030-SLLR-SLLR-1980-V-2-WALPITA-v.-DHARMASENA-AND-OTHERS.pdf
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Ferdinands v. Pitimataiawa (Atukorale, J.)
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WALPITA v. DHARMASENA AND OTHERS
COURT OF APPEAL
WIMALARATNE, J. (PRESIDENT COURT OF APPEAL) &
RODRIGO, J.
C.A. (S.C.) 79/73 (INTY) D.C. PANADURA 9625/PJULY 23, 1980
Partition Action – Divided possession – Presumption of ouster.
The plaintiff claimed interests in one land about A.9 R.3 P25 in extent. Evidencedisclosed that for 40 years prior to the date of action there had been dividedpossession of the property and several deeds executed on that basis.
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Held:
Presumption of ouster could be drawn from long and continued possession for aperiod of well over 40 years. Plaintiff’s action was correctly dismissed.
Cases referred to:
Coreav. IserisAppu(1911) 15 NLR 65.
Tillekeratnev. Bastian( 1918) 21 NLR 12.
Sideris v. Simon (1945) 46 NLR 273.
Abdul Majeed v. Umma Zameera (1956) 61 NLR 361 at 373.
APPEAL from the Order of the District Court of Panadura
H. W. Jayewardene Q.C. with Cyril Cooray and Laksman Perera for plaintiff -appellant..
Kithsiri P. Guneratne with Eric Basnayaka for 1 st and 2nd defendant respondents.
Curadvvult.
23rd July, 1980.
WIMALARATNE, J. (President/Court of Appeal)
This is an appeal from the judgment of the District Judgedismissing the Plaintiff's action for the partition of a land calledKandawela Kumbura in extent About A9. R3. P25, and depicted aslots 1 to 8 in preliminary plan X. The plaintiff’s case was that theoriginal owners were three persons, namely, Baddege Samuel,Walpitage Babappu and Walpitage Coronis, each to a one thirdshare. He claimed title from the heirs of three of the five children ofSamuel (3/5 of 1/3) and by inheritence from Agoris, one of the fourchildren of Babappu (1/4 of 1/3). He thus claimed title to 17/60shares of the corpus.
The first set of contesting defendants are the 1st and 2nddefendants-respondents who are the successors in title of BaddageSingho Appu, a son of Samuel. They say that by long andprescriptive possession Singho Appu was the owner of a land ofabout 3 acres, depicted as lots 2A, 3, 4A and 5 in plan 1D2, andcontended that these lots should be excluded.
The second set of contesting defendants are the 9th defendantand his wife and children as well as his brothers son the 12thdefendant. According to them the original owner of lot 1, the northernportions of lots 2 and 4 and lot 8 in plan X, in extent about 4 acres,was by long and prescriptive possession, Walpitage Themanis, a sonof Babappu. They claim through Themanis, and sought exclusion ofthose lots.
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Walpita v. Dharmasena and Others (Wimalaratne, J.)
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If the lots claimed by the contesting defendants are excluded, oneis left with an extent of about 2 acres of the land of 9 acres or sodescribed in the schedule to the plaint, and a claim to that portionhad been made by the successors in title of Walpitage Coronis. Theyare 23rd to 29th, 31st, 32nd and possibly the 30th defendant.
The plaintiff’s averment that Samuel, Badappu and Coronis werethe original owners is based upon documents P10 and P1. P10 is anextract from a statement of offers made to the crown at the ColomboKachcheri on 9.9.1989 for the purchase of a portion of a land calledKandawela Kumbura in extent A9.RO.P24. The names of thepurchasers are given as Walpitage Johannes, Walpitage Coronis andBaddage Samuel of Uduwa. The number of the plan is given as2466; and P1 is that plan made after a survey in 1868. Johanesadmittedly was a son of Babappu. In the absence of a conveyance intheir favour P10 and P1 were quite inadequate to vest the threepersons with title to the land.
Let us see how the land has thereafter been dealt with. Theearliest deed is 30D1 of 24.1.1874. Walpitage Coronis has, by thatdeed gifted to his daughter on the occasion of her marriage, a halfshare of his interests in a land of 9 acres called Kandawela Kumbura,to which he recited title by paternal inheritance. There is no recitingof title by a crown grant of 1869 or of any other year. The next deed is1D3 of 6.10.1898, by which Baddage Singho Appu (son of Samuel)and his wife have gifted to their daughter on the occasion of hermarriage, a land called Kandawela Kumbura of about six bushelspaddy sowing, held and possessed by Singho Appu by right ofpurchase at a fiscals sale held, under writ issued in D. C. Kalutaracase No. 1189. The third deed in 9D6 of 1.10.1908, by whichWalpitage Themanis (son of Babappu) and his wife have giftedKandawela Kumbura, a land of about five bushels paddy sowing totheir five sons, reciting title by assweddumisation and long andprescriptive possession.
On this analysis it seems clear that neither Coronis, nor SinghoAppu nor Themanis, when executing these earliest deeds,recognised or acknowledged their title upon a crown grant. No suchcrown grant having been produced by the plaintiff, the wholefoundation of his title collapses. He claimed that on deeds P4 and P5of 1915 some of the grandchildren of Samuel sold their right, title andinterest to Walpitage Girigoris; that Girigoris by his first marriage hada daughter Alice after whose death, husband Siyadoris Ekanayakeand son Somasiri on deed P8 of 5.9.64 sold their interests to him;that Girigoris married a second time, and after his death his secondwife Jane Nona inherited his interests; that she died leaving two
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brothers Abraham and Simon as her heirs, whose children on deedP9 of 8.9.64 sold their interests to him. The plaintiff also claimed thatBabappu’s one third share was inherited by his four sons, one ofwhom was Agoris; that Agoris died leaving Girigoris, Peiris and hisfather Carolis; that Girigoris possessed the interests of Peiris. Carolisas well; and that on P6 and P9 these interests too devolved on him.As the plaintiff has failed to establish the title of Samuel andBabappu, it is clear that he gets no rights by virtue of P4, P5, P8 andP9.
Assuming, however, that the title of Samuel and Babappu hasbeen established, it is necessary to consider whether at some stagethe successors in title of the three co-owners put an end to theircommon interests and possessed dividedly. The learned DistrictJudge has held that for over 40 years prior to the date of action in1965 there had been a division of property in terms of which SinghoAppu, a son of Samuel possessed the southern one third; SimonKotalawela, purchaser on 30D2 of 1883 from the heirs of Coronispossessed the centre portion; and Themanis, son of Babappupossessed the northern portion. In conveying on 30D2 of 1883 thechildren of Coronis conveyed their interests in a three acre (and not anine acre) land. Likewise, Singho Appu son of Babappu conveyed on1D3 of 1898 a six bushel land. These interests in a 6 bushel landdevolved on the 1st and 2nd defendants by virtue of 7D4, 1D5 and1D6. Hendrick and Podinona, predecessors in title of the 1st and 2nddefendants, made the plan 1D1 in 1932 for their southern 3 acre 2rood land. There was no controversy at the trial that no one elsepossessed that portion. That same portion was mortgaged byHendrick and Podinona on 1D7 of 1934. The subsequent deeds 1D8and 1D9 dealt with the same 6 bushel land. The District Judge hasheld that this southern portion was possessed by Singho Appu andhis successors in title adversely to all others and that 1st and 2nddefendants have acquired a prescriptive title thereto.
As regards the northern one third, the finding of the District Judgeis that only Themanis and his successors in title alone possessed.When Themanis conveyed on 9D6 of 1908 he conveyed a five bushelland, describing the southern boundary as the land of Kiriniris. NowKiriniris was a son of Ceronis, subsequent deeds 9D7 to 9D17executed between 1923 and 1964 give the same description.Usufructory mortgage bond 9D19 and lease bond 9D20 also supportthe exclusive possession of ‘Themanis’ successors in title.
The District Judge has accepted the evidence of the former vetvidane Wegiris Perera regarding the exclusive possession of thesouthern six bushel land by the 1st defendant. He had known this
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field for about 30 years. The huwandiran payment of 1/64 share wasalways given by the 1st defendant through his cultivator Lewis. Thisportion was separated from the land to the south by a ridge muchbroader than the normal ridges in a paddy field, in fact three feetbroader. During the war years paddy could be removed from thekamata only on a permit, and the permit was issued in the name ofthe 1st defendant. Likewise the northern five bushels field wascultivated by the 9th defendant Carolis. To his knowledge no oneother than the 1st and 9th defendants cultivated those portions. TheDistrict Judge has disbelieved the evidence of Methias Jayatilleke,called on behalf of the plaintiff to state that he removed paddy onbehalf of Siyadoris Ekanayake.
The finding of the District Judge that this land has been dividedlypossessed for a very long period of time is fully supported by theevidence. But Mr. Jayawardena’s contention is that long continuedpossession of separate portions by some of the co-owners withoutsomething more is insufficient to vest those co-owners with title to theseparate portions. Possession of one co-owner is also thepossession of his other co-owners and it is not possible to put an endto that possession by a secret intention in his mind and nothing shortof ouster or something equivalent to ouster could put an end to thatpossession. An invitation to presume ouster from Iseris’ longcontinued possession was rejected by the Privy Council in Corea vIseris Appun. In Tillekeratne v. Bastian<2), a Bench of three Judgesdecided that it was open to the Court, from lapse of time inconjunction with the other circumstances of the case, to presumethat a possession originally that of a co-owner had since becomeadverse. In Sideris v. Simon{3) one Henchappu, who was the originalowner of a paddy land, died leaving four sons and three daughters. Itwas conceded that the sons possessed for a period of 38 years(from 1904 to 1942) to the exclusion of the daughters and theirsuccessors. Their possession was continued, undisturbed anduninterrupted. Deeds were executed by the sons on the basis thatthey were the only co-owners. There was no evidence that thedaughters of Henchappu knew about the execution of these deeds.Howard C.J. took the view that there was nothing more than a secretintention in the mind of the transferors and lessors to initiate aprescriptive title and to put an end to the co-owner’s co-possessionand that was not sufficient to constitute ouster.
A “presumption" may be defined as an inference drawn as to thetruth of a fact alleged, of which there is no direct proof, from facts sofar established by direct evidence that it is safe to treat them as theground work upon which the inference may be built up. Willis onCircumstantial evidence (7th Edition) p. 20. A presumption of
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ouster is thus an inference drawn of an ouster, of which there is nodirect proof. Ouster may sometimes be proved by direct evidence.But there may be cases in which it is not possible to prove ouster bydirect evidence, as where it had taken place in the distant past andwhere there are no witnesses living who could speak to it. K. D. deSilva, J. put it succinctly in these words:-
“The presumption of ouster is drawn, in certain circumstances,when the exclusive possession has been so long-continued thatit is not reasonable to call upon the party who relies on it toadduce evidence that at a specific point of time, in the distantpast, there was in fact a denial of the rights of the other co-owners. The duration of exclusive possession being so long itwould not be practicable in such a case to lead the evidenceof persons who would be in a position to speak from personalknowledge as to how the adverse possession commenced.Most of the persons who had such knowledge may be dead orcannot be traced or are incapable of giving evidence when thecase comes up for trial. In such a situation it would bereasonable, in certain circumstances, to draw the presumptionof ouster."
– Abdul Majeed v. Umma Zameera{A).
In that case the party who claimed to have originated the adversepossession was the 13th defendant who was alive at the time of thetrial, and there was thus no necessity to draw a presumption ofouster. In the instant case, however, divided possession appears tohave been from about the year 1881.The Grain Tax CommutationRegister for the year 1881 (9D3) shows that Walpitage Themanis’name is entered as owner under inquiry No.39. The Grain TaxRegister entered in the year 1887 (P11) gives the names of threepersons, Beddege Samuel Appu, under inquiry No. 36, Don SimonKotelawala under inquiry No. 37, and Walpitage Themanis underinquiry No. 38. Themanis died about 1922. The 9th defendant Caroliswas born about 1898, and could not possibly speak to an ousterwhich would have taken place in 1881. Atukorale Hamine is awitness who comes on the pedigree of Singho Appu. She was bornabout 1909. Her mother was Sopihamy, (donee on 1D3) who was adaughter of Singho Appu. It would therefore not be reasonable toexpect her to testify to an ouster by Singho Appu. This is therefore acase where a presumption of ouster could be drawn from longcontinued possession for a period of well over 40 years.
Before parting with this judgment it is necessary to advert to oneother matter. The District Judge delivered judgment on 25.5.73. On20.9.73 Mr. K. W. E. Perera, appearing on behalf of the 4th
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Walpita v. Dharmasena and Others (Wimalaratne, J.)
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defendant, brought it to the notice of Court that the 14th and 63rddefendants had died during the pendency of the action and movedthat the judgment be set aside. Mr. K. W. E. Perera had appeared forthe plaintiff throughout the trial, and not for the 4th defendant. The14th defendant was Walpitage Punyawathie, but she had on 9D11 of1951 gifted all her interests to her brother the 12th defendant. The63rd defendant was Wijesekera Aratchige Siyadoris, whose nametranspired in the statement of claim filed by the 62nd defendant;according to which W. Samuel died leaving four children of whomone was Leihany, and her interests devolved on 62 to 65 defendants.But the plaintiff’s case was that they had conveyed all their interestson deed p.5 to Girigoris, from whom the plaintiff claimed. Thedismissal of this partition action will therefore not prejudice theinterests, if any, of the 14th and 63rd defendants.
I would accordingly dismiss this appeal with costs.
RODRIGO, J. -1 agree.
Appeal dismissed.