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January 14
and 26.
there was no planting agreement in writing between the plaintiffsand the landowner), dismissed the plaintiffs’ action in theseterms: —
“ The action cannot be maintained. The right to the land and“ the produpe is vested in the owner, who has allowed the plaintiffs’
“ vendor and the plaintiffs to plant the land. Plaintiffs are in“ possession as servants under the owner, not ut domini. and have“ no title in themselves to any of the trees.”
Plaintiffs appealed, and the Supreme Court remitted the case fortrial de novo, as the dismissal of the action was premature.
At the new trial it was proved that the plaintiffs had boughtthe planter’s Share from one Migel Appu by deed dated 8thDecember, 1894; that soon afterwards they entered into possessionof the trees by picking nuts from time to time for about a year;that at the sixth picking the first defendant carried away the 54nuts; that the soil belonged to the heirs of Senaviratne Mudaliyar;that it was planted by Migel’s father; that defendants’ vendorwas Joronis, a brother of Migel; and that both Migel and Joronishad h share in the original plantation made by their father.
The District Judge stopped further evidence and dismissedplaintiffs’ action, on the ground that he could not pray for adeclaration of title to an undivided half share of che cocoanuttrees, as the evidence showed that Migel, their vendor, had nonotarial agreement to justify his possession, and had no right topass any title to the plaintiffs; nor could the action be maintainedaB a possessory suit, since the possession proved was not exclusive,nor was it in regard to immovable property, but only to the nutsplucked.
Plaintiffs appealed.
H. Jayawa-rdane, for appellant.—An interest in standing treesand crop thereon is an interest in immovable property. It is truethat when the crop is removed from the trees it becomes movableproperty, but plaintiffs have alleged and proved that, since theforcible removal of the nuts, defendants had continued in unlaw-ful possession of the trees. They would -have proved theirvendor’s title had they been allowed to do so by the DistrictJudge. Defendants have not led any evidence whatever. Plain-tiffs’ case therefore stands unrebutted. The evidence recordedsuffices for a possessory action. Plaintiffs deny defendants tobe co-owners, and there is ample evidence that for someyears previous to the disturbance the plaintiffs had been inexclusive possession. They ar6 entitled to a decree to be restoredto possession.
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Seneviratne for respondent.—In Perera v. Fernando (1 8. G. R.329) it has been held that no possessory action could be broughtby one co-owner against an intruder who entered and dispossessedhim, because the possession of a co-owner is not such an exclusivepossession as entitles him to an action; and in Jayasuriya' v.Omer Lebbe (2 0. L. R. §), a planter’s interest was held notacquirable otherwise than by deed. Migel had no right to conveyto the plaintiffs.
Cur. adv. vult.
28th June, 1899. Lawrie, A.C.J.—
In the present appeal it seems to me necessary to abstain fromconsidering any questions of title, such as whether Migel alone,or Migel and Joronis together, were planters, or whether there beprescription either between the planters and owners or betweenthe planters themselves. Those are issues inappropriate in apossessory action.
The learned District Judge dismissed the plaintiffs’ prayer tobe restored to possession—first, because the property of which theplaintiffs complain they were dispossessed is not immovableproperty; second, because the interest claimed is not exclusive,being an undivided, not a divided, possession.
I am of opinion that dispossession of trees is dispossession ofimmovable property, and that possession of trees is an interest inimmovable property.
Here, however, the immediate act complained of was the takingof 54 nuts which had been picked when they were lying on theground. The nuts were certainly movables.
However, the answer and proof disclose that the defendants notonly took 54 nuts, but have since that date claimed right to one-fourth and have dispossessed the plaintiff. There was (I think)sufficient dispossession of trees on the land to justify a possessoryaction.
I do not see why possession of a fractional share of land shouldnot be protected, provided the possession was ut dominus, or byone having authority from or as representing the owner.
A possessory action would, I think, be inappropriate in cases■where the defendant is admittedly a co-owner, entitled to equalpossession with the plaintiff. If they quarrel and are not able toagree as to the exercise of the common rights, probably a suit forpartition is the only appropriate action.
In the case of co-owners, it might be irrelevant for the plaintiffto aver that he had been in possession for the year before action,for the relevant answrer might be that it is the defendants’ turn.There might be other defences by a co-owner to an action for
January. 14and 28.
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January liand 28.
restoration to possession by another co-owner. Each case dependson its special circumstances. Possession by a co-owner for a yearwill not, I think, in all cases give him right to get a possessorydecree against a co-owner who has turned him out and enteredinto possession.
Here the plaintiffs deny that the defendant is a co-owner withthem. Between them it is a question of title on which we cannotnow enter. I think that the plaintiffs have proved that they havebeen in exclusive possession of the whole of the planter’s share forsome years prior to the assertion of title and forcible taking of nutsby the defendant. The plaintiffs are entitled to a decree restoringthem to possession of the trees.
I would set aside the judgment and enter a possessory decree forthe plaintiff with costs.
Browne, A.J.—
The true issue of fact in this action is whether Migel Fernando(plaintiff’s vendor) solely planted the land in question and so hadright to convey to plaintiff a half share of the trees, or whetherJoronis Fernando (defendant’s vendor) was a co-partner with him,and the planting rights are now equally shared by plaintiff anddefendant. Plaintiff alleged, as matter of dispossession and dis-pute of his title, that when he had plucked 54 oocoanuts on 6thFebruary, 1896, defendants forcibly and unlawfully took themfrom him, and he therefore twenty-two days subsequently suedto have 'his right to the planter’s half share declared.
The District Judge at the first trial allowed an amendment inthe plaint to be made so that a possessory decree could begranted thereon, but prematurely dismissed plaintiffs action.His successor framed issues appropriate to a mere possessoryaction, and evidence was led relative thereto alone, plaintiff notputting forward his vendor to prove when, after the completionof the agreement, the planter took his share and began to possess.That would be the date from whence, as against the owner of theland, adverse possession would commence to be computed for theplanter (2 C. L. B. 6). By parity of reasoning, I presume theplanter could also reckon adverse possession against all othersthan the soil owner from that date.
The learned District Judge further held that the decree in apossessory action could not be entered in plaintiff’s favour, be-cause that of which he claimed to be restored to the possession wasan undivided interest, and that, too, in movable property and notimmovable property. The decision which was cited (I S. C. R. 327)was one in an action by one co-owner against another, and
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there the Court gave a possessory decree for plaintiff for thatportion of the garden of which plaintiff had been in sole possession.Defendants in this action called no evidence to prove they had everbeen in possession of this planter’s share, while plaintiffs provedthey solely possessed it- for four years prior to the dispute of theirtitle and the forcible removal of the nuts. Now, if there be titleby notarial conveyance or agreement or by prescriptive possessionto a planter’s interest, that interest will be immovable property,and as in possessory actions the possessor is for the purposes ofthe action assumed to be one by lawful title, it should, in myjudgment, be assumed in an action like the present that theplanter’s interest in question is an interest in land rather thanthat it is not. And here, as regards the defendant, the plaintiffmust be considered to be one in possession, who has been dis-possessed by one without title, who is not proved to be a co-ownerwith him.
The learned District- Judge also upheld the contention that theproof of ouster was insufficient. I do not so regard it, or that, inaddition to taking away the cocoanuts with an entire denial ofplaintiff’s right thereto, plaintiff needed to have proved any furtherexclusion of him from enjoyment of t'he fruits as by forcibleremoval of them from the garden.
I therefore would set aside the dismissal of the action and entera possessory decree for the plaintiff with costs.
January 14and US.