DABARE v. MARTELIS APPU

062-NLR-NLR-V-05-DABARE-v.-MARTELIS-APPU.pdf


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1901.
February ISand 19 andMarch 19.
DABARE v. MART ELIS APPU.
D. 0., Colombo, 11,046.
Evidence of ouster—Abandoning of possession because of threatened beatingValidity of judgment of a Supreme Court Judge read in Court after he hasleft the Island—Prescription—Ordinance No. 22 of 1871—Possessionprevious to action.
Per Curiam.—A person who abstained from acts of possessionbecause he feared a beating cannot be said to have been ousted.
Bonseb, C.J.—Further consideration has not shaken in any degree theopinion I expressed in Silva v. Siman, 4 N. L. R. 144.
As the judgment of Moncreiff, J., in Banda v. Banda (4 N. L. R. 308),over-ruling Silva v. Siman., was read in Court by Browne, A.J., after theformer had left the Island, the decree entered in that case does not bindthe parties, nor can the judgment of those judges pronounced in that casebe relied on as authority.
The word prescription is not usable in Ceylon in the sense of usucapioin which it was used by Roman-Dutch Law writers, because the effect ofthe Regulation No. 13 of 1822, was to establish the law of usucapio and toentitle a defendant in possession, who has been sued by a plaintiff for therecovery ofimmovable property, "toa sentence inhis favour," iffor
ten years before the bringing of such action the defendant has been inundisturbedpossession by a title adverse to andindependent ofthe
plaintiff.
The expiession " entitle the defendant to a sentence in hi6 favour "means theusual decree that the" defendant beabsolved fromthe
instance," which is the equivalent of the English judgment that "theplaintiff take nothing by bis writ and the defendant go without day(sine die).
, The Ordinance No. 8 of 1834, which repealed the Regulation of 1822,did not re-introduce the old law ofacquiring titleby prescription.Its
object was inter alia to extend to plaintiffs- in possession the right whichthat Regulation had given only. to defendants in possession.
The Ordinance No. 22 of 1871, which repealed the Ordinance of 1834,
■ did not alter in any substantial way the previous state of the law.
Browne. A.J.—Possession(of a party toa suit. or. hispredecessor in
title) by a title adverse toand independentof the otherparty for the
period cf' ten years gives astatutory title byprescription, in the sense of
usucapion, equal to that which the old Common Law gave. If usucapionwas ever abolished, it has been so fully restored that a plaintiff may.establish thereby his claim to land.
When a person has held possession by a title adverse to, Ac., and losessuch possession at any time previous to his institution of an actionrei vindicatio, such action is maintainable against any one who cannot bygrant or deed or like possession for a period later than his, establish inhis. defence a title superior to that of the plaintiff.
T
HE plaintiff, allegingthat he hadjointly withtwo. sisters
inherited from his father an undivided one-fifth of a divided
western half of Etambagaha-owita and purchased two undividedfifths of the half, sought in this action to vindicate from the defend-ants, who were joint heirs with him and his vendors, • a divided
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three-fifths of the land. He alleged that the said three fifth partswas separated off and possessed by the plaintiff with the consentof the other heirs for the last sixteen years, and that it was boundedon the north, Ac., and that he was ousted on 8th’ January, 1898.The action was brought on 28th February, 1898. Plaintiff prayedthat he may be declared entitled to the said divided three-fifths,and that defendants be ejected therefrom.
The Additional District Judge (Mr. F. R. Dias) found thatEtambagaha-owita .was in 1857 the property of one Dims Dabera;that he had five children, viz., Siman, Lewis, .Jeeris, Sarah, andPunchi Nona; that Sarah was given in marriage to one Oarolis,and by deed dated 2nd October, 1857, Dinis Dabera conveyed himthe eastern half of the land; that the defendants were the grand-children of Carolis. by his first wife (not Sarah); that in 1881 plain-tiff bought two-fifths of the western half which belonged to hisuncles Jeeris and Louis, 'which, together with the one-fifth thatbelonged to his own father Siman, made up the three-fifths claimedby plaintiff; that the three-fifths of the western half was parti-tioned by agreement among the co-heirs in 1881; that plaintiff hadpossessed the divided portion since then and had acquired aprescriptive title to it; and that he was obliged to give up posses-sion in 1898, because he was threatened to be beaten if he held it.He entered judgment for plaintiff.
The defendants appealed. The appeal was argued on the 15thand 19th February, 1901.
Bawa, for appellant.—Plaintiff has attempted to exclude hisco-heirs, the defendants, from possession, by taking advantage ofthe Ordinance No. 22 of 1871. He has failed to prove title byprescription. Plaintiff being owner of an undivided share, all actsproved by him are consistent with defendants’ case. Plaintiffadmits he paid taxes throughout bis possession as for an undividedwhole. That is an admission of common right, and it estopsplaintiff from setting up a claim to divided possession.. Defend-ants have proved that Carolis died in possession of the wholeland. It is true that he had a proper title to one-half only, but asa matter of fact he exercised rights of ownership over the whole.He died intestate, and his widow Sarah is still alive. In theTestamentary Case No. 8,225 of the District Court of Colombo, thewhole of Etambagaha-owita is given as belonging to the estateof the deceased Carolis, and as in common possessiqn of his heirs.The oral evidence, too, supports the defendants’ contention that theland was never divided nor possessed dividedly. Plaintiff hasfailed to establish title by prescription.
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3. G. Pereira, for plaintiff, respondent.—Plaintiff’s case rests <upon title by prescription. He has proved an agreement betweenthe co-heirs as to partition of the three-fifths claimed. After suchpartition in 1881 plaintiff was in the undisturbed and uninter-rupted possession of this share till the ouster in 1898. [Bonser,C.J.—What is the history of the legislation on this subject?
It begins with the Regulation No. 18 of 1822.] The Regu-lation of 1822 repealed the Common Law of Prescription, andenacted, inter alia, that “ proof of the undisturbed possession‘ * of land or immovable property by a title adverse to that of the" claimant or plaintiff in any action for ten years before the bring-*' ing of the action shall entitle the defendant to a sentence in his“ favour ”. No title by prescription could be acquired under thatRegulation by the plaintiff. But it was repealed by the OrdinanceNo. 8 of 1884, and the Common Law was then restored. [Bonser,
• C.J.—No. The unabridged edition of the Ordinances shows thatthe Regulation was repealed except so far as regards the repealby that Regulation of previous laws or customs touching the periodsof prescription.] The Ordinance of 1834 enacted that proof of theundisturbed and uninterrupted possession by defendant or plaintiff,by a title adverse to or independent of plaintiff or defendant,would entitle plaintiff or defendant, as the case may be, to a decreein his favour. This is in accordance with the Roman-Dutch Law.Vanderlinden lays down that “ the right of property is acquiredby prescription of time ” (Bk. 1, eh. 2, § 4). In the Roman-DutchLaw the third of a century was the requisite period, but theOrdinance of 1834 limited it to ten years previous to the bringingof the action. [Bonser, C.J.—That means, next previous.] No,ten years at any time, provided that no one has prescribed subse-quently. That is the Common Law. Marshall’s Judgments, title“ Prescription.” Banda v. Banda, 4 N. L. B. 302. The words” next previous ” occur in 2 and 3 Will. IV., c. 71, § 2, but Creasy,
J., pointed out in C. R., Point Pedro; 41 (Bamanathan, I860,p. 79), that the consequences of introducing the word “ next ” intoour Ordinance would be very serious, and that the local Legislatureadvisedly omitted it. [Bonser, C.J.—Then you might prove thatfor ten years before the flood you had possession]. Yes, if no oneset up prescriptive title in the meanwhile. The judgment ofCreasy, C.J., in the Point Pedro case has been acted upon withoutdemur. [Bonser, C.J.—But see the judgment of this Court in
C., Colombo, 87,427, reported in 8 8. C. C. 31.] That case wascarefully analyzed in Banda v. Banda, 4 N. L. B. 302, andrejected. [Bonser, C.J.—But this case does not bind me. Itcame on for argument before Moncreiff and Browne, J.J., and
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when Browne, J., read his own judgment and that of Mr. Moncreiff, _ l®®1-the latter had left the Island. It has no more force than a judg-rnent of the Registrar. As between the parties to the case, the March 19.decree may be set aside any moment.] The District Judge issatisfied with the evidence led by the plaintiff, and has givenjudgment in his fa vow: on the merits.
Batoa replied.
Cur. adv. vult.
19th March, 1901, Bhowne, A.J.—
Dinis, the original owner of the owita in question, conveyed theeastern moiety of it to his son-in-law, defendant’s grandfatherCarolis, in 1857, shortly after his marriage, and died two yearslater. He had.five children, Simon, Lewis, Jeeris, Punchi Nona,and Sarah, the seeond wife of Carolis.
Plaintiff, the son of Simon, being 55 years old at the trial in 1899,must have been boru cireiter 1844. Allowing twenty years for ageneration in Ceylon, his father Simon must have been bom cireiter2824, and therefore be and his brothers must have been about 30years old when their father Simon sold the eastern half to theirbrother-in-law Carolis. We. do not know when Simon died, buthis brothers Lewis and Jeeris must have been over 50 years oldwhen they in 1881 conveyed their right to their nephew, theplaintiff. Sarah, Carolis’s widow, describes her husband to havelived far away from the owita, and to have cultivated it but once,whereas her brothers lived close to the owita.
The first large issue of fact is, whether Carolis at his death in1867 had acquired title by adverse, &c., possession for over tenyears to the western moiety which had not been sold to him andso to the whole. Is it probable that his brothers-in-law, plaintiff’svendors of two-fifths, and plaintiff and his father before him owningone-fifth, would have suffered any such possession for the period1859 (Dinis’s death) to 1881? What happened thereafter ?
Carolis was a widower when he married plaintiff’s aunt Sarah,.cireiter 1857. First defendant, a grandson of Carolis’s firstmarriage, was bom in 1867. the year Carolis died. Computingback forty years. Carolis’s first marriage must have been about1827, and thus for the ten years (1857-1867) of his /ownership ofthe eastern moiety he must have had the children of his firstmarriage, who were first defendant’s father, Clara, mother of seconddefendant, Adrian, and another able to help him to attain suchrights by adverse possession. Sarah, his widow, admits shepersonally knows nothing of possession. Clara and Adrian asserttheir father asweddumized- and possessed solely till his death, that
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his administrators then conveyed a moiety of the whole land tothe children of the first marriage, and the widow and children ofthe second marriage respectively, but that thereafter only a sonof the second bed cultivated, and that but a portion. On theother hand, they admit plaintiff successfully claimed the rightshe acquired in 1881, when a trial went against Adrian, and it isproved plaintiff always paid the paddy tax till its abolition in 1890.
In fact, there is no evidence against plaintiff’s title to three-fifthsof the western half and adverse possession of a certain definedportion thereof for his share, save the execution of the deed byCarolis’s administrators in 1869, purporting to convey to thechildren of his second bed one-fifth of each moiety of the land, asone of sixteen allotments thereby conveyed. From 1867 to 1898there have been thirty-one years within which plaintiff’s unclescould have so adversely possessed their two-fifths and his father’sone-fifth for fourteen years to 1881, and he held thereafter thethree-fifths for seventeen years. Defendant’s evidence wholly failsto negative that adduced by plaintiff in respect of the period 1869-1898. ft asserts Don Carolis’s exercise of right till his death, onecultivation thereafter, and the rest is silence. I therefore find theplaintiff’s evidence of absolute possession of the extent he claimswas rightly credited by the learned Additional District Judge.
Will this then give him title ? Was he ever evicted from theland on 8th January, 1898 ? and if evicted, had he right to institutethis action on 28th February 1898, over seven weeks subsequently,to be declared entitled, to a divided three-fifths of the land ?
The Roman-Dutch Common Law defined one way of acquiringright of property to be “ bv prescription of time, viz., undisturbedpossession of one-third part of a century.” The other threemethods were occupancy, delivery or conveyance, and accession.(Vanderlinden, Bk. 1, oh. 7, § 2; Van Leeuwen, 1 lib. 21, chaps. 2■ and 8). That Common Law was proclaimed to continue in Ceylonby the Proclamation of 23rd September, 1799, and gua Dutchinhabitants and their testamentary and matrimonial causes bysection 63 of the Charter of 1801.
Regulation No. 13 of 1822, section 2, enacted that from the 1stSeptember, 1822, ” all laws heretofore enacted, or customs existing” with respect to the acquiring of rights, or the barring of civil*' actions by prescription, within and for the maritime districts of** this -Island, shall cease to be of any force or effect, and the same” are hereby wholly repealed.”
Did it abolish all the Common Law methods of acquiring rightby accession, conveyance, and occupancy, as wrell as that byprescription ? or, disregarding the punctuation, Were the words
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“ by prescription ” to be read as appended to “ the acquiring of 1901-rights “ as'well as to “ the barring of civil actions, and so that onlythe mode of acquisition by prescription was repealed ? or, was March 19,the repeal one not of the Common Law but only of the grafts on BrownbA.J.it by special enactments or local custom of which special recogni-tion had been previously made, viz., by the Proclamations of 1stMarch, 1801, and 9th May, 1808 ? Did it sweep away all theCommon Law as to acquisition of title when it so repealed thepart, and in lieu thereof only enacted that thereafter “proof of the“ undisturbed possession of land or immovable property by a title*• adverse to that of the claimant or plaintiff in any action for fen“ years before the bringing of the action shall entitle the defendant“ to a sentence in his favour with costs,’’ and made no provision forthe rights of a plaintiff in any such action ?
No doubt as regards the limitation of actions, the Common Lawwas completely abrogated at first by the Proclamation of 1801(vide Legal Miscellany [1<S~J1] 25; Rani. [1S21], 19), and then byOrdinance No. 8 of 1834, 21,698, C.R., Kurunegala-, Vand, 183 (whichwas the decision that necessitated the enactment' of OrdinanceNo. 22 of 1871), re-affirmed at page 262, and 1 N. L. R. 202. Butthese decisions said nothing of the acquisition pf title at CoriraionLaw. Moreover, that such acquisition was therein allowed onlyto a defendant in an action may be possible from the way VanLeeuwen discusses the matter. If it were so, and if a plaintiff neverb'y the old Common Law, or never after Regulation No. 13of 1822, took any benefit by prescription in the-sense of u&ucg.pio,did the Ordinance No. 8 of 1834, twelve years later, restore tohim any of the old Common Law rights ? or give him any newright he never had ere then ?
After enacting over again the rights already held-bv a defendantin respect of his possession, it ordained for the first time in ourStatute books, “ and iii like manner, when any plaintiff shall bring" his action for the purpose of his being quieted in his possession“of lands or other immovable property to prevent encroachment“ or usurpation thereof, or to recover damages for such encroach-“ ment or usurpation, or to establish his claim in any other manner“ to such land or other property, proof of such undisturbed and“ uninterrupted possession shall entitle such plaintiff to a decree■“ in his favour with costs. ”
A question has heen raised as to the meaning of the term “ suchland or other property, ” and I think it is suggested" that “ such ”must mean “ of which he is in possession. ’’ The grounds for suchcontention would appear to be- these:(1) The section commences
with, the re-enactment of the right of a defendant in respect of aIS—
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1001. possession which presumably he would be still enjoying. Then,wwTiiPomi when it proceeds to legislate for the case of a plaintiff, it doesMarch 19. so not in a separate section but in the same, and with an addi-Bbowne^V.J tional linking of the one remedy to the other by the words “ andin like manner. ” (2) When it proceeds to enumerate instances inwhich plaintiff may utilize for legal claims the benefit of pastpossession, it mentions firstr*7' for the purpose of being quieted in“ his possession of lands or other immovable property (which“ in effect regards him to be in possession and.wanting only to be“ quieted therein) to prevent encroachment or usurpation thereof" or recover damages therefor ” (still suggestive of his holdingpossession, though with some actual or threatened disturbance ofenjoyment), and then adds, possibly ejusdem generis, “or toestablish his claim in any other manner to such land.
Sir Charles Marshall throws no light upon the question of theextent of right which in this Ordinance drafted by him it wasintended to give thus to a plaintiff. He says, only that one of thealterations in Regulation No. 13 of .1822 thereby effected was“ in giving plaintiffs the benefit of such (that very word of thisdebate) ten years’ possession which, by the strict terms of theRegulation in 1822, would have been limited to defendants. ”
For my own part I doubt we should limit either part of thesection to the benefiting only of a party who is in actual posses-sion. As to the latter part, I do not think the doctrine of ejusdemgeneris would restrict the right " to establish his claim in anyother manner ’’ to cases similar to the quieting in or keeping uh-diminished an actual possession. As to the first portion of it, evena defendant might not be in possession of the lands sued for.' Afterhe had possessed twelve years,' plaintiff, with a documentary titlein his pocket, might evict him vi et amis, and ere the latter couldbring his possessory action sue at once to be quieted in hispossession. Defendant might of course reconvene for a possessorydecree, but could he not also, as the issue of title had been raisedby the holder of documents, advance his superior claim to limitplaintiff’s action, and correlatively to be given a decree in his.favour ?
I would therefore still consider that possession of the necessarycharacter and for the required time gives a statutory title byprescription in its sense of usucapio equal to that which the oldCommon Law gave. If the latter was ever taken way, it has beenso fully restored that a plaintiff may establish thereby his claimin any other manner to land.
But in this case it is unnecessary to decide such questions. Iconsider that plaintiff, who merely abstained from possessing
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because he feared a beating, cannot be said to have been ever 1901.■evicted. His action is. rather one to be quieted in possession, and F<^u^ya^1 would decree that he should be quieted.March 19.
As to the other question of whether ten years “ previous ” is to Browne,A.Jbe construed as “ next previous, ” I note that Mr. Justice Thomson,writing in 1866, makes no answer to the fifth question he puts invol. 2, p. 181:“ How is prescribed period of ten years to run
nor does he mention the decision of 1860. The authorities cited tous appear to support the contention that the enactment of theOrdinance No. 22 of 1871, after the decision reported in the LegalMiscellany (1860), p. 66, and lidmandthan (I860)', p. 79, must beconsidered to have been made adoptive of the judicial inter-pretation of the terms in its predecessor No. 8 of 1884, whenthose terms were then simply adopted and re-enacted, and that“ previous ” must be construed to mean not “ next previous, ” but“ at any time previous, ” to the institution of the action, unlesspossibly it were ever to be held that the construction put in thedecision upon “ previous ” was erroneous, for that, when sub-stituted for the word “ before ” used in the Kegulation it repealed,its use denoted some period of time with a definite moment orevent to mark its conclusion. Till then, however, I consider weare bound by that decision, and that we must hold the law to bethat, when a person has once held adverse, Ac., possession of a landfor fully ten years, and in any way loses possession of it, he hasacquired a title by such possession which he can vindicate at anytime therefore against any one who cannot by grant, deed, or likepossession in a period later than his, establish in his defence a titlesuperior to that of the plaintiff.
Bonser, C.J.—
Agreeing as 1 do in the decree proposed by my brother, it is,strictly speaking,not necessary for meto make any
observations. But at the same time I wish to guard myselfagainst its being supposed that I concur in what I may withoutdisrespect call the obiter dicta of my brother in the judgment justread. I will briefly offer some remarks, equally obiter expressingmy views on the subject.
Further consideration has not shaken in any degree theopinion I expressed in Silva v. Siman (4 N. L. B. 144), andknowing that my late brother Withers, who was such an ornamentto this Bench, was of the same opinion, I therefore with the moreconfidence reiterate that opinion.
It seems to me that much misapprehension has been occasionedby the fact that the effect of the. Begulation No. 13 of 1822 has not
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been fully recognized by many of those who have had to considerthis subject, and further, that the practice of speaking of prescrip-tive title has also tended to obscure the subject. I must confess tobeing guilty of having used that expression myself more thanonce in judgments which 1 have delivered in this Court, butwhen I came to look into the matter, I satisfied myself that thatwas an incorrect expression, and I see that so far back as 1866 Mr.Justice Thomson took 'exception to it. In a note of his on ajudgment of the Supreme Court, where the expression “ prescrip-tive title ” was used, he corrects it and adds, “ or rather the rightnot to be sued, ’’’ and he points out that in Ceylon the word“ prescription ” is not used in the sense of usucapio, in which it wasused by Roman-Dutch Law writers. He states that in Ceylon itis confined solely to limitation of actions. There is no doubtthat as regards the Roman-Dutch Law, which was preserved bythe terms of the Capitulation, one of the means of acquiring titlewas by possession for a certain number, of years of the propertyof another. A good deal turned upon the question of the natureof that possession, whether it was bona fide, or how it was firstcommenced, and other like considerations. But in 1822 theRegulation to which I have referred was passed. After recitingthat “ whereas doubts have been entertained with respect to the“ periodswhich shallbe consideredasprescribing againstor
“ barringactions forthe recoveryofproperty movableor
“ immovable, according to the laws now in force; and whereas" it musttend to thesecurity of property and the quietingof
“ titles toascertain thesame, ” it goesonto enact that “all laws
“ heretofore enacted or customs existing with respect to the“ acquiring of rights or.the barring of civil actions by prescrip-“ tion within and for the maritime districts of this’■ Island, shall“ cease to be of any force or effect, and the same are hereby“ wholly repealed;” and proceeds to substitute, as regards immov-able property, a remedy: “ It is further enacted thatproof of
“ the undisturbed, possession of land or immovable property by“ a title adverse to that of the claimant or plaintiff in any action.“ for ten years before the bringing of the action, shall entitle the'• defendant to a sentence in his favour with costs.” That is theonly provision with regard to immovable property which iscontained in that Regulation. The rest of it deals with movableproperty and various actions to recover debts, damages, and thelike. I do not think that it can be contended that, after thatRegulation was passed, any trace of the old law of usucapioremained. The only right given was to a defendant in possession,who. if he could show that his possession was such as that
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mentioned in the Regulation, was to be entitled to have a sentence inhis favour with costs, by which I understand to be meant the usualdecree for a defendant, viz., that " the defendant be absolved fromthe instance,” which is the equivalent of the English judgmentthat “ the plaintiff take nothing by his writ and the defendant go“ without day.” That Regulation continued in force till 1834, whenthe Ordinance No. 8 of that year was passed ” to assimilate, amend,
and consolidate the lawsregarding the prescription of
actions.” That Ordinance is said to have been drafted by the distin-guished Chief Justice of this Court who drafted the Charter of1833, Sir Charles Marshall, and it repealed the Regulation ofi822. If it had simply repealed that Regulation without more, itmight have been contended, as it was contended in argumentbefore us, that it set up again all the former Roman-Dutch Lawof usucapio. Much inaccuracy results from using abbreviatededitions of Ordinances, and it was assumed that that Ordinanceof 1834 simply repealed the Regulation of 1822 without more.
* On referring to the Ordinance itself we find that the Regulationwas not repealed in toto, but that so much of it as repealedprevious laws was expressly kept alive. It is clear, therefore, thatthe Ordinance of 1834 did not have the effect of re-introducingthe previous law as to acquiring of title by prescription. SirCharles Marshall, in Iris well-known book, states that one of the'objects of section 2 of the Ordinance of 1834, the section whichdeals with ^actions as regards the possession of land, was to explainthe term “ adverse title ” which had been used in the Regulation,and which had been misunderstood by the subordinate Judges, andso extend to plaintiffs the right which the Regulation had givenonly to defendants. Now, one- would have expected that the reliefgiven by that section would be intended for plaintiffs who werein the same position as defendants under the former Regulation,that is to say, to persons in possession, and that relief was to begiven to such persons whether they were plaintiffs or whetherthey were. defendants; and I think that an examination of thewords of the Ordinance bears out that expectation. The section,after enacting that proof of possession by a defendant in anyaction of land, independent of that of the claimant or plaintiff insuch action, for ten years previous, to the bringing of such action,shall entitle the defendant to a decree in his favour with costs,goes on to deal with the case of a plaintiff, “ and in like manner ”(which seems to show that the person with whom the section isgoing to deal must be in the same position as the person withwhom it has already dealt) " when any plaintiff shiall bring his” action for the purpose of being quieted in the possession of
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“ lands, to prevent encroachment or usurpation thereof,”—meaning'clearly land of which he was in possession—“ or to recover damages“ for such encroachment or usurpation;” and then we come to-words which have been thought to establish the doctrine thata person who has been out of possession for an unlimited timemay bring his action under this section, “or to establish hisclaim in any other manner to such land.” That word “ such.” it6eems to me, can only refer to the land previously referred to,that is to say, land in his possession, and that it was intended tocover a case in which a person being in possession might legallyestablish that possession and repel by anticipation the attacks ofany person who sought to dispossess him.
I should mention that the Ordinance of 1834 was repealed bythe Ordinance No. 22 of 1871; but that repeal did not alter inany substantial way the previous position of affairs. It re-enactedclause 2 of the Ordinance of 1834 in practically identical words.Then, there is this fact to be remembered, that there is nothing inour Ordinance similar to the clause contained in the EnglishStatute of Limitations which extinguishes the right of the trueowner. But a reference to the debates in Council on the occasionof the passing of the Ordinance No. 22 of 1871 shows that thatfact was present to the mind of the Legislature at the time, foralthough it was suggested that a clause should be inserted extin-guishing the right of the true owner and conveying it to thepossessor, the Legislature, out of respect ho doubt to Sir CharlesMarshall's draftsmanship, declined to adopt the suggestion.
Then, in the argument we were referred to a decision whichwas given in 1860 by the late Chief Justice Creasy. That was aquestion of right of way. An objection seems to have been takenthat, the right of way not having been exercised for some time,the plaintiff was not in a position to sue because he was not in-possession or quasi possession of the right. The Chief Justicelaid stress upon the words “ previous to. the bringing of theaction,” and held in effect that what was intended was any periodof time prior to the bringing of the action, and that the words“ bringing of the action ” did not indicate one of the termini ofthat period, and he says that “ the result would be that not only" men who were disturbed in the use of easements, but men who“ were turned out of lands and houses would lose all the benefits“ of prescriptive title, unless they ran off to the Court-house and“ instituted a suit on the very day on which the wrongful act was“ committed.”
Now, I venture to think that that argument was not sound.In the first place, it assumed that there was such a thing as
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prescriptive title, which I have shown was not the- case. The lawprovided the possessor with a remedy for such a case, and thatwas by a possessory action to get himself restored to possession.He further stated that the counsel for the defendants in appealasked the Supreme Court to introduce the word “ next ” before theword “ previous," but he omits to notice that the draftsman of theOrdinance of 1834 substituted the more precise word “ previous "for the vaguer word “ before ” which occurred jn the Regu-lation. I cannot help thinking that this change was intentional,and was made with the view of excluding the constructionadopted by the learned Chief Justice. It seems to me that thepolicy of the law is entirely in favour of the construction whichI have adopted, for if a man may wait three years, he may waitthirty years before bringing his action, and then the onus wouldbe on the person who was in possession to show that the claimanthad in some way transferred or lost his title; for, once such athing as prescriptive title is admitted, there are only three ways ofdealing with it, viz., by a. notarial conveyance, or a judgment of acompetent Court, or by prescription vesting the title on some otherperson. So far as I can see, these are the only three ways inwhich a prescriptive title could be displaced. It certainly is notin the interests of suitors or in the general interests of theadministration of justice that persons should be encouraged orallowed to postpone the assertion of their rights. It seems to methat the policy of the law dictates that a person who having no.title may have a right to remain in possession against the trueowner by reason of length of possession, if he is rejected by thetrue owner, should apply to the Court at once to be restored topossession, and should not be allowed to wait an indefinite timebefore asserting his rights. I may add that there are difficultiesin the way of adapting a prescriptive title to our system of •registration. Until the decree is made in favour of the personclaiming such a title there is nothing to register, and the casenight easily be imagined where the original owner, having re-jovered possession and being able to show a perfect title, might-jell the land to a purchaser who was quite ignorant of the rights>f a person out of possession, who-might come forward subsequentlymd assert his rights under the Ordinance.
These are the reasons which appear to me to justify me inidhering to the opinion which I expressed in a previous case. Inay also mention that this doctrine, which apparently took its>rigin' in the judgment of 1860, does not appear to have madenuch impression on the profession, and was very soon forgotten,[n 1886 Mr. Berwick, who was then and had been for some teu or
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Bonser, C.J.
( 222 )
1901.
February 15and 19 andMatch 19.
Honser. C.J.
eleven years District Judge of Colombo, one of the busiest Courtsin the Island, and who was not disinclined to uphold the Roman -Dutch Law wherever he could, appears to have been entirelyignorant of any such doctrine as usucapio existing in this Island,and that ignorance appears to have been shared by the profession,for. in that year, Mr. Berwick tried a case where the plaintiff whohad been out of possession for some years sued to recover posses-sion upon the strength of a title alleged to have been acquiredunder the Ordinance of 1871 by long possession. Although thecase was argued for the plaintiff by no less an eminent lawyerthan the late Attorney-General, Sir Samuel Grenier, no suggestionappears to have been made that the case was not one of firstimpression; no one referred to this decision of Chief JusticeCreasy, and no one suggested that there was any authority onwhich the Action could be supported. Mr. Berwick, in a long andcareful judgment, ridiculed the contention as being an impossibleone, and suggested that, if such an action lay, a man might allegehis period of possession to have occurred in the reign of KingJohn.
When that case came ou in appeal to this Court, it was arguedagain by counsel before Mr. Justice Clarence and Mr. JusticeDias, the latter of whom had practised for some years at the Barbefore he became a Judge. During the whole of the argumentthe decision of Chief Justice Creasy was never referred to eitherby the Bench or the Bar; no one seemed to be aware of itsexistence, and the decision of Mr. Berwick was affirmed. Itappears to me therefore that the doctrine cannot claim any suchcontinuity of existence as would entitle it to respect, if it werein 'the first instance unsound. But, as 1 said, before, these obser-vations of mine, like those of my brother, are merely obiterand must be taken for what they are worth. They are notintended to preclude any further argument in a similar case whenit arises. I shall be quite ready to reconsider my views.
I wish to add with regard to the- case of Banda v. Banda(4 N. L. R. 302), which was cited to us in the course of thearguments, that though of course the views of my brothers Mon-creiff and Browne are entitled to the greatest respect wherever andwhenever expressed, that case cannot be relied on as an authority,for the judgment of my brother Moncreiff was read per incunamafter he had left the Island, and was therefore functus officio, andthe decree founded thereon was irregularly entered up.
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