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February 8and 14.
SIMAN APPTJ v. CHRISTIAN APPU.D. C., Colombo, 1,980.
Ordinance No. 22 of 1871, t. 3—“ Uninterrupted and undisturbed postettion.”
Withers, J.—“ Possession ” of a land most be continuous, peaceful,and for a certain period.
It is “ interrupted ” if the continuity of possession is broken eitherby the disputant legitimately putting the possessor out of the land andkeeping him out of it for a certain time, if the possessor is occupying it;or by occupying it himself for a certain time and using it for his ownadvantage, if the party preventing is not in occupation.
And possession is “ disturbed ” either by an action intended to removethe possessor from the land, or by acts which prevent the possessor fromenjoying the free and full use of the land of which he is in the course ofacquiring the dominion, and which convert his continuous user into adisconnected and divided user.
Lawrie, A.C.J.—If the actual physical possession has never beeninterrupted, it matters not that the possessor has been troubled by law-suits or by claims in execution or by violence. If he has succeeded inholding possession, such attempts to oust him only make it the morecertain that he held adversely to those who disputed with him.
LAINTIFF alleged that one Don Daniel, being the original
owner of the land in dispute, mortgaged it with the plaintiffand one Fernando as security for dne payment of a certainsnm of money; that the plaintiff and his co-creditor institutedan action against Don Daniel for the recovery of the said sum ofmoney, and on judgment being obtained caused the Fiscal to seizethe property under mortgage; that at the sale the plaintiff and hisco-creditor purchased the same and obtained a Fiscal’s transfer ;that subsequently the plaintiff and his co-owner sold the said landto one Jusey Silva and Susey Pulle, who were put in possessionby them, and who mortgaged the same property to the plaintiff assecurity for the payment of the purchase money; that the said
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Jusey Silva and Snsey Pulle having failed to pay plaintiff his 1895.moiety of the said purchase money, the plaintiff sued them for the Ft8
recovery of the same, and having obtained judgment issued writ
and seized the property, whereupon the present defendantclaimed the same before the Fiscal who, in terms of section 241 ofthe Civil Procedure Code, reported the claim to the District Court,which after inquiry directed the release of the said land ; and theplaintiff prayed (1) that his execution-debtors, Jusey Silva andSusey Pulle, be declared to be the owners of the said property atthe date of the seizure thereof under the said writ, and the sameliable to be sold in execution ; (2) that the defendant’s claim to thesaid property be declared groundless, and be set aside ; and (3)that the defendant be condemned to pay the plaintiff the sum ofIts. 200 as damages.
The defendant by his answer denied all the above allegations,save that he claimed the land and that his claim was upheld bythe District Court. He further pleaded that this land originallybelonged to the Crown, and that the Crown, in consideration of thelong possession of the same by the defendant, granted to him acertificate under the 7th clause of the Ordinance No. 12 of 1840declaring that the Crown had no title thereto. He further claimedthe benefit of the 3rd section of the Ordinance No. 22 of 1871,alleging that he was in the undisturbed and uninterrupted pos-session of the said land for ten years and upwards previous to theinstitution of the present action, by a title adverse to andindependent of the said Jusey Silva and Susey Pulle and theirpredecessors in title.
The District Judge heard evidence on both sides, and decidedthe case in favour of the plaintiff, holding that the two DistrictCourt cases bearing Nos. 41,552 and 69,316, relied on by theplaintiff’s counsel, were res judicata, and estopped the defendantfrom denying the right of the plaintiff’s execution-debtors, whoderived their title from one Don Christian and Don Daniel; thatDon Christian had sued the defendant in case 41,552 and gotjudgment for this land as far back as 1865, and that Don Danielhad also sued defendant in 1876 for this land, when the defendantadmitted Don Daniel’s right to 11 acres out of the 17 acres heclaimed; that the 11 acres decreed to Don Daniel in 1877 werethe identical 11 acres now in dispute; that the judgments inboth those cases were res judicata as between defendant andplaintiff, whose title ultimately rested on Don Christian and DonDaniel; that defendant had never enjoyed quiet possesssion forten years; that eight years before the trial there was a riot on theland, when a house was burnt down and defendant was tried for
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1895. shooting some people; and that though the defendant had all*lon8 resisted, and successfully resisted, disposcession, yet his possession was anything but undisturbed and uninterrupted.
Browns, A.J. jn ^ese circumstances, the District Judge gave judgment forplaintiff.
The defendant appealed, and the case was heard in appeal onthe 8th February, 1895.
Domharat and Morgan, for appellants.
Drieberg and Seneviratna, for respondents.
Cur. adv. vult.
14th February, 1895. Bbownb, A.J.—
Plaintiff did not at all base his claim in his plaint upon theprevious decisions of the lower court in the suits 41,552 and 69,316respectively. Those decisions were of the years 1868 and 1877,and the evidence in the case is that the defendant was not removedfrom his possessior by legal process as the result of either ofthem. Even had he been, there was ample time thereafter beforethis action was instituted in December, 1891, for the defendant tohave acquired a fresh title by prescription. I could not thereforeaffirm the decision for the reason of rea judicata given by thelearned District Judge.
Then there is no clear proof here that any action thereafter wasinstituted against defendant in regard to this land, the effect ofwhich would have been that the litis conteatatio or vocatio in juswould have effected a constructive or civil interruption as heldby this Court in 12,911, D. C., Kurunegala (S. C. Min., 19th July,1854) ; 9,601, D. C., Jaffna (Rdmanathan, 1862, p. 189) ; 37,705,D. C., Galle (ibid, 1877, p. 183). As to this, see the later judg-ment of this Court (2 C. L. R. 103), that with the decision ofthe suit the interruption ceases and is effaced.
As to the other disturbance, which is the entry of the plaintiffand his plucking fruitB in 1355, though on being resisted he leftthe land,it was held a disturbance of defendant’s naked possessionfor over ten years (19,802, D. C., Mitara, Legal Miscel. 1864, p. 56).I find no proof here of interruption or disturbance at any datewithin ten years of action instituted proved to have been made byplaintiff or his predecessor in title of the defendant. I do notknow who is the Peris Sinho by whom he mentions an attemptwas made to disturb him “ five or eight .years ago,” and as towhat Susey Pulle did when he “ tried to oust ” defendant and thelatter shot a man in “regular riot.” No particulars are given.It may be that not a man ever set foot on the land itself, nor thatthe defendant was a loser of a nut thereby.
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I accept entirely the verdict of the learned District Jndge that 1895.defendant has always resisted all attempts to onsthim, and I hold8
him entitled to a decree in his favour, so long as it has not been
proved and held that his possession was interrupted or disturbed. ^,THEBS» *■
I am also of opinion that judgment should have gone for thedefendant.
I am not aware of any decision of our Courts which explainsthe sense of the words “ uninterrupted and undisturbed possee-“ sion ’’ used in our Prescription Ordinances. Interruption ordisturbance might occur in different ways, according as the land. or other immovable property was the subject of a title allegedto be acquired under these Ordinances.
Possession of a land must be for a certain length of time, mustbe continuous, and must be peaceful.
Possession is interrupted if the continuity of possession isbroken by the disputant legitimately putting the possessor out ofthe land and keeping him out of it for a certain time, if thepossessor is occupying it; or by occupying it himself for a certaintime and using it for his own advantage, if the party prescribingis not in occupation.
Possession is disturbed either by an action intended to removethe possessor from the land or by acts which prevent thepossessor from enjoying the free and full use of the land ofwhich he is in the course of acquiring the dominion, and whichconvert his continuous into a disconnected and divided user.
Such, roughly speaking, are the considerations which I shouldbe disposed to look to in deciding the question whether there hasbeen such a disturbance or interruption of possession cf a landas would defeat a claim to a decree of title by prescription.
I can find in this case no evidence that the defendant was everdisturbed or interrupted in the sense above indicated within tenyears previous to the bringing of this action.
The learned judge finds on the evidence that “ the defendant“ has been residing on the land for many years, and that he has“ disputed with various claimants, and he has resisted all efforts“ to oust him.”
In another part of the judgment he says, “ defendant has all“ along resisted, and successfully resisted, dispossession.” If theactual physical possession has never been interrupted, it matters
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not that the possessor has been troubled by lawsuits, or by claimsin execution, or by violence ; if he has succeeded in holdingpossession, these attempts to oust him only make it the morecertain that he held adversely to those who disputed with him.
Until they succeed in getting the decree of a competent courton which they evict him, his possession is good as against hisopponents.
Here it is clear that the possession of the defendant has notbeen interrupted during the ten years before action. Has it beenundisturbed ? A disturbance is something less than an interruption;it is a disturbance if for a time some one succeeds in gettingpartial possession, not to the entire exclusion of the formerpossessor, but jointly with him.
In my opinion, there has been no disturbance, and I would setaside the judgment and dismiss the action with costs.