121-NLR-NLR-V-18-APPUHAMY-et-al.-v.-GOONATILLEKE.pdf
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Present : Wood Benton C.J, and De S&npayo J.
APPUHAMY et ah v. GOONATILLEKE.
396—D. 0. Qatte, 12,693.
Prescription—Not affected bp registration.
The prioff registration of a subsequent deed does not interruptprescription which has already begun to run in favour of the holderof the earlier (unregistered) deed.
Prescription is a mode of acquisition independent of any docu-mentary title which the possessor may at the same time have, andalthough documentary title may be defeated by the operation . otthe Registration Ordinance, the other remains unaffected.
f|lHE facts are set out in the judgment.
Arulanandam. for plaintiffs, appellants.
Batutcantudawa, for defendant, respondent.
Car. adv. vult.
December 8, 1915. Wood Benton C.J.—
In this action the plaintiffs sued the defendant for declaration oftitle to a plantation on a certain block of land. The defendantadmitted the plaintiffs' right to the soil, but claimed the plantationunder tine planting voucher. The plaintiffs' title was based on aFiscal's transfer, No. 10,788, dated May 26, and registered onJune 23, 1905, on a writ issued in 1908 against the owner of theland,- Eikoris. Nikoris had granted the planting voucher to thedefendant in 1897, and, on the interpretation of it adopted by bothsides and by the District Judge at the trial, this document conferreda proprietary interest in the plantation on the defendant, if theplantation was duly made within five years from the date of itsexecution. The conditions of the planting voucher in this respectwere fulfilled. But the voucher itself was unregistered. TheDistrict Judge held that the defendant's rights under it were wipedout by the registered Fiscal's transfer of 1905, but that it was stillopen to the defendant to prove, and that he had in feet established,a title to the plantation in question by prescription. There was noappeal against the decision of the learned District Judge as to thepriority of the transfer of 1905 over the unregistered plantingvouchef. The question that we have now to decide is whether, inspite of the existence of the registered instrument of 1905, thedefendant could establish title to .the plantation by prescription.
1915,
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ljMfe In mjf opihion Aftt questiofi must be antwend In Hie affirmative.
ITood Xheze out be no doubt upon Hie evidence, but that from 1008'tow>wCJ> upwards Hie defendant intended «to possess end possessed theAppuhamy plantation anno desnM* It is true theft his,, possession was based—*. on #an instrument which was liable to be defeated by Hie prior
nptrptoiK of a subsequent deed. But no nan registration couldaffect Hie fact and Hie diameter of Hie possession itself, nor, as itleft tbe physical occupation of Hie land by Hie defendant annodomini undisturbed, can it be regarded as an interruption ofprescription.4 v
On these grounds I would dismiss the appeal, with hosts.
Db Sampayo J.—
This appeal raises an interesting 'question of law under Hiefollowing circumstances. One Nicholas de Silva, who was the ownerof the land in dispute, gave it to the defendant to be planted withcoconuts on an agreement dated July 5, 1897, whereby it wasstipulated, among other things, that the defendant should plant the-land within five years, and that he should become entitled to ahalf share of the plantation when the trees bo planted should bebeyond the reach of cattle and in bearing. The land was subse-quently sold in execution against Nicholas de Silva $o MendiaWijesekera on a Fiscal’s transfer dated May 26, 1906,' andregistered on June 28, 1906; and Hie second plaintiff, whose lesseethe first plaintiff is, has recently purchased the land from a claimantunder the execution-purchaser Mendia Wijesekera. The plantingagreement was never registered, and the District Judge rightly heldthat the plaintiffs’ title, based upon the registered Fiscal’s transferin favour of Mendis Wijesekera, prevailed over the planting agree-ment in respect of the one-half share ,of the plantation therebyvested in the defendant. He has, however, found on Hie evidencethat the defendant has been in uninterrupted and adverse possessionof the one-half share of the plantation since the expiration of theperiod of five years fixed by the planting agreement, and hasacquired prescriptive title thereto. The plaintiffs appeal from Hiejudgment by which the District Judge has dismissed their action onthat finding.
Counsel for (he appellants is right in contending that under Hisagreement the defendant was to have got his planter’s share, notat the expiration of five years from the date of the agreement, asthe District Judge thought, hut when the trees should have attainedthe stipulated degree of maturity. But 1 am satisfied on theevidence of the defendant, which is unoontradioted and stands alone,that the trees attained the requisite maturity, and the planter’sshare was taken and begun to be possessed by the defendant, beforeten years prior to this action. There is praotioaUy no.dispute as to
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these facts. It Ib argued* however, •that, inasmuch hs tlfe regis-tration of the deed in favour of Mendis Wijesefeera in June, 1905,defeated.* the defendant's .title under .the planting agreement,prescription could in law Chly run from that date. In my opinionibis argument is wholly untenable. The benefit of prior registrationis, by section 17-of the Ordinance No. 14 of 1891, given to ai^instru-4rnent only against a 44 deed, judgment, order, or other instrument.’'Such registration only affects titles based on the “ ifiatruments ”specified in section 16, and has nothing to do with titles acquiredotherwise than upon such instruments. The title bf prescriptionis acquired lg? acts of possession, and I fail to see 4hat the registrationof the deed by the owner against whom prescription is runningaffects the provisions of the Prescription Ordinance, unless it canbe said to be interruption of possession. Even the bringing of anabortive action has been authoritative^ held not to be an interruptionof possession (EmanU v. Sadappu1); and in my opinion .the registra-tion of a deed, which is still more unsubstantial, cannot be regardedas an interruption of a possession which is as a matter of factcontinuous. Prescription is a mode of acquisition independentof any documentary title which the possessor may at the sametime have, and although the one may be defeated by the operationof the Registration Ordinance, the other remains unaffected. Atthe argument I referred to the class of oases in which it has beenheld that, although the issue of a Fiscal's transfer divests the execu-tion-debtor’s title as from the date of sale, that result does notdefeat the new and independent title which the execution debtormay have acquired by adverse possession since .the sale. SeeSidambaram v. Punchi Banda.* The same considerations appearto me to apply much more strongly to such a case as the present,where there is no question of relation back.
I think the finding of the District Judge on the issue of prescriptionis right, and I would dismiss the appeal, with costs.
Appeal dismissed.
Dtflmmo
J.
Appiskamy
c.
, Qoonaffleke
1 gS9T) 5 J/. L. R. SSL
* (isis) u n. l. £. m: