123-NLR-NLR-V-54-W.-R.-A.-SOLOMAN-Appellant-and-W.-A.-DON-WILLIAM-SINGHO-et-al-Respondents.pdf
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GRATIAEN J.— Solomon v. William Sirvgho
1952Present; Gratiaen J. and Gunasekara J.W. R. A. SOLOMON, Appellant, and W. A. DON WILLIAMSINGHO et al., Respondents
S. C. 24—D. C. Gampaha, 422j5,1271C
Evidence—Deeds relating to land—Recitals therein concerning ownership of adjacentland—Hearsay.
Tlie ownership of a certain land, Kosgahawatte, was in dispute. The only-evidence on which the Court accepted the contention that one L. V. was theoriginal owner of the land was contained in the recitals of two deeds in which,the alleged owners of the property lying immediately to the north of Kosgaha-watte had described their Southern boundary (i.e., the land in dispute) asbelonging to the heirs of I,. V.
Held, that the recitals in the deeds were at best hearsay evidence and wereinadmissible to prove that L. V. was at any time the lawful owner of Kosgaha-watte..
A
/APPEAL from a judgment of the District Court, Gampaha.
PL. W. Jayewardene, with E. Amerasinghe and M. L. de Silva, for theplaintiff appellant.
PL. A. Koattegoda, for the 6th and 8th defendants respondents.
Cur. adv. vuU.
May 28, 1952. Gratiaen J.—
The plaintiff appellant instituted this action for the partition of a landcalled Kosgahawatte, 2 acres and 19 perches in extent, depicted in plan.No. 44 dated 30th April, 1948, made by Mr. D. A. Rubesinghe, LicensedSurveyor. The land comprises :—
(а)Lot C, the extent of which slightly exceeds two thirds of the
entire property, and which, though not until very recentlyseparated from the adjoining Lot B, has been depicted as a'defined entity in order to clarify the issues between the con-
testing parties.
(б)Lot B, which is 1 rood 6 perches in extent, and which is now
separated from Lot A on the West by a live fence which waserected only a few years before the action commenced. if
Lot A, which is 1 rood 21 perches in extent.
Lot C was fully planted in coconut and jak over 40 years ago by thepredecessors-in-title of the plaintiff and of the parties who support hiscase, and the learned Judge was satisfied that this plantation had beenexclusively possessed by them since about 1887. Lot B was till veryrecently uncultivated, and there is no evidence to support the suggestion
GRATIAEN" J.—Solomon v. William Singho
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-that it had until the year 1943 been regarded as an entity distinct fromLot C. It has since then been in the possession of the 7th defendant whosealleged interests as a co-owner are disputed by the plaintiff. Lot A hasbeen possessed, planted and separated off from Lot B, according to theview taken by the learned Judge, since 1938 by the 6th defendant (whosetitle is also disputed by the plaintiff). This period of possession is, however,insufficient to form the basis of prescriptive title. As I read the learnedJudge’s findings of fact, the 6th defendant had intermittently on variousdates during an earlier period forcibly prevented others from cultivatingLot A, but he had not himself in any sense exercised any positive rights ofownership or co-ownership during that earlier period. In the result,neither the 6th defendant nor the 8th defendant' (who claims throughhim) can succeed in this action except upon the basis of legal title to theproperty in dispute.
The case for the plaintiff and the parties who support him is that by along series of deeds executed between the years 1887 and 1947 the personswhose names appear in the pedigree marked “ A ” dealt with the entireproperty on the footing that it had originally been exclusively owned byJamis Appuhamy by right of maternal inheritance and prescriptivepossession. Admittedly, Jamis and, after him, his successors-in-title hadcultivated and possessed at least two thirds of the property (representedby Lot C), while the rest of the property remained uncultivated, thoughnot separated by any boundaries from the cultivated portion until lessthan 10 years before the action commenced. Upon these facts one is forcedto the conclusion that, whatever may have been the origin of Jamis’ title,the persons claiming through him had for well over 40 years treated anddealt with the entire property as a single unit. Since then, no rivalclaimants have acquired rights in respect of the .whole or any partof the property by adverse possession for a period sufficient to satisfythe requirements of section 3 of the Prescriptive Ordinance.
The 6th defendant, who now claims adversely to the plaintiff on a chainof title suggesting that Jamis owned only one third of the property throughhis grandfather Ladappu Vederala, had himself purported on an earlieroccasion in 1925 to acquire a share of the property on the basis that Jamishad exclusively owned the property (P 13). Later he sold those interestson the same basis by P 14 of 1927, and it is quite evident that he firstasserted title to the property on the assumption that the plaintiff’s chainof title, which he has now chosen to dispute, was correct. On 19th Septem-ber, 1927, having discovered that his original vendor was not in truth thelawful heir of one of Jamis’ successors-in-title, he purchased an allegedinterest through the deed 6 D9 on an entirely different basis—namely,that Allis, a brother of Jamis, had originally inherited one third of theproperty through their common grandfather Ladappu Vederela. Thelearned Judge has in my opinion misdirected himself by not taking intoconsideration this serious inconsistency in the 6th defendant’s case.
The only evidence, so called, on which the learned Judge accepted thecontention that Ladappu Vederala was the original owner of the propertyis contained in the recitals of two deeds (6 D5 of 1894 and 6 D12 of 1900)in which the alleged owners of the property lying immediately to the North
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Dingiri Banda v. The Queen
of Kosgahawatte had described their Southern boundary (i.e., the lancfin dispute) as belonging to “ the heirs of Ladappu Vederala ”. In myopinion these recitals are at best hearsay evidence on the issue underconsideration and are inadmissible to prove that Ladappu Vederala-was at any time the lawful owner of Kosgahawatte. In any event, I amsatisfied that Jamis’ possession since 1887 was not consistent with thatof a person who acknowledges that either of bis brothers Allis and Danielwere his co-owners. It is significant that Daniel’s heirs have made noclaim to the property and that, in any Anew of the matter, the portion culti-vated by Jam is and his heirs far exceed that which represented the legi-timate share of a co-OAvner whose rights extended to only one third of theproperty.
In my opinion neither the 6th defendant nor the 7th defendant, who alsoclaims through Allis on a recent deed of 1943, had any share in theproperty, Similarly the 8th defendant, who purchased the 6th defendant’sinterests in 1947, acquired no title to a share.
I would accordingly set aside the judgment under appeal and send thecase back to the lower Court so that a decree for partition be entered onthe basis set out in the pedigree marked “ A ” filed with the plaint. The6th, 7th and 8th defendants must jointly and severally pay to the plain-tiff the costs of this appeal and also the costs of the contest in the Courtbelow. The costs of partition Avill be borne pro rata between the parties towhom shares are allotted under the final decree.
Gunaseeaba J.—I agree.
Judgment set aside.