TAMEL et al. v. ANOHAMY et al

120-NLR-NLR-V-19-TAMEL-et-al.–v.-ANOHAMY-et-al.pdf


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[Privy Council]
Present: Lord Buckmaster, Lord Parker of Waddington, LordSumner, Lord Parmoor, and Sir Walter Phillimore, Bart.
TAMEL et al. v. ANOHAMY et al.
Prescription—Interruptionby unsuccessfulactions-—Possessionby a
person under a planting agreement—Adverse possession.
An unsuccessful action by an owner of land against a trespasserin possession does not interrupt the running of prescription.
Plaintiffs’ predecessorsin title, who wereOwners ofthe'land in
question, entered intoaplantingagreement in 1872with one
Pelis, by which hewas to plant the land, andat theendofeight
years should get half the trees without the soil, the landownersgetting the remaining half and the entire soil.
The land was leasedonDecember30, 1879,to Gabriel(father of
Pelis), Mathes (brotherof Pelis), and thesixth defendantfor one
year. Pelis wasthen in jail. In 1888 plaintiffs' predecessors in
title brought an action against Gabriel, Pelis, Mathea, and otherbrothers *' ofPelis (predecessors intitle of presentdefendants),
averring- that they' haddispossessed themonNovember7,1887.
The plaintiffs in thisease were orderedto amendtheirplaint,
and as they failedto doso, the case was struck outforwant of
prosecution.
On October 20,1902,plaintiffs broughtapaHttfonaction.The
widow and children ofPelis' (defendants 1to 6) andseven others
{predecessorsin title of the present defendants 6 to 14) were
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defendants in the partition action. This actio was dismissed, withliberty to bring an action for declaration of title to ' the land. ‘ Theplaintiffs thereupon brought – the present action for declaration oftitle.
Held, that in the circumstances of this case the defendants hadacquired a title by prescription to the land.
fjp&E facts are set out in the judgment.
March 27, 1917. Delivered by Sir Walter Phillimore, Bart.: —
This is an appeal from a judgment of the Supreme' Court of'theIsland of Ceylon reversing a judgment of the District Judge.
The appellants are three of the four plaintiffs in the case. Theaction was brought on June 19, 1912, for a declaration that theywere entitled to certain shares on a coconut plantation, and forpossession and damages. There were twenty-one defendants tothe action, but of these only the first fourteen were concerned in *resisting the plaintiffs’ claim, and they are the present respondents.
The case made by the plaintiffs was as follows. They deduce^title from one Thambi Vidhane, who had been seized and possessedof the land in question at least sixty-five years before the action,from him through his daughter Maria, and thenceforward by variousinstruments of partition and conveyance. They stated that onFebruary 15, 1872, the then owners, successors in title to ThambiVidhane and predecessors of the plaintiffs, entered into a plantingagreement with one Palis, or Pelis Appu, by which Pelis was to plantthe land, so far as it was unplanted, with coconut trees, and at theend of eight years should get half the trees without the soil, the*landowners getting the remaining half and the entire soil. Theyset forth a subsequent lease of December 80, 1879, for one year toone Gabriel, father of Pelis, and one Mathes, a brother of Pelis, andthe sixth defendant. They complained that the fourteen defendantshad been since the mqnth of June, 1908, in forcible and wrongfulpossession of the plaintiffs’ shares in the land, and they soughtrelief accordingly.
The fourteen defendants, with whom alone this appeal is con-cerned, disputed the plaintiffs’ title,' set tip an adverse title underthe wife of Gabriel, father of Pelis, and said that the alleged agree-ment and lease were forgeries. They further pleaded that theyand their predecessors in title bad been in undisturbed and uninter-rupted possession for the period of more than ten years by a titleadverse to and independent of the plaintiffs, ten years being the:term of prescription provided by section 3 of the Ordinance No. 22"of 1871.-
At the trial the District Judge found in favour of the plaintiffs"title, and believed that the planting agreement and lease weregenuine, -and so found. His findings in this respect were nob
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Tatnel v.Anohamy
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■disagreed with by the Judges of the Supreme Court, and their 1917..Lordships accordingly accept them. This leaves for decision g,^ witmmthe question upon which the Supreme Court differed from the PHnimoMDistrict Judge, that is, the issue raised by the defendants’ plea Tamd v.of prescription.*Anohamy
As has been already stated, the plaintiffs relied in the presentproceedings upon an ouster by the defendants in June, 1908. Lfthe plaintiffs had been in possession till that date, or having been putout of possession previously, had been again restored to possessionand not finally ousted till that date, their action' was brought intime, and the plea of prescription failed. But the facts are notso simple. Under the planting agreement, as already stated, onthe expiry of eight years the possession given to the planter for thepurpose of planting would oome to an end, and the land was to bedelivered over to the owners and then to be divided into two. The■owners would have to give to the planter the trees of one half sharealone without the soil, as and for his planting compensation, andkeep the rest. This should have come to pass-' on or about February15, 1880. The lease for one year, made shortly before this 'date,was said by the plaintiffs to have been made to the father andbrother of Pelis, to enable them to do their best for Pelis and hisfamily, Pelis being then in jail under sentence for a term of nineyears. At the latest, therefore, the plaintiffs ought to have beenin possession by the year 1881. There is no definite informationas to what actually ~happened.But in 1888 their predecessors in
title, together with the present sixteenth and eighteenth defendants,brought an action against Gabriel, Pelis, Mathes, and other brothersof Pelis, who, or their successors in title, are the present defendants,averring that the defendants had dispossessed them on November7, 1887.
To the libel then filed by the plaintiffs there was a demurrer uponvarious grounds, one of them being want of parties. It is immaterialto state how the defect arose, but upon this ground the demurrer wasupheld and the plaintiffs were given leave to amend their libel.
They did not appeal from the decision on the demurrer, and theydid not amend their libel. After the expiration of a year and a daythe case was struck out for want of prosecution, according to theprovisions of the Code of Civil Procedure. So far there was anadmission of ouster dating as far back as November 7, 1867.
The plaintiffs sought to get rid of their difficulty by allegingthat further proceedings became unnecessary, because both partiesremained in possession by amicable arrangement, the defendantsagreeing to take half of their own plantation, and the plaintiffs-taking the other half of the new plantation and the whole of theformer plantation, consisting of sixteen poconut trees and four jak ,trees. This was one of .the matters of fact that had to he determinedat the trial.
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1417. On October 20, 1902, the plaintiffs and certain other persons;
Sat Walter not now parties, but claiming in the same right, brought a partitionPhxlxjicokb action, making gome persons claiming in the same right as themselves,.
Tamei v. an<i the widow and children of Pelis (now the first five defendants)Anohamy and certain other persons defendants. To these defendants therowere added, by order of the Court, seven other defendants, whoare, or are represented in interest by, the other nine presentdefeudants.
In this action the plaintiffs averred title as before, and set up theplanting agreement, and prayed for a partition, both as betweenthemselves and the defendant landowners and as between themselvesand the defendants who represented the planters. There is nopleaded defence among the papers, but the District Judge who triedthe case evidently had before him the same case for the defendantsas that which they now make; and, without deciding the otherissues, he came to the conclusion that the plaintiffs had never beenrestored to possession since November 1-, 1887; that the defendantshad Been in possession of the land in dispute for at least the lastfifteen years; and that the plaintiffs were taking undue advantageof certain benefits which attach to an action of partition. And hedismissed the action.
From this judgment there was an appeal to the Supreme Court,'which, on May 23, 1905, dismissed the appeal, reserving to theappellants, or any of them, liberty to bring, if they should be soadvised, an action to vindicate their title to the land. Thereupon,after further delay, the present action was brought.
The plaintiffs asserted (paragraph 25 of the plaint) that after thepartition action and the appeal had been dismissed they recoveredpossession of their shares, and retained possession till June, 1908.This is the second issue of fact which had to be determined.
Whatever presumption there may be against a title by adversepossession when set up by a tenant against his landlord—particularlya tenant under a planting agreement such as the present—thispresumption would only apply against Pelis and those claimingunder him, that is, the first five defendants. The remaining de-fendants, who are brothers of Pelis or persons claiming under them,have no concern with the planting agreement. Their possession,was entirely wrongful and adverse to the plaintiffs. This must notbe forgotten in considering the judgment of the District Judge.
The evidence tendered by the plaintiffs upon the issues was, first,that of Manuel Fernando, the eighteenth defendant, having the sameinterests as the plaintiffs. He was examined twice: first, before aprevious District Judge, and then before the District Judge whotried the action. Objection was taken at the trial to the admissionof his first deposition. And it would appear as if the trial Judgeshad rejected it, and confined himself to the consideration of theevidence given before him. But the earlier deposition is found
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among the papers, and was relied upon by the Supreme Court.It is, therefore, perhaps better to consider both depositions, as theirLordships have been asked to do by counsel for the appellants.The witness said generally, without fixing dates, tffaTf the landownersgot their share of the produce; that they used to go—sometimes one,sometimes two; that they had the nuts picked; that they sold the' nuts, gave the planters their share, took their own, and came away,That after the decision on the demurrer they were about to appeal,when several oT the defendants came to his house, fell at his feet,and begged for forgiveness; and that thereupon the plaintiffs were' restored to possession. But he added that his memory was bad,that he could, not remember what took place ten or twelve yearsago; and in cross-examination he corrected his statement as to hisgoing on the land, picking nuts and selling them, and substituted thestatement that the defendants gave him Bs. 20 or Bs. 80, which hesaid would be a reasonable sum for his share. This evidence wasgiven on the first occasion. On the second occasion he said ingeneral terms that Pells and his father and brothers continued toHve on the land, that the plaintiffs shared the produce with them,and used frequently to go on the land. He added that they morethan once tried to settle disputes both before and after the partitioncase. They went to a notary, and a deed was drawn up for signaturebut never signed, because all the claimants could not be got together.He further made the case already stated, that there was an amicablesettlement after 1888; and having said on the first occasion that hewas in possession at the date of the partition action, he said uponthe second occasion that the defendants were in possession of theland during that action, and that he could not remember that theplaintiffs ever possessed the land at all since the partition action,which is inconsistent with the alleged ■ ouster in 1908. The otherwitness was Manuel Tissera, the second plaintiff, claiming in right ofhis wife. He said that when Pelis went to jail, Pelis’s father andbrothers continued on the land, that his parents-in-law used to havea share of the produce, that he used to go there with his father-in-law,and had seen him get his nuts. But it would appear that his father-in-law had died long since. He also said that they possessed theirshares at the date of the partition action and up till 1908, but thensomewhat inconsistently added:"We lost possession about five
and a half years ago (which would be 1908), or .two months beforethe partition action ” (which would be August, 1902). He also spokeof the abortive proceedings before the notary, and this fact wasconfirmed by the notary himself.
On the other hand, the defendants gave evidence that theypossessed the whole land, had divided it between themselves, hadfenced it, and built their separate houses upon their lots; andthat none but themselves bad exercised acts of ownership for manyyears, and they denied the alleged settlement in 1888.
Sib WalterPhilumobe
Tamel v.Anohamy
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1917. It does ryrt appear that the defendants’ positive evidence as toSx» "wawebb ac*B ownerabip was disputed,. This being so, the plaintiffsPhuximobb had to rest upon the acts of ownership, or assertion of ownership,TameTvthey deposed, and the contention that the acts of ownership
Anohamy by the defendants were not adverse nor exclusive. Their predeces-sors having alleged ouster in November, 1887, they had to prove -their recovery of possession since; and as their own admissionsindicated that they had been out of possession at the date of thepartition action, so that if they had once recovered possession theyhad lost it again, they had to prove a further resumption of possessionsince the partition action, or, to put it in other words, they had toprove the ouster which they alleged in their plaint as having occurredin June, 1908.
If upon these disputed questions of fact the District Judge hadcome to anyf clear and positive conclusions, their Lordships wouldbe slow to disagree with them. But their Lordships cannot, as theSupreme Court could not, find any clear indication of such a decision.
What. the learned Judge says upon this subject is containedin the following portion of his judgment:“ But the contesting
defendants’ claim to title by prescription has yet to be dealt with.That these persons and their families have been in occupation of theland all along is admitted. They have lived on it, and taken, at anyrate, most of the produce; they themselves say they have takenall the produce without interruption at any time. Plaintiffs saythey have from time to time taken produce and asserted their rightof ownership. Be that as it may, the question is whether the con-testing defendants have by any overt act challenged or repudiatedthe plaintiffs’ title, and continued .and maintained that attitudewithout counter-challenge for ten years or more. The mere factof having been left in undisturbed occupation for that period is initself not sufficient to support a claim by prescription as againstco-owners or landlords. I look on vain1 through the voluminousrecord of this action for evidence of any such alleged act of defianceby the contesting defendants directed against the plaintiffs, .suchas is required by our law to prove title by prescription. Effortsundoubtedly they have made to throw off the yoke of the plaintiffs'ownership, but they have 'invariably roused the plaintiffs to assertand re-assert their overlordship^—witness the rei vindicatio action,D.. C. 25,971, brought by the landowners in 1889, and the partitionaction, D. G. 2,750, brought by the same parties in 1902, and finallythis present action. I am perfectly satisfied that the contestingdefendants’ claim to title by prescription must fail. ”
The learned Judge seems- to have thought it unnecessary todetermine whether the plaintiffs were right in saying that they hadfrom time to time taken the produce and asserted their rights ofownership. He speaks of the mere fact of the defendants havingbeen left in undisturbed occupation as insufficient to support a claim
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by prescription as against co-owners or landlords. There would no twt.doubt be an occupation, which would not be inconsistent with the 8m Wautobblandlord's possession. But if the occupation were as large as that PHnjJMOBadeposed to on behalf of the defendants, it would apparently be Tamel v.inconsistent and adverse. Moreover, the. last nine defendants did Anohamynot claim under tenants or co-owners. The learned Judge appearsto have attached weight to the fact that the plaintiffs had fromtime* to time asserted their title by litigation. But, as the SupremeCourt haB well pointed out, these unsuccessful actions would notprevent prescription.
It has been said that there is one direct finding of fact L*y theDistrict Judge in favour of the plaintiffs, because be says:“ On
the question of ouster I see no reason to disbelieve the assertion ofthe plaintiffs, that the contesting defendants ousted them in June,
1908 But this statement may not be intended as a finding upon adisputed point, but only as the taking of a date from which to assessthe damages. And as the plaintiffs alleged an ouster on this date,and the defendants asserted an ouster from a long previous date,
'there was no difficulty in accepting the date for this purpose. Ifthis statement was intended as a finding that there was sn ousterin June, 1908, there is no evidence to support it. It may beobserved that the Distinct Judge expresses no opinion as to thealleged amicable settlement, or as to any re-taking of possessionafter ouster.
On appeal, the learned Judges of the Supreme Court bad todetermine these matters, formed their own opinion, and, with the .local knowledge which they possess, disbelieved the alleged settle-ment and the alleged re-possessions and ultimate ouster. And ifthis view is taken, the plaintiffs are found alleging an ouster in1887, mid unable to prove a resumption of possession subsequentto that date. The Judges of the Supreme Court were further ofopinion that the evidence of any successful assertion of title waswholly unreliable, and, having regard to the vagueness and theinitf>ngiH<anmfig in the evidence of the two witnesses for the plaintiffs,and the strength of the ' undisputed acts of adverse ownershipexercised by the -defendant; and, in the absence of any directfinding to the contrary by the District Judge, their !Lordsbips mustcome to the same conclusion. They will therefore humbly adviseDig Majesty that the judgment of the Supreme Court ought to beaffirmed, and the appeal be dismissed, with costs.
Appeal dismissed.
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