SIRIYAWATHIE v. ALWIS AND OTHERS

052-SLLR-SLLR-2002-V-2-SIRIYAWATHIE-v.-ALWIS-AND-OTHERS.pdf


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SIRIYAWATHIE
V.ALWIS AND OTHERS
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J.
CA NO. 114/92 (F)
DC COLOMBO NO. 13947/PNOVEMBER 28, 2000DECEMBER 05, 2000
Prescription Ordinance -S. 3 – Presumption of Ouster – Overt acts – Acquisitionof prescriptive title.
The plaintiff-respondent sought to partition the land in question. The 9th defendant-appellant sought the dismissal of the action on the ground that he has acquiredprescriptive rights to the entire land. The appellant was adopted by the originalowner E without a formal order of adoption. After E died in 1969, his wife leftthe house leaving behind the appellant, and lived with her nephew, the plaintiff-respondent.
District Court dismissed the 9th defendant's claim.
On appeal -Held:
The appellant has prescribed to the land as seen from –
Continued possession of the corpus after the death of E and from 1969after the widow left the corpus.
Planting with coconuts, etc., and enjoying the produce.
Friends and relations arranging a marriage in 1970, with the marriageceremony being taken in the house and premises in suit.
The widow of E not attending the marriage ceremony.
Building extensions, effecting repairs, renting a portion of the house in 1970.
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Slriyawathie v. Alwls and Others (Dissanayake, J.)
385
Continued possession after marriage.
Payment of rates and taxes from 1973.
Long and undisturbed possession of the corpus been corroborated by theevidence of the Grama Sevaka.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to :
Hamidu Lebbe v. Ganitha – 27 NLR 33.
Anthonisz v. Cannon – 3 CLR 65.
Government Agent, Western Province v. Perera – 11 NLR 337.
Maduranwela v. Ekneligoda – (1898) 3 NLR 213.
Orloff v. Grepe – 1907 – 10 NLR 183.
Lebbe Marikkar v. Sainu – 1907 – 10 NLR 339.
Alwis v. Perera – 21 NLR 321.
THakaratne v. Bastian – 21 NLR 12.
De Silva and Others v. Seneviratne and Another – 1981 2 SLR 7.
P. A. D. Samarasekera, PC with Wijedasa Rajapakse for 9th defendant-appellant.P. L. Gunawardena for defendants-respondents.
Cur. adv. vult.
June 29, 2001
DISSANAYAKE, J.
The plaintiff-respondent by his plaint dated 22. 02. 1979 and amended 1subsequently instituted action to partition the land calledDiyabethmeovita, morefully described in the schedule to the plaint,and depicted as lot 1 in the preliminary plan No. 2195 dated03. 07. 1979 made by Licensed Surveyor A. F. Sameer.
The 9th defendant-appellant in her statement of claim whilst denyingthe claim of the plaintiff-respondent sought the dismissal of the action
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on the ground that he has acquired prescriptive rights to the entireland.
The case proceeded to trial on 8 points of contest.
At the conclusion of the trial the learned District Judge by hisjudgment delivered on 23. 04. 1992 dismissed the 9th defendant-appellant's claim and directed to enter an interlocutory decree topartition the land as prayed for in the plaint.
It is from the aforesaid judgment that this appeal is preferred.
Learned President's Counsel appearing for the 9th defendant-appellant contended that the learned District Judge has misdirectedherself in rejecting the evidence of the 9th defendant-appellant. Hesubmitted that her evidence was based mainly on facts admitted inevidence by the plaintiff-respondent and corroborated by documentaryevidence.
The plaintiff-respondent's case was presented on the basis thatElabodage Juwanis Perera was the original owner of the corpus whoby deed No. 6987 dated 12. 09. 1907 (P1) gifted 1/2 share of thecorpus to his two children Elabodage Babasingho Perera and ElabodagePunchinona Perera and on the death of Juwanis Perera, Babasinghcand Punchinona Perera became entitled to the other half share.
The said Punchinona Perera and her husband A. K. John Perera,by deeds bearing No. 3577 dated 27. 06. 1917 (P2) and No. 11075dated 18. 02. 1928 (P3) transferred their rights to Eliyas Perera.
The aforementioned Elabodage Babasingho who entered theBuddhist Priesthood in the name of Subonanda transferred his 1/2share by deed No. 1911 dated 12. 11. 1931 (P4) to the said EliyasPerera who thereby became the owner of the entirety of the corpus.
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Thereafter, Eliyas Perera died intestate and the estate wasadministered in the District Court of Colombo in case No. 24834/Tand by administration and by deed No. 2297 dated 15. 11. 1975 (P5)the widow of Eliyas Perera, Engaltina Perera became entitled to1/2 share of the corpus. The balance 1/2 share devolved on the otherbrothers and sisters of Eliyas Perera and their children.40
Engaltina Perera by deed No. 396 dated 06.04.1997 (P6) transferredher 1/2 share to the plaintiff-respondent.
It is common ground that Eliyas Perera was married to EngaltinaPerera and they did not have children, and the 9th defendant wasadopted by them without a formal order of adoption.
It is also common ground that Eliyas Perera died in 1968, andthat after the 3rd month almsgiving Engaltina Perera left the housein 1969 leaving behind the defendant-appellant and lived with theplaintiff-respondent who was her nephew, at No. 85, KajugahawattaRoad, Gothatuwa, Angoda.
The 9th defendant-appellant was not made a party to this action soat the time it was instituted. But when surveyor Sameer prodeededto the land to survey the corpus the 9th defendant-appellant madea claim to Lot No. 1 which included the house and the plantationsand thereafter she was added as a defendant.
The case of the 9th defendant-appellant was that since her de factoadoption by Eliyas and Engaltina Perera she lived with them in thecorpus and 3 days after the death of Eliyas Perera in 1968 EngaltinaPerera left the house and never returned. The 9th defendant-appellantcontinued to live in the house. The 9th defendant-appellant soughtto assert that she pointed out to the surveyor the land, the plantations 60planted by her and the late Eliyas Perera who adopted her.
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She asserted, that after her marriage she made improvements tothe house by building 3 extensions to the house. She further assertedthat she effected repairs to the roof and the well and lavatory, etc.
Since the 9th defendant-appellant was only a de facto adopted childof Eliyas Perera and does not get any rights on the death of EliyasPerera, it is necessary to examine whether the 9th defendant-appellanthas acquired prescriptive rights to the property in suit.
In examining this question, it is necessary to bear in mind, thata person who has commenced possession in a subordinate and a 5 * 7°dependant character, cannot claim to be adverse user of the property,until by ouster he changes his subordinate or dependant character.
It is of significance to observe that the following circumstances fromthe conduct of the 9th defendant-appellant give rise to the presumptionof ouster against Engaltina Perera and her successors in title.
The continued possession of the corpus by the 9th defendant-appellant after the death of Eliyas Perera in 1968, and from1969 after Engaltina left soon after the 3rd month almsgiving.
Planting the corpus with coconuts, king coconuts, and other
plantations and enjoying the produce.so
Friends and relatives arranging a marriage for her in 1970,and the marriage ceremony being taken in the house andpremises in suit.
That Engaltina Perera while living at Angoda with her nephewthe plaintiff-respondent not attending the wedding ceremony.
(5)Building 3 extensions to the house, effecting repairs to the
roof, lavatory, the old well, and renting a portion of the house
in 1970.
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The continued possession of the corpus after the marriage,
as evidenced by birth certificates of children.90
Payment of rates and taxes to the Mulleriyawa Town Councilfrom 1973 to 1983 as evidence by the tax receipts producedmarked 9 V18 to 9 V35.
The 9th defendant-appellant's long and undisturbed possession ofthe corpus has been corroborated by the evidence of Ranjith Perera,the Grama Sevaka of Mulleriyawa.
In Hamidu Lebbe v. GanithaP> where a co-owner of land soughtto establish a prescriptive title against another by reason of long andcontinued exclusive possession, it was observed, that it depends onthe circumstances of each case whether it is reasonable to presume 100an ouster from long continued exclusive possession.
In the case Anthonisz v. Cannon® where one of the issues waswhether the plaintiff had established a title by prescription to a house,twenty-five years before the action was brought, the plaintiff hadobtained her father's permission to occupy the house. She and herhusband lived in the house by themselves until the latter's death someseventeen years previous to the action. Since her husband's death,the plaintiff lived in the house continuously. Her version was that sheoccupied the house rent free, that she repaired it from time to timeat her own expense and that she paid the Municipal taxes on account noof it. Bonser, CJ. and Withers, J. held that a person who has beenin possession of land belonging to another for 10 years previous tothe institution of an action in terms of section 3 of the OrdinanceNo. 22 of 1871 acquires title by prescription, even though his possessionoriginally commenced with the permission of the owner. Withers, J.at page 67 paraphrased section 3 of the Prescription Ordinance asfollows: "Once given exclusive power to deal with immovable property,if that power is continuously exercised without disturbance andinterruption and without any act of acknowledgement of another’s title
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for ten years previous to action brought the animus possidendi shallbe imputed to him who has so exclusively exercised that power, ifhe chooses to claim the property for himself, and a decree shallbe awarded him accordingly."
In the case of Government Agent, Western Province v. PereraFwhere the usufructuary mortgagees of land purchased the same ata sale by the fiscal under a subsequent mortgage and claimed toset off the amount due on their mortgage against the purchase money,and did not obtain any Fiscal's transfer, but possessed the land forover ten years. It was held that the usufructuary mortgagees hadacquired title by prescription to the land, inasmuch as after theirpurchase at the Fiscal's sale, the character of the possession changedover thereafter they must be considered to have passed ut dominiand not quo-mortgagees. Woodrenton, J. at page 343 has stated thus:"Where a person who has obtained possession of the land of another,in a subordinate character, for example, as tenant or mortgagee, seeksto utilize possession is the foundation of a title by prescription, hemust show that by an overt act, known to the person under whomhe possess, he has got rid of his subordinate position." VideMaduranweia v. Ekneligoda,m Orioff v. Grepe,(S) Lebbe Marikkar v.Sainu.<e>
In the case of Aiwis v. PereraF following Tiiakaratne v. BastianFwhere a person transferred his lands to certain family connections,but continued in possession till date of action (sixty years), theSupreme Court held, (in the circumstances) that the possession wasnot permissive, but that it should be presumed to have becomeadverse.
Therefore, I am of the view that in the circumstances, the 9thdefendant-appellant, by an overt act or by a series of overt actscoupled with her long, undisturbed and uninterrupted possession whichamounted to adverse possession as against the plaintiff-respondent,his predecessor in title Engaltina Perera and the other defendant-
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respondents, has acquired prescriptive title by adverse possession ofthe corpus.
Therefore, it would appear that the learned District Judge misdirectedherself in her judgment when she rejected the 9th defendant-appellant'sevidence.
I am not unmindful of the principle that an appellate Court shouldbe slow to disturb the finding of a fact by a trial judge who had thebenefit of observing the witness herself. However, if according to ananalysis of the facts, it is seen that the trial judge has not deligently ieoaddressed her mind to the evidence before her as in this case, thenthis Court is duty bound to reverse such a finding (vide the decisionin De Silva and Others v. Seneviratne and Another.®
For the above reasons the judgment of the learned District Judgecannot be allowed to stand.
Therefore, I set aside the judgment and interlocutory decree enteredon 23. 04. 1992.
The appeal is allowed with costs.
WEERASURIYA, J. – I agree.
Appeal allowed.