123-NLR-NLR-V-45-COORAY-Appellant-and-PERERA-Respondent.pdf
HOWAIiD C.J.—Cooray and Perera.
465
1944Present: Howard C.J.
COORAY, Appellant, and PERERA, Respondent.
197—C. R. Panadure, 9,043.
Prescription—Saleof entiretyof property by a co-owner—Possession by
transferee—-Proof, adverse possession by ouster.
Where a person obtains a transfer of the entirety of a property from aco-owner, his possession is that of a co-owner, and it does not becomeadverse without proof of onster or something equivalent to ouster.
A
PPEAR from a judgment of the Commissioner of RequestsPanadure.
Li. A. Rajapakse, K.C. (with him M. Ratnam), for the defendants,appellants.
N. E. Weerasooria, K.C. (with him S. R. Wijayatilake), for theplaintiffs, respondents.
Cur. adv. vult.
June 5, 1944. Howard C.J.—
The defendants in this case appeal from an order of the Commissionerof Requests, Panadure, entering judgment in favour of the plaintiffs.In so doing the learned Commissioner held that Don James, a co-ownerof the land in dispute who gave a donation of the lands to the defendantsby deed D 1 dated November 25, 1911, did not intend to transfer orconvey title to the entirety of the field in question. The learnedCommissioner also held that the defendants’ evidence as to possession,even if accepted, did not show that they had been in possession for morethan, thirty years. The defendants were co-owners of the field and assuch their possession could not be adverse to that of the plaintiffs whowere also co-owners. The latter had title to one-third share of the landand the defendants were not justified in preventing them from cultivatingthis share.
It has been contended by Mr. Rajapakse on behalf of the defendantsthat Don James by D 1 transferred to the defendants the whole of thefield in question donated to him and Raisahamy by deed P 1 of 1877.
456
HOWARD C.J.—Cooray and Perera.
Further the defendants entered into possession of the whole field by virtueof D 1. In, these circumstances the possession by the defendants wasadverse to that of the other co-owners. If, therefore, the defendantshad proved ten years’ undisturbed and uninterrupted possession theywould on the authority of Punchi v. Bondi Menika 1 be entitled tojudgment. But, in my opinion, the learned Commissioner was correctin the conclusion at which he arrived that Don James did not conveytitle to the entirety of the field in question. The principle formulated inPunchi v. Bandi Menika (supra) is not, therefore, applicable.
There remains for consideration the question whether the Commissionerwas correct in treating the defendants as co-owners with Laisahamy andholding that they must prove possession for more than thirty years.In so finding he has no doubt applied the principles laid down in Gorea v.Ap'puhamy 2 and Tillekeratne v. Bastian 3. In the former ease the lawwas laid down by the Privy Council in the following terms: -—
*' His possession was in law the possession of his co-owners. It wasnot possible for him to put an end to that possession by any secretintention in his mind. Nothing short of ouster or something equivalentto ouster could bring about that result.”
The Privy Council, in spite of over thirty years de facto possession, refusedto uphold the defendants’ title by prescriptive possession. In Tillekeratnev. Bastian (supra) a claim by prescription based on possession for morethan forty years was upheld. I would also refer to a passage, fromthe judgment of Lord Dunedin in Brito v. Muttunagayam 4 where in thecourse of a reference to Gorea v. Appuhamy (supra) he said as follows: —
“ In that case, it was held by this Board that the possession of oneco-parcener could not be held as adverse to the other co-parcener,Lord Macnaghten, who delivered the judgment, cited the dictum ofWood V. C. in Thomas v. Thomas 3: ‘ Possession is never consideredadverse if it can be referred to a lawful title.’
Applying the principles to which I have referred to the facts of thepresent case, I have to answer the question as to whether the defendants’possession can be referred to a lawful title. They only obtained a portionof the field from Don James, but as that portion was an undivided sharethey were entitled to exercise rights of possession over the remainingportion as eO-parceners of the other co-owner. Then- possession can,therefore, be referred to a lawful title. In these circumstances they arenot entitled to succeed unless they have proved ouster or somethingequivalent to ouster. This they have not done. The judgment of theCommissioner is therefore in accordance with the law and the appeal isdismissed with costs.
Appeal dismissed.
4 43 N. L. R. 547.* 15 N- L. R. 65.
21 N. L. R. 12.
20 N. L. R. 327.
6 {1855) 2 K. <fc. J. 83.