SIYATHUHAMY AND OTHERS v. PODIMENIKE AND OTHERS

037-SLLR-SLLR-2004-V-2-SIYATHUHAMY-AND-OTHERS-v.-PODIMENIKE-AND-OTHERS.pdf


Siyathuhamy and others v Podimenike and others
(Fernando. J.)
323
CA
SIYATHUHAMY AND OTHERSvPODIMENIKE AND OTHERSCOURT OF APPEALFERNANDO, J.
A. No. 112/88
C. Gaile 19771/POCTCJ' El 10,2003NOVEMBE R 24, 2003
Partition Law – Co-owned land – Exclusive possession – Ousterpresumption – Adverse possession.
The plaintiff instituted action to partition the land in question. The contestingdefendants contended that the corpus was exclusively possessed by them,and that the plaintiffs had no right to the corpus. The District Court rejected thecontention of the defendants. On appeal.
HELD:
It is common ground that the land is co-owned and had remained so for avery long period. The parties in 1949 in case No. 4192 agreed to hold theland in common. Thereafter any co-owner having possession held it incommon on behalf of the other co-owners.
There cannot be prescription among co-owners unless a party is able toprove that there had been an act of ouster prior to the running ofprescription.
There is evidence of the 3rd plaintiff-respondent that since his father'sdeath in 1955, they did not possess the land and that they did not go tothe land because they feared trouble. This does not amount to ouster.
Per Fernando, J.,
“tb~ 4*h defendant-appellant did not put his adverse possession in issueat ihe l ial. His principle issue was whether K had separated off the corpusprior to 1909 – No issue had been raised whether he possessed itadversely to the other co-owners for over 10 years which is their claimnow."
APPEAL from the Judgment of the District Court of Kegalle.
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Cases referred to:
Coreav Appuhamyetal-'5NVR 65
Wickremaratne and others v Alpenis Perera -1986 1 Sri LR 150
Thilakaratne v Bastian – 21 NLR 1R
Abdul Majeed v Umma Zaneela – 61 NLR 361.
Subramanium v Sivarasa – 40 NLR 540
N.R.M. Daluwatte, P.C., with Parakrama Agalawatte for 4th defendant-appellant.
P.A.D. Samarasekera, P.C., with R.Y.D. Jayasekera for 2-5 plaintiff-respondents.
Rohan Sahabandu for 3rd. 10th and 11th, 12th and 17th defendant-respondent.
Or. Jayantha Almeida Gunaratne for 23A defendant-respondent.
Cur. adv. vult.
Editor’s Note:
See : Karunawathie and two others v Gunadasa 1996 – 2 Sri LR 406 – foridentical case where the appeal was allowed, however, the Supreme Court setaside the order, as some of the parties were not represented and remitted thecase to the Court of Appeal for re-hearing.
March 24, 2004RAJA FERNANDO, J.
This action was filed by the plaintiff for the partition of the land o-called Thennapitahena (or watta) more fully described in theschedule to the plaint. It is common ground that the corpusconsists of lots 1, 2 and 13 depicted in the preliminary plan No.3079 dated 26.04.1977.
The 19th and 20th defendants have raised issue No. 19claiming rights under Guttilahamy. The plaintiff has shown theserights in the plaint. The court has accepted those rights. The vitalclaims of all the other defendants have been answered againstthem. However none of them have appealed against the judgment, ic
Siyathuhamy and others v Podimenike and others
(Fernando, J.)
325
CA
The 4th, 16th and 22nd defendants raised issues 20-25.
The defendants’ case was that Kusalhamy had prior to 1909separated off for himself the entire corpus. This issue wasanswi. rei against them. There was another issue whether 4th and22nd defendants had acquired any rights by prescription. Thisissue too was answered in the negative.
Only 4th, 16th and 22nd defendants have appealed againstthe judgment.
At the trial the 4th defendant alone has given evidence on theirbehalf.20
The learned Counsel for the plaintiffs-respondents contendthat the principal issue of the defendants-appellants was issue No.
21, i.e. whether Kusalhamy had separated off the corpus prior to1909. It is significant that this issue was not followed by a furtherissue whether he possessed adversely to other co-owners for over10 years and whether he has prescribed to it. He further contendsthat there cannot be prescription among co-owners unless a partyis able to prove that there had been an act of ouster prior to therunning of prescription. According to the learned counsel for theplaintiffs-respondents no act of ouster has been pleaded or put in 30issue. He further states that although the 4th defendant haspleaded in the 2nd answer that Kusalhamy separated the landmany years prior to 1909 and that by deed No. 3316 dated27.07 19' 9 conveyed it to his two sons Kiribanda and Midiyanse,this deed does not disclose any claim by Kusalhamy that heseparated off any extent of land and that he possessed it as hisown. It it his contention that Kusalhamy merely recites inheritancefrom his father Mudalihamy. Mudalihamy had 4 children and thereis no way in which Kusalhamy could have inherited the whole landwhen he had brothers and sisters. He points out that Kusalhamy’s 40brother Appuhamy and Guttilahamy had inherited rights equallywith Kusalhamy. Guttilahamy’s children and Appuhamy’s childrenhad claimed those rights. The defendant’s father Kiribanda andMudiyanse became entitled to rights under the said deed No. 3316.
Kiribanda executed deed No. 886 dated 26.5.1909 (4D3) andhe gave undivided shares to the 4th defendant and others out of hisright title and interest to the land.
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The learned counsel for the plaintiffs-respondents points outthat this is a clear indication that even in 1909 Kiribanda was not
claiming to be the owner of the entirety. It is his contention thatKiribanda gave the 4th defendant a share out of whatever he hadand that is the reason why he used the words “right, title andinterest.”
The learned counsel for the plaintiff-respondent submits that in1945 a case bearing No. 4192 was filed where the question ofprescription to several lands between- the same parties wasexamined. The correct position admitted by all parties had beenrecorded in that case. He says that the 4th defendant’s fatherKiribanda was the 14th defendant and the plaintiff’s father
Burampy Appuhamy (named as Brampi Singho in that case) beingthe 11 th defendant in that case. He contends that the 4th defendantand the plaintiffs being the successors of the aforesaid Kiribandaand Brampi Appuhamy are bound by the admission and settlementrecorded in that case. In that case it is recorded what lands are heldin common by the co-owners. He says that in that listThennapitahenawatta is now the subject matter of the instantaction.
The learned counsel for the plaintiffs-respondents contendthat this settlement does not show that Kusalhamy a son ofMudalihamy had separated off the corpus of the present action 80years prior to 1909. It is further contended that the 4th defendant orother defendants do not refer to any event which brought about atermination of the common ownership which Mudalihamy hadadmitted in 1949. It is settled law that a co-owner's possession isin law the possession of all other co-owners. It is not possible forhim to put an end to that possession by any secret intention in hismind. Nothing short of ouster or something equivalent to oustercould bring about that result (Corea v Appuhamy^0 et.al.)
The same principle has been repeated in Wickremaratne andothers v Alpenis PereraS2>
It was contended on behalf of the defendant-appellants thatthere could be a presumption of ouster from long continuedpossession as was laid down in the case of Thilakaratne vBastian.M
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Siyathuhamy and others v Podimenike and others
(Fernando, J.)
327
The position of the learned counsel for the plaintiffs-respondents is that this case dealt with a property which was usedfor plumbago mining and one co-owner was taking out all thevaluable plumbago from the land and appropriating it to himselfwithout any objections from the other co-owners.
The applicability of the principle of presumption of ouster wasconsidered by a Bench of three judges. Abdul Majeed v UmmaZaneela(A).n that case it was held that the principle of presumptionof ouster is an exception to the General Rule which has to beapplied with great care. However the learned counsel for thedefendants-appellants cites the case of Subramanim v Sivarasaf-5)where one co-owner has been in possession for a long time. In thatcase all the co-owners lived in the neighbourhood of the premisesin dispute. The co-owners in possession took the produce from theland exclusively.
The plaintiffs evidence that he cut green leaves from the landonce in 3 years was rejected. The court held that in that case whereone entf?rs and takes the profits exclusively and continuously for avery long period of time under circumstances which indicates adenial of a right in any other to receive them as by not accountingwith the acquiescence of the other co-owners an ouster may bepresumed.
In that case the Court held that the proper inference on thefacts is that the defendant has acquired a prescriptive title to theland in question and dismissed the plaintiff’s action.
The learned counsel for the defendant-appellants submits thatthe evidence of the 3rd plaintiff shows that Podinona is possessingthe plantations. He refers to the item of evidence of the 3rd plaintiffthat they did not possess after their father’s death in 1955. Inanswer to Court he said that the defendant caused trouble. He hasalso stated that from 1955 these people did not give possession.
The learned counsel for the defendant-appellants submits thatthe third plaintiff has specifically stated that the fourth defendantpossessed the land in suit by force. He further states that theoriginal owners Mudalihamy, Yahapathhamy and Tikiri Appuexchanged lands on a word of mouth arrangement and on that basisMudalihamy possessed Thennapitahena (i.e. the corpus in suit).
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Mudalihamy is the predecessor in title to the 4th defendant thefather of Mudalihamy who transferred the land in suit to Kiribandaand Mudiyanse by 4VI of 1909. Kiribanda is the father of the 4thdefendant and 16th defendants. On Mudiyanse’s death he becamethe sole owner.
According to the learned counsel for the defendant-appellantsthe 3rd plaintiff has given further evidence to show that lands wereexchanged by Mudalihamy,Yahapathhamy and Tikiri Appu by wordof mouth and he was specific that they exchanged the landsintending to possess as sole owners. The learned counsel for thedefendant-appellants submit that notwithstanding the settlement inCourt in 1949 Bramy Appuhamy and his children did not upset thelong standing possession of Podi Nona her father and grand-father.
The learned District Judge has concluded in his judgment thatthe defendants have not discharged their burden of proving thatthey prescribed to the land in suit.
It is common ground that the land in suit is co-owned and hadremained so for a very long period. The parties have in 1949 incase No. 4192 agreed to hold the land Thennapitahenawatta thesubject matter of the present case in common. Thereafter any co-owner having possession held it in common on behalf of the otherco-owners. The issue then is since 1955 after the death of the 3rdplaintiff-respondent’s father the 4th defendant-appellant possessedthe property adversely and to the exclusion of the other co-owners.
There is the evidence of the 3rd plaintiff-respondent that sincehis father’s death in 1955, they did not not possess the land andthat they did not go to the land because they feared trouble. Doesthis amount to an ouster and adverse possession by the 4thdefendant-appellant. At the point one has to consider the positiontaken up by the 4th respondent-appellant before the Surveyor.According to the surveyor’s report marked XI the 4th defendantwho was present had claimed the bud rubber plantation in lot 2 andall the other plantations have been claimed in common by theparties. This would amount to the 4th defendant-appellant admittingthat other than lot 2 the rubber plantation the rest of the plantationbelonged in common.
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Bogawantalawa Plantations Ltd. v Minister of Public
CA Administration, Home Affairs & Plantation Industries (Marsoof, J.) 3
Another factor that has to be considered is that the 4thdefendant-appellant did not put their adverse possession in issueat the trial. The 4th defendant-appellant's principal issue was issue 17021 which read “whether Kusalhamy had separated off the corpusprior to 1909." But no issue has been raised whether he possessedit adversely to the other co-owners for over 10 years which is theirclaim now. issue No. 21 has correctly been answered in thenegative in view of the settlement entered between the parties(their predecessors) in D.C. 4192 on 14.2.1949.
In all the circumstances of this case I do not see any error inthe findings of the learned trial judge. Therefore the appeal of the4th, 16th and 22A defendants-appellants is dismissed. I make noorder lor costs.180
Appeal dismissed.
IAs Edirisuriya has since retired parties agree that judgement bedelivered by Raja Fernando J.j