066-NLR-NLR-V-10-LEBBE-MARIKAR-V.-SAINU-et-al.pdf
( 339 )
Present; Mr. Justice Middleton and Mr. Justice Grenier.TjEBBE MAEIKAE V. SAINU et al.
• D. C., Batticaloa, 2.763.
Agreement to purcJwse—Possession under suchagreement—Prescription-
Licensee—Overt act of adverse possession—-Ordinance No. 22 o/ 1871.,
A person, who enters into possession of land under an agreementwith the owners to sell the same to him cannot acquire title byprescription after the lapse of ten years, his possession not beingadverse to the true owners.
A
CTION rex vindicatio. The facts are fully stated in the followingjudgment of the District Judge (W. G. Woodhouse, Esq.): —
“ The property in dispute in this case is a field about 36 acres inextent. It is one-third part of a land which Sikkander Aliar andhis wife Kadisa Umma purchased from the Crown in 1860 (p. 39).
‘‘ The • plaintiff traces his title from one Meeralewai KalepderLevvai, wjio entered into possession * under the original purchase'sunefer deed 1,394 of February 4, 1861 (p. 1); the defendants tracetheirs direct from the children of Sikkander Aliar* and Kadisa Umma.
1 (1892) 1 S. C. H. 321.3 8. C. Jlfin., May 26, 1903. #
» (1S92)#2 C. L. R. 60. .* 8. C. Min., Aug. 17, 1903. *
1907.
October 15.
( 340 )
1907. “It is admitted for the defence that Meeralevvai KalenderOctober 15. Lewai and his representatives remained in possession .till 1894;
and the evidence shows that their possession was not disturbed till1898, a period of thirty-seven years.
“ After 1898 neither party has had time to prescribe, so thatthat disposes of .the second issue.
“ The simple question to be decided is whether Kalender Lewai'sposition at the beginning was merely that of a licensee under Aliarand his wife ? If so, was his position altered at any time duringthose thirty-seven years to that of one who admitted no superiortitle in Aliar and his wife ?
“ Everything depends on the construction we put upon the deed4)f 1861 (p. 1), by -virtue of which Kalender Lewai obtained posses-sion. It is nothing more than what it purports to be, namely, anagreement by the original purchasers to sell this land to KalenderLewai.
“ Mr. Tisseveresinghe, who appeared for the plaintiff, admittedthat that deed, standing alone, conferred no title on KalenderLewai. If It was for a moment contended for the plaintiff that thatdeed did confer title, then the first issues in the case would have beenwhether the deed of 1861 conferred title on Kalender Lewai. Allparties are agreed that the deed conferred no title on KalenderLewai.
“ It follows therefore that in 1681, when Kalender Lewai enteredinto possession of this land, he did so as < licensee * under Aliar andhis wife. He may have had an intention of keeping the land tohimself, but he knew his possession was precarious, otherwise therewould be no virtue in the proviso appearing in the deefd that if theoriginal owners refused to execute a transfer, he (Kalender Lewai)oould sue them for the purchase money plus £100.
“ In Tou88aint v. Sattorokel&ingha,l it was maintained by the FullCourt in appeal that both by the English and the Roman-Dutch Law■a person who enters into possession of property under an agreementby the owner to sell, and who obtained no transfer conveying theproperty to him, cannot resist owner's superior title, even if he(the proprietor eject the person in possession without the interven-tion of the Courts (vide also 2 N. L. R. 255; 3 N. L. R. 213).
*4 Mr. Tisseveresinghe argued that, although Kalender Lewai'stitle was not complete in 1861, there was the intention on the partof Aliar and his wife to sell and on the part of Kalender Lewai tobuy; so that, even,-if no transfer was executed, Kalender Levyai'sexclusive possesion for ten years would remedy all defects and-perfect that title. Possibly that was what was in KalenderLewai’s xnind when in 1863 he omitted to compel Kadisa TJmma
i Rartt. (1843-1866) 174.
( 841 )
and her children (Aliar being then dead) to execute st transfer andaccept the balance of the purchase money; but the law is quiteclear.
" The authorities cited by Mr. Tambimuttu make it quite dear.In Naguda Marikat v. Mohammadu1 it was held by the JudicialCommittee of the Privy Council that where a person enters onanother's land as his agent and possesses it he is not entitled to thebenefits of section 3 of Ordinance No. 22 of 1371 until he has shownbe has got rid of his character as agent.
" Here the plaintiff must prove that Kalender Lewai. at somestage of his possession changed his position to that of one holdingvt dominus. This he has failed to do. The mere fact that hepossessed for ten years without paying rent or tithe to Aliar andKadisa Umma could not alter his position, for that was the modeof possession stipulated for in, and entirely in conformity with,the deed of 1861. Thus, I think it is quite clear that no title wasvested in Kalender Lewai or those who claim under him by reasonof possession for ten years and more.
'* I dismiss plaintiff's action with costs. ’ ’
The plaintiff appealed.
Sampayo, K.C., for the plaintiff, appellant.
Van Langenberg (with him G. E. Chitty), for the defendants,respondents:
Cur. adv. vvlt.
October 15, 1907. Grenier A.J.—
The District Judge has, in my opinion, come to a right conclusionon the question whether Meeralewai Kalender Lewai acquireda title by prescriptive possession to the land in question. Theaction was one rei vindicatio, and the plaintiff traced his title fromMeeralewai Kalender Lewai, who entered into possession of theland under Sikkander Aliar and his wife Kadisa Umma, who hadpurchased the same from the Crown in 1860. The? deed underwhich Meeralewai Kalender Lewai entered is dated February 4,1861, and an examination of it shows that it was not a conveyanceof the land to Meeralevvai Kalender Lewai, but was simply anagreement, to sell the land to him. It would appear that SikkanderAliar and his wife Kadisa Umma had not, at the date of the executionof .thfe deed of agreement, obtained -a Crown graiit in their favour;and so they agreed by the deed that when they obtained such a grantthey would “ make over a final transfer deed for the land."
> (L903) 7 N. Lr B. 91.
1907.
October IS.
1007.
October 15.
Gbbnier
A.J.
( 342 )
It is clear, therefore, that Meeralevvai Kalender Levvai was placedin possession, not as if he had purchased the land aud was the ownerof it, but, if I may so describe him, as a licensee under SikkanderAliar and his wife. There is absolutely nothing to show that at anytime, after the execution of the deed of agreement, MeeralevvaiKalender Levvai by any overt act changed his position from licenseeto owner. As pointed out by the learned District Judge, the merefact that he possessed for ten years without paying rent or tithe tothe persons under whom he entered could not alter bis position,for that was the mode of possession stipulated for in the deed of1861.
The case is covered by authority. In Nagiula Marikar v. Mohnni-madu1 the Judicial Committee of the Privy Council held that wherea person enters on another's land as his agent he cannot claim atitle by prescription, unless he can show that- he has changed hischaracter from agent to owner, and that he had possession as suchowner for a period of ten years.
I must confess that my sympathies are with the plaintiff, but thelaw is clearly against him.
I would dismiss the appeal with costs.
Middleton J.—
I agree to dismiss this appeal. Neither the certificate relied uponby the learned counsel for the appellant nor the failure to pay theinstalments due to the Crown and to give title appears to me suchovert acts of a change in the character of possession as would entitlethe appellant to support a title by adverse possession.
«•
Appeal dismissed, •
♦
« (1903) 7 N. L. R. SL (