AKBAR J.—Sadirisa v. Attadasi Thera.
1936Present: Akbar and Koch JJ.
SADIRISA v. ATTADASI THERO115—D. C. Avissawella, 1,660.
Possessory action—Brought by one co-owner against another—Nature ofpossession required—Possessio civilis—Roman-Dutch law.
A co-owner of a land may maintain a possessory action against anotherprovided the other co-owners are parties to the action, whether asplaintiffs or defendants.
In such an action the plaintiff must establish that his possession waspossessio civilis.
Silva v. Sinno Appu (7 N. L. R. 5) followed.
^^PPEAL from a judgment of the District Judge of Avissawella.
N. E. Weerasooria (with him T. S. Fernando), for defendants, appellants.Rajapakse (with him D. W. Fernando), for plaintiff, respondent.
Cur. adv. vult.
July 15, 1936. Akbar J.—
The plaintiff brought this action originally claiming title to a certainland, and alternatively, on a second cause,of action, claiming a possessory
AKBAR J.—Sadirisa v. Attadasi Thero.
decree in respect of this land. On the plaint, as regards the first causeof action, he became entitled only to a l/10th undivided share of the landclaimed from the owner of the land on a deed of gift (P 1) dated April 12,1914, executed by the then owner of the land. The plaintiff also admittedthat the persons under whom the defendants claimed were also co-ownersof this land which is the subject-matter of the action, under anotherdeed, P 2, dated August 31, 1915. At the trial, the plaintiff abandonedhis claim for title and confined his action to one of possession only. Icannot accede to the argument of Counsel for the appellants thatthe plaintiff had not this right; the learned Judge was right in allowingthe trial to proceed on the footing of a possessory action.
The law relating to possessory actions, so far as it affects the rights ofone co-owner against another, seems to be in some confusion owing to theapparently conflicting decisions of this Court. It is therefore necessaryto state briefly what the effect of these judgments appears to be.
The remedy of possessory action is given by statute—Ord. No. 22of 1871 (section 4). It will be seen from that section that it is providedthat the law that should govern such actions was to be the Roman-Dutch law. In other respects, that section only provides the timewithin which the action is to be brought, reckoning it from the date ofouster.
The earliest case we have been referred to by the Supreme Court onthis question of a possessory action is the case of Changarapillai v. Chelliahwherein Bonser C.J. indicated what the nature of the possession shouldbe, which would entitle a plaintiff to ask for a possessory decree. Thiscase was quoted with approval by the Privy Council in the case of AbdulAzeez v. Abdul Rahiman3.
Referring to the case of Changarapillai v. Chelliah (supra), theirLordships stated that in their view, “ that decision was sound in principleand is applicable to the circumstances of the present case ”. What theplaintiff in a possessory action had to prove was possessio civilis, or, inother words, possession “ animo domini ” (see Walter Pereira’s Laws ofCeylon (2nd ed.) pp. 354 and 544). So that all that the Roman-Dutchlaw requires is such possession as the evidence would indicate that theplaintiff regarded himself as the sole owner of the land he was so possessing.If we look at this question from this point of view it seems to me that oneco-owner cannot, strictly speaking, be said to have such possession in apossessory action brought by him against his other co-owners in whichhe claims to be restored to the possession of his undivided share. AsBertram C.J. stated in the case of Tillekeratne v. Bastian *, every co-owner,has a right to possess and enjoy the whole property and every part of it,and the possession of one co-owner in that capacity is in law the possessionof all. It will be observed, however, in this case, that the plaintiffclaimed not the possession of his undivided share but the possession ofthe whole land and he claimed to be restored to possession in an actionwhich he brought against the two defendants, who were claiming to be
entitled to remain in possession under two other co-owners.
L. R. 270.1 14 N.L.R.377.
. P i ■
AKBAR J.—Sadirisa v. Attadasi Thero.
As regards the cases relating to a possessory action by one co-owneragainst another co-owner the first case to which we were referred was theFull Bench case of Perera v. Fernando 1 in which case, so far as we havebeen able to ascertain, the Supreme Court came to the conclusion thatthe possession of a co-owner was not such an exclusive possession asentitled him to a possessory action in the event of his being dispossessed.
It is not clear from the judgment whether the Supreme Court wasreferring to disturbance of the possession by another co-owner, or by atotal stranger. In any event, when this judgment came up for inter-pretation before the Supreme Court in the case of Silva v. Sinno Appu'it was accepted in the sense that it dealt with a possessory action by oneco-owner against another co-owner. In the case of Silva v. Sinno Appu(supra) it was a possessory action brought by one co-owner against otherco-owners, and Mr. Justice Wendt stated that whatever the reasons uponwhich the case of Perera v. Fernando was decided, that decision wasbinding upon him, and that if the case before him fell within the principleof it he would be bound either to follow it or to reserve the question forthe consideration of a Full Bench of the Court. In the case before him,however, he held that all the parties being before the Court, the actioncould proceed and, for this reason, the case was sent back and a new trialwas ordered.
It will thus be seen that Mr. Justice Wendt interpreted the Full Courtdecision to mean that one co-owner could bring a possessory actionagainst another co-owner so long as the other co-owners were parties tothe action, whether defendants or plaintiffs. This was the sense inwhich the Supreme Court, in yet another decision interpreted the caseof Perera v. Fernando, the decision to which I refer being the case ofFernando v. Ferando *.
Interpreting the decision in Silva v. Sinno Appu (supra), Wood RentonJ. stated as follows : —
“ It was held by Mr. Justice Wendt in the case of Silva v. Sinno Apputhat the owner of an undivided share of land can maintain a possessoryaction in respect of such share, provided that he joins the other co-owner^ as parties, either plaintiffs or defendants ….’•
He also approved of the legal principle that the possession which theplaintiff had to prove in a possessory action was possessio ut dominus.The case was sent back for further trial with an expression of opinion ofthe Supreme Court that that case was to be decided on the principle setforth* in that case. It will thus be seen that the effect of the Full Benchcase of Perera v. Fernando (supra) was interpreted in this sense in the twolater cases I have quoted.
There is yet another case to which I have to refer before I apply thelaw to the circumstances of the case now before us, and that is the judg-ment of Lascelles C.J., in the case of Abeyratne v. Seneveratne Hethere referred to the cases I have already cited and added that the FullCourt decision of Perera v. Fernando had not been followed.
13 N. L. R. 164.
3 Balasingham's Notes of Cases 22*
1 Supreme Court Reports, Vol. I p. 329.
7 N. L. R. 5.
AKBAR J.—Sadirisa v. Attadasi Thero.
I cannot understand why he came to this conclusion unless he meantthat the later cases of Silva v. Sinno Appu (supra) and Fernando v. Fernando(supra) to which also he referred, had interpreted the decision of theFull Bench in a certain sense. In that case Lascelles C.J. came to theconclusion that if there was possessio ut dominus for more than a yearand a day, a person could maintain a possessory action in the circumstancesof that particular case. The circumstances were as follows:The
plaintiffs were the assignees of a lease granted by one Alexander, one ofseveral co-owners ; and that possession being disturbed by the otherco-owners, a possessory action was brought. From the short judgmentof Lascelles C.J. it appears that the plaintiffs had a lease from Alexanderfor the entire land and that they had been in possession of the entire land ;when a lessee takes a lease for the whole land without being aware of thefact that his lessor was really entitled only to an undivided share and whenhe gets into possession of the whole land and holds it for a number ofyears, these facts are entirely corroborative of the fact that possessionby the plaintiff was ut dominus, in other words, that he possessed it fullybelieving that the lessor was the owner of the whole land and that he wasentitled to keep the possession of the whole land against anybody buthis* lessor. So that, it will be seen that the Roman-Dutch Law principlewhich I mentioned at the beginning of this judgment has been alwaysobserved by the Supreme Court in the series of cases quoted above—thatpossession had to be possessio civilis.
The case now before us can at once be distinguished from the case1 referred to last—Abeyratne v. Seneveratne—because here the plaintiff isasking for a possessory decree, not with regard to an undivided share,but with respect to the whole land, and he is asking for a decree againsttwo other co-owners without making the other co-owners parties to theaction as required by the decision of the Full Bench according to theinterpretation placed on it later by the Supreme Court.
Therefore it becomes very material to find out whether the possessionalleged by the plaintiff was possessio ut dominus or whether it was posses-sion by him with the full knowledge that he was a co-owner, and withthe knowledge that the law presumes in such circumstances, namely,that his possession must enure to the benefit of his other co-owners also.
The learned District Judge had a simple point to decide, namely, thenature of the possession which was alleged by the plaintiff which wouldentitle him to a possessory decree. In his evidence, the plaintiff statedthat the original donor of the land, Priest Gunatissa, died in 1917, andthat after his death all his pupils, meaning thereby the co-owners underthe two deeds of donation, met in a “ pinkama ” ceremony in memoryof the death of their donor in 1919 and they came to an understandingthat the plaintiff should possess this field and a high land adjoining it inlieu of his shares in the other lands mentioned in the deed. In the faceon this evidence, I cannot see how the learned District Judge came to theconclusion that the possession which the plaintiff had when he enteredupon the land was possessio ut dominus or animo domini* The periodfrom the year 1918 till the year in which the action was brought, namely,the year 1934, was too short a period if we reckon this period from the
AKBAR J.—Sadirisa v. Attadasi There).
point of view of one co-owner being able to prescribe against anotherco-owner. The plaintiff knew when he entered upon his possession thatthe possession was really on behalf of himself and his other co-owners.He nowhere states in his evidence that as a result of his entering solelyin possesion of this field, he gave up his rights to the shares in the otherlands and that the others had dealt with those shares on the footing thatthey were owners.
Mr. Rajapakse, who appeared for the respondent argued that theobject of possessory decrees under the Roman-Dutch laws was to preservepossession and not to allow it to be interfered with by acts of violence onthe part of others. Although this may be one of the reasons for thegranting of such decrees the Roman-Dutch law rquires that the posses-sion which the law would protect in this way should be a possessiondescribed in the Roman-Dutch law as possessio civilis. I think theevidence negatives what was required by the law on this point, and it isneedless to discuss the other points arising in this case. The judgmentof the learned Disrict Judge should therefore be set aside.
The appeal is allowed with costs in this Court and the Court below*the judgment and decree of the lower Court being set aside.
Koch J.—I agree.
SADIRISA v. ATTADASI THERO