116-NLR-NLR-V-30-SURABIAL-v.-SINGAPPU-et-al.pdf
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Present: Fisher C.J. and Garvhi J.
SURABIAL v. SINGAPPU et. al.
313—D. C. AvissaweUa, 76.
.Prescription—One act of violence—Interruption of possession—Ordinance. No. 22 of 1871, s. 3.
An isolated-act of destructive violence is toot sufficient tointerrupt prescriptive possession.
A
N appeal from a judgment of the District Judge of Avissa-weUa.
Soertsz (with C. V. Ranawake), for defendants, appellants.
H. V. Perera (with Croos Da Brera), for plaintiff, respondent.
February 26,1929. Fisher C.J.—
In this case the plaintiff sued the defendants for declaration oftitle to a piece of land to which he acquired the legal .title on March8, 1924. The land lies to the north of land belonging to the firstdefendant, with which he in good faith incorporated it by puttingup a barbed wire fence on its northern boundary, and it had beenin his possession on the baste of its being part of the land to whichhe was legally entitled since July 1,1916.
On AprU 26,1926, the plaintiff forcibly destroyed the fence, and,in' the words of the learned Judge, “ forcibly cleared the junglethereon. In so doing, in the opinion of the learned Judge, theplaintiff destroyed and interrupted the possession of the firstdefendant within the meaning of section 3 of Ordinance No. 22 of1871. The learned Judge says: “He (the defendant) had hadpossession adversely to the plaintiff and his predecessors for nineyears and nine months, but the plaintiff had broken his chain. ”
The question we have to decide, therefore, is whether the learnedJudge is right in holding that the action of the plaintiff put an endto the possession of the first defendant. It is clear that .the plaintiffhaving committed the acts referred to did nothing further in thedirectlbn of taking possession. On the other hand, there is nothingto show that by reason of the acts of the plaintiffyhe first defendantwas dispossessed of or abandoned possession of the land. On thecontrary, he indicated clearly that so far as intention is concernedthe land was still in his possession and part and parcel of his own
1929
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1929 land, because on June 8, 1926, he took proceedings in the PoliceFisher C.J. Court to have the plaintiff punished for what he had done. InSurab 'aljudgment in the case of Simon Appro v. Christian Appu1
Lawrie A.C.J. said, at page 291 : “ if the actual physical possessionSingappu has never been interrupted, it matters not that the possessor has.been troubled by lawsuits, or by claims in execution, or by violence ;if he has succeeded in holding possession, these attempts to ousthim only make it the more certain that he held adversely to thosewho disputed with him. ” I think that the principle underlyingthat statement applies to this ease.
In my opinion an isolated occasion of destructive violence is notof itself enough to destroy or interrupt an existing state of thingsas regards possession. I do not think, therefore, that the learnedJudge was right in holding that the first defendant's claim of posses-sion was broken by what happened on April 26, 1926, but I thinkthat it continued at all events up to August 10,1926, when, accordingto the record of the criminal proceedings referred to, both partiesagreed " not to do anything on this land pending the civil action. ”
I would, therefore, allow the appeal and set aside the judgmentof the District Court, and order that judgment be entered for thedefendants, with costs in this Court and in the Court, below.
Gahvin J.—I agree.
Appeal allowed.
N. L. R. 2S$