct says in Book 43, Title 17, section 3 (vide The Selective A^oet,Gth Volume, p. 497, by Perc-ival Gano) of uli jJossidelis,
“ This interdict, is granted against those who maintain that theyalso have possession and who under that pretext disturb one whoabides in possession. They may do this by bringing force to bearupon him or by not allowing the possessor to use at his discretionwhat he possesses or by ploughing, or by building or repairing some-thing or by doing anj'lhing at all by which they do not leave the.free possession to their opponent.”
The foregoing is in large part an apt description of the acts committedby the defendants, and, in my opinion, the plaintiff is entitled to aska court toprovide her with a remedy by which she could remain in peacefulpossession of her land unmolested and undisturbed by the defendants 'taking the law into their own hands…
Tho defences taken are entirely without merit and I vvould dismiss:the two appeals with costs.- "
Appeals dismissed.
(JSS3) 6 S.C.G. Cl.