012-SLLR-SLLR-1986-V-1-WICKREMARATNE-AND-AOTHER-v.-ALPENIS-PERERA.pdf
190
Sri.Lanka Law Reports
11986) I SriL. R.
WICKREMARATNE AND ANOTHER
v
ALPENIS PERERA
COURT OF APPEAL.
G. P, S. DE SILVA. J. AND JAYALATH. J
A. 574/77 (F).
C. GAMPAHA 14320/F,
NOVEMBER 18-21.26. 28 AND 29. 1985.
DECEMBER.02-05. 1985.
Prescription among co-owners-Proof of ouster-Partition action.
In a partition action for a lot of land claimed by the plaintiff to be a divided portion of alarger land, he must adduce proof that the co-owner who originated the division andsuch co-owner's successors had prescribed to that divided portion by adversepossession for at least ten years from the date of ouster or something equivalent toouster. Where such co-owner had himself executed deeds for undivided shares of thelarger land after the year of the alleged dividing off it will militate against the plea ofprescription. Possession of divided portions by different co-owners is in no wayinconsistent with common possession.
19 1
CAWickremacatne v.AlpehisPerera ■
A coowner's possession is in law the-possession of other co-owners. Every.co-owneris presumed to be in possession in his capacity as co-owner. A cp-owner cannot put anend to his possession as co-owner by a secret intention in h'is rriindr.Nothing shorp'olouster or something equivalent to ouster could bring about that result.
Registration extracts are evidence of the particulars entered; in' the register The
objection that the documents referred to in them should have been produced cannot be-
taken for the first time in appeal..
Cases referred to:
Ponnambalam v. Vaitialingam and Another f 1978- 1979J.2 Sri-ljR. ,166
Corea v. iseris Appuhamy (1911) 15 NLR 65.■V:
MohamedalyAdamjee v. Hadad Sadeen (1956) 58 NLR 2.1 7, 225.
Girigoris Appuhamy v. Maria Nona (1956) 60 NLR 330, 331.
Kodituwakku v. Anver and Others C:A. 13/81 D.C. Matara 7475/P. G.Aof 10.12. 1985.
.(6) Karunaratne v. Sirimalie (1951) 53 NLR 444.
(.7) Sediris Appuhamy v. James Appuhamy (1.958) 60 NLR 297. 302- 303.
(8) Danton Obeysekera v. Endoris (1962) 66 NLR 457.
APPEAL from a judgment of the District Court of Gampaha.
P. A. D. Samarasekera, P.C. with G. L. Geethananda-lor 6th.. and-7thdefendants-appellants.' •
N. R. M. Datuwatte. P.C. with Miss S. Nandadasa for plaintiff-respondent.
Cur. adv. vult.
. Minutes
February 7, 1986.
G. P. S. DE SUVA, J.
This appeal raises once-again the recurring question of prescriptionamong' co-owners. While' the appeal was strongly pressed beforeus by Mr. Samarasekera, counsel for the 61 It and 7 thdefendants-appellants,-■ Mr. Daluwa.tte, counsel for theplaintiff-respondent, tenaciously sought to resist .the appeal
The plaintiff sought to partition a "divided and defined allotment olland called Horahena portion".about 1 acr'e in extent described in thesecond schedule to the plaint. The entire land called Horagalhena aliasHorahena containing in extent-22 acres, 3 roods and 21 perches wasdescribed in the firs;t schedule to the plaint. The plaintiff averred in hisplaint–dated 2.8.9.67 :. that the original owner of the entire landdese.riteted in the1 first schedule was Carolis; that Carolis on P1 of 1 898
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[1986J I SriL. R.
'transferred'an undivided half share of the entire land to Lanchinonawho on P2 of -1921 sold an undivided 1 /4 share to Abraham. On P3 ofSeptember 1-936 Abraham sold an undivided extent out of an'.undivided 1/4 share of the entire land to Don Heras. the predecessor•in title of the plaintiff. The. essence of the plaintiffs case relevant forthe purpose of the present appeal, is set out in paragraphs 4 and 5 ofthe plaint which read'thus:
"(4) The said Don Heras in lieu of his undivided interests in the landdescribed in schedule (I) hereunder divided and separated twoportions of land and possessed them exclusively and adverselyand acquired a prescriptive title to the said two lots.
That one of the said lots referred to in the preceding paragraphhereof is more fully described in schedule 2 hereto and formsthe subject matter of this action."
It is right to add that the original owner Carolis transferred the balancehalf share to his son Girigoris on 6D1 executed on the same date as' P.1: The interests of Girigoris devolved on his .children Abraham,Seetmona. Jane Nona. Sara Nona, Delin Nona (1st defendant),William and Laisa Nona (widow). It may be noted that William (towhom reference is made later) was admittedly one of the co-owners'of the entire land.
The issues relevant for present purposes are issues Nos. 1 and 2raised by the plaintiff and issues Nos. 3 and 4 raised by the 6th and7th defendants. These issues are as follows:
Has Heras in or about 1936 separated off the divided andseparate portion of Horagahahena described in the 2ndschedule to the plaint?
Has the said Heras and his successors in title prescribed to thesaid lot?
Is the plaintiff seeking to partition in this action an undividedportion of the land described in the first schedule to the plaint?
If issue No. 3 is answered in the affirmative, can the plaintiff
have and maintain this action?
CAWickremaratne v. Alpenis Perera (G. P: S. De SHva, J-.).: .-. !193.
After trial the District Judge answered issues 1 and 2 in'the affirmative;and issue 3 in the negative, and entered inteddcufory decree -forpartition of the land. This plaintiff was declared.entitled to 1/2 share,and the balance 1/2 share was allotted to the 1st defendant.; The 6th.and 7th defendants who sought a dismissal of .the action have now.appealed against the judgment and decree.■
The one submission that Mr. Samarasekera pressed before us isthat the finding of the District Judge that the land -sought .to bepartitioned is a divided and separate portion.carved out of the entireland described in the 1 st scheduled the plaint is clearly insupportable,.,having regard to the evidence. Counsel stressed the fact that theplaintiff has failed to produce a deed of partition or cross conveyance,or any plan indicative of a partition. Although one of the witnessesclaimed that there was a survey and a division of the land, no surveyorwho effected such division was called to give evidence. What is more,,counsel urged that the documentary evidence in the case completely.,contradicts the theory of the alleged division and separation and thatthe oral evidence falls far short of the proof'required to establish thefact that Heras had prescribed to the land sought to be partitioned asagainst all the co-owners of the larger land.-In short, Mr.Samarasekera.submitted that there was in -law no separation ordivision of the entire land and the evidence at best showed that someof the co-owners possessed different portions of the land purely forconvenience of possession.
On the other hand, Mr. Daluwatte argued that the question beforeus is a pure question of fact and that this court should not disturb purefindings of fact; that the oral evidence accepted by the trial Judgeestablished a case of separation and division of the entire land; thatthe absence of a deed-of partition or cross conveyance or a plan of.partition only goes to the weight of the evidence; that the merereference in the deeds to undivided extents of the entire land is notmaterial for what is important is, if I may use counsel s own words,"what happens on the land.and not what is done in a Notary’s office";that the several co-owners made no claim before the surveyor at thepreliminary survey nor did they prefer any claim thereafter in court;that the 6th defendant who was present at the time of the survey didnot state that.the corpus is only a portion of a larger land; that one ofthe admitted co-owhers (Gunasekera) of the larger land had gifted aportion of his land, to the State to construct a dispensary and that he
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(1986) 1 SriL. R.
had also sold .a portion of his land by public auction; that Heras himselfgave a portion of-his land for the construction of a V.C. road; that theexercise of these rights of ownership by some of the admittedco-owners was .not objected to by the other co-owners; that thejareliminary plan, prepared for this case shows that the corpus wasseparated by fences from the land of two other co-owners, namelyGu'naseker'a and Pathjraja; that in any event the 6th defendant who isin possession of the corpus is a tenant under the 1st defendant andhas no locus standi to take the objection that the corpus is only a
portion of the larger land.
Now, on the pleadings and issues it is clear that the plaintiffs casewas that the .corpus in dispute was prior to 1936 a portion of thelarger land described in schedule (1) to the plaint. In or about -1936Heras separated off the corpus from the larger land and commenced‘ to possess it adversely to all the other co-owners of the larger land. In• other words, the allegation of the plaintiff was that around 1936 a. new corpus, separate and dis.tinct from the rest of the land, came into..existence and that Heras as owner of that corpus possessed it at leastfor a period of TO years and acquired a prescriptive title thereto. AsMr; Daluwatte himself submitted, the foundation of the plaintiff's casewas a unilateral act of separation which was not opposed by theco-owners of the larger land.
However, it is of the utmost significance to note that this was notthe approach of the District Judge to the case of the plaintiff. His clearfinding was that Heras separated off the corpus in 1 936 with the priorapproval of all the co-owners of. the larger land. Here the DistrictJudge was in serious error, for that was not the case of th£ plaintiff asset out in the plaint and embodied in the issues. What is even moreimportant is that there was no evidence that the separation or thedivision of the corpus was with the prior approval of all the co-ownersof the larger land. As to whp the co-owners of the entire land were,was not a matter which was put in issue at the trial and the result wasthat no evidence was led on that point. There was a furtherconsequence arising from the erroneous finding on this crucial matter.Since the trial Judge wrongly took the view that the separation of thecorpus was with the prior approval of the co-owners, he did notaddress his mind to the vital question of ouster or something
equivalent to ouster. If in fact there was evidence that.the separationof the corpus was with the prior approval of'all the co-owners'–, then•that fact may be sufficient evidence of ouster. In the absence of stfch
CA
Wickremaratne v. Alpenis Perera (C.'.P.-S: De.Sitva. J:):. ,:1’&5
:‘ -r. '>' i
evidence, u was the clear duty .61 the trial Judge-TbJookMof'evidenC'a-.ofouster or something equivalent to ouster This he-.laTed to do. In theabsence ol ouster or something equivalent to ouster,-possession'-by'one co-owner enures to the benefit ol all ot'h.er.c6:pwners. Theprinciple was succinctly stated by Ranasmghe, J'.Sit Ponnambalam v.'Vaitialingam and Another (1) in the lollowjng terms:
"The termination ol common ownership,–without the exp'ressconsent ol all the co-owhers could take place where one or'-'more'parties – either a complete stranger or even .one who is ,in'thepedigree-claim that they have prescribed, to .either -the'entirety or a-,specific portion of the common land. Such a termination could take-place only on the basis of unbroken and uninterrupted adversepossession by such claimant or claimants for at least'a period oftenyears". (The emphasis is mine)
Admittedly Heras entered into possession of the land in the .characterof a co-owner. Ever since the decison of the Privy Council in Corea v.Iseris Appuhamy (2)-it is settled law that —•
a co-owner's possession is in law the possession of other
co-owners;■ .
that every co-owner is presumed to be possessing in his- capacity as co-owner;
' (c) that it is not possible for a co-owner to put an end to in:,possession as co-owner by a secret intention in his mind;
that nothing short of duster or something equivalent to oustercould bring about'that result. '-
The District Judge therefore1 had to look for an overt act on the part ofHeras which brought to.the notice of his co-owners that he was since■1936 denying their rights tp the .corpus,. This he failed to do, for heproceeded on the basis that the separation of the lot was with theprior approval of all the eo-owners-a basis which, as stated earlier,was not the case of the plaintiff nor was'any evidence led of such priorapproval.-
This was not the only error committed by the District Judge, In•reaching the finding that Heras had prescribed to the subject-matter ofthe action, he acted on the oral evidence of the plaintiff, the 5thdefendant, the witness Adiris and certain admissions made by the 6thdefendant-in the course of his evidence. The effect of the oralevidence at it's best was-that there was a division of the larger land andthat'sorrie (but certainly not all) of the co-owners possessed different
196Sri Lanka Law Reports11986] I Sri L. R.
portions of the larger land. Although the witnesses claimed that asurveyor effected the division, no surveyor was called nor was anyplan of any kind produced in support of any sort of division. Not oneplan was produced to show that even a single co-owner has separatedoff his portion. But the matter does not rest there. The documentaryevidence produced on behalf of the contesting defendants clearly andunmistakably negatived the story of the division of .the entire land anddivided possession. The trial judge, however, summarily dismissed theoverwhelming documentary evidence and preferred to accept the oralevidence.
There was here a clear misdirection in the assessment of theevidence. In unreservedly accepting the oral evidence, the' DistrictJudge overlooked the fact that oral evidence in a case of this kindcould come from partisan sources and that too, long after the disputehad arisen. Such evidence must be critically examined as againstdocuments which were executed long before the dispute arose. Thedocuments are a contemporary record of transactions and theycannot be possibly ignored in the way the District Judge did,particularly when the documents clearly contradict the plaintiff's case'of separation and divided possession. I
I shall now turn to the relevant documents. The registration extractsmarked 6D5 to 6D18 are most revealing. The second transaction in6D13 shows that Heras himself in 1 939 mortgaged.an undivided 1 /4share (less certain undivided portions) to .one Jan Singho. Thus threeyears after the alleged separation and division Heras deals withundivided shares of the entire land. Again, 6D14 shows that in 1955Heras mortgaged to one Charlis Perera Wijesekera an undivided 1/4share (less certain undivided portions) of the larger land. Once again in1959 Heras mortgaged an undivided share of the larger land-vide6D1 6 – Moreover 6D1 6 shows that the 1 st defendant gifts to the 5thdefendant an undivided 5 acres out of the larger land in April 1962and in April 1963 the 5th defendant mortgages the said undivided 5acres. It must be noted that the 1st and 5th defendants are personswho supported the plaintiff's case and claimed that the land wasdivided. In short, the registration extracts produced by the contestingdefendants furnish clear proof of the .fact that several co-ownersuncluding Heras, the 1st defendant, the'5th defendant, one(Sunasekera and one Pathiraja have dealt with undivided shares of thelafger land over a long period of time after the alleged division in'
Wickremaratne v. Alpenis Perera (G. P. S. De Silva, J.)
197
Sa
1936. The documents show that even as late as 1959 Herasconsidered himself a co-owner of the undivided larger land. The firstdeed in respect of a, divided portion of the land was written only in1 963 (P4), that is 4 years prior to the action. It is significant that P4executed by Heras for the first time refers to the corpus as a "dividedportion". If such a division had taken place'earlier, then the previousdeeds would have referred to the fact of separation and division. Theonly two deeds which speak of a divided lot are P3 and 1D1 executedin 1963 and 1964 respectively. No other document has beenproduced to show that any of the admitted co-owners like Gunasekeraor Pathiraja have dealt with divided lots. The documents are of greatimportance as they reflect the state of mind of Heras in particular andof the other admitted co-owners. It would appear that on thedocuments Heras considered himself to be the sole owner of thecorpus only in 1963.
Mr. Daluwatte sought to get over the effect of the documents bysubmitting that the mere reference to undivided shares is notmaterial. But this is not a case of isolated documents which refer toundivided shares. In the instant- case, several deeds have beenexecuted over a long period of time after the date of the allegeddivision on the basis of undivided shares. The deeds therefore are avery strong item of evidence which runs counter to the theory of adivision of the larger land. In my view, had the District Judge carefullyconsidered the documents, as he ought to have done, and given thedocuments due. weight in his assessment of the entirety of theevidence, he could not have reasonably answered the issues relating
to prescription in favibur of the plaintiff.
•
At this point it is right to add, that Mr. Daluwatte objected to Mr.Samerasekera relying on the registration extracts in the absence of thedocuments referred to in the extracts. Mr. Daluwatte submitted thatthe registration extracts cannot be used as secondary evidence toprove the contents of the documents referred to in the extracts. In myview, there is no merit in this objection raised for the first time inappeal. At the trial these extracts were marked in evidence withoutobjection. These are certified extracts of documents maintained underthe provisions of the Registration of Documents Ordinance and theregulations framed under the Ordinance. Section 1 5 of the Ordinanceenacts that the "Registration of an instrument shall be effected byentering the prescribed particulars in the proper folio." The particularsare prescribed under the Registration of Documents Regulations
198Sri Lanka Law Reports(1986] t Sri L.R.
(Subsidiary Legislation. Vol. II. Chap. 117). Mr. Samerasekera reliedon the particulars of the transactions entered in the register. Thesecertified extracts were in the forefront of the appellant's case at thetrial. There is no question that the plaintiff was fully aware of thepurpose for which the registration extracts were produced by thecontesting defendants. Having regard to the issues in the case, itcannot be denied that the registration extracts were intensely relevant,(see also the observations of the Privy Council in MohamedalyAdamjee v. Hadad Sadeen (3)). Had the objections now taken by Mr.Daluwatte been taken at the trial, the appellants would have had anopportunity of producing the documents relating to the relevanttransactions shown in the extracts. This was not done, and we cannotnow permit an objection of this kind to be taken for the first time inappeal.
The oral evidence that some of the co-owners possessed differentportions of the entire land is not inconsistent with co-ownership. Inthis connection the observations of Sansom, J. in Girigoris Appuhamyv. Maria Nona (4) are apposite:
"There is no doubt that the land is possessed in different lots bydifferent co-owners but such a mode of possession is in no wayinconsistent with common possession. It would have been differentif the co-owners had executed deeds for divided shares: someweight would then have been lent to the theory that there had beena division of the entire land many years ago."
The preliminary plan prepared for the present ai^pon in 1970 showsthat there is a fence on the east separating the corpus from the»land ofPathiraja and a fence on the west separating it from the land ofGunasekera. But the point is that there is no evidence at all in regard tothe age of the fence. Nor is there any evidence that Heras put up thefences. All that the plan shows is that in 1970 there were two fenceson the eastern and western boundaries of the corpus. There isevidence that one of the admitted co-owners, namely Gunasekera,gifted a portion of the land he was in possession to the State toconstruct a dispensary. This gift is not very different from the case of aco-owner selling his undivided interests in the land. The position mayhave been somewhat different if there was evidence that the Statepaid compensation for the acquisition and the entire compensationwas appropriated by Gunasekera. There is no such evidence. Mr.Daluwatte relies on the evidence that Gunasekera sold by public
Wickremaratne v. Alpenis Perera {G. P. S. De Silva. J.)
199
CA
auction a portion of his land. But the 5th defendant has stated that theauction sale was only in 1971, that is after the institution of thisaction. In any event, an auction sale would afford only a good startingpoint for prescription. Although Mr. Daluwatte stressed the fact thatno other co-owners made a claim before the Surveyor or filed astatement of claim, it seems to me that little importance could beattached to this fact. There may be several reasons for the failure ofthe co-owners to prefer a claim. Some of them may be living awayfrom the village in which the land is situated. Some others may nothave had notice of the action for varying reasons. Still others may be inpossession of an extent more than their entitlement and would preferto remain silent. No case was cited before us where a court hasattached any importance to the failure of co-owners to prefer a claimin court or before the Surveyor. Mr. Daluwatte contended that the 6thdefendant lacked locus standi to raise the objection that the corpuswas an undivided portion of the larger land for the reason that he gotrights on 6D3 after the institution of the action and that he was nomore than a tenant under the 1 st defendant. Apart from the fact thequestion of locus standi was not put in issue at the trial, the lack oflocus standi in the 6th defendant is not an infirmity which in any eventaffects the 7th defendant who is the other appellant before us.
This being a partition action, there are certain duties cast on thecourt quite apart from objections that may or may not be taken by theparties. As rightly observed by Jameel, J. in Kodituwakku v. Anver andOthers (5):
" in addition to the duty that is cast on the court to
resolve j:he disputes*that are set out by the parties in their issues,the court has a supervening duty to satisfy itself as to the identity ofthe corpus and also as to the title of each and every party whoclaims title to it."
Therefore the fact of division, separation and adverse possessionpleaded in paragraphs 4 and 5 of the plaint must be proved to thesatisfaction of the Court. This is not a matter which could be decidedby the failure of the co-owners to prefer their claims or on the basis ofthe lack of locus standi on the part of the 6th defendant. As stated byGratiaen, J. in Karunaratne v. Sirimalie (6) the Court must be satisfiedthat the "rights of possible claimants who are not parties to theproceedings have not been shut out accidentally or by design". It is inevidence that William, an admitted co-owner, was not allotted aportion in the alleged division in 1 936. William is closely connected to
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Heras. Heras was married to William's sister and William was marriedto the sister of Heras. William could not have lost his rights in theabsence of evidence of ouster or something equivalent to ouster.
It seems to me that the entirety of the evidence led in the caseshows that at the most some of the co-owners were in possession ofdivided lots not as a permanent mode of possession, but for mereconvenience of possession. A division of the. land on the basis ofconvenience of possession does not result in the termination ofco-ownership.
"Very clear and strong evidence of ouster among co-owners iscalled for and separate possession on grounds of conveniencecannot be regarded as adverse possession for purposes of
establishing prescriptive title…Every co-owner is in law entitled
to his fractional share of everything in the co-owned propertyincluding the soil as well as plantations, but in practice it is notpossible for every co-owner to enjoy his fractional share of everyparticle of sand that constitutes the common property and everyblade of grass and every fruit from trees growing on the landwithout causing much inconvenience to himself as well as the otherco-owners. To avoid this for the sake of convenience, co-owners
possess different portions of the common land", per
Sinnetambv, J. in Sediris Appuhamy v. James Appuhamy (7).
Mr. Daluwatte stressed the fact that the oral evidence showed thattwo of the admitted co-owners, namely Gunasekera and Pathirajawere in possession of separate and divided lot;. But the deeds theyexecuted as shown by the registration extracts do not indicate thatthey considered themselves owners of divided lots. In fact thequestion whether Gunasekera and Pathiraja separated off portions ofthe larger land and possessed them as their own, was not a matterwhich arose for decision at the trial. As stated earlier, it was not theplaintiff's case that there was an amicable division of the entire landamongst all the co-owners.
The District Judge as well as Mr. Daluwatte relied very strongly onthe case of Danton Obeysekera v. Endoris (8). That was a case wherean outsider bought about 2 roods from two co-owners and separatedoff such portion "not for mere convenience of possession and as atemporary arrangement". What is more, there was evidence of twoplans, one made in 1938 and the other in 1948 which strongly
CA^Wickremaratne v. Alpenis Perera (G. P. S. De Silva, J.)201
supported the separation of the lot and was also evidence of ouster.The plans showed that the lot in dispute was possessed as a separateentity. In the appeal before us, there is a total lack of evidence of thisnature.
The best answer to the plaintiffs case of separation'of the lot indispute and the division of the land are the deeds executed by Herashimself. It was only as late as 1963 that Heras executed for the firsttime a deed (P4) on the basis that he was the sole owner of thecorpus. In short, the deeds of Heras himself disprove the plaintiff'scase, not to mention the deeds of the other co-owners. The evidencedoes not disclose an ouster and there is nothing to warrant apresumption of ouster.
am therefore of the view that the District Judge was in^error whenhe answered issues 1 and 2 in favour of the plaintiff and issues 3 and4 against the contesting defendants. I hold that the plaintiff has failedto establish that the corpus sought to be partitioned is a separate anddivided portion of the larger land. Therefore this action cannot bemaintained. I accordingly set aside the judgment and interlocutorydecree and dismiss the plaintiff's action. The plaintiff-respondent.mustpay the defendants-appellants the costs of appeal fixed at Rs. 210.
JAYALATH, J.-l agree.
Appeal allowed.