ODRIS et al. v. MENDIS et al

072-NLR-NLR-V-13-ODRIS-et-al.-v.-MENDIS-et-al.pdf


( 309 )
[Full Bench]
June 30,1910
Present: The Hon. Sir Joseph T. Hutchinson. Chief Justice,Mr. Justice Middleton, and Mr. Justice Wood Benton.
ODRIS et al. v. MENDIS et al.
D- C., Oalle, 9,318
Evidence Ordinance (No. 14 of1890),s.110 — Estoppel — Adverse-
possession—Ordinance No. 22 of 1871, s. 8.
In 1870, A agreed, by a deed which recited that- B was the ownerof a piece of land, to plant itup within sixyears and to havethe
trees divided between A and B. It was farther agreed that if Afailed to plant he was to have no right, and that the land shouldbe given back to B. A remained in sole possession of the land, andtook the produce till 1908.
Held, under the circumstancesof thiscase(see judgment), Awas-
not estopped by the planting agreementfromdisputing B's title.
Held further, that A’a possession was “ adverse ”withinthe
meaning of section 3 of Ordinance No. 22 of 1871.
Naguda Mari la r e. Mohamadu 1 explained.
rpHE facts of this case are set out in the judgments.
H. A. Jayewardene (with him Zoysa), for the appellants, defend-ants.—The plaintiffs took a planting voucher for this land in 1870from the defendants and their predecessors in title; they must beconsidered to hold the land in the character of planters or lessees,,until by some overt act they have changed that character (NagudaMarikar v■ Mohamadu,1 EkneUigodde v. Maduanwela.2). It is dearin this case that the plaintiffs considered themselves to be merelyplanters, from the fact that they took planting vouchers from thedefendants in 1884 and 1900.
The division of the land into different blocks is arbitrary, andmade solely for the purpose of the sale by the Crown; the plantingvoucher of 1870 shows that the land in question was considered asone entire land, so that even if portions of it be left uncultivated,the cultivation of a part would give the claimants a title to theentirety. (Jones v. Williams,s Saibo v. Andris et al.*). The plaintiffs’present defence, that although they took the vouchers they werenot acted upon, is one which is highly improbable and should notbe accepted.
1 (1903) 7 N. L. R. 91.
* (1898) 3 N. L. R. 213.
2 M. ds W. 320.
(1898) 3 N. L. R. 218.
( 310 )
June 30,1910
Odrie v.
■ Mendia
A. St. V. Jayewardene, for the respondents—The learned DistrictJudge has found that the land consists of three different lots:
The portion containing a plantation about forty years old;
the portion containing a young plantation not ten years old.
and (3) the forest portion. As regards (1), the plaintiffs haveonly obtained a certificate of quiet possession, and claim it byprescriptive title; as regards (2) and (3), they claim under the Crowngrant. As regards (2) and (8), the defendants have shown neithertitle nor possession, and it was forest and. uncultivated laud, andwas the property of the Crown under Ordinance No. 12 of 1840 atthe date of the conveyance to the plaintiffs. The principle that thecultivation of a portion of land within defined boundaries gives titleto the entirety does not' apply where the cultivated portion is muchless than the uncultivated portion, as in this case. As regards (1),the plaintiffs have acquired a title by prescription. The DistrictJudge has found the following facts:(a) That the defendants’
predecessors had no title to the land at the date of the voucher of1870; (6) that the first plaintiff had entered upon the land beforethe planting voucher was granted; (c) that the plaintiff obtainedthe planting voucher in order to have some show of right in case ofdispute; (d) that the plantations made by the plaintiff were notmade under the planting vouchers; and (e) tha,t since 1870 theplaintiffs have enjoyed the produce of the land. The obtaining ofa deed from another under the circumstances found by the DistrictJudge does not amount to the admission of the title of the personfrom whom the grant is obtained. See Angell on Limitation, p. 420.
Even if the planting voucher amounted to an admission of thedefendants’ rights, the plaintiffs could have acquired a title byprescription. For under the voucher the defendants were entitledto take a half share of the produce at the expiration of six yearsfrom the date of the voucher. The defendants have not done so;and the plaintiffs have taken that share of the produce withoutacknowledging defendants’ title. Where one co-owner has been insole and uninterrupted possession for a considerable length of timethe Court will presume ouster. [(1774) 1 Cowper 217; see alsoBahavant v• Bhal Chandra.1]
H. A. Jayewardene, in reply.
Cur. adv. vv.lt.
1
1
June 30, 1910. Hutchinson C.J.—
The plaintiffs claim a declaration of their title to 6 acres 1rood 29 perches of land, and to recover possession and damages.The land is composed of several blocks marked A to E on the planNo. 2,724 accompanying the Commissioner’s report filed- in thecase. The plaintiffs claim A, D 1, D 2, D 3, and E under two Crown
» 29 Bom. 300.
( 311 )
grants made in February, 1908, one of which was of 23,882 (A) «7«me 30,1910to the second plaintiff, and the other was of 23,885 and 23,886 Hutchinson(D 1, D 2, D 3, and E) to the first plaintiff; and they claim C.J.
3 and C 23,883 and 23,884) by prescriptive title. The defendants Qdtria v.in their answer denied the right of the Crown to make the grantsMendia
to the plaintiffs, and denied the plaintiffs’ title, and asserted thatthe plaintiffs had planted the land—which they said is one entireland defined by a deep ditch—under planting vouchers from someof the defendants. Block A has never been planted; it is jungle.
There are plantations from four to eight years old on D 1, D 2, and Emade by the second plaintiff and his brother. There are plantationsabout forty years old on B and C made by the first plaintiff. Thereis no evidence as to who has taken the produce of the plantations,but it seems from the evidence that the plaintiffs have' always beenin possession since they made the plantations.
In 1870 the first plaintiff and three others took a planting voucherfrom Sylvestri Mendis, owner of two-thirds, and Andris de AbrewGunasekere Appuhamy, owner of the Other third, of about 11acres of land, which is rather vaguely defined, but is admitted toinclude B and.C; under this “ the other middle portion ” was to-beplanted by the first plaintiff, and the planting was to be finished insix years. The defendants claim through Sylvestri, and they allegethat the plaintiffs planted B and C under this voucher, and cannotnow dispute the title of the representatives of Sylvestri. Theplaintiffs depose that the first plaintiff had squatted on the land,which was then waste, before he took the voucher of 1870, andthat the voucher “ was never acted upon. ” In their plaint theplaintiffs alleged that the plantations on D 1, D 2, and E were madeby the second plaintiff and his brother on a planting vouchergiven by the first defendant to them in June, 1900, at a time whenthe first defendant was considered the owner, but afterwards, theCrown having claimed those lots, the plaintiffs bought them fromthe Crown; and the defendants in their answer admitted this.
This .1900 voucher was not put in evidence, and we do not knowwhether it referred to the whole land or only to D 1, D 2, and E.
The issues settled were—
Had the Crown title to deal with the land?
Were the. plantations made by the plaintiffs under the
defendants or their predecessors ?
The District Judge held that the Crown had title. With referenceto. the second issue, he found that the first plaintiff signed the voucherof 1870 after he had been some years on the .land, and that thevoucher “ was not acted upon. ” This refers only to B and C. Heexpresses no opinion on the plaintiff’s claim of prescriptive title toB and C, and, indeed, there was no issue as to that. But, findingthat the defendants had no title to B or C, and that the plaintiffs
24-
June 30,1910
Hutchinson
CUT.
Ocfrta v.Mendti
( 312 )
had cleared and planted them, he gave judgment declaring theplaintiffs entitled, to them. With regard to the other blocks, thereis no doubt that A, which is still jungle, and to which the defendantshave not proved any title, was Crown land, and the second plaintiffhas a good title to it under his grant' from the Crown; for there isno evidence that he took any planting voucher which included A.The plantations on D 1, D 2, and E were made or begun by thesecond plaintiff and his brother under a planting voucher given tothem by the first defendant in 1900; but the finding of the Judgewas right, that those blocks were then, and at the date of the Crowngrant, Crown land; and his finding that the first plaintiff has a goodtitle to them undei: his grant from the Crown is right, unless thefirst plaintiff is estopped by the planting voucher which he took in1870 from denying the defendants' title.
It is this question of estoppel which has caused the difficulty.The voucher of 1870 appears to include the whole of the land;the area is stated as about 11. acres, whereas the actual area isonly 6 acres 1 rood 29 perches, but the boundaries given appear toinclude all these blocks, and no. more. The first plaintiff alsoadmitted that he and another man, about twenty-five years ago,took a planting voucher for the northern portion from the firstdefendant, but there is no other evidence as to what that voucherwas or whether anything was done under it, except that he says itwas “ not acted upon A tenant cannot, during the continuance .ofthe tenancy, deny that his landlord had a title to the land at thebeginning of the ^nancy (Evidence Ordinance, section 116). Underthe 1870 voucher the first plaintiff was to plant 4 ‘ the other middle.portion ” within six years, and then the trees were to be divided*So far as the evidence shows, the first plaintiff'6 co-planters didnothing under that voucher, and from its date no claim was evermade under it by Sylvestri, or those claiming under him, but thefirst plaintiff remained in sole possession of B and C for more thanthirty years after the expiration of the six years mentioned in thevoucher. I think that it is the reasonable conclusion from thesefacts that he disputed the defendants’ title to B and C at the endof the six years, and has disputed it ever since, and it is too latenow for them to assert it. In his plaint he claimed B and C byprescriptive title; and although there was no issue as to prescription,
I think that, after such a long period of adverse possession sincethe term fixed in the voucher, he is not precluded from now disputingthe defendants’ title.
The case as to D 1, D 2, and E is different. The first plaintiff .has not planted them or possessed them. They were planted bythe second plaintiff and his brother under a voucher given by thefirst defendant in 1900; and the first plaintiff bought them fromthe Crown in 1908. It seems clear that the Crown had a good titleto . them in 1908; but is the first plaintiff estopped by his 1870
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voucher, or the mysterious voucher of twenty-five years ago from Jum 30J910alleging ? I think that the same reasoning applies as in the Hutchiksohcase of B and C. The 1870 voucher was spent in 187fc; but of the c>voucher of twenty-five years ago we know nothing; and for a great Odrisv.many years he has denied the defendants' title, and he is not nowestopped from denying it.
There is no evidence as to any planting on D 3- The samereasoning applies to that block; the first plaintiff is in possessionof it under a Crown grant; the Crown had a good title to it; andthe first plaintiff is not estopped from denying the defendants’ title.
No objection was made in the District Court or in this Court as'to misjoinder of plaintiffs.
1 think that the appeal fails.
Middleton J.—
The main question raised in this case is whether the first plaintiff,who admittedly planted what are designated as B and C in planNo. 2,724, and form lots 23,883 and 28,884 of the land in dispute,is not estopped from denying the first defendant’s title to theselots from the fact that in May, 1870, he accepted from the defend-ant's predecessors in title a planting agreement, under which it isalleged he acknowledged their title to the land in question, andthereby held possession on their behalf for upwards of thirty years,such possession enuring to the benefit of the defendants as againstthe Crown, who have assumed to grant to the plaintiffs.
As subsidiary to this, it is argued that the first plaintiff byaccepting this agreement as regards one-half thereby acknowledgedthe title of the defendant's predecessors in title to the whole land,and is thereby estopped from denying the defendant’s title to it;and further, that the first plaintiff is also estopped by his acceptance'of another planting voucher to another portion of the said land;and finally, that the second plaintiff is estopped in a similar way by.accepting a planting voucher in 1900 for a portion of the said land.
It is very material, I think, before deciding these questions, to seewhat is the. evidence in the case, and whether^the findings of thelearned Judge upon it are correct.
I think the learned Judge was correct in finding that all theplantations on all the land were made by the first plaintiff and hissons, and that the evidence does not show that the ditch was cutby the defendants or any person whom they deem their predecessorsin title- The first defendant himself admits practically that theland was no more than chena, and that first plaintiff planted it,when he says " it was not planted except with vegetables and finegrain. Then plaintiff came on the land and he planted. " There iano evidence that first defendant ever exercised any act of ownershipover the land himself personally, or by others, except by the granting
I 314 )
June 30,1910 0f the planting vouchers. The written evidence' is that by deedHxddceton hi 1870 Sylvestri Mendis and Andris de Abrew Gunasekere Appu-J; hamy, reciting themselves respectively as owners of two-thirdsand one-third of the land in question, then described as 11 acres*in extent, granted 1 acre on the north-western boundary to beplanted by one Alasiyahandi Sengoris and of the remaining land,granted half on the southern-side to be planted by Nigamuni OdrisMendis Appu and Hiddamarakkala Janadoris, and the other middleportion by Hendavitarana Odris (the plaintiff); the land to beplanted up within six years, and the trees divided between theplanters and the soil owners. On failure to plant, the planters tohave no right, but the houses to be vacated and the land given backto the soil owners. The judge finds, that the first plaintiff signedhis planting voucher after he had been some years on the land,and that B and G, representing lots 28,883 and 28,884 in the planNo. 2,724, were jungle when he began planting, and were plantedentirely by him; that of the three others who signed the voucherwith him he alone planted, while he also finds that A, repesentinglot 23,882, is still jungle, and Dl, representing lot 23,885, D2 and D3and E, representing lot 23,886, were jungle until quite recently.
These findings on the evidence appear to be correct. As regardsthe first defendant’s title, he has D5, dated January, 1877, No. 6,687,by which Sylvestri Mendis. purports to convey to him and twoothers one-sixth of the land; while on the same day a mortgage,D6, for Rs. 100 was granted by Sylvestri Mendis to Kappina KasturiAndris Mendis Seneviratne Appuhamy on one-third of the saidland. The deed D5 did not reserve any planter’s rights in favourof the plaintiff, as it ought to have done, if Dl had been recognizedby Sylvestri Mendis. He has also a Fiscal's- transfer, D9, forone-third of Koswatta, bought in execution against one Darlis,and described as being of 5 acres 3 roods and 22 perches inarea, and another Fiscal’s transfer, DIO, in favour of AmolisPerera Appuhamy for one-ninth part of Koswatta, containing inextent 7 acres, bought in execution against Wiyadoris PereraAppuhamy, Agiris Soysa Appuhamy, and Senerat de Soysa Hamine,"whom he alleges were heirs of Sylvestri Mendis- He has alsoproduced D3, a copy of the proceedings in Court of Requests caseNo. 13,411, by a stranger named Harmanis, in 1863, against Sylvestriand others, claiming one-eight of one-fifth of Koswatta, in whichthe judgment declares the plaintiff has failed to prove his case andwas non-suited. He also stated he produces D2, alleged to be theplanting voucher No. 1,176, dated 1900, granted by him to thesecond plaintiff and his brother, which I am unable to find filed inthe record. He also produces D7, a planting voucher No. 1,589,dated 1894, given by him to the second defendant and one Sandiris,and D8, No. 1,634, of 1903, by which the second defendant purportedto mortgage his planter’s interest to the third defendant. The
( 315 )
J.
Odris v,Mendis
plaintiff brought Court of Bequests action No. 6,574, the proceedings June 30,1910in which are marked D4, in 1908 against the second and third MumErox
defendants, and the first defendant being added as a party, theCommissioner holding that he had no jurisdiction dismissed theaction, with leave to bring the present action. Hence it seems tome has been exhumed, what otherwise would have been tacitlyadmitted to be, the undisputed right of the plaintiff to B and C.
The conduct of the first defendant in abandoning his allegedrights to B and C under the planting voucher D1 from 1870 to1908 shows clearly that he had either given up all claim to the land,or had in his opinion no rights whatever. As regards the plaintiffaccepting the voucher Dl, the learned Judge seenls to think hedid so to further fortify his title to plant in case of dispute.
In America it has been held (<Jackson u. Newton;1 Angell onLimitations, p. 421) that if the party in possession claiming undera deed, and supposing that there was a defect in the title, applies.to purchase the title of a person claiming the same premises for thepurpose of strengthening only or quieting his own title, it is not anabandonment of his own title, nor an admission of a superior titlein another. Here the plaintiff was a squatter without title, andfor the purpose of quieting his very uncertain title took the plantingvoucher from the first defendant. The plaintiff was in possessionat the time, and had not to acknowledge the defendant's allegedright in order to obtain it. Even, however, if there was originallyan estoppel here, does not the holding over of the plaintiff afterthe six years mentioned in Dl for upwards of thirty years, coupledwith the conduct of the first defendant in tacitly assenting thereto,amount to a denial of the first defendant's title acquiesced in byhim which would amount to an ouster in law sufficient to founda- title by prescriptive possession in the plaintiff as against thefirst defendant?
In the old case of Doe ex dim, Fisher and wife and Taylor andwife v. Prosser,2 it was held by Lord Mansfield, Mr. Justice Willes,and two other learned Judges that , the thirty-six years’ sole anduninterrupted possession by one tenant in common without any •account to or denial made or claim set up by his co-tenant incommon was a sufficient ground for a jury to presume an actualouster.
In Naguda Marikar v Mohamadu3 the Privy Council heldthat, in order to obtain the benefit of section 3 of Ordinance No. 22of 1871, it was necessary that there should be proof of a change ofstatus in the' case of a person who had got possession as agent.In the present case the first plaintiff took possession as a squatter,accepted a planting agreement from the first defendant for six
118 Johnson N. 7. 355.3 (1774) Cowper's Reports 217♦
3 (1903) 7 NLR 91.
c 316 )
June 30,2910 years, ignored its obligations which was at the same time acquiescedMiddlbton by the first defendant, and in my opinion there is sufficientJ.evidence here to show that idle plaintiff got rid of his character at
Odria v.tenant by the non-enforcement by the first defendant of the terms
JilendUof the planting agreement within six or even ten years from the
termination of the original six years stipulated for in the agreement,and started on a possession which was adverse in fact and in lawto that of the fir6t defendant 'sections 6 and 7 of Ordinance No. 22of 1871).
1 think, therefore, that the argument for the first defendant onthe first point of estoppel should npt prevail, as under section 116of the Evidence Ordinance the plaintiff was not debarred at thedate of the action from denying his alleged landlord's rights owingto the termination of the tenancy, which must in any event haveterminated under the Prescription Ordinance at the end of tenyears from the expiration of six years stipulated for in the plantingagreement. In my opinion, therefore, the first plaintiff shouldsucceed upon the main question.
As regards the planting voucher admitted by the first plaintiffto have been taken by him and one Juan Naide twenty-five yearsago, it is not produced, nor any evidence given upon it, by the firstdefendant. The first plaintiff says that it was never acted on, andI think the same argument, if it had been produced, must apply toit, as I have applied to the voucher of 1870. The argument thatthe acknowledgment by the first plaintiff of the defendant’s rightto a part of the land involves his acknowledgment of the firstdefendant’s right to the whole fails, I think, with the annulment,of the acknowledgment on similar grounds. As regards the plantingvoucher of 1900, accepted by the. second plaintiff from the firstdefendant, the evidence shows that the land was jungle when thesecond plaintiff began to plant, and as such presumably waste land,and the alleged planting agreement is not filed with the record,and it is impossible to say to what portion of the land it applies.The second plaintiff says he signed this agreement when his fatherwas away, and the first defendant says first plaintiff was angry athis doing so.
The signing of this agreement might possibly estop the secondplaintiff from denying the first defendant's rights, but certainly itwould not estop the first plaintiff, to whom the land may have beengranted, and who may be entitled thereunder to its possession, asagainst the second plaintiff.
As it is impossible to say to what particular portion this allegedestoppel against the second plaintiff applies, I would not give itany force or effect as against the plaintiffs, as the plaintiffs beingin possession, the burden under section 110 of the EvidenceOrdinance is on the defendant to prove he is owner as against theplaintiffs.
( S17 )
In my opinion the judgment of the District Judge is right, and June30,19l0should be affirmed, and the appeal of the defendants dismissed metomtohjwitb costs.
Odris t>.
Mendis
Wood Rknton J.—
I concur. I think that, in interpreting the words “ adversepossession ’’ in section 3 of Ordinance No. 22 of 1871, we musthave regard to the clause immediately following: “ that is to say,a possession unaccompanied by payment of rent or produce orperformance of service or duty, or by any other -act by the possessorfrom which an acknowledgment of a right existing in anotherperson would fairly and naturally be inferred." See on this pointthe following cases:C. R., Batfcicaloa, 9.653;1 Sinno Appu v.
Sitta Umma;2 and Jain Corim v, Paheer.3 I do not think thatthere is anything to conflict with these decisions in the judgment ofthe Privy Council in Nagnda Marikar v. MohamaduA In thatcase the acts relied on by the appellant in support of his claim tohave acquired a title by prescription were referable to the termson which he was originally permitted to occupy the premises insuit, and there was nothing to show that he ever got rid of hisoriginal subordinate character. The facts, as found by the learnedDistrict Judge in this case, are quite different, and I entirely agreewith my Lord the Chief Justice and my brother Middleton in theinference which they have drawn from them.
Appeal dismissed.
♦
, 1 {1870) VanderstaaUn 44.3 (1876) Ram. 7276, 318.
(1892) 1 S. C. R. 282.
« (2903) 7 N. L. R. 91.