002-NLR-NLR-V-07-SILVA-v.-SINNO-APPU.pdf
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SILVA v. SINNO APPU.
R., Galle, 1,611.
Possessory action by part-owner—Civil Procedure Code, s. 12—Ordinance No. 22of 1871, s. 2.
The owner of an undivided share of land can maintain a possessoryaction in respect of each share, provided he joins the other co-owners asparties either plaintiff or defendant.
D. 0.. Chilaw, 261 (1 8. C. B. 329), distinguished.
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N this possessory suit plaintiff pleaded possession for over a yearand a- day previous to the ouster complained of, and prayed
for ejectment of the defendant. He alleged that he was entitledunder a purchase in execution to an undivided half part ofHiggahawatta, and that the defendants, who had no title or interestin that share or any other share of the land, forcibly opened a roadon the said land, took possession of it, and deprived him of theproduce thereof.
The District Judge dismissed the action on the ground thatplaintiff could not maintain such an action. He held that as thesecond defendant claimed to be a co-owner, the plaintiff shouldhave instituted an action ret vindicatio.
The plaintiff appealed. The case was argued on 5th June, 1903.Walter Pereira, for appellant.
Domhont, K.C., for respondent.
Cur. adv. vult *
11th June, 1903. Wendt, J.—
The plaintiff alleged that he was entitled under. a purchase inexecution to an Undivided half of certain land, and that he hadbeen in the undisturbed and uninterrupted possession of that shard
1903.
June 5 and11.
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1903.
June 5 and11.
Wundt, J.
for more than a year and a day prior to the ouster by defendants.He alleged that the other half share belonged to the estate of Odrisde Silva. He complained that the defendants, who had no rightor title to the land, about a month before action had forciblyopened a road over the land, and about four days before actionforcibly taken possession of plaintiff’s share. The first defendantdenied plaintiff’s possession, denied the ouster, and disclaimedtitle, but admitted Odris’ ownership of one-half. The seconddefendant also admitted Odris’ title to one-half, but deniedplaintiff’s possession, and setting up title in himself to the otherhalf under conveyances dated September, 1899, and January, 1900,Baid that he was in possession since his purchases. He also set upa prescriptive right and denied that he had opened the road. Theaction was treated by the parties as a purely possessory one, andthe issues agreed upon were as follows:—
Can plaintiff maintain this action ?
If he can, was he for a year and a day before the date of
the cause of action in possession of half of the land ?
Did defendants dispossess plaintiff as averred in the -plaint ?
The learned Commissioner held on the first issue that, as the'second defendant claimed to be a co-owner, plaintiff could notmaintain the action, but should have sued in rei vindicatio. Inview of this opinion he considered it unnecessary to pronounceany finding on the other issues. The action was dismissed, andplaintiff has appealed.
Defendants’ counsel felt themselves unable to support the opinionof the learned Commissioner, but they argued that the dismissalwas right on two other grounds. The first was that, a possessoryaction was not competent in respect of an undivided share, and thecase of Perera v. Fernando (1 S. C. B. 329) was relied upon.That case appears to have been decided on the Roman-Dutch Daw,and although Withers, J., refers, to the Ordinance No. 22 of 1871,section 4, he does not refer to section 2, which defined immovableproperty as including a share in such property. Section 4 must betaken in the light of this interpretation to enact that any, persondispossessed of any share of immovable property might maintaina possessory action, and the reference in the latter part of section4 to the* “ other requirements of the law ” must, of course, beexclusive of the substantial enactment contained in the earlierpart of the section. Moreover, ,in that case the Court’s attentiondoes not appear to have b^en directed to section 12 of the CivilProcedure Code, which appears to have in view not merelypetitory actions, but also possessory actions (see Amolisa v. Dissan,4 N. L. R. 163). But, whatever_ the reasons upon which Perera
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s. Fernando was decided, that decision is binding upon me, andif this case fell within the principle of it, I should be bound eitherto follow it or to reserve the question for the consideration of aFull Bench of the Court. I think, however, that the cases aredistinguishable. Plaintiff, five months before the trial, upon theallegation that the widow and legal representative of Odris, theadmitted owner of half the land, refused to join in the bringingof the action asked for, obtained leave to add her as a party-defendant. She was accordingly added, and put in an answerasserting her ownership and possession of one-half. Therefore,even assuming that plaintiff alone could not have maintained theaction, I am of opinion that the bringing in of the added partyunder section 17 of the Code, thus bringing before the Court allthe parties entitled to the possession of the land, has cured thedefect.
The other point taken by the respondents was that plaintiff hadnot proved an ouster from the land, but a mere trespass. As,however, this involves a verdict on the evidence, upon which theCommissioner has expressed no opinion, I, leave the point to bedisposed of in the Court below.
I set aside the dismissal of the action and order a new trial.The respondent will pay the costs of appeal. The other costs willbe costs in the case.
At the further trial in the Court below, the Commissioner foundthat the plaintiff had been in possession and had been ousted bythe second defendant, against whom he gave judgment of ejectment.It was ordered that plaintiff be put in possession of the half shareclaimed.
An appeal was filed by the defendants in which it was again urgedthat it was necessary for a plaintiff in a possessory action to havehad actual physical retention of a specific portion of land which apart-owner has not, and that the mode of possession in this casewas by division of nuts, which does not amount to physicalpossession.
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The Appeal was argued on 5th June, 1903, by counsel forappellants and respondents, and the judgment was affirmed.
Gbenieb, A.P.J.—
This Court has already held that the plaintiff, as the action &now constituted, can maintain a possessory aotlbn..
The evidence adduced b/ the plaintiff to prove that he wasdispossessed by the defendants i& >^lv -ufficient. The judgmentof the Court below must be affirrped.
1903.
June S and11.
Wendt, J.