086-NLR-NLR-V-03-KAPURUHAMY-v.-HENDRICK-et-al.pdf
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KAPURUHAMY v. HENDRICK et al.
C. R., Kurunegala, 2,954.
Possession of undivided shares of land by taking produce of trees on dividedportion of land—Verbal arrangement—Admissibility of evidence ofenjoyment of specific trees to support title to undivided share—Onus probandi.
It is competent to owners of undivided shares of land to makearrangements among themselves as to the enjoyment of the produceof their land.
The owner of an undivided share of a land may, in support of hisclaim to such share, call evidence to show that he had taken theproduce of a certain number of trees in the garden.
Where the defendant in a case pleads title by prescription to theland in dispute, the plaintiff is not obliged to wait until thedefendant had called evidence, and then to rebut such evidence.It is open to the plaintiff to call evidence in the first instance toanticipate the defendant’s case.
XN proof of his claim to of a cocoanut garden, plaintiffproved that forty years before action it was held by oneMudalihamy and Ettarali apparently as joint-owners ; that Mudali-hamy was entitled to only of the land; that Mudalihamytook the produce of 25 trees in a particular part of the garden;that his interest devolved on him, the plaintiff; and that he had,since his purchase up to a short time before the institution ofthis suit, taken the fruit of the 25 trees.
After giving evidence himself to this effect, plaintiff proposedto called other witnesses to corroborate the statement that he andhis predecessors in title had been taking the produce of the 25trees. The Commissioner declined to admit such evidence, anddismissed the action.
On appeal,
Van Langenberg, for appellant.
Bawa, for respondent.
26th June, 1895. Bonser, C.J.—
It is quite competent for the owners of undivided shares tomake arrangements among themselves as to the enjoyment of theproduce of the land, and evidence showing that the plaintiff hadenjoyed the fruit of these trees would go to support his title to
Further, the evidence was admissible on another ground. Thedefendants had pleaded adverse possession of the whole of thegarden for the prescriptive period as they were entitled to do,and it was competent for the plaintiff to adduce evidence to meet
1898.
June 26.
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1895. that case set up by the defendants. He is not obliged to wait tillJune 26. they have called evidence, and then to call rebutting evidence.
Bonser, c.J. It is competent for him to call evidence in the first instanceto anticipate the defendant’s case.
The case must go back to be re-tried, and the costs of theprevious proceedings and of this appeal will abide the event ofthe new trial.