069-NLR-NLR-V-66-V.-APPIAH-et-al.-Appellants-and-S.-SELLATHURAI-et-al.-Respondents.pdf
304
Appi'ah v. Sellathurai
1961Present : Sansoni, J., and T. S. Fernando, J.APPIAH et al., Appellants, and S. SELLATHURAI et al.,
Respondents
S. C. 494/58—D. C. Jaffna, 86[P
Partition action—Issue of prescription—Burden of proof—Possession undetermined—
Legal principle to be applied then.
Where, in a partition action, the plaintiffs and the 1st defendant had, apartfrom prescription, paper title to $ share of the corpus, bat the contestingdefendants claimed prescriptive title to the entire corpus—
Held, that the burden of proof regarding possession was on the contestingdefendants. In such a case, if the possession in fact is undetermined, therule that possession follows title should be held to be applicable. 1
1 (1956) 57 N. L. R. 330.
SANSONT, J.—Appiah v. Sellathurai
305
-A PPEAL from a judgment of the District Court, Jaffna.
H. W. Jayewardene, Q. C, with R. ManiJckavasagar and L. C.Seneviratne, for the Plaintiffs-Appellants.
C. Ranganathan, with K. Palakidnar, for the 2nd-5th and 8thDefendants-Respondents.
Cur. adv. vult.
October 27, 1961. Sansoni, J.—
The plaintiffs brought this action to partition a land called Uyanthanaidescribed in the Schedule to the plaint and depicted as lot 1 in planNo. 1065a dated 13th April 1956 (marked X). They averred in theirplaint that one Kander formerly owned that lot and that it had devolvedon the 2nd plaintiff (£rd) 1st defendant (£rd) and 2-6 defendants (l/15theach). 2-5 and 8th defendants contested the plaintiffs’title and claimedthat they were entitled to the entire land sought to be partitioned aspart of a larger land bearing the ' same name, in extent 27 Lins., whichhad formerly belonged to Kander. After trial, the learned DistrictJudge dismissed the plaintiffs’ action with costs and they have appealed.
There have been previous cases with regard to the land sought to bepartitioned, as well as the land adjoining it on the west which is 10 Lms.11 KIs. in extent. I shall refer to them as the eastern lot and thewestern lot respectively.
In 1938 the present plaintiffs and one Vinayakamoorthy sued the present2nd, 4th, 6th defendants and Kander’s son Saravanamuttu in D. C.Jaffna case No. 12,783 for declaration of title to the western lot andobtained a decree as claimed and for the costs of the action. In 1939,in execution of the decree for costs, the Fiscal seized and sold the right,title and interest of the present 2nd, 4th-6th defendants and KanderSaravanamuttu in the eastern lot. Those interests were purchasedby the 2nd plaintiff and Vinayakamoorthy and a Fiscal’s ConveyancePI of 24th April, 1940, was executed in their favour for the right, titleand interest of those persons in an undivided frd share of the easternlot. .
In 1939 a partition action D. 0. Jaffna No. 14,742 was filed by Kander’sson Kanapathipillai in respect of both the western and the eastern lotson the basis that they formed one land. The defendants to that actionwere Kander Saravanamuttu and the present 4th-6th defendants.The present plaintiffs and Vinayakamoorthy intervened in that actionand filed a statement on 23rd January, 1940, asking for the exclusionof the western lot as their property, and claiming that they were entitled,to f-rds of the eastern lot. Interlocutory decree was entered in January1942, ordering the exclusion of the western lot from the action anddecreeing the present plaintiffs and Vinayakamoorthy entitled to frds,
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SANSONI, J.—Appiah v. Sellathurai
and Kander Kanapathipillai entitled to £ of the eastern lot. That decree■was affirmed in appeal on 8th April, 1943. No further steps were takenin that partition action, hut there can be no doubt that the interlocutorydecree is res judicata between the parties so far as the title to theland now sought to be partitioned is concerned, apart from any questionof prescriptive possession. Kander Kanapathipillai, the plaintiff inaction No. 14,742, died in 1948 leaving no issue, and his interests devolvedon 2-5 and 8th defendants. The present 1st defendant has becomeentitled by last will to the £ share of Vinayakamoorthy.
It was conceded at the argument before us by Mr. Ranganathanthat title, apart from prescription, is in the 2nd plaintiff (£), 1st defendantand the successors in title of Kander Kanapathipillai; this is theinevitable result of the decree entered in case No. 14,742which is binding.on the parties to this action. But Mr. Ranganathan sought to supportthe judgment in view of the learned Judge’s finding that the contestingdefendants have acquired a prescriptive title to the eastern lot againstthe plaintiffs and the 1st defendant. That finding is vitiated to someextent by the other findings of the learned Judge that the plaintiffshave no paper title to the land sought to be partitioned, and that thedecree in case No. 14,742 was not res judicata. Those findings are clearlywrong. If the learned Judge had approached the case on the basisthat the title to § share, apart from prescription, was in the plaintiffsand the 1st defendant, he would have placed the burden of proof regardingpossession on the contesting defendants and I think he would havefound differently on the issue of prescription.
It is common ground that the land has no plantations or buildingsof any kind on it. It is unfenced on all sides, and-the only thing growing-on-it is grass. This grass is said to be scraped from the land duringcertain times of the year, probably during the months of October to■January. The 1st plaintiff, who is the husband ol the 2nd plaintiff,claimed that he and his wife had been in possession of their share from1944, and that they had scraped grass during the months of Octoberto January ; he was a Government employee until he retired in 1955,and during his period of service he was stationed outside Jaffna exceptfor a period of 8 years, but he claimed to have been a frequent visitorto Jaffna. The 4th defendant, who was the only other witness at thetrial, said that he used to go and scrape grass from the land at certainseasons, and the learned Judge has preferred to accept his evidenceabout possession ; but this finding again is weakened by the learnedJudge’s observation that on the 1st plaintiff’s evidence he had no posses-sion of the land he sought to partition. That observation is incorrectas my brief reference to the evidence given by the 1st plaintiff shows.,
i
Having regard to the nature of the land, it is most likely that nobodypossessed the land exclusively. If there was any possession, probablythe plaintiffs as well as the contesting defendants scraped grass occasion-ally. The legal principle to be applied in such a case is that wherepossession in fact is undetermined, possession in law follows the right
Sellamutlu v. Solomons
307
"to possess. In other words, the rule that possession follows title shouldT>© held to be applicable. The claim of the contesting defendants tohave prescribed against the plaintiffs and the 1st defendant must berejected.
I would therefore set aside the decree under appeal and direct that theland depicted as lot 1 in plan No. 1065a dated 13th April, 1956,(marked X) be partitioned allotting to the 2nd plaintiff 1st defendantand 2-5 and 8th defendants jointly The plaintiffs are entitled torecover their costs of the contest in the lowerA court and their costs of. appeal from the contesting defendants.
T. S. Fernando, J.—I agree.
Appeal allowed.