H. N. Q. FERNANDO, J.—Waris Perera v. Pabilinahamy
1963 Present: H. N. G. Fernando, J., and T. S. Fernando, J.r %
WARIS PERERA and others, Appellants, and A. PABILINAHAMY,
S. G. 475160—D. G. Panadura, 6602
Co-owners—Incapacity of one co-owner to exclude another from any particular portionof the common land—Action between two co-owners for possessory decree inrespect of a specific portion—Maintainability.
It is not generally open to a person having title only to an undivided shareof a land, but who has been in occupation of a specific portion of the landto oust another co-owner from that portion by suing for a possessory decree.
^ApPEAL from a judgment of the District Court, Panadura.
ThiagaUngam, Q.G., with B. J. Fernando, for the Defendants-Appellants.
W. Jayewardene, Q.C., with N. R. M. Daluivatte, for the Plaintiff*Respondent.
Gur. adv. vult.
October 1, 1963. H. N. G. Fernando, J.—
The Plaintiff in this action claimed to have been in possession of adivided portion of land of an extent of about half an acre. Allegingthat the Defendants had wrongfully removed a part of the barbed wirefence and constructed a hut on one side of the land, the Plaintiff hassucceeded in obtaining a decroo for restoration of possession and forthe ejectment of the Defendants.
Although tho Defendants had claimed in their Answer that they hadbeen in exclusive possession of tho piece of land, thoy roliod at tho trialonly on tho alternative claim that this land is a part of a larger landof which they arc co-ownors. Tho Plaintiff’s evidence on this matter wasas follows:—
“ I am the plaintiff in this case. I know the land in respect of whichI have filed this action. The name of that land is Mahawatta.Mahawatta is a larger land. The extent of the entire land Mahawattais 22 acres. Mahawatta consists of a number of lots and there arenames to those lots. Mahawatta has been possessed as separate portions,I have possessed my portion for over 25 years. The other portionsof Mahawatta have also been possessed as separate portions. SinceI came to know things it was possessed like that. The portion I claim,is a separate portion of Mahawatta in oxtont about half an acre."
Later she stated that the Defendants possessed other separate portionsof Mahawatta.
H. N. G. FERNANDO, J.—Warie Perera v. PabUinahamy
In order to prove the commencement of her possession, the Plaintiffproduced the deed PI of 1033 which conveyed to the Plaintiff andher brother an undivided 3 upon 300 shares of two lands, and it wastho Plaintiff's enso that her vendors had prior to that conveyance, clearedand fenced off this particular portion and thereafter placed the Plaintiffin possession of it.—The title of the Plaintiff’s vendor was so uncertainthat the description for the conveyance Pi was taken from a deed bor-rowed from some other person. Tho cvidcnco to which I Imvo referredconstituted an admission, and not a challenge, of the Defendants’ positionthat the land in question was part of a larger land at least until about1933, and that the Defendants had shared in that larger land.
On these facts, tho learned District Judge had to dccido whether it isopen to a person having title only to an undivided share of a land, butwho has been in occupation of a specific portion of the land, to oustanother co-owner from that portion by suing for a possessory decree.The exceptional circumstances in which a possessory decree may begranted as against a co-owner aro set out in tho judgment inAlum v. Pier is Appuhamy and the present facts do not fall within theexceptions there mentioned. But that judgment did not take intoconsideration the oarlier decision in Perera v. Pertra 2 , upon which thelearned Judge has relied, and I am glad of the opportunity to considerit—
In the last mentioned decision, Gratiaen J. pointed out that “ theplaintiff, with or without justification had been in possession of theland asserting that he was tho solo owner and refusing to recognizeas valid any claim of the Defendants to bo his co-owners ”, and therewas a finding of fact that the plaintiff had been in undisputed posses-sion of the entire land until the time of the ouster.—The ouster hadtherefore been achieved by persons whose claim to be co-ownerswas not in fact acknowledged by tho de facto possessor. I myselfhave no difficulty in agreeing that in such circumstances tho Plaintiffwas rightly held to have satisfied the subjective test of possession.ut dominus.
In the instant case, however, the Plaintiff’s entry into possession ofthe specific portion of the larger land cannot be regarded as havingbeen ut dominus, because of the following admissions :—
That the title transferred by her vendors was only to an undivided
interest in a larger land ;
That tho vendors only clearod tho portion shortly before the
transfer and tho Plaintiff's entry ;
That the Defendants own shares in the larger land, although
they are in possession of separate portions.
1 (1956) 59 N. L. Jt. 518.
8 (1949) 39 C. L. W. 100.
<j rji; L-tiN AiNJDU —Waris Per era u. Pabilinahamy
In these circumstances a finding that the Plaintiff was in fact in possession* with the intention of holding and dealing with the portion as her own isnot in my opinion justifiable, for thoro was no basis upon which thePlaintiff could in good faith assume that the transfer gave her an exclusiveright to possess the portion. Her right to possession was clearly referableto her title as a co-owner, and her possession as such was not disturbedduring the many years when she appeared merely to be exercising thatright. The defendants interfered only in 1958, when the Plaintiffcommenced to construct a foundation for a largo house on the land.Indood tlio alleged ouster was not in rospeet of tho ontiro portion of theland, but took the form only of the erection of a hut between thefoundation and the road.
It is trite law that until co-ownorship is dissolved by partition or byprescription, it is not^open to one co-owner to exclude another from anyparticular portion of the land. If in the present case the vendors to thePlaintiff had in 1933 cleared this portion of land and, not having sold it,had thereafter used it in the manner in which the Plaintiff actually did,it would clearly not have been open to those vendors to obtain apossossory decree against these defendants. And since their transferto the Plaintiff was in terms a transfer of an undivided share and notof a divided portion, the Plaintiff cannot to my mind claim to be in aposition superior to that of their vendors.
The case before me is in any event distinguishable on other groundsfrom that of Perera v. Perera (supra). Since the Plaintiff in Perera v.Perera denied the fact of co-ownership, the Defendants’ right to posses-sion could only have been determined after an investigation of the claimof title set up by the Defendants. In the present case, on the contrary,the Plaintiff has admitted tho claim of eo-ownorship of tho largor land,and the Defendants aro prima facie entitled as co-ownors to a right ofpossession of the disputed portion. This right cannot now be deniedto the Defendants except after an investigation of tho claim of title byexclusive possession set up by the Plaintiff. The principle applied inPerera v. Perera that “ tho purpose of a possossory suit is not to adjudicateupon questions relating to title ” prevents the Courts in the present casefrom investigating the claim of title here set up by the Plaintiff.
I would allow the appeal and dismiss the Plaintiff’s action with costs inboth Courts.
T. S. Fernando, J.—I agree.
WARIS PERERA and others, Appellants, and A. PABILINAHAMY, Respondent