Sri Lanka Law Reports (1978-79) 2 S. L. R
Ponnambalam v. Vaitialingam and another
COURT OF APPEAL.
RANASINGHE, J. AND TAMBIAH, J.
c. a. (s.c.) 237/73 (i)—d. c. jaffna 539/p.march 27, 30, 1979.
Co-owners—Partition action—Claim by defendants that corpus amicablydivided and so possessed—Prescription—Principles applicable.
The question whether a co-owner has prescribed to a divided lot asagainst the other co-0;wners is one of fact and is to be determined bythe circumstances of each case. The mere reference to undivided sharesin deeds executed after the alleged date of division does not have theeffect of restoring the common ownership of a land which has beendividedly possessed and where such divided portions have becomedistinct and senarate entities. The learned trial Judge had in +h:= casecorrectly found that the corpus had been divided and separatelypossessed to the exclusion of the other co-owners for about 30 to 40years prior to this action and accordingly dismissed the action holdingthat at the time of its institution the corpus was not owned in common.
Cases referred to
Corea v. Iseris Appuhamy, (1911) 15 N.L.R. 65; 1 C.A.C. 30.
Tillekeratne v. Bastian, (1918) 21 N.L.R. 12 (F.B.).
Abdul Majeed v. Ummu Zaneera, (1959) 61 N.L.R. 361; 58 C.L.W.
Hussaima v. Ummu Zaneera, (1961) 65 N.L.R. 125 : 64 C.L.W. 7..
Danton Obeysekera v. Endiris, (1962) 66 N.L.R. 457.
Simon Perera v. Jayatunga, (1967) 71 N.L.R. 338.
Nonis v. Petha, (1969) 73 N-L.R. 1 ; 78 C.L.W. 33.
Jayaneris v. Somawathie, (1968) 76 N.L.R. 206.
Perera v. Kularatne, (1972 ) 76 N.L.R. 511.
Belin Nona v. Petara, (1972) 77 N.L.R. 270.
Hamidu Lebbe v. Ganitha, (1925) 27 N.L.R. 33; 6 C.L. Rec. 159 : 3Times L.R. 102.
Sideris v. Simon, (1945) 46 N.L.R. 273.
Mensi Nona v. Neimalhamy, (1927) 10 C.L.Rec• 159.
Girigoris Appuhamy v. Mary Nona, (1956) 60 N.L.R. 330.
APPEAL from the District Court, Jaffna.
C. Thiagalingam, Q.C., with V. Arulampalam, for the plaintiffs-anpel-lants.
C. Ranganathan, Q.C., with K. Sivanathan, for the 2 (a), (b) and (c)defendants-respondents.
Cur. adv. cult.
June 8, 1979.
The plaintiffs-appel lants (hereinafter referred to as plaintiffs)who are husband and wife respectively instituted this action tohave the land called and known as Ella Silum and other parcels,20 1ms in extent and described in the schedule to the plaintpartitioned as between the plaintiffs and the 1st to 3rddefendants.
The contesting defendants, who are the 2a—2c, and the 3rddefendants-appellants, have taken up the position that the corpushad been amicably divided over 60 years ago, and has ever since
CAPonnambalam v. Vaifialingam (Ranasinghe, J.)167
the said division been dividedly possessed and that it is now notcommonly owned, and that, therefore, the plaintiffs’ actionshould be dismissed.
The learned trial judge has upheld the position taken up bythe contesting defendants and has accordingly dismissed theplaintiffs’ action.
This appeal therefore raises once again the question of pres-cription among co-owners, a question which has come up overand over again before our Courts and has received careful andexhaustive consideration both by the Supreme Court and byTheir Lordships of the Privy Council.
The co-ownership of a land owned in common could be termi-nated broadly in one of two ways—either through Court or outof Court. Common ownership could be brought to an end by anaction instituted in Court for a partition in terms of the provi-sions of the Partition Act. The best evidence of such a terminationwould be the Final Decree entered by Court. Termination of,common ownership without the intervention of court oould be inone of two ways : either with the express consent and the willingparticipation of all the co-owners, or without such commonconsent. An amicable division with the common consent of allthe co-owners can take one of two forms: a division given effectto by the execution of a deed of partition or of cross-conveyanceswhich said notarial documents would then be the best evidenceof such a termination or an internal division and the entry intoseparate possession of the divided allotments by the respectiveco-owners to whom such lots were allotted at such division. Inthe case of a partition by court and an amicable division by theexecution of the necessary deeds, the common ownership endsforthwith. In the case, however, of an internal divisions effectedby the co-owners with the express common consent of them all,the common ownership does not in law come to an end imme-diately. In such a case common ownership would, in law, endonly upon the effluxion of a period of at least ten years ofundisturbed and interrupted separate possession of such dividedportions. Proof of such termination will depend on evidence,direct and or circumstantial, and is a question of fact. Thetermination of common ownership without the express consentof all the co-owners could take place where one or more parties—either a complete stranger or even one who is in the pedigree—claim that they have prescribed to either the entirety or aspecific portion of the common land. Such a termination couldtake place only on the basis of unbroken and uninterruptedadverse possession by such claimant or claimants for at least a
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period of ten years. Here too proof of such termination wouldbe a question of fact depending on evidence, direct and orcircumstantial.
I shall, before I proceed to deal with the facts and circums-tances of the case, set down the relevant principles of law whichare applicable to a case such as this.
Any discussion of the principles relating to prescription amongco-owners must necessarily commence with the judgment ofTheir Lordships of the Privy Council, delivered in 1911 in thecase of Corea v. Iseris Appuhamy (1) where it was clearly andauthoritatively laid down : that a co-owner’s possession is in lawthe possession of other co-owners: that every co.owner is pre-sumed to be possessing in such capacity : that it is not possiblefor such a co-owner to put an end to such possession by a secretintention in his mind : that nothing short of ouster or somethingequivalent to ouster could bring about that result. Thereafterin the year 1918, in the case of Tillekeratne v. Bastian (2) a FullBench of the Supreme Court was called upon to apply the prin-ciples laid down in Corea v. Iseris Appuhamy (supra) and con-sider, inter alia, the meaning of the English law principle of a“ presumption of ouster ”, and it was held : that it is open to theCourt, from lapse of time in conjunction with the circumstancesof the case, to presume that a possession originally that of a co-owner has since become adverse : that it is a question of fact,whenever long continued exclusive possession by one co-owneris proved to have existed, whether it is not just and reasonablein all the circumstances of the case that the parties should betreated as though it had been proved that that separate and ex-clusive possession had become adverse at some date more thanten years before the institution of the action. Thereafter thequestion has been considered over and over again by the SupremeCourt, and in the year 1959, in the case of Abdul Majeed v. UmmaZaneera (3) in a very lucid and exhaustive discussion of theprinciples relating to prescription among co-owners and thepresumption of ouster, which had been laid down up to that pointof time by both the Privy Council and the Supreme Court con-cluded : that the inference of ouster could only be drawn in favourof a co-owner upon proof of circumstances additional to merelong possession: that proof of such additional circumstanceshas been regarded in our Courts as a sine qua non where a co-owner sought to invoke the presumption of ouster. This casethereafter went up in appeal to the Privy Council, and the Judg-ment of the Privy Council is reported (4). Although their
CAPonnambalam v. Vaitialingam (Ranasinghe, J.)169
Lordships regretted having to advise Her Majesty to dismiss theappeal, Their Lordships were nevertheless content to accept therelevant principles of law, as expounded by the Supreme Court.
1 shall now refer to the judgments reported after the judg-ment (4) referred to above which have dealt with the question.
In the case of Danton Obeysekera v. Endiris (5), Sansoni, J.held that where an outsider bought a 2/3 share, about two roodsin extent of a co-owned property, from two co-owners and sepa-rated off such portion, not as a temporary arrangement for con-veniences of possession, but more likely as a permanent modeof possession, and possessed it for over twenty years, the lot soseparated off ceased, with the lapse of time and exclusive pos-session, to be held in common with the rest of the land, andthat those who so possessed it were entitled to claim that theyhave prescribed to it. This decision does not, in my opinion, inany way offend against the principle referred to by (H. N. G.)Fernando, J. The additional circumstance that was required wassupplied by the 1st defendant’s prosecution of the 2nd. defen-dant for destroying the barbed wire fence which had beenerected to separate off the portion which was then being sepa-rately possessed by the 1st defendant.
The subsequent Judgments of Siva Supramaniam, J. in SimonPerera v. Jayatunga (6) at p. 431 of the Privy Council in thecase of Nonis v. Peththa (7), of Weeramantry, J. in Jayanerisv. Somawathie (8), of Pathirana, J. in Perera v. Kularatne,
, and of H. N. G. Fernando, C.J. in Belin Nona v. Petara
, which have also dealt with the question of prescriptionamong co-owners, have not expressed any views which in anyway, tend to deviate from the principles made explicit in thejudgments of the Supreme Court in the case of Abdul Majeedv. Ummu Zaneera (supra) and approved by the Privy Council.
It has also been laid down that the question whether a co-owner has prescribed to a particular divided lot as against theother co-owner is one of fact and has to be determined by the!circumstances of each case—(2), (11), (12), (3), (5), (6) atp. 343. It is also now settled law that the mere reference to un-divided shares in deeds executed after the alleged date ofdivision does not have the effect of restoring the common owner-ship of a land which has been dividedly possessed and wheresuch divided portions have become distinct and separate entities—(13), (14) at p. 332; (6) at 343.
The principles applicable are, therefore, quite clear andunambiguous and have been authoritatively laid down; but,
Sri Lanka Law Reports (1978-79) 2 S. L. R.
as it very often happens, the real difficulty arises only in theirapplication to the facts and circumstances which are establishedin a particular case.
I shall now proceed to consider whether, having regard to theprinciples set out above, the learned trial judge’s finding thatthe corpus sought to be partitioned had been amicably dividedand, had been dividedly possessed for a long period of timeprior to the commencement of the proceedings and that thecorpus had, therefore ceased to be owned in common at the timethe plaintiff instituted this action.
As already stated, the position of the contesting defendantsin this case is that the amicable division had taken place about60 years ago. Xo witness is available to them to give directevidence with regard to the said division which the contestingdefendants claim had taken place. They, therefore, rely oncircumstantial evidence to establish their claim.
The learned trial judge has found that the parties, who aresaid to be entitled to interests in the corpus, have in fact beenseparately possessing the several lots depicted in the Plan X;that the said parties have so possessed the several lots dividedlyto the exclusion of the other co-owners; that such exclusivepossession has gone on for about 30-40 years prior to the institu-tion of this action ; that the fences separating the various lots arevery old live fences; that the said fences are boundary fencesand not “ screen fences ”• These findings of the learned trialjudge are supported by the evidence placed before him at thetrial and there does not seem to be any good reason to interferewith the said findings of the learned trial judge.
It is also clear that lot 7 on which the well stands has beenseparately fenced in, and that access has been provided to thislot from all the other lots 2, 4, 8, 10 and 11 along well definedpath-ways-
The learned trial judge has also found that, prior to the dis-pute raised by the plaintiff, shortly before the commencementof these proceedings, to the construction of a kitchen by thecontesting defendants on lot 4, substantial buildings had beenput up by the contesting defendants on lot 4 without any protestfrom the plaintiffs. The 1st defendant has also thereafterconstructed a building on lot 4. The 1 st plaintiff who has been in
•€APonnambalam v. Vaitialingam (Ranasinghe, J.)171
possession of lot 2 stated that he himself has built a house on lot2, and that before that house was constructed by him, there wason that same lot an old house in which his grandmother andalso his parents had resided.
It also transpired in evidence that the 1st defendant, who is-said to have been allotted lot 11, had removed the southernboundary fence of lot 11 and amalgamated lot 11 in Plan Xwith lot 12, which is a portion of the land lying to the south oflot 11 and which also belongs to the 1st defendant. The learnedtrial judge has stated that, when the 1st defendant carried outsuch amalgamation, there had been no protest from the plain-tiffs and that such silence on the part of the plaintiffs wasbecause they, considered lot 11 to be the exclusive propertyof the 1st defendant.
The deeds P2 of 1917, P3 and P4 both of 1935, and P5 executedonly a few days before the plaintiff came in to court in June,1961, deal with undivided shares in the corpus. Whilst P2 hasbeen executed as far back as 1917 which is the year in whichthe amicable division referred to by the contesting defendantsis said to have taken place, P3, which has been executedTn1935 is in the chain of title of those who have been in posses-sion of lot 11 which, as already stated, had been separatelypossessed by the 1st defendant. Even though evidence wasplaced on behalf of the plaintiffs that other co-owners too hadexercised acts of possession over lot 11, such evidence has notbeen accepted by the learned trial judge. The deed P4, likeP5 referred to above, figure in the pedigree of those who havebeen in possession of lot 2. The learned trial judge has takenthe view that the references to undivided shares in these deedsdo not militate against the position put forward by the contest-ing defendants, and that such descriptions have been made notwith reference to the actual mode of possession but as a resultof the notaries merely following the descriptions in the earliertitle deeds. Having regard to the circumstances of this case,
I do not think that the view taken by the learned trial judge■ could be said to be untenable.
The additional circumstances which, according to theprinciples referred to earlier, is required in a case of this naturehas also, in my opinion, been established in this case by thecontesting defendants. The contesting defendants producedmarked 2D 1 a certified copy of a complaint made by the 1stplaintiff in this case, on 21.2.1958, against the deceased 2nd
Sri Lanka Law Reports (1978-79) 2 S. L R.
defendant to the Rural Court of Chankani, in Case No. RC/C/CRM1054, that the said 2nd defendant has failed and neglected tofence the southern boundary fence of the 1st plaintiff’s dwellingland, in breach of Rule 46 of the Village Committee Rules of3.2.1928, and the said 2nd defendant has therefore committed anoffence punishable under section 26(1) Rural Courts Ordinance12 of 1945. According to an entry dated 25.3.1958, appearing onthe face of the said document D1 itself, the 1st plaintiff hadthereafter informed court, that, as the said 2nd defendant haderected the fence, he was withdrawing the case; and that the2nd defendant has then been discharged. According to thePlan ‘X’ the lot possessed by the 1st plaintiff and on whichhe resides, is lot 2, and to the south of lot 2 is lot 4 which waspossessed by the said 2nd defendant. The southern boundaryof the 1st plaintiff’s dwelling land would, therefore, be theboundary between lots 2 and 4 in Plan ‘ X ’• The 1st plaintiff,on being questioned with regard to the said case, admittedhaving filled it but denied that he described the fence in questionas a “ boundary fence ”. His position is that he himself calledit a “screen fence” but that the Chief Clerk, who had writtenout the complaint (the original of 2D1) had described it as a“ boundary fence ” without his authority. The learned trialjudge has disbelieved the 1st plaintiff’s evidence on this point.The 1st plaintiff s description of the fence which had beenerected to separate lot 2 from lot 4 in Plan X, shows that theselots have been so separated off “ not as a temporary arrange-ment for convenience of possession but more likely as a perma-ment mode of possession As already stated, once the said2nd defendant re-erected the fence in question, the 1st plaintiffhad withdrawn the case. It appears to me that the 1st plain-tiff's acts as embodied in 2D1, gives a clear indication of thenature and the character of the possession of the various lots,depicted in Plan ‘ X ’ by the respective co-owners.
On a consideration of these facts and circumstances, I am ofopinion that the learned trial judge’s finding that the corpuswas not, at the time of the institution of this action, owned incommon is correct and should be affirmed.
The appeal of the plaintiffs’-appellants is accordingly dismissedwith costs.
TAMBIAH, J.—I agree.
Ponnambalam v. Vaitialingam and another