Gunawardena v. Ferdinandis (Atukorale. .1.)
COURT OF APPEALR.M.-L. FernandoVsGanitha
C.A. (S.C.) 13/74 – D C. Kurunegala 2097/P
Informal division of co-owncd land – Dividedty possessed bv each co-owner -Prescriptive Title – Partition Action
The Plaintiff Appellant purchased some land from two brothers Ibrahimand Ossen who in turn purchased at various times several contiguous lotsfrom several co-owners. Ibrahim and Ossen fenced the 1st lot off andheld it dividedly with the consent of the other co-owners and wheneverthey bought adjoining blocks they broke down the fences incorporatingthem and fencing off the amalgamated enlarged block with the approvaland consent of the other co-owners. They held this amalgamated blockdividedly for a period longer than 10 years.
Plaintiff appellant, successor in title to Ibrahim and Ossen institutedaction to partition the co-owned land. The Respondents contended thatthe land had been dividedly possessed for a period longer than 10 yearsand that the land was no longer co-owncd. The District Judge dismissedappellant's action.
The .plaintiff appealed to the Court of Appeal against the DistrictJudge's order.
Held that the land had been dividedly possessed for a period of 10years or more on the basis that the co-ownership had ceased andso no action for partition was available.
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APPEAL from judgment of the District Court of Kurunegala.
L:H. de Alwis, J & Abeywardena, J.,T.B. Dissanayake for Appellant.
H. W. Jayewardena, Q.C. with D.R.P.Gunatillake for Respondents.
L.H. DE ALWIS, J.
The Plaintiff-appellant instituted this action in the District Courtof Kurunegala to partition a lahd described in schedules ‘A’ and ‘B’to the plaint and depicted in Plan No. 3606 marked ‘X’ surveyedon a Commission issued by thd' Court. The plan is, however, not inthe record now. The contesting defendants-respondents took up theposition that the land sought to be partitioned had been dividedlypossessed by them and the other defendants for a period of over 30years and was no longer commonly owned. They accordingly movedthat the appellant’s action be dismissed. The learned District Judgeafter trial held in favour of the contesting defendants-respondentsand dismissed the appellant’s action. It is from this judgment thatthe appellant now appeals.
Learned Counsel for the appellant in the course of his argumentaccepted the position that the corpus had been possessed in dividedlots but submitted that it was for the sake of convenience and notas a permanent mode of possession, which terminated the co-ownership.
The appellant purchased rights in the corpus on very recent deeds,P6, P7 and P16 in 1966 and instituted the action in November ofthat year to partition the land. One of the appellant’s vendors,Ibrahim gave evidence for him and stated that .he did not speak withthe other co-owners before dividing the land. But he admitted thatthe land was divided into small lots and although "no plan was made,his predeccssors-in-title had divided and possessed the land accordingto their respective shares. He said that ever since 1948 the land hasbeen possessed in separate lots and he and his brother Ossen hadpossessed lots 6 & 7 from the eastern portion of the land lying to
Fernando v. Ganitha (L.H. de Alwis J.)
the north of road, for their undivided shares in the land. The 4Bdefendant-respondent, who is a son of the original 4thcontesting-defendant, Ukkuwa, could not say when the land had beendivided but he was aware that it was dividedly possessed. He statedthat the co-owners were in possession of their different portions'1 ofthe land as separate lots for over 30 years. Sundera, a man of about70 years of age who gave evidence for the respondents at the trialsaid that he had known the land for about 20-25 years prior andthat from that time the co-owners possessed the land in lots afterfencing off their respective lots.” He said that the land was neverpossessed in common. The Surveyor's report ‘XI' describes the landas divided into lots that are in the possession of the several defendantsand some of the fences of the lots as being about 25 to 30 years old.
It is submitted by Counsel for the appellant that when a land isamicably partitioned among co-owners it is usual to execute ..crossdeeds or at least for all the co-owners to sign the plan of partition.In this case admittedly there are neither cross deeds nor a plan ofpartition – Vide Gitohamy Vs. Karanagoda, 56 N.L.R. 250.
It. was further submitted that for an amicable partition. tp-berecognized in law there must be a division which in law terminatesthe co-ownership of the property. Vide Dias Vs. Dias, 61, N.L.R.116. In the absence of a termination of co-ownership, it is submittedon the authority of Corea Vs. Iseris Appuhamy, 15 N.L.R. 65. thatthe possession of a co-heir enures to the benefit of his co-heirs andthat 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 bv anysecret intention in his mind. Nothing short of ouster or somethingequivalent to ouster could bring about that result. In order to proveouster very clear and strong evidence is required. Sadiris AppuhamyVs. James Appuhamy, 60 N.L.R. page 207. But no physical disturbanceof possession ,is necessary. In MailvaganamVs. Kandiah, .1 C. W..R-171. it was held that no physical disturbance of possession is necessaryand that it is sufficient if one co-owner has to the knowledge of theothers taken the land for himself and begun to possess it as his o>ynexclusively. The sole possession is often attributable to an expressor tacit division of family property among the heirs and the adversecharacter of exclusive possession may be inferred from circumstances.
DeMel Vs. De Alwis, 13 C.L.R. 207.
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The principle laid down by the Privy Council in Corea Vs. Appuhamywas “modified” as Thambiah J, put it in' Perera Vs. Jayatunga, 71
N.L.R. 338, by the theory of a counter-presumption propounded inTillakeratne Vs. Bastian, 21 N.L.R. page 12, by a Full Bench of theSupreme Court. In that case Bertram C.J., stated : “It is, in short,a question of fact, whenever long-continued exclusive possession byone co-owner is proved to have existed, whether it is not just andreasonable, in all the circumstances of the case that the parties shouldbe treated as though it had been proved that that separate andexclusive possession had become adverse, at some date more than 10years before action brought.”
In Kirimenike Vs. Menikhamy, 22 N.L.R. 510, where members ofa family make an informal but definite partition of their lands, andeach party enters into possession of his share, then the possessionof the several shareholders become adverse, from the date of theirdoing so and title by prescription can be acquired. If however* thearrangement continued for a long period of time' on equitable groundsit is presumed that at some point possession became adverse butsuch a presumption is only drawn upon a consideration of all thecircumstances of the case.
Dealing with the question of separate possession by a co-ownerLord Wilberforce in Nonis Vs. Peththa, 73 N.L.R. page 1 said asfollows – “In relating this provision (Section 3 of Prescription OrdinanceChap. 68) to the case of co-owners it must be borne in mind thatseparate possession by an individual co-owner of part of the propertyin common ownership may, and often does, occur and continue fora considerable period, purely for reasons of convenience, and thatin order to displace the title of the other co-owners clear and strongevidence of possession exclusive of the other co-owners, and inconsistent
with the continuation of the co-ownership is required But, side
by side with this basic rule, the Courts of Ceylon have recognizedthat acts of an informal character, falling short of partition effectivein law, may be sufficient to found a prescriptive claim.”
Lord Wilberforce referred to the case of Kirimenika Vi. Menikhamyand said “the alternatives were constrasted of, on the one hand, aninformal but definite partition, when each party enters into possessionof his share and, on the other, a permissive arrangement. In thefirst case, title by prescription might be acquired, and even -in the
Fernando v. Ganitha (L.H. de Alwis J.)
second case this might follow if the arrangement continued so longthat on equitable grounds it might be presumed that possessionbecame adverse.”
In the present case it is common ground that the original ownerof the entire land was Suramba Panikkiya, who died leaving threechildren, Pina, Punchi, and Dingiriya. According to the respondentseach of these three children possessed their 1/3 of the land dividedly.The first deed relating to this land is PI executed in' 1932 by twoof Pina’s grand children in favour of one Henry de Silva, from whoseheirs Ibrahim and his brother Ossen have purchased shares. Theyalso purchased rights in the land from Thomas and Josey Nona whofigure in Pina’s pedigree, on P5 in 1945 and on deed P2 in 1946respectively. Thereafter Ibrahim by deed P18 of 1947 conveyed hisrights to Ossen.
A circumstance from which Ossen’s adverse possession can bepresumed is that when his possession was disturbed by one Welbinahamyin 1946 he filed action in the District Court of Kurunegala, case No.5299 for her ejectment on the ground that she had forcibly takenpossession of about 6 acres of his land. Ossen claimed the entiretyof Pina’s rights according to his pedigree 4D7 filed in that.case. Hegave the extent of the land that he possessed as 25 acres out of thewhole land which was about 82 acres in extent. In para 13 of hisamended plaint Ossen states that he and Ibrahim separated off theextent of 25 acres with the consent of the other co-owners and theapproval of the overlord and possessed it. In para 17 he pleadedthat he and his predecessors-in-title had been in undisturbed anduninterrupted possession of the divided extent of 25 acres of theland by a title adverse to and independent of that of the defendantsfor a period of over 10 years. Welbinahamy in her answer claimed. through her deceased husband the rights of one of Pina’s childrenHapu, on the footing that Pina left two children and not one childSilpa, as shown by Ossen, in his pedigree. She and her childrenwere the defendants in the case. In that case the defendants themselvesadmitted in paragraph 5 of their answer dated 15.2.51 that Pinaseparately and dividedly possessed his interests in the land. The casewas settled and consent decree was entered by Court declaring Ossenentitled to lot ‘A’ depicted in plan No. 3055A, which lot is in extent15 acres and 10 perches, while Welbinahamy and her children weredeclared entitled to Lot ‘B’ in extent 2 acres, 3 roods and 36 perches.
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It is significant that no reference at all is made in the decree to thelarger land of 82 acres obviously because Pina’s portion had by tflenbeen separated off and possessed as a distinct entity.
Counsel for the appellant submitted that the learned District Judgewas wrong in drawing the inference that Ossen had restricted hisclaim, in that case to only. 25 acres as and for his rights to theentirety of Pina’s share, and that it is-inconceivable that Ossen wouldhave abandoned the full extent. of his share unless his possessionwas merely for convenience. But in schedule ‘B’ to the Plaint Ossendesribes. the land as the divided portion of 25 acres and gives thesouthern boundary as the road and western boundary as the remainingportion of the land. The learned Judge has identified this portionas the area where lots 6 & 7 in Plan X are situated and accordingto the plaint and answer filed in that case this portion was a distinctand divided extent of land that Ossen possessed for his share. As amatter of fact, the consent decree indicates that the actual extent of. the land was even less than that – just a little over 18 acres out of.which 2 acres, 3 roods and 36 perches were given to Welbinahamyand her children. The plaintiff as the successor-in-title to Ossen■cannot now claim the balance extent of land since the other defendants.have prescribed to it before the plaintiff filed this action in 1966.iThis.is the view taken by the learned Judge and I see no reason todisagree with him.
The position is the same in regard to the interests of Pina’s heirswhich the appellant purchased on P7 & P8. These rights were includedin the claim that Ossen made to the entirety of Pina’s rights in caseNo. 5299 and they.:have subsequently passed to Ibrahim on P12..They come within the extent of 18 acres referred to in the decree,4D10 entered in that case.
-Ukkuwa, who is an–heir of Djngiriya and a predecessor-in-title ofIbrahim himself filed an action in the District Court of Kurunegalacase No. 5239/L for declaration of title and ejectment against thesame Welbinahamy and her children and the judgment of the Supreme• Court entered in appeal in that case was produced marked 4D4. Inthat case too Welbinahamy claimed rights in the land from one Hapuwho she claimed was another child pf Pina. She alleged that Haputhough married in diga returned and re-acquired binna rights to herfather’s land. Whether that was so, was undoubtedly the main issue
Fernando v. Ganitha (L.H. de Alwis J.)
in the case but the point to .be noted is that the Supreme Court inits judgment does make reference to. the amicable division of theland according to which Pina was entitled to 3 blocks of land forhis 1/3 share. The Supreme Court ..set aside the judgment of theDistrict Court in that case and held that Ukkuwa was entitled tojudgment as prayed for. Ukkuwa was one of the original contestingdefendants in the present action. He died and is now representedby 4(a) – 4(c) defendants-respondents. Ukkuwa was also a vendorto Ibrahim. The case filed by Ukkuwa against Welbinahamy and thejudgment of the Supreme Court entered in his favour, is anothercircumstance to be taken into consideration in proof of his adversepossession of a separate lot of land.
Counsel for the appellant submitted that most of the deeds executedin respect of the corpus refer to undivided fractional shares and areconsistent with his case that separate possession was for convenience.But the mere reference to undivided shares in deeds executed afterthe date of the alleged division is not conclusive of the question.Perera Vs. Jayatunga, 71 N.L.R. 338, 343 Danton Obeysekera Vs.Endoris, 66 N.L.R. 457.
Ossen and Ibrahim have also purchased the shares of some of theheirs of Punchi and Dingiriya on deeds PU, P10. P8 and P9. It isadmitted by Ibrahim that whenever he purchased additional shareshe broke down the fences of those lots and incorporated them withhis own land which was on the eastern side and to the north of theroad. Ibrahim has sold a divided portion of 20 perches on 2D1 in1953 to Sundara and Baiyawathie and a divided extent of 1 rood onthe same day on 17D1 to Tikiri. Thereafter both Ibrahim and Ossenhave sojd a divided portion of 20 acres to the 7th respondent. Onthe same day that the deed was executed, Ossen sold his right, titleand interest in the land to Ibrahim on PI2. That includes the dividedportion of 15 acres and 10 perches that .Ossen was declared entitledto on decree 4D10. Ibrahim has also purchased an undivided 2 .1/2acres from Ukkuwa on P15 of 9.7.1956. This portion too, as washis practice, he has amalgamated with his land to the north of theroad by extending the western boundary. The learned Judge hastaken the view that the interests that Ibrahim purchased from theheirs of Punchi and Dingiriya do not lie outside lots 6 & 7 and thatis borne out by Ibrahim’s evidence. Ibrahim has possessed lots 6 &7 for well over 10 years and has acquired a prescriptive title to
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them. His last purchase was from Ukkuwa on P15 in July 1956 andthat is over 10 years prior to the filing of the present action inNovember 1966. Where a co-owner who owns exclusively propertywhich adjoins the common land fences off a. portion of the commonland and incorporates it with his own land and possesses both asone lot, an ouster is presumed. Vide De Mel Vs. De Alwis, 13C.L.R. 207 and Perera Vs. Jayatunga, 71 N.L.R. 338.
According to the Survey Report ‘XI’ lot 6 how consists of 10acres, 2 roods and 30 perches, and lot 7, 20 acres 2 roods and 4perches. Together they comprise an extent of 31 acres and 34 perches.The original extent of the land that Ossen was declared entitled toon decree 4D10. was a little over 15 acres. The increase in thepresent extent of lots 6 & 7, to 31 acres and 34 perches is no doubtdue to the addition of the various shares that Ossen and Ibrahimhad from time to time purchased and amalgamated with the originallot A in Plan No. 3055A, which lies to the north of the road towardsthe east. This is also the conclusion that the learned District Judgehas arrived at.
Ibrahim has in 1959 transferred about 10 acres on Pll to Joseph,the 8th respondent. Ibrahim and Ossen have sold a divided extentof 20 acres on 7D1 to the 7th respondent in 1956 and it was agreedat the commencement of the trial that these extents be excludedfrom lots 6 & 7 in favour of the 8th and 7th respondents respectively.Ibrahim was therefore left with 1 acre and 34 perches out of lots 6& 7. But by deed P16 dated 23.2.1966 he sold an undivided extentof 30 acres to the plaintiff and before executing the deed he hasmade out to the plaintiff that he was entitled to 23 acres of landto the north of the road and also to land to the south of the road.Although Ibrahim at one stage of his evidence said that he possessedland to the south of the road, under cross-examination he admitted■that he never had possession. of any land to the south of the road.The Plaintiff agreed to purchase an extent of 25 acres but at thesuggestion of the Notary the. deed was made out for an extent of30 acres. This is clearly a speculative purchase.. Ibrahim. had pointedout to the appellant lots 6 & 7 and some land to the south of theroad. But he stated that he informed the plaintiff that he did nothave possession of the land and advised the plaintiff to amicablydivide it and. if that was not possible to file a partition action. Theappellant was thus clearly aware of Ibrahim’s position. Ibrahimundoubtedly could not have instituted an action for the partition of
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the land on the basis of common ownership so that the deed he hasexecuted in favour of.(the appellant cannot place the appellant in abetter position than he was in.
The learned trial Judge in answering the points of contest has heldthat the land had been dividedly possessed for over 10 years ^ndhas dismissed the appellant's action on the basis that co-ownershipof the land had ceased. In my view he has come to a correct findingon this question.
The appeal is dismissed with costs.
Abeywardena, J.- I agree.
R. M. L. Fernado Vs Ganitha