055-NLR-NLR-V-77-M.-M.-BELIN-NONA-Appellant-and-H.-K.-PETARA-and-others-Respondents.pdf
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H. N. Q. FERNANDO, C.J.—-BeKn Nona v. Petara
Present: H. N. G. Fernando, C.J., and Walgampaya, J.
M.M. BELIN NONA, Appellant, and H. K. PETARA andothers, Respondents
S. C. 23/69—D. C. Gampaha, 11922/P
Co -owners of two lands—Averment that both lands were amalgamatedand divided among the co-owners—Prescriptive possession there-after of the parts severally allotted—Proof.
It is only rarely possible for a party successfully to maintain thatthere had been an actual division of a land among co-owners andprescriptive possession thereafter of the parts severally allotted.The difficulty of proving separate title is all the more difficult whentwo lands are said to have been amalgamated and the same personsare not shown to have owned the same shares in the two lands.
A. PPEAL from a judgment of the District Court, Gampaha.
H. W. Jayewardene, with N. R. M. Daluwatte and Miss IvyMarasinghe, for the plaintiff-appellant.
J.W. Subasinghe, for the 9th to the 12th defendants-respondents.
July 14, 1972. H. N. G. Fernando, C.J.—
The only issues which were framed in this action related to aposition taken up by the 9th to the 12th defendants, that the landdepicted in the plan filed of record in this case had beenpreviously amalgamated with the land depicted in plan No. 77Sfiled of record in case No. 11923/P, and that the land so amalga-mated had been divided among the co-owners of both lands. Thelearned District Judge answered these issues in favour of the9th to the 12th defendants, and therefore dismissed this action.Counsel for the 9th to the 12th defendants has now to concedethat the former co-owners of this land and the former co-ownersof the other land are not the same persons, although some ofthem may have been co-owners of both lands.
It is only rarely possible for a party successfully to maintainthat there had been an actual division of a land among theco-owners and prescriptive possession thereafter of the partsseverally allotted. In the circumstances of this case, the difficultyof proving separate title in that way is all the more difficultbecause the same persons are not shown to have owned thesame shares in both the lands- In our opinion, the evidence upon
Gooneratne v. Gooneratne
271
which the trial Judge acted fell far short of establishing thecomplicated division which is alleged to have been made.Accordingly we hold that the answers to the issues should be asfollows: —
The decree dismissing the plaintiff’s action with costs is setaside and the case is sent back to the District Court, where itwill be open to any party to raise any issue which properly ariseson the pleadings, but of course not to raise again any of theissues which have been decided in this judgment. The costs ofthe former proceedings in the District Court will abide the finalresult of the action. The plaintiff-appellant will be entitled tothe costs of this appeal to be paid by the 9th to the 12thdefendants-respondents.
Walgampaya, J.—I agree.
Issue No. 1Issue No. 2Issue No. 3Issue No. 4
No.
No.
No.
Yes. The plaintiff can maintainthis action because it has notbeen proved that this land wasamalgamated and dividedtogether with the land shownin plan No. 776.
Issue No. 5Issue No. 6
Yes.
Yes.
Case sent bach for further proceedings.