004-NLR-NLR-V-26-LUCIHAMY-v.-HAMIDU-et-al.pdf
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Present : Bertram C.J., Porter JM and Garvin A.J.LUCIHAMY t>. HAMIDU et ah217—D. C. Knrunegala, 6t850
Partition action—Intervention—Prescription—Period up to dale ofintervention to be counted*—Amended plaint relates back to date oforiginal plaint.
An action for partition cannot be said to have been brought asbetween the original parties and an intervenient until be hasintervened, and the plaintiff may count the period up to the inter-vention for purposes of prescription as against the intervenient.
When an amendedplaint orstatement ofclaim is hied,it. is-
considered for all purposes as relating back to the date. of theoriginal plaint or statement of claim.
Plaintiff instituted this action on March 6, 1918, for partition*The ninth defendantclaimed a6-acre blockunder a Crowngrant
of December 14, 1908, and he was added as ninth defendant onMay 8, 1919. It then transpired that the 6-acre block was- notincluded within the boundaries given in the plaint by an oversightPlaintiff amended bis plaint on June 19, 1919, .and ninth defendantfiled hig statementof claimon July 8.The ninth defendant
never possessed the block either before or after the Crown grant.
Held, that plaintiff was entitled to counthis possessionup to
the date of the intervention of the ninth defendant for purposes-of prescription.
1928
( 42 )
1928.
Luoihpmev. Bamidu
ThE facts. are set out in the judgment.
Ba m a raw ickreme (with him Peri Sunderam), for the ninth defend-ant, appellant.
E. W. Jayewanlenc, K.C. (with him H, T Perera)t for therespondents.
December 14, 1928. Bertram C.J.—
This is a- partition action which raises an important- question inthe law of prescription.^
The facts may be very briefly stated as follows:—The plaint:#brought the action against the defendants for the partition ofcertain land which it was claimed their family had possessed on what-is described as a “ village title ” under a deed executed in the year1886 and under certificates of quiet possession issued in the year1908. Certain other lands were comprised in the action, but asthe question of law referred to does not affect these lands, they mavbe left out of account for the time being." The plaint was filedon March. 6, 1918. A survey was ordered, and when it was proceed-ing the ninth defendant, (on May, 1919) appeared upqn the land andclaimed a certain portion of it, referred to as the 6-acre block, undera crown grant dated December 14, 1908. Plaintiff declares that hehad never heard of this crown grant until that time andthat he was unaware that the claimant had any claim to the land.The claimant was thereupon added as the ninth defendant on May8, 1919. It then transpired that the 6-acre block claimed by thisintervening defendant was not, as a matter of fact, included withinthe boundaries of the land which was the subject of the action.Plaintiff had imagined that he had included it, and thought thatthe land came within the limits of his certificates of quiet possession.He was accordingly given leave to amend his plaint so as to includethe land, and the amended plaint was filed on June 19, 1919. Theninth defendant filed his statement to claim on July 8, 1919.
It appeared that the certificates of quiet possession above referredto were issued about the same time an the ninth .defendant's Crowngrant, as the result of n settlement of Crown lands in the districtat which the 6-acre block wv:s claimed both by the plaintiff’s familyand by the father of the ninth defendant. The planit-iff’s familyalso claimed the adjoining land in respect of which certificates ofquiet possession were issued. The learned District Judge findsas a fact that when the certificates of quiet possession were issued'to plaintiff’s family, they imagined that they had been awardedall that they claimed, and said that they knew nothing about theCrown grant which about the same time was issued to ninthdefendant’s father. He finds as a fact that neither ninth defendant -not* his father ever possessed the 6-acre block for a day eitherbefore or after'the'Crown grant.
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I* cannot help feeling .that there is much to criticise in the learned 108&Judge’s finding, but he came ho this conclusion after a very careful bebtr*#consideration of the facts. He considered all the contendingcircumstances. He visited the iand and formed his own conclusions jjucihamyas to the age of the trees thereon. No view that might be taken of v% Hamifythe facts is free from difficulty. In all the circumstances of the
j
case, I do not feel justified in overruling his conclusions.
Nevertheless, there is a substantial difficulty in the way oi theplaintiff. There is a certain amount of evidence that this 6-acreblock was at one time chena. It was situated in the KandyanProvinces. If it had been chena it was Crown landvat the time whenit was so cultivated, for plaintiff cannot rely on either of. the statutorymodes of proof of title prescribed by Ordinance No. 12 of 1840.
Ju this view of the facts it was prown land at the date of the grantto ninth defendant’s father, and even assuming that the plaintiffsfamily occupied the land at the time of, and subsequent to, thatgrant, ten years had not elapsed at the date of the original plaintin this action, March 6, 1918. The learned Judge finds as a fact,
. if I understand him rightly, that the land was never at any timechena. I am not sure that this finding is the result oi a very closeexamination of the facts. It is not necessary for us, however, forthe present, at any rate; to consider whether this finding wasjustified, because plaintiff raises another point. Although tenyears had not elapsed at the date of the filing of the original plaint,ten years had elapsed at the date when the ninth defendant hadintervened in the action. The plaintiff claims that he is entitledto count his possession up to that time for the purpose, of repellingthe ninth defendant’s attack. He raises a further point connectedwith the above. The 6*acre block, was, as a matter of fact, notincluded in the original action, and only became included on theamendment of the plaint on June 19, 1919. At that date also thenecessary ten years had elapsed.
The case thus raises a very important question, viz., the mannerin which section 3 of our Prescription Ordinance, No. 22 of 1871.applies to partition actions, in which by the nature of the caseparties are from time to time added to the record, sometimes at 'long intervals after the original plaint.
The second of the above points may be easily disposed- of.
Plaintiff is seeking to treat his claim to the 6-acre block as thoughit was postponed to the date of the amended plaint. He is not?entitled to .do so. It has been settled both by local and by Englishdecisions that when an amended plaint or statement of claim is -*filed,, it is considered for all purposes as relating'back to the1 dateof the original plaint or statement' of claim. In Weldon v-. Neal1an* amendment of a statement of claim was disallowed, on the groundthat it sought to include fresh claims which at the time of the11887) 19 Q. B. D. 394.
1928.
Bsd&tbam
C.J.
Lucihamyv : Hamidu
( 44 )
amendment was barred by the Statute of Limitations, althoughnot- barred at the date of the writ. Lord Esher M.R. said :If
an amendment were allowed setting up a cause of action, which,if the writ were issued inN respect thereof at- the date of the amend-ment, would be barred by the Statute of Limitations, it would beallowing the plaintiff to take advantage of her former writ to defeatthe statute .and taking away an existing right from the defendant,a proceeding which, as a general rule, would be, in my. opinion,improper and unjust. We have the converse case in our own books(see Morris v. Dias *). In that case, after the institution of an actionon a promissory note, the plaint was amended by the additionof an alternative count for goods sold and delivered. It was thereheld that the period of limitation must be reckoned up to the dateof the original summons, and not up to the date of the amendment.“ This new cause, ** said Withers J., “ relates back to the data ofthe original writ. **
The first point, however, namely, that the period of prescription.runs up to the date of the inclusion of the ninth defendant in theaction is of greater difficulty and importance.
The question is purely a question of interpretation. It dependson the-meaning to be attached to the words of section 3 of the Pre-scription Ordinance. Mjr. Samarawickreme contends that if thewords of the section be carefully examined, it will be seen that thematerial date for the purpose of all questions of prescription is thedate of the 4 4 bringing ” of the action. A decree in a partition suit,like a decree in any other action, for all purposes speaks as to thedate of action brought. It is the right of all parties, at that date,which the decree defines. Where it- is a defendant who sets'upthe plea of prescription he insists that this is perfectly clear. Proofof “ possession for ten years previous to bringing of such action ”entitles him tp 44 a decree in his favour with costs. M Similarly,he maintains, the position is not less clear where a plaintiff orintervenient sets up a plea of prescription: 4 4 Proof of such un-disturbed and uninterrupted posession, as hereinbefore explained,by such plaintiff or intervenient, or by those under whom he claims,shall entitle such plaintiff or intervenient to a decree in his favourwith costs. 99 Let us assume, argues Mr. Samarawickreme, thatthe words 44 hereinbefore explained ” refers to the parentheticalexplanation enclosed in brackets earlier in the section. This doesnot matter. The important words are ,f such possession. ° “ Suchpossession ” means possession in the first place for ten years ; and,in the second place, possession for ten years previoussto the bringingof the action.
There is no doubt a certain plausibility in the contention that aperson who invokes the assistance of the Court for a claim to a portionof land at a given date must be content to have his position defined,
1 (1892) 2 C. L. H. 185.
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either as against the original defendants or as against any personsubsequently brought into the action, as at the date when he soinvokes the assistance of the Court. But the question is not sosimple as this. There must be the same measure for all parties.What is the position 6f a person brought into a partition suit severalyears after its commencement ? He may have been in possessionall the time. Is he not entitled to count his possession up to thetime when he is actually assailed ? But virtue of that positionhe may have acquired a title in the interval between the originalinstitution of the. action and his own inclusion in it. Is he to losethat title ? Why should he be deprived of it because of the insti-tution of legal proceedings of which he had no knowledge ? Oughthe not to be allowed to count his possession, if necessary, up to thelast moment ? But if he is allowed this privilege, the same privilegemust be allowed in the corresponding case to the plaintiff in theaction. The plaintiff himself may be in a similarly embarrassedposition. He may, as in the present instance, have brought anaction on a basis which he thought was unassailable. He may havebeen ignorant of any possible contentious title in the ease, yet, whenthe action has proceeded for some years, a person may presenthimself claiming a documentary title which he could only oust byprescription. At the time when this person assails him, he mayhave acquired a prescriptive title against- the assailant. Whyshould he be deprived of this title ? If he canont assert it in thisaction, he can never assert it at all, because the decree in the parti-tion suit would dispose of the question for all time.
The material words which we have to interpret for the solutionof this difficult question are the words “ the bringing of such action.Are these absolute, or are they relative terms ? Is an action broughtfor the purpose of all defendants, whether original or subsequent,at the date when the plaint is filed as against the original defendants ?Or, must we take into consideration the date of the joinder of thesubsequent defendants for the purpose of determining when theaction must be considered as having been brought against them ?In other words, when is an action considered to be brought asagainst subsequently added defendants ? After very, careful con-sideration I have come to the conclusion that an action can onlybe considered to be “ brought ” as against a subsequent defendantwhen he is actually included in the action.
It is interesting to find that- this is in fact the view which has beentaken in India. Section 22 of the Indian Limitation Act (No. 9of 1908) is as follows : “ Where, after the institution of a suit- anew plaintiff or defendant is substituted or added, the suit shall,as regards him, be deemed to have been instituted when he wasso made a party. ” In Nttndi v. Dosaee *, it was observed that
although the earlier Limitation Act of 1887 had not come into* (1881) I. L. R. 7 Cat. 284.
1928.
Bbbkbax
C
Lurihamyv* Samidu
operation when the suit was instituted,'yet the law embodied insection 22 of that Act was applicable to a case like the present evenbefore the Act was passed, namely, that after the institution of asuit like the present for the recovery of land held by several personsagainst one of such persons, if a new defendant; is added, the suit*should, as regards him, be deemed to have been instituted when hewas so made a party. *’ See also Abdul Karim v. Mauji Hausraj. 1It is probable, however, that the reference to the previous law onthe subject is a reference to the statutoiy, and not to what maybe described as .the common law.
A similar view has been taken in two local cases. In Ckinnatambyv. Chanmngam,® it was held by Hutchinson C.J. and Wood Renton
J.that if a creditor of two joint-debtors allows his action againstone of the debtors to be prescribed, he cannot recover from theother, whom he has in the meantime sued alone, by joining .at alater stage of the action, as added-defendant, the party whose debtis prescribed. In the other case (Corea v. Pieris 3) Wood Rentonand Grenier JJ. declined to accept the proposition that the pointwhen the Statute of Limitation takes effect. is the date of theinstitution of the action and not that of the addition of a new party.But it must be admitted that the line of reasoning by which the.Court came to this conclusion is not altogether clear.
There is, however, another ppint of view from which thi* questioncan be approached. If section'd is carefully studied, it will be seenthat it contemplates not any action, but an action of a specialnature. It contemplates an action relating to land in which s'dispute as to title is in issue. IF contemplates a person who desiresto be quieted in his possession to prevent encroachment or usurpa-tion, . or to establish his claim to the land in some other manner.The object of his raising the plea of prescription is to obtain adecree in his favour with costs. Now a partition action is, ordinarilyspeaking, not an action of this character. It has always beenrecognized as having a peculiar nature. Voet (10, 1, &)i refers toit as an action in which all the parties have the double capacityof plaintiff and defendant :
In ea singula persona duplex ins hahent, pula, ageniis, et cinscum quo Agitur.
It has been repeatedly referred to in our books as an action inwhich every party is really a plaintiff. See Assena Marihar>v.Lebbe,4 Saram Appuhamy v. Martinahami,s and De Silva v. De Silva.*Ordinarily speaking, the action is not brought to resolve a questionof title;, its object is increased convenience of possession. In thepresent instance when the action first started, there was no questionof title. It was only when the ninth defendant intervened that a
(1870) 1 Bom. 295.4 (1878) 1 S. C. C. 19.
(1909) 1 C. L. B. 134.'5 (1909) 12 N. L. B. 102.
(1906) 9 N. L. B. 276.+(1910) 3 Cr. W. B. 31$.
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. question of title arose. It has been held by the Privy Council inPonntnatna v. Arumogam1 that a partition action may in fact bean action for the recovery of land, but, as was pointed out in toothercase (Hansen Hadjiar v. Levane Marikar y), it is not necessarily anaction of that character. It may not be so in its origin, but itmay at any moment become such an action. It would thus seemthat a partition action only becomes an action of the class whichthe section contemplates when a dispute as to title actually arisesand this naturally directs one's attention to the question, what isthe meaning of the word "action*" ?
When a person intervenes in a partition suit- and has his nameadded as . defendant and files a statement of 'claim against theplaintiff, the question is whether such a proceeding may not legti-mately be considered (as. Mr. Samara wickreme put it) "an actionwithin an action. ” Certainly this point of view would give effectto the real intention of the section, which is, that when a disputeas to title arises, either party should be able to have that disputedetermined in his favour on proof of ten years’ possession op to thedate when it came into Court. If, however, the view suggestedabove that an action is not to be considered to be " brought Magainst a person until he has been made a party to it is sound in-law, it will not be necessary for us to consider this-alternative point.It is nevertheless one which jf occasion arise, might receive furtherconsideration. This appears to have been the point of view adoptedin S'enathi Baja v. Brito.3
There is a local authority which ought not to pass unnoticed.If Mr. Samarawickreme’s contention were right, then it would seemthat the bringing of a partition action (such action not being anabortive action, but one carried to its conclusion) would automati-cally interrupt the running of prescription with reference to anyperson who either originally was or might subsequently become aparty to the action. This lias been expressly held not .to be theease in-Don Juan v. Boucher*
The other questions arising in the case are pure questions of fact.I see no reason to question the findings of the District Judge, andI am therefore of opinion that the appeal must be dismissed, withcosts.
Porter J.—I agree.
Garvin A.J.—'
i
This was a proceeding under the Partition Ordinance, and wasinstituted on March 6, 1918. The plaintiff sought to partition acertain land, allotting half to himself and the remaining half toone Appu‘ Naide. The preliminary decree was entered on August
1 (2905) 8 N. L. R. 223.3 (1922) 4 Law JRec. U9■
* (1912) IS N. L. R. 275.4 (1859) 3 Lor, 271.
1928.
BERTHA*
.0 J.
Ludharnyv. Bamidu
1988.
0ABVXN A.J.
bucihamyt>. Hamidu
( 48 )
20, 1918, and a commission was on October 3 of the same yearissued to a surveyor to partion the lands. Then Appu Naidedied, and his * widow and children were substituted in his place.When the surveyor went to the land it was found that a block ofland referred to in the proceedings as the 6*acre block fell outsidethe boundaries and description of the subject to be partitioned setout in the plaint. On May 8, 1919, Hie Commissioner’s reportand survey were filed, and on the same day one Hamidu Arachchi,who claimed this block, was admitted into the case and given timeto file his statement of claim.
On May 20, 1919, the plaintiff moved to amend his plaint to giveeffect to his original intention to include this 6-acre, block in thedescription of the land to be partitioned. This was opposed byHamidu Arachchi, who now appears on the record, as the ninthdefendant, but the amendment was ultimately allowed.
Thereafter the proceedings resolved themselves into a conflictbetween the ninth defendant, who claimed the 6-acre block, andthe other parties on the record who resisted his claim. The ninthdefendant based his claim on a Crown grant dated December 14,1908.
The learned District Judge held that the plaintiff Appu Naideand their predecessors in title bad acquired a prescriptive title tothe 6-acre block, and dismissed the ninth defendant’s claim. Fromthat decision the ninth defendant appeals.
I agree with my Lord the Chief Justice and my brother Porterthat the Judge’s findings of fact should not be disturbed. Theappeal, however, is pressed on the ground that inasmuch as theninth added defendant had a good title on December 14, 1908,ten years had not elapsed “previous to the bringing of the action ’’within the meaning of section 3 of the Prescription Ordinance onMarch 6, 1S&.8, which it is contended is the date on which, the actionwas brought. If May 9, 1919, the day on which the intervenientwas made a party to the action, or any date thereafter be takento be the date “of the bringing of the action,” the necessary periodof ten years is complete, and his claim fails.
The first position taken up by learned counsel for the appellantwas that the effect of the amendment of the plaint made in pursuanceof the order of May 20 was to include the 6-acre block in the originalplaint as at and from the date on which that plaint was filed.
Now, it is clear that it was the intention of the parties that the6-acre block was to form part of the subject to be partitioned, andit was their belief that the description given in the plaint of theland to be partitioned did in fact include the 6-acre block.
The amendment was in effect a rectification of a misdescriptionof the land which the parties intended to be the subject of partition.Such a rectification must surely date as at an from the date ofthe original plaint.
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But even if the amendment be regarded os an act whereby the 1M8*plaintiff sought deliberately to add to the land which he orginally
intended should form the subject of partition, it must, I think,
in law be treated as if it had been included as at the date of theacceptance of the original plaint*
The ninth added*defendant, it is true, was admitted at a dateanterior to the making of the amendment, but it is obvious that hewas there to claim something which, whatever the intention of theparties to the original action may have been, did not in fact fallwithin the description of the subject to be partitioned. At thatdate there was no part of the subject matter of the action in whichhe had the slightest interest. It was not till after the amendmentwas made that there was anything included in the subject matterof the action to which he had* an interest or intended to prefer aclaim. His intervention must therefore date from some point oftime subsequent to the amendment. In the result the parties arein exactly the same relative positions which they would haveoccupied if the 6-acre block had been included in the plaint whichwas accepted on March 6, 1918.
The ground is thus cleared for the consideration of the questionwhether the action which as between the original parties wasundoubtedly instituted on March 8, 1918, must, as against the claimof the intervenient which as I have said must be taken to datefrom some day after May 20, 1919, be also deemed to have beenbrought on March 8, 1918. The answer involves the interpretationof section 3 of Ordinance No. 22 of 1871.
The first part of this section deals with the right of a defendantto a decree in his favour upon proof of ten years’ possession of thecharacter referred to in the section previous to the bringing of theaction. There is here a clear indication that the action contemplatedis an action against a specified defendant. Similarly., the sectionconfers on a plaintiff who has had ten years’ adverse possessionprevious to the bringing of his action against a person who challengeshis title or infrings any of his rights as owner to a decree in liisfavour. In this instance also what is contemplated by the use ofthe word action is a proceeding by a plaintiff against a specifieddefendant. In such cases the date of the institution of proceedingsmust be taken to be the date up to ot previous to which ten years'adverse possession must be established.
Now the date on which a party is added is surely the first momentof time’ from which it can be said that there is a proceeding againsthim at the instance of the plaintiff* Upon what principle can itbe said that his rights as against the plaintiff or any other partyto the action should be ascertained at any date other than theactual date on which the plaintiff commenced legal proceedingagainst him*
( 50 )
1928.
Lucihamyv* Hamidu
The contention of counsel for the appellant leads necessarily tothe result that the institution of any action within the contemplation
Oabvik A.J. of section 3 would operate as an interruption of the running of
prescription, not only against the defendant against whom a pro-ceeding was pending, but as against any person who may at- anydate thereafter be added as a party defendant. Where such anaction is a partition action, the effect of the argument is that itsinstitution stops the running of prescription in. favour of any andeverybody even though they may be strangers to the action.
• But no authority has been cited for the proposition that uponi-he institution of a partition action in respect, of a land the runningof prescription is effectually stopped. It is a proposition the con-sequence of which I should not care to contemplate. I do notthink such a result was ever intended or contemplated by theframers of Ordinance No. 22 of 1871. Indeed there are judgmentsof this Court which, if they are not exactly in point, are at leastindicative of the fact that the view favoured by this Court is opposedto the contention off counsel for the-appellant; vide Don Juan v.Boucher (euprd) and Corea v. Pieris (supra).
It is said that the requirement of section 8 that possession/torten years previous to the beginning of the action is necessary toentitle the plaintiff or the defendant, as the case may be, to a decreein his favour is in recognition of a general principle that the rightsof parties to the action must be determined as at the date of theaction. Assuming this to be correct., no authority was cited forthe extension of this principle so as to affect rights which haveaccrued subsequent to the institution of an action to persons whowere not parties to the action as originally constituted, but wereadded as parties at a later stage. It would, indeed, be strange thata person added as a party to a pending action for a declaration oftitle should be debarred from pleading a sound title which accruedto him subsequent to the institution of the action as criginallyconstituted.
If the contention of counsel is sound, then the application of thisprinciple will debar proof by the intervenient in a partition caseof an independent title based on Crown grant, merely because this' grant bears a date subsequent to that on which the partition actionwas instituted. It is sought to escape from this situation by limitingthe application of the principle to titles by prescription. But ifthe principle as extended by counsel applies at all, it- must applyto all titles acquired subsequent to action whether by prescriptionor grant.
But whether the theory underlying section 3 be that, the insti-*tuition of an action against a defendant is to be deemed to be aninterruption of the running of prescription, or whether the sectionbe only an application of the principle that the -rights of the partiesto an action 'must – be ascertained and determined as at the date
( si' )of the action. I thick that the date of the “bringing of an action** 1*88.against an added party must be the date on .which he was so added. gabvtoA. j.Until then no action had in fact been brought against bi/n. In thisview an action for partition cannot be said .to have been broughtas between the original parties and an intervenient until he hasintervened.
Moreover, a partition action is a proceeding of a special character.
In practice it often involves a contest as to title ; in theory it ismerely a proceeding by one or more admitted co-owners againstthe remaining co-owners to obtain relief from the inconvenience ofundivided possession. It has been repeatedly pointed out thatin such a proceeding each party whether he be plaintiff or defendanton the face of the record partakes of the character of plaintiff andalso of defendant.
In this case plaintiff and defendants are in the position of defend-ants resisting the claim of the intervenient. Up to that pointthey were co-owners in complete agreement as .to their respectiverights. It is the intervenient, the ninth defendant-appellant, whois assailing the rights of all of them. He does so on the strengthof a Crotfn . grant. As defendants to the proceeding by the ninthadded-defendant-appellant, they have proved that, they have hadadverse and uninterrupted possession of the 6-acre block for approxi-mately eleven years previous to this challenge of their title, andclaim a decree in their favour. To this decree I think they areentitled under the provisions of section 3 of Ordinance No! 22of 1871.
I would therefore dismiss this appeal, with costs.
Appeal dismissed.