092-NLR-NLR-V-05-GOONEWARDANA-v.-PEREIRA.pdf
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1002.
January ISand 16.
GOONEWARDANA v. PEREIRA.
D. C.. Colombo. 12.864.
Possessory suit by a person ousted by violence—Evidence necessary to supportsuch a suit.
Bonser, C.J.—When a person in possession of a property has beenforcibly ousted, he is entitled to maintain a possessory suit. Proof ofpossession and violent ouster is all that is required to support thePlaintiff. It is not necessary to prove possession for – a year and a day.
Wendt, J.—In a possessory action, plaintiff may take advantage ofthe possession of his predecessor in title. It is not necessary that hehimself should have had a year and a day is possession, where that is oneof the- requirements for bringing a possessory action.
O
NE Jusey Perera leased the land in dispute to the plaintiff fora period of three years, commencing from 15th February.
1898. The lessor died on 18th January, 1899, and the defendantsousted the plaintiff in the following month, and plucked the nutsfrom the coconut trees on the land. PlaintiS brought a posses-sory suit on the 18th February, 1899, and prayed to be restoredto possession.
The Additional District Judge (Mr. N. E. Cooke) found asfollows: —
“ The defence that was pressed most at the trial was that theplaintiff had not had quiet and undisturbed possession of thepremises for a year and a day immediately preceding the 18thFebruary, because of a Police Court case in which the plaintiffwas charged with causing hurt with a knife to one Hendrick.There is no doubt that Hendrick, when picking nuts in this gardenon the 12th February, was 'hurt by the plaintiff and the plaintiffwas fined for it. Hendrick states that he picked nuts on thatoccasion at the request of the third defendant. That solitary actbv one of the defendants six days before the ouster laid in the
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plaint does not amount to such a separate disturbance as precludes uh>2.-the plaintiff from maintaining this possessory action. (D.C., January is
Kurunegala, No. 20,724. 3 S.S.C. 151.)and l6‘
“ The evidence adduced by the plaintiff establishes that thedefendants plucked nuts from the trees on the 18th February, 1899,and that the plaintiff was turned out of the land. I find that the pos-session by the plaintiff and the ouster by the defendants are proved.
" Jt is ordered that the plaintiff be restored to the possession ofthe premises described in the plaint, and that the defendants payto the plaintiff as damages at the rate of Rs. 10 per month fromthe 18th February, 1899, until the plaintiff is restored to possession.
The defendants to pay the costs of this action.
Defendants appealed.
Seneviratne, for appellants.—Plaintiff cannot maintain a posses-sory suit, because he has not proved quiet and undisturbedpossession for a year and a day. [Bonseb, C.J.—Why quiet andundisturbed possession, and why should he wait for a year and aday?] 2 Thomson's Institutes, pp. 513, 514, based on Vander Linden,justifies that principle. [Bonseb, C.J.—Thomson has interpolatedthe words “ by force ” without good reason. They do not occurin Yander Linden-] Plaintiff alleged in his plaint quiet andundisturbed possession, but failed to prove that allegation.
[Bonseb, C.J.. referred to the mandament van spolie, Juta'sYander Linden, pp. 101. 303: T’oet, 43, 6, 7.]
Jayawardene, for respondent.—There was a violent forcibleouster. The police were appealed to. Plaintiff is entitled tomaintain the suit."
16th January, 1902. Bonseb, C.J.—
In this case we see no reason to dissent from the opinion whichwas formed by the District Judge on the evidence before him asto the possession of the plaintiff and the ouster by the defendants.
As regards possession for a year and a day, speaking for my ownpart. I am not prepared to assent to the proposition that, wherethere is an ouster by violence of the person who is in possessionof the property, anything more is required to be proved by himthan that he was in possession and that he was violently ousted.
Wendt, J.—I agree. I may add that this Court has ruled that ina possessory action plaintiff might take advantage of the possessionof his predecessor in title, and that- it is not necessary that hehimself should have had a year and a day’s possession, where that isone of the requirements for Bringing a possessory action. NoonaVmma v. Ismail Lebbe (4 S. C. G. 75), per Clarence, J., approvedby Bonser, C.J., in D. C., Negombo, 2,795, 30th August, 1898.
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