131-NLR-NLR-V-44-NAVARATNE-Appellant-and-JAYATUNGE-Respondent.pdf
Navaratne and Jayatunge.
517
1943
Present: Howard C.J. and Jayetileke J.
NAVARATNE, Appellant, and JAYATUNGE, Respondent.
329—D. C. Chilaw, 10,411.
Prescription—Occupation of property with permission of owner—Overt act—Adverse possession—Licensee. '
Where -a person enters into occupation of property belonging toanother with the latter’s permission he cannot acquire title to such, pro-perty by prescription unless he gets rid of his character qf licensee bydoing some overt act showing an intention to possess adversely.
Naguda Marikar v. Mohammedu (7 N. L. R. 96) followed. '•
^j^PPEAL from a judgment of the District Judge of Chilaw..
H. V. Perera, K.C. (with him C. V. Ranawake and H. A. Kottagoda),for the defendant, appellant.
N. E. Weerasooria, K.C.respondent.
(with him D. W, Fernando), for the plaintiff,
Cur adv. vult.
518HOWARD C.J.—Navaratne and jayatunge.
October 6,. 1943. Howard C.J.
This is an appeal from a decision of the District Judge of Chilaw givingjudgment for the plaintiff for the sum of Rs. 2,266.66 together with costs.The plaintiff in his plaint claimed certain lands as the administrator ofthe estate of one Iseris Appuhamy. When the case came to trial, it wasdiscovered that the defendant had transferred her interests in these landsto certain Chettiars. These Chettiars were added as defendants, butsubsequently struck out on the plaintiff consenting to restrict his claimto damages for wrongful possession by the defendant of two lands calledMillagahahena and Welangahayays,belonging to the estate. The plain-tiff contended that these two lands formed part of the estate of the saidIseris Appuhamy and that the defendant had been in possession of themsince 1930. The defendant. on the other hand averred that the twolands formed part of the Wandjira Eba Estate which Iseris by deed P 1of January 16, 1917, gifted to her father, that she has been in possessionof the two lands and acquired a title thereto by prescription. At thetrial it was admitted that the two lands in question were not included inP 1. The title thereto remained in Iseris unless the defendant couldmake good her claim by virtue of prescription. The learned Judge hason this issue found against the defendant. The other issues beinganswered in favour of the plaintiff the learned Judge gave judgmentaccordingly.
The only point taken on appeal was whether the learned Judge wasright in the conclusion at which he arrived on the question of prescription.It was established that by P 1 executed in 1907 Iseris made a gift ofseveral lands to his son Juanis, the father of the defendant, reserving alife-interest in himself and his wife Mangohamy and subject to a fideicommissum in favour of the children of Juanis. The defendant marriedin 1911 and on that date Iseris placed her and her husband in possessionof several allotments of land which included the two lands in dispute.The two lands were, therefore, included in what came to be known as theWandura Eba Estate. No doubt the defendant thought that the twolands were included in P 1. In 1929 it was discovered that they were notso included. Iseris had died in 1922, but his wife Mangohamy wasstill alive. In 1930 Mangohamy and juanis, the father of the defendant,entered into a deed P 7 dated February 24, 1930, by which they tran-sferred to the defendant all their interests in the two lands in-dispute.When the plaintiff heard of this he claimed to have the two lands includedin the inventory of Iseris’ estate.
In contending that the learned Judge was wrong on the issue of pre-scription, Mr. H. V. Perera has laid stress on the fact that'the defendanthas been in possession of these lands for a period of over thirty years,that is to say from the year 1911. Further that during this period she‘ took the produce, paid no rent and possessed ut dominus. The burdenwas, therefore, on the plaintiff to prove that the defendant was a licensee.In this connection Mr. Perera maintains that the evidence establishesthat Iseris gave the defendants the land and at no time reclaimed theproperty. Also that P 7 does not interrupt the running of prescription.After careful consideration I have come to the conclusion th’at the evidencedoes not establish an absolute gift of the Wandura Eba Estate by Iseris
WIJEYEWARDENE J.—Cassim and Udayar, Manaar.
519
to the defendant. She was merely given possession of the lands includedin P 1. At the time it was thought that P 1 included also the landsin dispute. She was, therefore, put in possession of these lands. Heroccupation was as a licensee by permission of Iseris and not in assertionof any independent right. On the death of Iseris there was the lifeinterest of Mangohamy still outstanding. P 7 executed by Mangohamyand Juanis in favour of the defendant, accepted by the defendant andpleaded by her in her answer to the plaintiff in this case, is an indicationthat she did not regard herself as possessing “ ut dominus The defend-ant entered into possession of the lands in dispute with the consentand permission of Iseris. Being a licensee she cannot get rid of thischaracter unless she does some overt act showing an intention to possessadversely, vide Orloff v. Grebe1 and Naguda Marikar v. Mohammedu'.There is no evidence of any such overt act. In fact P 7 is a recognitionof the rights of Mangohamy and Juanis.
The appeal must, therefore, be dismissed with costs.
Jayetileke J.—I agree.
Appeal dismissed.