WIJESUNDERA AND OTHERS v. CONSTATINE DASA AND ANOTHER

007-SLLR-SLLR-1987-2-WIJESUNDERA-AND-OTHERS-v.-CONSTATINE-DASA-AND-ANOTHER.pdf


66
Sri Lanka Law Reports
[1987] 2 Sri LR.
WIJESUNDERA AND OTHERS
v.
CONSTANTINE DASA AND ANOTHER
COURT OF APPEAL. /
G. P. S. DE SILVA, J. (President, C/A) AND ABEYWIRA, J.
D.C. KALUTARA 2572/L
C.A. 22/81 (F).- '
JANUARY 13, 15, 19 AND 20, F987-. . '
Prescription – 'Paper title' based on certificate of sale under Partition Ordinance -S3of the Prescription Ordinance – Adverse possession.
The plaintiffs are the widow and children of one James Wijesundera who became theowner of the land in suit on a certificate of sale of 1944 (being the purchaser at a saleunder the Partition Ordinance). The parents of the defendants and Agida Perera theiraunt and Engracia Perera and Lucia Perera also aunts were the defendants in thepartition action where the decree for sale was entered. It was admitted that JamesWijesundera did not take possession of the land after the sale in 1944 and that AgidaPerera and the present defendants continued to live on the land. Agida Perera lived onthe land till her death in 1964 and the plaintiffs' position was that she had obtainedpermission to live on the land from James Wijesundera in 1947. The plaintiffs allegedforcible entry in 1974. Action was filed in 1978. The District Judge upheld the plea ofprescription of the defendants. The following documentary and oral evidence was in thecase:
The conditions of sale showed that an aunt of the defendants had competed withJames Wijesundera at the sale under the Partition Ordinance.
Agida Perera did not comply with a direction by the Village Committee to cutdown a jak tree and a coconut tree and the V.C. cut them and recovered Rs. 15from Agida Perera as expenses.
By lease bond D8 of 28.8.1953 the 1 st and 2nd defendants and Agida Pereragave on lease 5 coconut trees for tapping toddy for 2 years from 1.1.1954. Thelease included the soil but not the tiled house wherein the lessors lived.
The defendants paid the rates (DIO, D11. D12 and D13).
The electoral registers D15 to D21 showed the defendants' residence on theland.
The Grama Sevaka said the 2nd defendant resided on this land in 1970 and1971.
CA
Wijesundera v. Dasa
67
By deed D7 of 1956 the defendants and their predecessors had transferred theland in suit to one Seeman Singho who in 1965 by Deed D23 reconveyed theland to 1st defendant's wife and the 2nd defendant.
Held-
11) The evidence as a whole in particular the documentary evidence shows thatpossession was continuously in the defendants and their predecessors.
As the character of the possession of the defendants and their predecessors wasincompatible with the title of the plaintiffs and their predecessors, their possession wasadverse. The fact that the defendants knew that James Wijesundera became the newowner after the sale is not a bar to prescriptive title. The possession of the defendantsneed not be in good faith. Justus titulus or justa causa of the Roman and Roman-DutchLaw is no longer necessary for prescriptive possession. Our Prescription Ordinance is acomplete Code and the principles of rhe common law need not be taken into account. Ifthe possession of the defendants is incompatible with the title of the plaintiffs suchpossession is adverse within the meaning of s 3 of the Prescription Ordinance.
The District Judge had impliedly rejected plaintiffs' plea of permissive possession.
The defendants could tack on the possession contemplated by D7 and D23 toestablish an unbroken chain of title by prescriptive possession under s.3 of thePrescription Ordinance.
Dawood v. Natchiya – (1955) 54CLW3 not followed.
Cases referred to:
Dawood v. Natchiya – (7 955) 54 CLW 3. 4.
TiUekaratne v. Bastian – (1918) 21 NLR 12. 15.
Cadija Umma v. Don Manis Appu – (1938) 40 NLR 392 (PC).
Fernando v. Wijesooriya – (1947) 48 NLR 320. 325.
Carolisappu v. Anagihamy -(19491 51 NLR 355
APPEAL from judgment of the District Judge of Kalutara
N. S. A. Goonetilleke with N. Mahendraniot the plaintift-appeilants.
M. R N. Daluwatta. P C. with Miss K. Gabadage for defendant-respondents.
Cur. adv. vult.
February 27. 1987.
G. P. S. DE SILVA, J. (President, C/A)
The plaintiffs who are the widow and children of one JamesWijesundera brought this action for a declaration of title to the landdescribed in the schedule to the plaint, for ejectment and for damagesagainst the two defendants. The defendants are brothers and it wasaverred in the plaint that they forcibly entered the land in early 1974.At the trial, the defendants admitted the paper title of the plaintiffswhich was based on a certificate of sale under the PartitionOrdinance. The certificate of sale (D3) is dated 29th January 1944.
68
Sri Lanka Law Reports
[1987] 2 SriL.R.
The conditions of sale were marked as P2 and the order confirmingthe sale as P3. At the sale under the Partition Ordinance, the land waspurchased by the said James Wijesundera who was the plaintiff in thepartition action. The defendants to the partition action were MariaPerera, the mother of the defendants, Juwan Dasa, the father of thedefendants, Agida Perera, an aunt of the defendants, Lucia Perera andEngracia Perera who were also aunts of the defendants. In thepartition action, the plaintiff was declared entitled to a half share andthe defendants to the balance half share.
The case for the defendants was that James Wijesundera did nottake possession of the land after the sale under the Partition Ordinanceand Agida Perera (3rd defendant in the partition action) and thedefendants to the present action continued to live on the land for wellover the prescriptive period and had acquired a prescriptive title. Agida
Perera lived on the land until her death in 1964, the 1 st defendant till1966 and the 2nd defendant till 1975 when their residing housecollapsed. After trial, the District Judge held with the defendants anddismissed the plaintiff's action. Hence this appeal lodged by theplaintiffs.
At the hearing before us, it was common ground that the onlymatter for decision was whether the defendants had acquired aprescriptive title to the land in suit. It was not disputed before us thatJames Wijesundera did not take possession of the land after the salein 1944 and that the defendants and their predecessors in titlecontinued to remain in physical occupation. But the 1st plaintiff in herevidence claimed that Agida Perera remained on the land havingobtained permission to do so from James Wijesundera in 1947.
Mr. Goonetilleka, counsel for the plaintiffs-appellants, submitted atthe outset that the defendants and their predecessors in title could nothave acquired a prescriptive title for they knew that after the sale in1944 the new owner was James Wijesundera and that they had losttheir previous title to the land. In other words, their possession wasclearly with the knowledge that the land belonged to another. Insupport of his proposition Mr. Goonetilleka relied on the followingpassage in the judgment of Basnayake, C.J. in Dawood v. Natchiya
'To acquire title to immovable property by possession for theperiod prescribed by law for the acquisition of a prescriptive title, it isnecessary that the possessor must honestly believe that he had a
CA
Wijesundera v. Dasa (G.P.S. De Silva, J.)
69
just cause of possession, and must have been ignorant that what he
possessed did belong to anotherIn other words possession
will not enable the possessor to acquire a prescriptive title after theeffluxion of the period fixed by law unless the possession is in goodfaith"
No decision was cited before us where this view of the law ofprescription was subsequently followed in our courts. The expressionof opinion of Basnayake, C.J. appears to import the elements of theRoman and Roman-Dutch law relating to prescription into our lawgoverning prescription. No previous decision of the Supreme Courtwhich has taken this view was cited before us. On the other hand,Bertram, C.J. in Tillekaratne v. Bastian (2), referring to the principles ofthe Roman and Roman-Dutch law observed:
“They are, however, only of historical interest, as it is recognisedthat our Prescription Ordinance constitutes a complete code; andthough no doubt we have to consider any statutory enactments inthe light of the principles of the common law it will be seen that theterms of our own Ordinance are so positive that the principles of theCommon Law do not require to be taken into account. Let ustherefore consider the terms of our own Ordinance."
This was a view taken by the Supreme Court as far back as 1918. InCadija Umma v. Don Manis Appu (3), an argument was advanced bycounsel for the appellant that section 3 of the Prescription Ordinanceshould be construed as introducing the requirement known to theRoman law as 'justus titulus" or 'justa causa' The Privy Councilrejected this contention, observing that-
"Learned counsel had however to admit that the law of Ceylonrecognised no such doctrine at the date of the passing of theOrdinance and their Lordships find it impossible to interpret thesection as introducing it."
This view was reiterated by Canekeratne, J. in Fernando v. Wijesooriya
(4).As at present advised, I am not inclined to follow the opinion ofBasnayake, C.J. in Dawood's case (supra) (1) since it does not appearto be in accord with the interpretation placed by our courts on theprovisions of section 3 of the Prescription Ordinance. I accordinglyhold that the fact that the defendants knew that the new owner after
70
Sri Lanka Law Reports
[1987] 2 SriL.R.
the sale was the 1 st plaintiff's husband is not a bar to the defendants'claim to a prescriptive title, but rather tends to strengthen their claim,having regard to all the facts and circumstances of the instant case.
Mr. Goonetilleka next contended that there was no evidence of'adverse possession". With this submission I find myself unable toagree. After the issue of the certificate of sale (D3) in 1944 a new titlewas created and the old title the predecessors in title of thedefendants had was wiped out. But it is conceded that thepredecessors in title of the defendants continued to remain in physicaloccupation of the land. The conditions of sale P2 show that theperson who competed with James Wijesundera to purchase the landat the sale was the 6th defendant in the partition action and an aunt ofthe defendants to the present action. By a lease bond dated 28thAugust 1953 (D8) the 1st and 2nd defendants and Agida Pererareferred to above, gave on lease 5 coconut trees for the purpose oftoddy tapping for a period of two years from 1st January 1954. D8further provides that "the lease shall also be in respect of the soil
exclusive of the tiled house wherein the lessors reside". It is also
to be noted that D8 is a registered document.
There is also documentary evidence, (D1, D6 and D9) which showthat the Village Committee of the area had asked Agida Perera to cutdown a coconut tree and a jak tree standing on this land which were ina dangerous state; that the Village Committee had ultimately cutdown the tree and that the Village Committee had in August 1962recovered a sum of Rs. 1 5 from Agida Perera for the expensesincurred. Besides, there is evidence of payment of rates by thedefendants (D10, D11, D12 and D13). The 1st plaintiff in herevidence stated that no one resided on the land from 1965 to 1973and that the house was closed after 1965. This was proved to befalse by the production of the extracts of the electoral registers D15 toD21. The Grama Sevaka too in his evidence stated that the 2nddefendant was residing on this land in 1970 and 1971.
Thus, when the evidence is fairly read as a whole, in particular thedocumentary evidence, it seems clear that possession by the
predecessors in title of the defendants and by defendants themselvesis "adverse" in the sense that their possession is incompatible with the
CA
Wijesundera v. Dasa (G.P S. De Silva, J)
71
title of the plaintiffs and of their predecessor James Wijesundera. Asexpressed by Canekeratne, J. in Fernando v. Wijesooriya (supra) (4) at325-
"It is necessary to inquire in what manner the person who hadbeen in possession during the time held it; if he held in a characterincompatible with the idea that the title remained in the claimant tothe property it would follow that the possession in such characterwas adverse. But it was otherwise if he held in a charactercompatible with the claimant's title—his possession may be onbehalf of the claimant or may be the possession of theclaimant".
The 1 st plaintiff in her evidence tried to make out that Agida Pereraobtained her husband’s permission to live on the land in 1947. Thisstory of “permissive possession" does not bear scrutiny in view of thedocumentary evidence. It is true, as submitted by Mr. Goonetilleka,the District Judge has not expressly reached a finding on this point butwhen the judgment is read as a whole it would appear that the story ofthe alleged permission given in 1947 has not been accepted.
The burden of Mr. Goonetilleka's submission was that this caseshould be remitted to the District Court for a fresh trial, since theDistrict Judge has failed to make a proper assessment of the evidenceand, what is more, he had failed to appreciate the fact that the burdenof proving prescriptive possession is entirely on the defendants sincethe paper title is admittedly in the plaintiffs. For this submissioncounsel relied on the following passage in the judgment which readsthus (as translated):
"The main question for decision is whether James Wijesunderaafter his purchase of the land got vacant possession from thedefendants or whether one or more of the defendants continued toreside on the land after the sale in the same manner as they didbefore the sale."
It seems to me that there is here no misdirection on the burden ofproof when read in its proper context and in the light of the pleadingsand the evidence. In paragraph 4 of the plaint it is averred that it was in1974 that the defendants forcibly entered the land. The implication isthat the plaintiffs were in possession till 1974. Indeed at one stage inher evidence the 1st plaintiff claimed that her husband JamesWijesundera visited the land during his lifetime and thereafter she was
72
Sri Lanka Law Reports
[1987] 2 Sri L R.
a frequent visitor to the land. On the other hand, in paragraph 2 of theanswer the defendants specifically pleaded that the purchaser at theauction sale never obtained possession and the defendants to thepartition action and the defendants to the present action continued toremain in possession as they did before the partition action. The 1 stdefendant's oral evidence was to the same effect. It would thereforeappear that the District Judge was not in error in considering who wasin actual physical occupation of the land after the purchase by JamesWijesundera in 1944.
While it is true that the judgment could have been morecomprehensive and the findings explicitly stated yet this infirmity doesnot, in the circumstances of this case, justify a re-trial, which invariablyentails much inconvenience and considerable expense to the parties.The central issue in the case was the defendant's claim to aprescriptive title and the material placed before the court by thedefendants clearly justifies the finding in their favour.
Finally (and as an alternative submission) Mr. Goonetillekacontended that the issue on prescription could not have beenanswered in favour of the defendants in view of D7 and D23. D7 of1956 was a deed of transfer of the land in suit by the defendants andtheir predecessors in title to one Thomas Seeman. D7 recites title byprescription. Mr. Goonetilleka submitted that by D7 the defendantsand their predecessors had parted with their title. By D23 of 1965there was a reconveyance of the title to the land but that was not tothe 1st defendant but to his wife and the 2nd defendant. Mr.Goonetilleka proceeded to refer to paragraph 3 of the answer whichmade specific reference to D7 and D23 and submitted that no issuewith reference to the paper title pleaded in the answer was raised bythe defendants. In short Mr. Goonetilleka urged that the defendant'scase of continuous prescriptive possession from 1944 to date ofaction (1978) fails in view of D7 and D23.
On the other hand, Mr. Daluwatte for the defendauts-respondentsmaintained that the reference to D7 and D23 in the answer was notintended to set up a paper title in the defendants for, in any event, theso called paper title of the defendants would be of no avail, as againstthe conclusive title conferred on the plaintiffs by the certificate of saleunder the Partition Ordinance (D3). It was counsel's submission thatD7 and D23 were relevant for another purpose, namely to "tack on'
– the possession of the predecessors in title of the defendants in order
CAWijesundera v Dasa (G.P.S. De Silva. J.)73
to establish their claim to a prescriptive title. To establish a title byprescription section 3 of the Prescription Ordinance requires proof ofpossession of the character set out in the section for the requisiteperiod by the plaintiff, defendant or intervenient (as the case may be)or by those under whom he claims. Mr. Daluwatte relied on the caseof Carolis Appu v. Anagihamy (5). It seems to me that this submissionis well founded. It may not be irrelevant to add that at the trial D7 andD23 were assailed by the plaintiffs on the basis that they weredocuments made out to bolster up a false claim to prescriptivepossession.
For these reasons, the appeal fails and is dismissed with costs fixedat Rs. 157/50.
ABEYWIRA, J.-l agree.
Appeal dismissed.