097-NLR-NLR-V-31-SAMICHIAPPU-v.-DON-SWARIS-APPUHAMY.pdf
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1980.
Present: Fisher C.J. and Drieberg J.
SAMICHIAPPU v. DON SWAEIS APPUHAMY.
326—D. C. Anuradhapurdi 1,341.
Registration—Transfer of divided allotment—Extent annd boundaries—Sufficient description—Ordinance No. 14 of 1891, s. 23.
Where the transfer of the divided allotment of a land wasregistered and the allotment was defined by reference to itsparticular boundaries and' extent and a description of the entireland,—
Held, that the property dealt with by the deed had beensufficiently described to satisfy the requirements of section 23of the Land Registration Ordinance.
T
HIS was an action for .declaration of title to certain allotmentsof a land called Tammanakelle which was owned by one
William Alwis. The plaintiff claimed title on deeds P 2, P 3, P14.which the defendants contended were not registered in the proper folio.The defendants, who based their title on a deed No. 10,240 (Dl)from the heirs of William Alwis, claimed that the land was describedfor the first time in their deed with reference to the entire extentand the boundaries of the whole land ancl that there was not asufficient description of the land in the earlier registration of P 2 andP 3. The learned District Judge held that the plaintiff’s cleecl^dealt with undivided shares and that their proper remedy was apartition action.
H. V. Perera (with Thiagoragah), for plaintiff, appellant.—WilliamAlwis, the original owner, held the land in question in two dividedportions. The western portion coitsisted of 4 acres and the easternof 6 acres. Between these two portions was an extent of 2 acresbelonging to Charles.
The appellants have acquired title to the western 4 acres byP 2, P 3, and P 14. The boundaries in each allotment have beenspecifically stated. P 2, P 3, and P 14 have been registered mfolios A 21/141, A 21/142. A 21/143, respectively. The Crowngrant was not registered and there was no registration of this landprior to P 2, P 3, and P 14. A 21/141, A 21/142, A 2.1/143 were, theproper folios for the registration of this land.
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With regard to the eastern portion, the appellant claims title by 1980,
P 7 and Pll. PH is of prior registration and is registered in the samickiappufolio (A 37/173) in which the respondent's deeds are registered. v.D<mP 7 is also of prior registration and is registered in folio A 28/187 A.pp^tamywhich is connected with A 37/173. The appellant has thereforebetter title to the eastern portion than the respondent.
Weerasooria, for defendant, respondent.—The appellant is at themost only a co-owner and his proper remedy is to institute a suitfor partition. P 2, P 3, and P 14 give the appellant only certainundivided interests. The proper folio for the registration of thesedeeds was A 37/173 and the respondent's deeds gain priority. Theappellant can claim title only by P 11. The land was never dividedby possession. The appellant is only a co-owner.
H. V. Perera, in reply.
April 2, 1930. Drieberg J.—
On October 26, 1908, William Alwis executed three deeds bearingconsecutive numbers. By deed No. 4,209 (P 2) he sold an extentof about 1 acre on the extreme west to Amoris, describing theeastern boundary as the land which was being sold to Kuda Ettana;the transfer No. 4,210 (P 3) to Kuda Ettana was described as of“ a block of 1 acre situated in the centre of the western portionbelonging to me the 1 acre is described as bounded on the westby the portion being sold to Amoris Appu and on the east by theportion of land being sold to Chelliah. The deed in favour of.
Chelliah, No. 4,211 (P 14), is for t n extent of 2 acres and is describedas bounded on the-west by the land ** being sold to Kuda Ettana "and on the east by a *' portion of this very land owned by CharlesAppu."
The northern and the southern boundaries are the same in theseand all other deeds for this land, viz., Crown land and reservationfor a road.
The deeds P 2, P 3, and P 14 were attested by the same notary,
Mr. Rajapakse, who made a note of these deeds on the Crowngrant (PI).'
It is important to note that in the transfer by P 3 of the 1 acrelying between the 1 acre sold to Amoris and the 2 acres given toChelliah, William Alwis described it as situated in the centre of thewestern portion belonging to him.
What were the western and the eastern portions, and what weretheir extents?
It is quite clear that William Alwis did not then regard himselfas owing the entire extent of 12 acres and 16 perches, but that itthen consisted of the western portion of 4 acres disposed of byP 2, P 3, and P 14, and of an eastern portion of 6 acres and 16 perches.
31/25-
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1980. and. that between the two was a block of 2 acres belonging to
_ . Charles Appu, which is also referred to in later deeds as the land of
Dmebbbg J. _,’
Tennekoon.
Smme^ppu The Crown grant (P 1) of, January 18, 1907, was in favour ofSwans William Alwis and Dehanayakege Charles Appu. .In his plaint theAppuhamy appeijant alleged that William Alwis owned 10 acres and 16 perchesand Charles Appu 2 acres. In his answer the respondent said thatthough the grant was in their names he was the real purchaser.
It is not possible, however, for the respondent, in view of therecital by William Alwis on P 14, to assert that the eastern boundaryof the 4 acres on the west covered by P 2, P 3, and P 14 was hiseastern portion and not the land of Charles Appu.
Further dealings by William Alwis put this beyond doubt.By deed No. 501 (P 7) of April 10; 1913, he sold to Palis Appuhamyan undivided 2 acres on the west of an extent of 6 acres and 16perches of this land, bounded on the west by the land of Tennekoonand on the east by the land of the vendor. The 6 acres and 16perches represented the extent of the eastern portion left to himafter excluding the 4 acres sold on P 2, P 3, and P 14 and the 2 acresowned by Charles Appu.
On the same day, by deed No. 502 (P 9) of April 10, 1913, he soldi to Leisahamy an undivided extent of 2 acres out of the same extentof 6 acres and 16 perches. Be described it as being in the middleof this portion.
The 2 acres which were sold to Palis have passed to the appellant.
By deed No. 848 (P 10) of June 29, 1916, William Alwis boughtback 2 acres from Leisahamy, and was thus entitled to 4 acres and16 perches out of the eastern 6 acres and 16 perches, while theappellant owned the balance 2 acres.
By deed No. 1,872 (P 11) of June 6, 1918, William Alwis soldthis extent of 4 acres and 16 perches to Podi Nona, whose daughter.Leisahamy, sold it by deed No. 898 (P 12) of February 28, 1928,to the appellant.
Argument was addressed to us on the effect of the descriptionof the interests in P 7 and P 11 as an. undivided 2 acres and 4 acresand 16 perches, respectively. But no question of undivided owner-ship arises between the appellant and the respondent for thereason that the appellant is the sole owner of this eastern lot of6 acres and 16 perches. The appellant claims this whole lot aslots 2 and 3 in the schedule.
The respondent’s claim is one on a title derived from the widowand some of the children of William Alwis. He admits, however,that the 4 acres and 16 perches which passed under P 11 did notform part of his estate and he asks to be declared owner of five-eight of the rest of the land. He concedes this extent of 4 acresand 16 perches to the appellant because-he is obliged to. P 11
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is registered in the same folio as his own deeds, which he claims areduly registered, and, further, by deed No. 43 of May 3, 1927,Loku Menika took a lease for five years from Leisahamy of thisextent. He says he possesses under this lease.
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No evidence was led in the case. The respondent contendedthat the appellant’s deeds gave the latter only undivided interestsand that his proper remedy was a partition action, and, further,that the deed in his, ' the respondent’s, favour by the heirs ofWilliam Alwis, though later in date, took priority over P 2, P 3, andP 14 by registration.
As regards the first point, I have pointed out that it is quite clearon the deeds by William Alwis that in 1908 he owned this land intwo distinct portions, a western one of 4 acres and an eastern one of6 acres and 16 perches, and that between them was the 2-acre blockbelonging to Charles. William Alwis divested himself of allrights in the western block of 4 acres, 2 acres on the extreme westof which have passed to the appellant and form the first land in theschedule to the plaint, and 2 acres to Chelliah. If the respondent’sdeed does not get priority over P 2, P 3, and P 14 by registrationthen he has no interest in those 4 acres; if it does get priority,then the appellant has no interest in them.. In either case noquestion of co-ownership in this portion can arise between theappellant and the respondent.
The earliest deeds relating to this land were P 2, P 3, and P 14.all of which were dated October 26. 1928. and registered on thesame day, April 1, 1909, in three connected folios, A 21/141, A 21/142.and A 21/143, the subject of each deed being distinct though havinga connection as part of the same land.
When occasion first arose for dealing with the divided easternextent by deeds Nos. 501 and 502 of April 10, 1913, a new folio(A 28/187) was opened for this as for a distinct land. The land wasdescribed as being in extent 6 acres and 16 perches and boundedon the east by the land of the vendor, William Alwis, which wasstated in the argument to be a land to the east of the entire blockof 12 acres and 16 perches which had been bought from the Crownby William Alwis on the Crown grant P 16. The western boundarywas given as the land of Wijekoon. Both these deeds were registeredon May 16, 1913, in folio 28/187.
Mr. Kristnaratna, who attested the Deeds Nos. 501 and 502.had the Crown grant (P 1) before him, for he noted on it over hissignature the number and date of these deeds, and the land isdescribed in this folio as a part of Tamanawakelle No. 2209/6706,these being the preliminary and title plan numbers of this lot,thus fixing its identity as the subject of a Crown grant.
1930.
Dbxbbbbg J.
Samichiappuv. DonSmartsAppuhamy
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1980. Apparently both Mr. Bajapakse and Mr. Kristnaratna thoughtDriebbbo J. ^he westernand eastern lotsshould be treatedasdistinct lands
-7-7- and neitherof them thoughtit necessary to register the Crown
Samichxappu granj. rp^jgg^ou^ have beendone, and it is toberegretted that
Swaria it is soughtto take advantageof this omission.
Appuhamy
The deed to the respondent by the heirs of William Alwis (D 1)bears No. 10,240 of August 1, 1920, and was registered in folioA 37/173 on September 9, 1920. It was here that for the first timethe land was described both by its Government plan numbers andwith mention of its entire extent of 12 acres and lb perches andboundaries of the whole. land.
The first deed to be registered in this folio was P 11. Therespondent claims that this is the first folio in which a deed relatingto this land was duly registered for the reason that there was nota sufficient description of the entire land in the earlier registrationof P 2 and P 3.
We were' given to understand that A 37/173 was a new folio,and that of the extent of 6 acres and 16 perches the appellantcould claim due registration for P 11 only; but this is not so, forA 37/173 is connected with A 34/386, which is an extension ofA 28/187, in which P 7 is registered! If, therefore, A 37/173 is thecorrect folio, the appellant has superior title to the whole of theeastern portion."
The only ground on which the due registration of P 2 and P 3is attacked is that it does not ~.tate the boundaries of the entireland. It does, however, mention the preliminary and title plannumbers of it. In the deed to. the respondent the heirs of WilliamAlwis set out his title on the Crown grant. If the respondent hadlooked at the personal and local index he would have' seen thereference to the folios A 21/141 .and A 21/142 showing dealings byAlwis with this land and the description of it by its title plannumber.
Section 23 of Ordinance No. 14 of 1891 requires that a deedproduced for registration should contain certain particulars of theland which is “ affected thereby the section deals with thethree cases of such property being an entire land a divided allotmentof a land, and an undivided share in a land. In the second case,where such property, that is, the property affected by the deed,“ consists of a portion only of one land or allotment-, such portionshould be clearly and accurately defined by its particular boundariesand extent.” In this case the boundaries of these allotmentsmaking up the western portion of 4 acres were sufficiently statedand a description of .the entire land given, which, though it did not
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state the boundaries, left- no uncertainty as to what the land was.
I am not aware of any authority in which the sufficiency of a Dmeberg J.registration of this sort has been questioned.SamHMapp*
There was, in my opinion, due registration of the deeds P 2, P 3,and P 14 in folios A 21/141, A 21/142, and A 21/143, and the Appahaw#respondent cannot claim that the first duly registered deeds werethose in folio A 37/173.
The. appellant, therefore, has title to the first land in the scheduletc the plaint. Any uncertainty regarding the precise boundarybetween this portion and that on the east of it, conveyed by P .14,is a matter which concerns himself and the person who now ownsthe 2 acres given to Chelliah on that deed.
The title to the eastern portion, Nos. 2 and 3 in the scheduleto the plaint, is also in the appellant but subject .t-o the lease byLeisahamy of her interest in 4 acres and 16 perches in favour ofHerat Mudiyanseluge Loku Menika by deed No. 43 of May 3, 1927.
The respondent says he is in possession of this, but I can find nodeed of assignment by Loku- Menika to him.
The deed of lease No. 43 of May 3, 1927, has not been produced, .and I have taken the particulars of it from the extracts of encum-brance.
I have dealt with the question, of registration on the groundsplaced before us by Counsel. The reason given by the learnedDistrict Judge, viz., that the appellant’s earlier deeds should havebeen registered in the same folio as the Crown grant, is wrong,for the Crown grant has not been registered.
The appellant having title to the land as claimed subject' to thelease, the only issues to be decided are whether the defendant cansucceed on the grounds of prescription, and. if not, what damagesthe appellant is entitled to.
I note that it is stated in the journal entry of September 2^), 1928.that the defendant has given up possession to the appellant.
The judgment is set aside, and the case sent- back for furthertrial on the-above issues.
The defendant respondent will pay to the appellant the costs ofthis appeal and the costs of the proceedings of July 26, 1929. Allother, costs will abide the result of the further trial.
Fisher C.J.—I agree.
Set aside. .