WERAGODA AND OTHERS
PEIRIS AND OTHERS
COURT OF APPEALANANDA COOMARASWAMY, J.
C.NEGOMBO No. 1279/PMAY 2,1994,MAY 26,1994JUNE 15, 1994, JULY 4, 1994.
Partition – Proof that paper title pleaded applied to the Corpus – Prescrip-tion-Adverse Possession – Right of Limited Possession – Shedding ofsame – What is "Oo>3 qa>'3a"
Plaintiff Respondent instituted partition action; pleading paper Title, theDefendant Appellants pleaded that they have acquired prescriptive Title.On the Evidence led, the District Court held with the Plaintiff.
Deeds 1D8 and 1D9 set out that 2 persons Predecessors-in-title of theDefendants were entitled to an undivided 1/3 share each on their "oe»qjo’cio" this means that they were claiming to be entitled to a 1/3 shareeach by virtue of their possession of the Plantation or by virtue of theirpossession of the undivided 1/3 share each to plant it. In either case, itacknowledges a right of ownership in some other person or persons.
Therefore until such time as they shed that right of limited possession,adverse possession will not commence.
Such a limited right of possession is not sufficient to acquire prescriptiveTitle.
AN APPEAL from the Judgement of the District Court of Negombo.
Faiz Mustapha P.C. for Appellant.
PSomatilaken for Respondent.
Cur. adv. vult.
October 14th, 1994.
The Plaintiff/Respondent instituted this action to partition the landdescribed in the schedule to the plaint dated 29th June, 1973 anddepicted in the preliminary plan No: 294 made by Licensed SurveyorM. Sathiapalan dated 26th October, 1973, (in extent 7 Acres – 2 Roods-6 Perches) and marked 'X‘.
The 1st and 19th Defendants claiming to be the owners of the en-tirety sought a dismissal of the action.
It was urged at the hearing of this appeal that (1) there is no proofthat the paper title pleaded by the Respondents applied to the corpus,(2) there is no evidence that James D' Alwis was the original owner ofthe land sought to be partitioned and (3) the Appellants have acquiredprescriptive title to the corpus.
The schedule to the amended plaint refers to the land sought to bepartitioned as Millagahawatte alias Welisarawatte alias Welisara situ-ated at Elapitawela in extent 7 Arcres – 2 Roods- 6 Perches and shownin plan No: 6249 dated 7th November, 1946 made by M.B.de SilvaLicensed Surveyor.
Surveyor Sathiapalan has superimposed Plan No: 6249(P45) on thepreliminary plan X and stated that the land shown in Plan X is thesame as that shown on Plan P45. Further, the 1st Defendant/Appel-lant's Deed 1D5 on which he claims title also refers to plan No: 6249(P45). Hence, it is established that the land sought to be partitioned isthat depicted in Plan No:6249.
In evidence the Plaintiff/Respondent's witnessess have referred tothis land as the 7 Acre land and "Thunhauwla". The Plaintiff/Respond-ent has produced several letters written by one "Duke" de Saram to IanPieris the husband of the Plaintiff which refer to a “Seven Acre land"which should be partitioned amicably and therefore should be surveyed.Although the said correspondence refers to commissioning SurveyorAnthoniz to do the amicable partition it appears that the amicable par-tition plan was prepared by Surveyor M.B.J. de Silva and is markedP45. It is significant that the correspondence regarding the amicablepartition is (P35, P36, P37, P38) during the second half of 1943 andP45 is dated 1946. The correspondence between "Duke" de Saramand Ian Pieris also show that at that time the produce from the 7 Acreland was shared by three persons each taking a 1/3rd. The three own-ers were Felix R. Dias, Ian Pieris and Duke de Saram. The inventory(P21) filed in the Testamentary case of Annie Lucy the wife of Felix. R.Dias and daughter of James D.AIwis refers to an undivided 1/3 share ofa land at Welisara in extent 7 Acres (item 13). item 13 refers to a landin Welisara.
It was submitted that the land sought to be partitioned is situated atElapitawela and not Welisara.
The Plaintiff has produced a Plan No: 1360 (P47A) dated 20th /29thAugust, 1918 which depicts a land of 111 Acres -1 Rood -14 perchesin four lots namely, A,B.C and D and lot C has been sub – divided intolots C1 to C6. P47A depicts a land belonging to the heirs of James D‘Alwis. To the East of lot C3 is the property belonging to the Estate ofthe Hon. James Alwis. To the North of that land is the land of MohottiPinto, to the South is lot D.
It is common ground that the preliminary plan X, and plan P45 de-picted the same land. To the North of the land denicted in P45 is theland of Francis Pinto and others, to the ~outh is the land of S.J.F. DiasBandaranaike and to the Wb&i is crown Land. It is not disputed thatthe Welisara hospital is situated on the land immediately to the Westof the land sought to be partitioned. P47A depicts a land which be-longed to the heirs of James D Alwis, and S.J.F. Dias Bandaranaikewas a son of Anne Lucy whose father was James D ' Alwis. So, theSouthern boundary of the land shown in P45 was S.J.F. DiasBandaranaike's land.
It is appropriate to mention at this juncture that in P42 written byFelix R. Dias to Ian Pieris, Felix R. Dias states that in order to surveytheir land he could give a surveyor the Welisara Estate Plan. This meansthat the 7 acre block was in close proximity to the Welisara Estate,and Velun Singho has stated in evidence that Welisarawatte on whichthe hospital now stands was a larger land which adjoined the 7 Acreblock of land. From all this, it is seen that Elapitawela adjoins Welisara.
Quite apart from this, Suveyor Sameer who gave evidence has su-perimposed Plan P45 on Plan P47A and shown that the land depictedin P45 is situated immediately to the East of lot 3 in Plan P47A.
The Plaintiff has produced marked P51 Surveyor General’s Plan of23rd September, 1937 which refers to the land immediately to the Eastof the land shown in P47A as “Akkarahata" (7 Acres) coconut gardenclaimed by the heirs of Peter de Saram and others. Peter de Saramfigures in the pedigree referred to by the Plaintiff in this case and wasthe father of Duke de Saram.
All these facts corroborate the oral evidence that the land was atone time owned by James D'Alwis.
We are therefore of the view that the Plaintiff has established thatJames D' Alwis was at one time the owner of the land sought to bepartitioned.
The evidence of devolution of title by inheritance from James D' Alwishas not been disputed by the Appellants.
Regarding the possession there is the evidence of Velun Singhothat he worked for W.J.Pieris the husband of the Plaintiff and was theconductor of the 7 Acre block at Welisara upto 1939 and this evidenceis corroborated by P29 letter written by Duke de Saram to Ian Pierisdated 11/05/1940 in which he refers to "yourKangany Vellun”.
Besides, the 1 st Defendant/ Appellant and one Stanley Weragodahave purchased an undivided 1/3 share from S.J.F. Dias Bandaranaikewho was a grandson of James D' Alwis.
The Appellants whilst denying that S.J.F. Dias Bandaranaike was aco-owner of the land (sought to be partitioned) by inheritance from AnneLucy his mother, claimed in their Answer that S.J.F. Dias Bandaranaike,one Agostine Silva and one Paulu Silva were the co-owners of the landsought to be partitioned by prescriptive possession. That S.J.F. DiasBandaranaike conveyed his 1/3 share to the 1st Defendant one StanleyWeragoda by 1D5 and by 1D6 Stanley Weragoda had conveyed his 1/6share to the 1st Defendant. That by 1D7 Agostine Silva conveyed anundivided 1/3 to Sebastian Appuhamy who in turn conveyed the said 1/3 to the 19th Defendant by 1D8. Then by 1D9 Paulu Silva conveyed anundivided 1/3 to the 19th Defendant. Thus the 1st Defendant claims anundivided 1/3 whilts the 19th Defendant claims an undivided 2/3.
Both deeds 1DB and 1D9 set out that Agostine Silva and PauluSilva are entitled to an undivided 1/3 share each, on their "Os>3 cgafSo".This could mean that they were claiming to be entitled to a 1/3 shareeach by virtue of their possession of the plantation or by virtue of theirpossession of an undivided 1/3 share each to plant it. In either case itacknowledges a right of ownership in some other person or persons. Ifthey possessed the plantation, then, they acknowledge that the landor soil belonged to another or others. If on the other hand they pos-sessed an undivided 2/3 to plant it, still they acknowledge that theirpossession was for the limited purpose of planting it. Therefore untilsuch time as they shed that right of limited possession, adverse pos-session will not commence. Since, they have stated on 21st Decem-ber, 1965 and 2nd September, 1963 in deeds 1D8 and 1D9 that it isonly a limited right of possession ("<9e» cgaTSa") they had, there wasno adverse possession by them as against the title holders of the 2/3share upto that date. Such a limited right of possession is not suffi-cient to acquire prescriptive title. So that deeds 1D8 and 1D9 cannotand do not convey any title. This action was institued on 29th June,1973 within ten years from 2nd September, 1963.
Both Agostine Silva and Paulu Silva did not give evidence. Had theygiven evidence they would have been hard put to explain what rightsthey had to convey and also would have had to explain who gave themthe right to plant.
Although, documents 1D1 to 1D4 refer to Agostine Silva and PauluSilva as owners, in view of what they have stated in deeds 1D8 and1D9 regarding their right of possession 1D1 to 1D4 do not mean thatthey had adverse possession (besides they are letters written by someone else).
By P43 dated 3rd October, 1946 Duke de Saram has informed IanPieris that "Sammy" will in future look after their 2/3 share. "Sammy"is undoubtedly a reference to Samuel F.J. Dias Bandaranaike fromwhom the 1 st Defendant allegedly purchased the undivided 1/3. It there-fore appears that Agostine and Paulu came on the land to plant it withthe permission of S.J.F. Dias Bandaranaike who was looking after anundivided 2/3 share on behalf of Duke de Saram and Ian Pieris.
For the above mentioned reasons we see no cause to interferewith the judgement of the learned District Judge.
We therefore, dismiss the appeal and affirm the judgement of thelearned District Judge, with costs fixed at Rs. 3150/=.
ANANDACOOMARASWAMY, J. -1 agree.