008-NLR-NLR-V-09-SELENCHI-APPUHAMI-v.-LIVINIA-et-al.pdf
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Present : Sir Charles Peter Layard, Kt., Chiei Justice,and Mr. Justice Moncreiff.
SELENCHI APPUHAMI v. LIVINIA et al.
D. G., Negombo, 4,049.
Co-owners—Dividedpossession for over tenyears—Prescription—Abuse
of Partition Ordinance—Ordinance No. 10 of 1868.
Wherethetwo co-owners of a landdivided it intotwo portions
and one of them exclusively possessed and dealt with the northern,and the other with the southern portion, and after such possessionfor over ten years one of them instituted a partition suit againstthe other to partition the land—
Held,thatthe partition suit was not maintainable,therebeing
no commonpossession between thetwo co-owners, andeach
party having acquired a prescriptive title to a divided portion.
TiATAun C.J.—The action is a manifest attempt to abuse thePartitionOrdinance, the object being toobtain a goodtitleagainst
. ■ all the world in respect of a land not held by the parties in common.
Ram Menika e. Ram Menika, 2 S. C. C. 153, referred to and com-mented on.
A
PPEAL by the added parties from a judgment of the Dis-trict Judge decreeing a partition between the plaintiff and the-
defendant.
The facts sufficiently appear in the judgment of Layard C.J.Morgan de Saram, for appellants (added defendants).
H. Jayewardene, for respondent (plaintiff).
Cur. adv. vult.
23rd February, 1905. Layard C.J.—
It is not necessary for the purpose of this judgment to recite all'the facts of the case. The District Judge has very properly heldthat the plaintiff has failed to prove a paper title. It appears thatplaintiff and Corais Appu under some misapprehension had takenpossession of the land, the subject of this partition suit, in 1366 underthe belief that they had purchased it from the Crown. The Crowngrant on whi<^h they relied, however, has been found by the Judgeto be in respect of altogether another portion of land. From thefirst the plaintiff occupied the northern portion of the land and Cor-nis the southern portion. The plaintiff in his cross-examinationadmit% that in 1884 the land was divided by a surveyor and an ami-cable partition arrived at, and according to that partition Comis andhis heirs (the defendants) ever since possessed the southern portionand the plaintiffs the northern portion. There can be no doubt abouttii division and partition in 1884, because the plan made by the sur-veyor in 1884 is amongst the documents filed in the cdse, and Comis
1905.
February 23».
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1906. leased his divided portion in 1898 for twelve years, and the plaintiff’sFebruary 23. deed of gift of 1896, in which he alleges sole possession of his divi-Layabd C.J. ded portion (the northern) and refers to the partition of 1884,clearly shows that the land in dispute has not been held in commonsince 1884 by the plaintiff and Comis or the latter’s heirs. Can theplaintiff in collusion with the defendants be allowed to say that thetwo portions form one land, and are held in common by the plaintiffand defendants? I think not. It appears to me it would be an abuse -of the Partition Ordinance to allow the plaintiff and defendants to usethat Ordinance merely to confirm a partition that already had takenplace seventeen years before, and which by possession of over tenyears had ripened into a prescriptive right in favour of the plaintiff asto his divided portion, and in favour of the defendants, as to theirdivided portion.
There can only be one object for the bringing of this action, viz.,to enable the plaintiff and defendants by a decree of this Court^toprovide themselves with an indefeasible title against the world, therebeing absolutely no necessity for further partition, there being reallyno one land held in common but two divided lands held separately bythe plaintiff and defendants. Now, the most important essential to bealleged and established in a. partition suit is that the land sought to.be partitioned is held in common, and failing that being establishedthe suit cannot be maintained. It is however with considerableingenuity argued by plaintiff’s counsel on the strength of the judg-ment of Sir John Phear reported in 2 8. C. C. 153, that thereare but two ways in which the undivided joint right of tenants incommon. over the entirety of a property could be converted into asingle exclusive right over a portion of it, viz., by a decree of a Courtfor partition, or by private mutual cross-conveyances, the latter ofwhich could only be- evidenced by notarially attested deeds. It istrue that as a general rule the possession of co-partner of co-tenantof portion of the land held in common is not an adverse but a con-current possession; the original, title being the same, the possessionof one is the possession of the whole. And however long a period sucha user in gwasi-severalty may endure, it cannot effect any alterationof right, because, as laid down by Sir John Phear?' “it is frombeginning to end only referable to and an exercise of the commonright, an essential ingredient which is that any owner or co-owneris entitled at any time to dissent from the existing arrangement."Sir John Phear in the same judgment also points out very clearly thatexclusive possession referable to the consent of the co-owners maysometimes by change of circumstances become a holding adverse andindependent of all co-owners such as may by lapse of time giverise to a prescriptive right. It follows that owners in common having
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verbally agreed amongst themselves to hold the common property 1906.in divided shares in severalty, each co-owner may prescribe in February 23.respect of his own divided share, and such prescription will give himn .t
an absolute title, against his co-owners to the share held by him inseveralty. [See W. Hendrick Perera v. Appusinno (1).]
It cannot be tolerated that the plaintiff and defendants can after17 years abandon the amicable partition that they had arrived at in1884. and acted on for 17 years, and say plaintiff’s possession of hisdivided portion was as co-owner with the defendants' father andthemselves, and the defendants’ father and their possession of theirlot was as co-owner with the plaintiffs, when the .possession of' thetwo divided lands was held separately and adversely respectivelyby the persons holding them to their co-owner or. co-owners. Theplaintiff’s title, if he has established any title to any portion of- theland the subject of this suit, is a prescriptive one to a divided portionof it, and he has singularly failed to establish that that portionwas held by him in common with the defendants or that the portionallotted to bis co-owner in 1884, and separately and adverselyheld by his co-owner and his heirs ever since that date, belongs tohim in common with the defendant.
I have never come across a more manifest attempt' to abuse thePartition Ordinance, the object being to obtain a good title for theplaintiff and defendants against all the world, in respect of a landnot held by them in common. The plaintiff’s action must bedismissed. The plaintiff and the defendants must each bear their owncosts in both Courts, and they must pay the added defendants costs ofthe first trial and of the first appeal and of the third trial and ofthis appeal (the former judgment of the Supreme Court has alreadydealt with the costs of the second trial and of . the second appeal).
Moncheiff J.—agreed.
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(1) (1886) 7 8. C. C. 118.