SILVA v. APPUHAMY

081-NLR-NLR-V-15-SILVA-v.-APPUHAMY.pdf


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Present : LasceUes C.J. and Wood Renton J.
SILVA v. APPUHAMY.
87—D. C. Kurunegala, 4,288.Possessoryaction—Proof ofpossession for a year. anda day essential—
Plaintiffmay takeadvantage of predecessor'spossession—Action
for declaration of title—Court may ex mero motu grant possessorydecree.
In a possessory action a plaintiff might take advantage of hispredecessor’s possession; it is notnecessary that heshould
himself have had a year and a day's possession.
In an action for declaration of title there is nothing to preventthe Court from ‘granting a possessory decree ex mero motu when allthe necessary evidence is before it.
Obiter,—Section i of Ordinance Ho. 22 of 1871 has not dispensedwiththerequirementof the common lawthatto maintain a
possessory . action proof of possession for a year and a day prior toouster is essential except in cases of ouster by violence.
T
HE facts are set out in the following judgment- of the DistrictJudge (Bertram Hill, Esq.): —
Plaintiffinthis caseleased Ambagahawattafromone Punchappu-
hamy in March, 1910. He complains that the defendant, who has noright to the land, ousted him in about January or February, 1911. i
i (1904) 7 N. L. R. 280.2 (1891) 9 S. C. C. 203.
1912.
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IMS.
Silva p.Appyhamy
The defendant admits plaintiff's right to one-half the land, but claimsthe otherhalfbyvirtue of adeed dated February28,1911. i.e,, nearly
one year subsequent to plaintiff’s lease.
The evidence, in my opinion, establishes the following facts. Plaintiff'slessor in 1900 purchased the entirety of the land from one Kiri Etanaand began to plant it. Later on' his son, the defendant, oame and livedwith him and helped him to look after it, and perhaps plant. Thodefendant must have been aware that his father, PunchappuhamyWadurala, had. a deed for the whole land and claimed the entirety of it,and any assistance he may have rendered his father must be presumedto have been rendered for his father’s benefit.
Later,iu 1910,defendant'sfather leased thelandtothe plaintiff.
The defendant acquiesced in this, and plaintiff was in possession. The 'defendantthengot dissatisfiedwithhis prospectsashisfather's heir
and purchased the rights of another Punchappuhamy, who claimed to be-entitled to half the land. There appears to be evidence that thisPunchappuhamy is entitled to a share of the land on the pedigree, buthe admittedly had nothing to do with the planting, and I do not believethe evidence that defendant planted under * him. At any rate, he. cannot dispossess the plaintiff until he has paid plaintiff’s lessor-compensation.
1 treatthisasa possessoryaction.I find thatplaintiffwas in lawful
possession of the entirety of the land at the date of the ouster, and thathe was dispossessed by the defendant without due process of law.
I give judgment for plaintiff for possession, for damages at Rs. 7S ayear from March, 1910, until restored to possession, and costs.
H. A. Jayewardene, for the defendant, appellant-—The plaintiff,who is a lessee, prayed in this action for declaration of title (as alessee). The 'District Judge was wrong in giving a possessory decree•when the plaintiff did not ask for it.
The plaintiff was in possession for only ten months. Thatpossession is not sufficient to entitle the plaintiff for a possessorydecree. There has been a series of decisions, in which it has beenheld that in a possessory action the plaintiff must have possessionfor a year and a day. The only case that can be cited against thatis Silva v. Dingiri Mentha.1
Gooneratne (with him A. St. V. Jayewardene), for the respond-■ent.—Silva v. Dingiri Mdnika1 is the latest case on the subject,and is a direct authority for the proposition that possession for a.year and a day is not necessary for maintaining a possessory action.(Wood Renton J.—What are “ the other requirements of the law ”which section 4 of Ordinance'No. 22 of 1871 expressly conserves?]The possession should be' ut domimis. .
In any case the plaintiff in this case can take advantage of thepossession of his lessor (Umma v- Ismail Lebbe *).
‘ (1910) 13 N. L. II. 179;
Cur. adv. vult.
2 (1881) 4 S. C. C. 75.
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June 20, 1912. Lascelles C.J.
The plaintiff claims the right to occupy the whole of a land knownas Ambegahawatta under a lease for eight years granted to him byone Punchiappuhamy, who had purchased the land in 1900 fromone Eiri Etana.
The defendant avers that Punchiappuhamy was entitled to «half share only in the land, and claims that he, the defendant, has-acquired the other half by purchase from one Punchappu Vedarala.
The learned District Judge treated the claim as a possessoryaction, and gave judgment for the plaintiff for possession with,damages.
On appeal two grounds of objection were argtied, namely, (l)fthat the learned District Judge was wrong in treating the actionas a possessory action; and (2) that the plaintiff, inasmuch as hehad not been in possession for a year and a day, was not entitledto a possessory decree.
I am unable to see any substance in the first ground of objection..The prayer in the plaint is not inconsistent with a possessory action.The plaintiff prayed (1) for a declaration that the plaintiff wasentitled to possess the land under his lease; (2) for damages; (3)for ejectment of the defendant; and (4) for costs. An action soframed might properly be treated as a possessory action, andassuming the existence of the conditions which are necessary inorder to bring a possessory action, an action of that nature was theplaintiff’s proper remedy.
With regard to the second ground of objection, it was proved,that the plaintiff was in possession under the lease for- only ter*,months. The question thus arises whether a lessee who has been.in possession for less than the period of a year and a day can bringa possessory action.
On this question there has been some difference of authority..There is sufficient authority for the proposition that where there is*a violent ouster nothing more is required to be proved by the-plaintiff than that he was in possession and was violently ousted!(Goonewardene v. Pereira1), and in the same case, which was one in.which the plaintiff was in possession under a lease, Wendt J. stated,that it had been ruled that in a possessory action a plaintiff might,take advantage of his predecessor’s possession, and that it i&not necessary that he should himself have had a year and a day’s-possession. The authority there quoted was Umma v. Ismail Lebbe.*
This last ruling would dispose of the objection of insufficienv ofpossession in the present case- It was contended that the decision,in Silva v. Dingiri Menika* laid down the rule once and for all that;the requirements of the Roman-Dutch law as regards the lengtbof possession which must be proved in a possessory action are do-
i (1902) 5 N. L. R. 320.* (1881) 4 S. C. C. 13.
» (1910) 13 N. L. R. 119.
1912,
Silva v.Appuitamy
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.1912. longer part of our law. I am not quite clear whether the observa-t.>tions of Hutchinson G.J., which were pot necessary for the decision
C.J. of the case, were intended to go beyond the facts of that case,SUvav. which was one where there was proof of violent ouster.
Appuhamy The rule that possession for a year and a day is necessary hasbeen repeatedly acknowledged by the decisions of this Court, andit is at any rate unlikely that it was intended in Silva v. DingiriMenika1 to over-rule all these decisions. I prefer to decide thepoint in this case on the ground that the lessee is entitled to thebenefit of the lessor’s possession.
In my opinion the appeal fails, and should be dismissed withcosts.
Wood Benton J.—
The plaintiff-respondent brought this action as one for declarationof title. He is a lessee of the land in dispute from one ArachchigePunchiappuhamy on a lease for eight years and two months fromMarch 18, 1910, and he alleges that the defendant-appellant forciblyand unlawfully ousted him from the possession of the land underthat lease in or about January or February, 1911. The appellantadmits the respondent’s right to one-half of the land, but claimsthe other half by virtue of a deed from another Punehi Appuhamy.The case went to trial as one of declaration of title alone. Thelearned District Judge did not decide the question of title as betweenthe appellant and the respondent, but gave the respondent apossessory decree with damages at Bs. 75 a year from March 1,1910, till he was restored to possession. The present appeal isbrought against that judgment. The respondent stated in hisevidence that he had possessed the land only for ten months. It wasargued in appeal that this admission was fatal to the possessorydecree which the District Judge has given him, and that no suchdecree could be made in favour of a person who had not beenin possession of the land' for a year and a day before disposses-sion. If it had been necessary to decide this point, it would haveconstituted, in my opinion, a serious objection to the decree underappeal. I do not think that section 4 of Ordinance No. 22 of 1871has dispensed with the requirement of the common law that, exceptin cases of ouster by violence, proof of possession for a year and aday prior to ouster is essential. Section 4 seems to me to modifythe common law in two respects only. It gives a right to bring apossessory action on dispossession “ otherwise than by process oflaw.” and it provides that such action must be brought within ayear after the dispossession. The proviso to the section enactsthat the other requirements of the common law in regard topossessory actions are not affected, and .the old condition as topossession for a year and a day before ouster is, therefore, still in» (1910) 13 N. L. R. 179.
1U12.
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force- That view of the law has been recognized in a long series ofcases (see Namasivayam v. Vkkuwa,1 Miguel Perera v- Sobana,2 * *Avaturry Ayer v. Navaratnasingham,“ MaeCrogher v. Baker,*Perera v. Fernanda,5 Goonewardene v. Pereira,1), and impliedly bythe judgment of the Privy Council in Azeex v. Raliiman.' The onlyauthority to the contrary is a passage in the judgment of Sir JosephHutchinson C.J-, concurred in by Sir John Middleton J-, in Silvav. Dingiri Menika:—*
“ I think that section 4 of the Ordinance was intended to doaway with the requirements of the Roman-Dutch lawas to length of possession which was required in apossessory action, and all that is necessary for theplaintiff in such a case as this is to prove first that hewas in possession, and that he was dispossessed other-wise than by process of law.”
If this passage is limited to the facts of the particular case it isno doubt right, as there was proof of ouster, by violence. If itwas intended to go further, it is contrary to the series of authoritiescited above, and could not, I think, be supported.
But the present appeal fails upon another ground. It was heldby Clarence J. in Umma v. Ismail Lebbe• that in a possessoryaction' the plaintiff might take advantage of the possession of hispredecessor in title, and that it is unnecessary that he himselfshould have had a year and a day’s possession where that is one ofthe requirements for bringing a possessory action. That decisionwas approved by Bonser C.J. in D.C. Negombo, No. 2,795,'“and by Wendt J. in Goonewardene v. Pereira.* I think that weought to follow it. There is ample evidence in the present case ofpossession by the- respondent’s predecessor in title, which whentaken together with that of the respondent, is sufficient to satisfythe requirement in question.
Mr. Hector Jayewardene argued that there had been no claimfor or issue as to a possessory remedy, and that the District Judgeought not to have given that relief to the respondent in an actionwhere only a declaration of title had been claimed. I do not think,however, that the appellant has any reason to complain of thedecree on this ground. It has been the practice for the Courts togrant such decrees in actions for declaration of title, and althoughthis has usually been done on the application of the plaintiff at thetrial, there is nothing to prevent the Court .from granting such adecree ex mero motu when all the necessary evidence is before it.
I would dismiss the appeal with costs.
1 (1880) 3 S. C. C. 151.
(1884) 6 S. C. C. 61.
* (1885) 7 S. C. C. 37.
‘ (1883) Wendt 253.
’ (1892) 1 S. C. R. 329.
Appeal dismissed-« (1902) 5 N. la. R. 320.r (1911)14 N.L.R.318.
> (191(f)13 N.L.B.179.
-4 S.C.C.75.
i® S. C.Mins.,August 30, 1898.
WoodRmnotr J.
Silva
Hppuhamy