134-NLR-NLR-V-43-PUNCHI-et-al.-v.-BANDI-MENIKA.pdf
JAYETILEKE J.—Punchi v. Bandi Menika.
547
1942Present: Jayetileke J.
PUNCHI et al. v. BANDI MENIKA.
91—C. R. Matale, 5,233.
Prescription—Co-owners—Sale by one of whole land—Adverse possession.
Where one co-owner conveys the entire premises held in commonand the grantee enters into possession under the conveyance claimingtitle to the whole premises,—
Held, that the possession of the grantee was adverse to the otherco-owners.
^PPEAL from a judgment of the Commissioner of Requests, Matale.
H. V. Perera, K.C. (with him R. C. Fonseka), for defendant, appellant.H. W. Thambiah, for plaintiff, respondent. l;
Cur. adv. vult.
September 18, 1942. Jayetileke J.—■
This is an action brought by the plaintiffs under section 247 of theCivil Procedure Code to have a half share of a field called Imbulgaha-cumbura declared bound and executable for the satisfaction of a decreeentered in action No. 21,517 of the Court of Requests^ Kandy, againstone Kiri, the legal representative of One Puncha,
548
JAYETELEKE J.—Punch! v. Bandi Menika.
It is common ground that one Sella and his sister, Punchi, were entitledto the field in equal shares. By deed No. 35 dated October 27,
(D 5), Punchi transferred the entire field to one Dissanayake, ignoringthe rights of Sella to a half share. By deed No. 1,515 dated November 14,
(D4), Dissanayake transferred it to Sumangala Thero, who diedleaving as his sole heir one Dingiri Banda. By deed No. 22.395 datedJune 13, 1926 (D3), Dingiri Banda transferred it to Saranankara NayakeThero who, in turn, transferred it to the defendant by deed No. 2,226dated August 16, 1934 (D 1). Sella transferred his half share to Punchaby deed No. 260 dated June 22, 1927 (P 1). The defendant claimed the
1 entire field by prescription.
The learned Commissioner held that the possession of the defendantand his predecessors in title was not adverse to Sella and Puncha andentered judgment for the plaintiffs. He seems to have been of theopinion that the defendant was a co-owner of the field and that on the*evidence that was placed before him he would not be justified in presumingan ouster against Puncha.
Counsel for the defendant contended that Dissanayake’s possessionwas adverse to Sella from the very commencement as he entered intopossession as sole owner of the field and not as a co-owner.
The evidence of Dissanayake shows that he purchased and enteredinto possession of the field upon the assumption that his vendor was thesole owner and that the deed'in his favour gave him a sound title.
There is nothing in the evidence to indicate that he was aware thatSella was entitled to a half share of the field or that in any way he partookof the title of his vendor. His possession cannot, in these circumstances,be said to be subordinate to the title of Sella.
The evidence that was led by the defendant leaves no room for doubtthat from the year 1924 Dissanayake and his successors in title regularlygot the field cultivated and took the profits exclusively and continuouslyfor a period of 14 years under circumstances which indicate very clearlya denial of a right in any other person to receive them.
Indeed neither Sella nor Puncha asserted title to any portion of thefield at anytime. On principle it seems to me that the possession of Dissa-nayake and his successors in title must be regarded as adverse, howeverdefective their title may be.
The point under consideration has not been the subject of any judicialdecision. There is, however, a chapter dealing with the possession ofco-tenants in Angell on Limitations of Actions at Law, which throwsconsiderable light on the problem. The learned writer seems to be ofthe view that when one of several tenants in common conveys the entirepremises held in common and the grantee enters into possession under theconveyance claiming title^to the whole premises, such possession is adverseto the co-tenants of the granter and consequently at the expiration of theperiod of limitation they will be barred.
This view is, in my opinion, manifestly correct. I would set aside thejudgment aippealed from and dismiss the plaintiffs’ action with costs inboth Courts, including the costs of the previous appeal.
Appeal allowed.