040-SLLR-SLLR-1994-V2-SIRAJUDEED-AND-TWO-OTHERS-V.-ABBAS.pdf
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Sirajudeen and Two Others v. Abbas
365
SIRAJUDEEN AND TWO OTHERS
v.
ABBAS
SUPREME COURT.
G.P. S. DE SILVA, C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 45/93.
C.A. NO. 282/86 (F).
D C. KANDY NO. L10357.
MARCH 01,02 , APRIL 29, 30 & 31.
MAY 30. 31 AND SEPTEMBER 13,14 AND 30.1994.
Vindicatory suit – Prescriptive title – Prescription Ordinance, section 3 – Burden ofproof – Mode of proof.
Where the evidence of possession lacked consistency, the fact of occupation.alone or the payment of Municipal rates by itself is insufficient to establish'prescriptive possession.
: Where a party invokes the provisions of section 3 of the Prescription Ordinance inorder to defeat the ownership of an adverse claimant to immovable property, theburden of proof rests squarely and fairly on him to establish a starting point for hisor her acquisition of prescriptive rights.
A facile story of walking into abandoned premises after the Japanese air raidconstitutes material far too slender to found a claim based on prescriptive title.
As regards the mode of proof of prescriptive possession, mere generalstatements of witnesses that the plaintiff possessed the land in dispute for anumber of years exceeding the prescriptive period are not evidence of theuninterrupted and adverse possession necessary to support a title byprescription. It is necessary that the witnesses should speak to specific facts andthe question of possession has to be decided thereupon by Court.
One of the essential elements of the plea of prescriptive title as provided for insection 3 of the Prescription Ordinance is proof of possession by a title adverse toor independent of that of the claimant or plaintiff. The occupation of the premisesmust be of such character as is incompatible with the title of the owner.
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Cases referred to:
Ahamed Thajudeen v. M. N. M. Pathumuttu Natchiya and Others 57 CLW57,59.
Hassan v. Romanishamy66 CLW 112.
Chelliah v. Wijenathan 54 NLR 337.342.
Peynis v. Pedro 3 SCC 125.
APPEAL from judgment of the Court of Appeal.
N. R. M. Datuwatte P.C. with A R. M. Kaleelfor defendant-appellants.
K. Kanag-lsvaran P.C. with Harsha Cabraal, Chandaka Jayasundera. M A.Sumanthiran and S. Mahenthiran for plaintiff-respondent.
Cur. adv. vult.
October 10,1994.
G.P.8.DE SILVA, CJ.
The plaintiff instituted these proceedings seeking a declaration oftitle to the premises in suit, namely No. 10, Yatinuwara Patu Mawatha,Kandy, and for the ejectment of the defendants. The date of actionwas 15.5.73. After trial, the District Judge dismissed the plaintiff’saction. The plaintiff appealed to the Court of Appeal which set asidethe judgment of the District Court and entered judgment for theplaintiff. The defendants have now preferred an appeal to this court.
The plaintiff’s case was that he purchased this property along withpremises No. 8 of Yatinuwara Patu Mawatha, Kandy on the deed P1dated 30.11.71 from Saharuban Bee Bi (hereinafter called Bee Bi). InP1 there is the recital of the vendor's title namely, (i) that it was jointlyowned and possessed by her father and his brothers; (ii) that at adivision of the houses and premises jointly owned by her father andher brothers, premises No. 10, and No. 8 (as well as some otherpremises) were allotted to Bee Bi and her sister Salha Natchiya astheir father’s share; (iv) that Bee Bi entered into exclusive possessionof premises Nos. 8 and 10; (v) that in consideration of a sum ofRs. 3000/- she was transferring to the plaintiff premises Nos. 10 and8. Apart from the oral evidence of the plaintiff, cogent documentary
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evidence of sound probative value was placed before the DistrictCourt in support of the title asserted by Bee Bi in the recitals in P1.The relevant issues were issues (1) and (2) which read as follows:
Did the person called Bee Bi have title to the land andpremises described in the schedule to the plaint?
Did the abovenamed Bee Bi by Deed No. 4363 dated30.11.71 (i.e. P1) sell and transfer the aforesaid land andpremises to the plaintiff?
Both issues were answered in the affirmative by the District Judgewho went on to hold that the title conveyed on P1 was “amplyproved" and was in fact not challenged.
The Court of Appeal affirmed the finding of the trial Judge onissues (1) and (2). Thus the concurrent findings on the issue of titleare clearly in favour of the plaintiff. This court in granting thedefendants special leave to appeal specifically stated, “special leaveto appeal is granted only on the question whether the Court ofAppeal was justified in reversing the finding of the District Court onthe question of prescription in favour of the 1st defendant.”
i
’ The defendants filed a joint answer on 6.9.74. The 1st defendantpleaded that he has been in possession of the said premises No. 10for a period of over 15 years and acquired a prescriptive title thereto;he further averred that he was the owner of the adjoining premisesNos. 8, 12 and 14 as well. The 2nd defendant took up the positionthat he was a tenant under the 1 st defendant. Since the legal title tothe premises in suit (No. 10) was in the plaintiff (a matter which couldnot have been challenged and was not challenged at the hearingbefore us) the burden of establishing the plea of prescriptive title wasclearly on the 1st defendant.
, As observed by K. D. de Silva, J., in Ahamed Thajudeen v.M. N. M. Pathumuttu Natchiya and Others(1). “The burden of proof ofprescription depends on the question of legal ownership.* The Courtof Appeal held that the 1st defendant had failed to discharge theburden, and reversed the finding of the District Judge in his (1stdefendant's) favour. The question for consideration on this appeal is
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whether the Court of Appeal was correct in holding against the 1stdefendant on his plea of prescriptive title.
What then is the evidence led on behalf of the 1st defendant toestablish his claim of prescriptive title to the premises in suit?According to the 1st defendant, he came into occupation of premisesNo. 10 in June 1947, He found these premises (and the adjoiningpremises Nos. 8, 12 and 14) abandoned after the Japanese air raid.On the advice of his elder brother, he effected repairs and went intooccupation of premises No. 10. He then commenced to run abusiness on these premises. In proof of occupation of premisesNo. 10, he relied strongly on 1D1, 1D3 and 1D11. However, a scrutinyof these documents do not support the 1st defendant's evidence ofoccupation from 1947, as submitted by Mr. Kanag-lsvaran, counselfor the plaintiff respondent. 1D1 relates to a notification dated 1.9.69under section 7 of the Business Names Ordinance in respect ofcages 6 and 8. The changes notified relate to the name of theindividual and the nationality of the individual. 1D3 is a similardocument dated 4.5.56. It indicates changes in cages 3 and 8, thatis, the place of business and the nationality of the individual. 1D3 isclear proof of the fact that the 1st defendant’s business (LailaIndustrial Works) shifted to the premises in suit in February 1956 andnot in 1947 as claimed by the 1st defendant in his evidence. 1D11 isthe Certificate of Registration under the Trade Marks Ordinance and itshows that as on 28.12.54 the 1st defendant was carrying on hisbusiness at 29, Brownrigg Street, Kandy, and not at the premises insuit. It is significant that the 1st defendant failed to produce thecertificate relating to the original registration of his business. Thiswas the vital document which could have supported his oralevidence, if in truth he was in occupation of the premises from 1947.The documents he has marked in evidence (1D1,1D3 and 1D11) arecontradictory of his oral evidence of possession from 1947. It is to benoted that his oral evidence is that his residence and his place ofbusiness were the same at all times.
Besides, there is no consistency in his claim in regard to theperiod of his occupation of the premises in suit. In his original answerdated 6.9.74 he pleaded prescriptive possession for a period of over15 years. In his amended answer of 13.10.80 he averred that he was
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in possession as owner for 33 years. In his further amended answerof 10.11.81, he claimed that he possessed the premises as owner forover 36 years. Thus it would appear that his case in respect of theperiod of possession varied from answer to answer. This naturallyaffects the credibility of his story of occupation from 1947.
Furthermore, the issues raised on behalf of the 1st defendant inthe course of trial show a disturbing lack of consistency in the caseas presented before the court. These issues read as follows:
(1) Are the premises in suit subject to the provisions of the
Rent Act?
(13) If so, can the plaintiff maintain this action as constituted
; presently?
Has the plaintiff considered the 1st defendant as his
tenant?
■ (15) If so, can the plaintiff maintain this action?
If the 1st defendant’s case is that by virtue of prescriptivepossession he is the owner of the premises (as specifically pleadedin the answer, the amended answer and the further amended answer)what is the need to invite the court to hold that he was “protected"tenant under the plaintiff, and thus secure “the dismissal of theplaintiff’s action for ejectment.” The irreconcilable position mademanifest by these issues casts grave doubt on the 1st defendant'sstory of occupation of the premises in his own right as owner from1947. In my view, the effect of these issues tells heavily on his caseas presented at the trial.
The one item of evidence on which the 1st defendant relied tosustain his plea of prescriptive possession was the payment of ratesto the Municipal Council. The witness Vapa, attached to the MunicipalCouncil, Kandy, was called to identify the receipts for the payment ofrates marked 1D5 to 1D10 and 1D18 to 1030. The earliest receipt1018 was dated 31.1.62. It is to be noted that Yapa in crossexamination admitted that “rates can be paid by the tenant or the
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owner of the house or by any other person.” On this point theobservations of Basnayake, C.J. in Hassan v. Romartishamy, |J> areintensely relevant; “The payment of rates is by itself not proof ofpossession for the purpose of section 3, for rates can be tendered bya tenant or one occupying any premises with leave and licence of theowner or by any other person.” The payment of rates therefore doesnot advance the case of the 1st defendant any further.
Mr. Daluwatta for the defendants appellants strongly urged thatapart from the oral evidence of the 1st defendant and the document1D11, the plaintiff himself admitted that the defendant was inoccupation of the premises from at least 1953. But what needs to bestressed is that the fact of occupation alone would not suffice tosatisfy the provisions of section 3 of the Prescription Ordinance. Oneof the essential elements of the plea of prescriptive title as providedfor in section 3 of the Prescription Ordinance is proof of possession“by a title adverse to or independent of that of the claimant orplaintiff.” In other words, there must be proof that the 1st defendant’soccupation of the premises was of such character as is incompatiblewith the title of Bee Bi and her predecessors in title. In the presentcase, there is a conspicuous absence of evidence of “adverse*possession. The trial Judge has altogether failed to appreciate thissignificant weakness in the 1st defendant’s case. It seems to me thathe has not properly addressed his mind to the important fact that theburden is definitely on the 1st defendant to establish his plea ofprescriptive title.
There is another relevant aspect of the plea of prescriptive titlewhich was overlooked by the trial Judge. That principle is best statedin the words of Gratiaen, J. in Chelliah v. Wijenathan m, “where a partyinvokes the provisions of section 3 of the Prescription Ordinance inorder to defeat the ownership of an adverse claimant to immovableproperty, the burden of proof rests squarely and fairly on him toestablish a starting point for his or her acquisition of prescriptiverights.* Mr. Daluwatta relied on 1D1 as the starting point ofprescription. As already stated, 1D1 is of little or no avail to the 1stdefendant's case. In my view, the 1st defendant has failed toestablish a starting point for his acquisition of prescriptive title. Thistoo is another important lacuna in the 1st defendant's case.
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On a consideration of the totality of the evidence led in support ofthe 1st defendant's case, all that we are left with is the facile story ofwalking into abandoned premises after the Japanese air raid. Thematerial is far too slender to found a claim based on prescriptive title.Mr. Kanag-lsvaran for the plaintiff respondent relevantly cited thefollowing passage from Walter Pereira’s Laws of Ceylon, 2nd Edition,page 396. "As regards the mode of proof of prescriptive possession,mere general statements of witnesses that the plaintiff possessed theland in dispute for a number of years exceeding the prescriptiveperiod are not evidence of the uninterrupted and adverse possessionnecessary to support a title by prescription. It is necessary thatthe witnesses should speak to specific facts, and the questionof possession has to be decided thereupon by court. Peynis v. Pedro ffl.In the present case there is a significant absence of clear andspecific evidence on such acts of possession as would entitle the 1stdefendant to a decree in his favour in terms of section 3 of thePrescription Ordinance.
. In this view of the matter, it is unnecessary for me to consider theseveral other submissions made by Mr. Kanag-lsvaran, as affectingthe credibility of the testimony of the 1st defendant; nor is itnecessary to consider the conduct of the 1st defendant in relation tohis claim of ownership to premises Nos. 8, 12 and 14 which are inclose proximity to the premises in suit.
In the result, the judgment of the Court of Appeal is affirmed, andthe appeal is dismissed with costs.
KULATUNGA, J. -1 agree.
RAMANATHAN, J. -1 agree.
Appeal dismissed.