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SILVA v. SIM AN.
C. 11., Colombo, 5,625.
Ordinance No. 22 of 1871, a. 3—“ Possession for ten years previous to thebringing of the action ”—Necessity of plaintiff being in possession at timeof suit.
Per Bonskr, C.J.—It is essential that a plaintiff who claims the benefitof section 3 of the Ordinance No. 22 of 1871 should be in possessionwhen ho brings his action.
If plaintiff has suffered ouster, his remedy under section 4 is torecover possession within one year of his dispossession, without goinginto the question of title. But if he acquiesces in his dispossession fora year, he must prove his title.
CTION instituted on 8th March, 1898, for declaration of title,ejectment of defendants, and damages.
Plaintiff alleged that his father, being “ seized and possessed ”of a certain land, leased the same to one Jaya (the father of thedefendants) in 1879; that Jaya held it till plaintiff’s father diedin 1884, and then as tenant of plaintiff till he (Jaya) died; thatthereafter Jaya’s widow, and after her death in 1893 her son, thefirst defendant, paid rent to plaintiff till 1894; that in July 1895,plaintiff sued the first defendant and had him ejected from theland; that in April, 1896, the defendants “ unlawfully entered uponsaid premises and are disputing plaintiff’s right thereto;”and that “ plaintiff and his predecessors in title have been in the“ undisturbed and interrupted possession of the said premises by a“ title adverse to and independent of the defendants and all others” for upwards of thirty years, and the plaintiff in this behalf claims” the benefit of section 3 of Ordinance No. 22 of 1871.”
The defendants denied possession under plaintiff or his fatherof the land described in the plaint, and claimed it by prescriptiveright.
After hearing the evidence for plaintiff and .defendants theCommissioner found that Jaya, the father of the defendants,entered under plaintiff’s father and paid rent to him; that plaintiffand first defendant had also paid rent to plaintiff; that all thedefendants were ejected by process of law in 1895; and that theyhad unlawfully entered on the land again in 1896.
He gave judgment for plaintiff as prayed.
The defendants appealed.
Bawa, for appellants.—The words of Ordinance No. 22 of 1871are explicit as to the kind of possession necessary to entitleplaintiff to a decree in his favour. Section 3 deals first with theprescriptive title of the defendant to an action, and then proceeds
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to state that “ proof of such undisturbed and uninterrupted posses-
“ sions as hereinbefore explained ■ shall entitle plaintiff to a
“ decree in his favour.” The words of the section are “ proof of” the undisturbed and uninterruj) ed possession by a defendant in” any action, or by those under whom he claims, of lands or“ immovable property, by a title adverse to or independent of that“ of the plaintiff (that is to say, a possession unaccompanied by“ payment of rent or produce or performance of service or duty,“ or by any other act by the possessor, from which-an acknowledg-“ ment of a right existing in another person would fairly and“ naturally be inferred) for ten years previous to the bringing of“ such action, shall entitle the defendant to a decree in his favour“ with costs. And in like manner, when any plaintiff shall bring
” his action for the purpose of being quieted in his posses-
“ sion of lands or to prevent encroachment or usurpation
“ thereof, or to establish his claim in any other manner to such
“ land proof of such undisturbed and uninterrupted posses-
“ sion, as hereinbefore explained, by such plaintiff
“ shall enable such plaintiff to a decree in his favour
” with costs.” Here “ possession for ten years previous to thebringing of such action ” meansi possession- for a period of tenyears uninterruptedly from the date of the action. Hence it isessential that the plaintiff must be in possession at the timeof the suit. In the present case he is not. He admits in hisplaint that he went out of possession in 1896, about two yearsbefore action. He cannot therefore maintain the suit. Itis true this objection was not taken in the Court below, butit is not necessary to do so. Before plaintiff can claim the benefitof the law of prescription, as laid down in the Ordinance No. 22 of1871, he must show that he has fulfilled the conditions underwhich only the prescriptive right will enure to him. If he wasdispossessed, the law gave him the power under section 4 to provedispossession at any time within one year of the dispossession,and in that case he would have been restored to. possessionwithout having to prove his title to it. Having thus got intopossession, he could have brought an action under section 3 to bequieted in his possession. He did not do so. In the present case,plaintiff’s first prayer is that ” he be declared entitled to the saidpremises,” and his second prayer that “ defendants be ejected fromthe said premises.” Neither of these prayers is available to himunder section 3, as confessedly he is not in possession, and he doesnot show any title except what he calls ” undisturbed and uninter-rupted possession. He never had such possession, because “ posses-sion ” as defined by section 3 means possession at the date of action.
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1898.W. Pereira, for plaintiff, respondent.—The effect and meaning
October 14. 0f section 3, corresponding to section 2 of the earlier OrdinanceNo. 8 of 1834, was considered by Creasy, C.J., in Naker v. Sinnatty(Ram. 1860, p. 75.) It has been held that “ possession for ten yearsprevious to the bringing of the action ” does,not mean possessionfor ten years next before the bringing of the action. The SupremeCourt was quite opposed to the introduction of the word “ next,” asthe consequences would be serious. Creasy, C.J., said “ the result" would be that men who were turned out of lands and houses*' would lose all the benefit of prescriptive title, unless they ran off‘‘ to the court-house and instituted a suit on the very day on which” the wrongful act was committed. Nothing is more common in“ tbe plaints for ejectment, which, we daily read, where the plaintiff“ claims by prescription, than an allegation that the ouster occurred” one or two or more years (short of ten) ago. Every one of these” plaints must be held bad on the face of them, if the Ordinance is“to be construed as the present defendant desires. The Supremo” Court should pause long before it so revolutionized the adminis-“ tration of justice in one of its most important branches, even if“ there was anything in the language of the Ordinance which” seemed to favour it. But the Ordinance is not so worded, and“ the Supreme Court has double cause not to invent law to make“ mischief.” This authority guided the Bench and Bar foryears till Casie Chitty v. Perera (& 8. G. C. 31) cams beforeClarence and Dias J.J., in 1886, when they came to a differentconclusion, without stating any reason for it. In a latter case,Abubaker v. Perera (9 8. G. G. 48), Clarence stated that he hadnot the opportunity of considering Naker v. Sinatty, decided byCreasy, C.J., as it was not quoted to him.
In this case the plaintiff sought to eject the defendants from acertain land. He alleged, in his plaint, that this land was part ofthe estate of his deceased father, that he was his diseased father’sexecutor, and that two years before the commencement of thisaction the ^defendants had ousted him from the land. At the trial,an irrelevant issue was framed, as to whether the plaintiff andhis predecessors in title had been ten years in undisturbedpossession of the land prior to ouster. Apparently the plaintiff .sought to rely on section 3 of Ordinance No. 22 of 1871. The Com-missioner found that the plaintiff had been in undisturbedand uninterrupted possession ten years before ouster, andaccordingly he gave the plaintiff judgment.
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Mow it is quite clear from section 3 that a plaintiff who reliesupon that section must be in possession when he brings hisootion. The words are:—" And in like maimer, when any plaintiff“ shall bring his action, or any third party shall intervene in any“ action for the purpose of being quieted in his possession of lands“ or other immovable property, or to prevent encroachment or“ usurpation thereof, or to establish his claim in any other manner” to such land or other property, proof of such undisturbed and“ uninterrupted possession, as hereinbefore explained, by such“ plaintiff or intervenient, or by those under whom he claims, shall“ entitle such plaintiff or intervenient to a decree in his favour with“ costs.”
Now, if it had been intended that a plaintiff out of possessionshould be able to prove ten years’ possession before commence-ment of action, and should be able to rely upon that possession torecover possession of the land claimed, nothing would have beeneasier than to have said so.
In that case the section would have been expressed thus: “ In like“ manner when a plaintiff shall bring an action for recovering any“ land, ” &c. It does not say so. It seems to me quite clear that theplaintiff must be in possession, and if he had been ousted there isa very simple remedy provided by law for recovering possessionwithout going into the question of title. There is one thingessential to such an action, and that is that it must be broughtwithin a year from the ouster. If a person ejected from landacquiesces in his dispossession for a year, then if he wishes torecover the land he must prove his title. In the present case theplaintiff acquiesced in the dispossession for nearly two years, andthen he commenced his action, in which he alleged his title asexecutor of his father. The real issue between the parties raisedon the pleadings, as to whether the land ever formed part of theestate of the testator, was never decided.
The case, therefore, must go back for the Commissioner to trythat issue. Costs will abide the event.
October 14.Bosses, C.J.
SILVA v. SIMAN