075-NLR-NLR-V-18-JAYAWARDENE-v.-SILVA.pdf
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Present: Shaw J. and De Sampayo A. J.JAYAWABDENE v. SILVA.
466—D. C. Galle, 11,511.
Emphyteusis—Acquisition o/ servitude by prescription.
A servitude of emphyteusis may be acquired by prescription.
H,by deed dated1886,delivered over theland in question to
S and A, tobe cultivatedby themandtheir descendants in per-
pertuity, oncondition thatone-thirdofthe produce should be
rendered to the proprietor. The plaintiffs, claiming to be successorsin titleto H, broughtthisactionfordeclaration oftitle
against the defendants, who are the heirs of A. The deed of 1836,not havingbeen registered undertheprovisions of Ordinance
No. 6 of 1866, was not admitted in evidence.
Held, thatitwas open tothe defendantsto establish their title »o
the servitude of emphyteusis by prescription.
T
HE facts are set out in the judgment of the District JudgeC£. E. Pierfs, Esq.):—
The right claimed by the defendants has been already discussed bythe Supreme Court in its judgment in appeal. Briefly it is this. In1836 the original owner of the land made an arrangement with Danieland Aberan, by which the two latter were to cultivate the land indispute andrender athirdof thecrop to the landowner, retaining
two-thirdsforthemselves.ItseemsDanielandAberan dividedthe
landinto two,andeversince 1886 theyand their representatives have
cultivated the land and yielded a third of the crop to the landowner,who isnowrepresentedbytheplaintiffs.Thedefendants arethe
representatives of Aberan. They claim that they are entitled tocontinue to cultivate the field, on the condition of yielding a third ofihe crop to the landowner, whether the latter is willing or not. Thequestion is whether the defendants have acquired such a right byprescription.
It has been pointed out by the Supreme Court that the interestcreated undera certaindeedwhich isinadmissible in evidenceis in the
natureofemphyteusis. It has been urgedthat whatthedefendants
nowclaim isofthenature of emphyteusis. That proposition can
hardlybeaccepted without demur. As Voetpoints out,theemphyteuta
eanonem solvit non proportionatum quantitati fructuum . . . remissionemcanonis ob steriUtatem aliunde damnum partietdare petere nequit (6, 3, 2).That description wouldnotapply here. But assuming theproposition
to be correct, does it hold the defendants? Under the Boman-Dutchlaw an emphyteusis could be acquired per lonqi temparis prcescriptionem,Voet6, 8, 4.Butto-daythe only meansof acquiring title by prescrip-tion is bysatisfyingtheconditionslaid down by ourPrescription
Ordinance. Insection2it lays down:“ The expression 'immovable
1915.
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1C1B, property ’ shall be taken to include aii shares and interest in such7 Znfe property,and allrights, easements,andservitudesthereunto belonging
<* appertaining.**
Since 1886 thedefendantsand their predecessors havecultivateda
portion of the field, and yielded a third of the crop to the predecessorsof the plaintiffs. Does that satisfy the conditions laid down in section ’3of the Ordinance ?1 cannot see how such possession can bedescribedas
in anyway " adverse.” It may bethatthe actionbrought byDaniel
in 1862, which ismentionedin the appeal judgment, marksa pointof
time from whichthe representativesofDaniel canclaim anadverse
possession. But that will not help the representatives of Aberan,kwhose possession had nothing to do with that of Daniel.
I hold that thedefendantshave failed to establish thatthey have
obtained a title by prescription to the interest which they claim.
As to damages, the defendants having been in possession with theconsentof theplaintiffs' vendors,wereentitled to reasonablenotice
before they were called upon to surrender the land. 1 think a year’snotice would be reasonable. 1 give judgment for plaintiff as prayedfor, with Ba. 25 damages, and costs.
Elliott, for the appellants.
Bawa, K.G. (with him A. St. V. Jayewardene), for the respondents.1Gut. adv. vulL
February 4, 1915. Shaw J.—
This case raises a point of some interest, namely, whether a rightof prescription can be obtained under the Prescription Ordinance,1871, to a servitude of emphyteusis or usufruct in the land ofanother at a quit rent.
The plaintiffs are the legal owners of a piece of land called Hathune-kumbure, deriving their title from one Gallage Hendrick, who wasthe owner of the land in the year 1836, and the action is brought bythem to recover 24 kurunies of the land from the defendants, whoare in possession.
The defendants are the heirs of one Pathiranage Aberan, and claimthat they are entitled to a hereditary usufruct of the land in dispute,paying one-third ol the produce thereof to the legal owners.
The case as originally put forward by the defendants was thatGallage Hendrick, by deed dated December 24, 1836, deliveredoyer the land to two persons, Daniel de Silva and PatheranageAberan, to be cultivated by them and their descendants in per-petuity, on condition that one-third of the produce should berendered to the proprietor, and that they, as the descendants ofAberan, were entitled to remain in possession of his portion of landas against, the plaintiffs, rendering to them one-third of the produce.
Although De S3va and Aberan entered into possession under thedeed of 1838, that deed was never registered under toe provisionsof Ordinance No. 6 of 1866. The District Court Judge, however,admitted the deed in evidence, for reasons that I need not now go
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into, and gave judgment for the defendants, holding that they were ibis,entitled under its terms to remain m possession of the land._,
OKAW J.
From thin decision the plaintiffs appealed to this Court, and on the
appeal the judgment was set aside, the Court (see judgment,f"*
16 N. L. B. 481) holding that the deed, being unregistered, was im-properly admitted in evidence; but in view of the fact that no issue hadbeen raised whether the defendants had acquired the right claimed byprescription, they accordingly framed an issue:“ Have the defend-
ants acquired by long possession a right .to possess and take a two-third share of the crops ? ” and sent the case back to the DistrictCourt for the trial of that issue.
The matter having thus again come before the District Judge, he,on November 20, 1914, entered judgment for the plaintiffs, on theground that the possession could not be said to be adverse againstthe plaintiffs and their predecessors in title within the meaningof section 8 of the Prescription Ordinance, 1871; and he alsoexpressed a doubt whether the right claimed in the case amountedto the servitude of emphyteusis under the Boman-Dutch law. Itis from this decision that the present appeal is brought.
That the right claimed amounts to the servitude of emphyteusisI see very little reason to doubt. It appears to me to be of noimportance whether the quit rent is paid in money or in kind, and Isee no reason why it should not be of a varying amount, so long asthat amount is capable of being definitely ascertained. It was by nomeans uncommon at one time in England for a rent to vary with theprice of corn, and I see no reason why a rent charge of this nature,when it consists of a definite proportion of the produce of the land,should not vary in its amount according to the productiveness ofthe land.
There can be no doubt that the servitude of emphyteusis couldhave been acquired under the Boman-Dutch law prior to thePrescription Ordinance by prescription for a third of a century(see Pereira 509); also, in view of the provision contained insection 2 of the Prescription Ordinance, there can be no doubt thatsuch a servitude is “ immovable property " within the meaning ofthat Ordinance. The only difficulty that appears to me to arise istiie question whether this servitude can be said to have been in theundisturbed and uninterrupted possession of the defendants "by atitle adverse to or independent of that of the claimant or plaintiff insuch action (that Is to say, a possession unaccompanied by paymentof rent or produce, or performance of service or duty, or by any otheract of possessor, from which an acknowledgment of a right existing,in another person would fairly and naturally be inferred), ” which isrequired by section 3 of the Prescription Ordinance.
It has been contended in this case that the land having been heldby the defendants as tenants from the plaintiffs, the right claimedcannot be said to have been held by a title adverse to or independent
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of the owner. This seems to me tc be somewhat begging theSnZwJ. question, for the “ immovable property '* claimed is the servitude,——which may have been possessed and claimed adversely, although
^a^sSvaie there m*y have been no dispute as to the ownership of the landitself.
Then it is said that the '* immovable property, " here the servitude,must be possessed by ‘‘a possession unaccompanied bv paymentof rent or produce, ” and that in this case it was accompanied bypayment of one-third of the produce of the land.
1 think, however, that the words " a possession unaccompaniedby payment of rent or produce " are governed by the followingwords of the section: 1 * from which an acknowledgment of a rightexisting in another person would fairly and naturally be inferred
In the present case 1 consider that apart from the deed of 1886,which is inadmissible in evidence, it is quite obvious, and has beenuncontested throughout 'the case, that the defendants and theirpredecessors have throughout and for very many years claimed tohold this land in perpetuity at a rent charge under some deedexecuted by Gallage Hendrick, and therefore that their claim to thisservitude has been adverse to the plaintiffs and their predecessors;and the payment of one-third share of the proceeds of the land is not,under the circumstances, a payment from which an acknowledgmentof a right existing in the plaintiffs and their predecessors in title tothe land unburdened with the servitude, would fairly or reasonablybe inferred.
I therefore have come to the conclusion that thi6 servitude iscapable of being prescribed for under the Prescription Ordinance,and that the defendants have established their right in the presentcase. I therefore think that the judgment appealed from is wrong,and should be set aside, and that judgment should be entered for thedefendants, with costs of the trial in the District Court and of thetwo appeals.
De Samvayo A.J.—
In my judgment on the previous appeal I expressed an opinionthat the right claimed by the defendants was one in the nature ofemphyteusis, and that, apart from the deed which originallycreated it, the defendants might be able to acquire the same rightby prescription. The argument of the point on the present appealconfirms me in that opinion, and I entirely agree with the reasonagiven by my brother Shaw in his judgment. I think (hat thisappeal should be allowed. As regards costs, the order in (heprevious judgment was that the costs of that appeal should be costsin the cause. The defendants should therefore have costs of thetrials in the District Court and of both the appeals.
Bet aside.