091-NLR-NLR-V-46-SIDERIS-et-al.-Appellants-and-SIMON-et-al.-Respondent.pdf
Sideris and Simon.
273
Present: Howard C.J. and Canekeratne J.
SIDERIS et al., Appellants, and SIMON et al.,
Respondents.
57— D. C. Colombo, 2,880.
Prescription—Co-owners—hongcontinued and undisturbedpossession—Pre-
sumption of ouster—Question of fact.
In an action between co-owners the question whether a presumptionol ouster may be made from long continued and undisturbed and un-interrupted possession is one of fact, which depends on the circumstancesof each case.
^PPEAL from a judgment of the District Judge of Colombo.
H. V. Per era, K.C. (with him S. P. Wij ewickrema), for the first tofourth defendants, appellants.
N. E. Weerasooria, K.C. (with him M. D. H. Jayawardene), for theplaintiffs, respondents.
Cut. adv. vult.
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HOWARD C.J.—Siderit and Simon
June 18, 1945. Howard C.J.—
The first to fourth defendants appeal against a judgment of the Addi-tional District Judge of Colombo, declaring the plaintiffs entitled to anundivided share in certain land, and ordering that the first to fourthdefendants be ejected therefrom and the plaintiffs placed in possession.
The plaintiffs claimed that they and the fifth defendant were jointlyentitled to the land in dispute and that the first to fourth defendants whohad no manner of right or title to any portion of the said land wrongfullyand unlawfully entered into a portion and cut and removed the crop whichthe plaintiffs had raised thereon. It was conceded that the land in disputeoriginally belonged to one Henchappu who had 4 sons and 3 daughters.The plaintiffs and the fifth defendant maintained that the four sonsentered into exclusive possession of the land and acquired a title byprescription. The plaintiffs are the successors in title of the four sonsof Henchappu whilst the second defendant is the son of one of thedaughters of Henchappu and the first, third and fourth defendants areher grandchildren. The learned Judge held that the four sons of Hen-ohappu and their successors were in exclusive possession of the land inquestion and acquired a prescriptive title thereto. In coming to thisconclusion be thought that taking all the circumstances of the case intoconsideration and having regard to the documents produced and acceptingthe fact that the four sons of Henchappu and their successors possessedthe field to the exclusion of the three daughters he was entitled topresume an ouster. It has been contended by Mr. Perera on behalf ofthe appellants that, inasmuch as the four sons and three daughters ofHenchappu were co-owners, the. learned Judge was wrong in coming tothe conclusion that there had been an ouster. There have been numerouscases on the question as to the acquisition of rights by prescriptionagainst co-owners. In Thomas v. Thomas 1 it was held by Wood V.C.that possession is never considered adverse if it can be referred to alawful title. This dictum was cited with approval in the Privy Councilcase of Corea v. Appuhamy 2. In that case the principle was formulatedthat the possession of one co-parcener could not be held as adverseto the other co-parcener and in spite of over thirty years’ possession thedefendant’s title by prescription was not upheld. The possession ofone co-owner was the possession of all the co-owners. It was not possible,for one co-owner to put an end to that possession by any secret intentionin his mind. Nothing short of ouster or something equivalent to oustercould bring about that result. The principle as laid down by the PrivyCouncil in Corea v. Appuhamy was cited with approval in the later. PrivyCouncil cases of Brito v. Muttunayagam 3 and Cadija Umma v. S. DonMatiis Appu *. It has been followed in the local cases of Cooray v. Perera sFernando v. Fernando * and Fernando v. Fernando and others 7. Doubtshowever, as to what was necessary to prove ouster have arisen since thejudgment of Bertram C.J. in Tillekeratne v. Bastian * who accepted theprinciple formulated in Corea v. Appuhamy by stating that it was not 1
1 (3855) 2 K. <*■ J. 83.• 45 N. L. R. 455.
15 N. L. R. 65.•44 N. L. R. 65.
20 N. L. R. 327.727 O.L W. 71.
1 40 N. L. R. 392.821 N. L. R. 12.
HOWARD C.J.—Siderit and Simon
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possible for a co-owner to put an end to the title of another co-owner andto initiate a prescriptive title by any secret intention in his own mindand that nothing short of an “ ouster or something equivalent to onouster ” could bring about the result. The learned Chief Justice thenwent on to say that although the question had been argued in the caseand discussed in the judgment, the Privy Council in Corea v. Appuhamyhad not decided whether an ouster could be presumed from the longcontinued possession of the co-owner in question. He then proceeded toformulate the principle that it is open to the Court, from lapse of time inconjunction with the circumstances of the case, to presume that a possessionoriginally that of a co-owner, has since become adverse. In Tilleke-ratne v. Bastian the claim on the ground of co-ownership had been dormantfor a period of more than forty years. Moreover, the nature of thepossession was significant. The land had no plantation worth con-sidering. It was plumbago land and the defendants dug plumbagothereon both by themselves and through lessees all throughout. Inthese circumstances the principle to which I referred was formulatedby the Court which held that the defendants had succeeded in establishingtheir claim to the whole land by prescription. The decision, however,did not go so far as to lay down that ouster could be presumed merelyfrom long and exclusive possession. Such a decision would have beencontrary to Corea v. Appuhamy. It is a question of fact in each caseand the question as to whether from long continued, undisturbed anduninterrupted possession ouster may be presumed depends on all thecircumstances of the case—vide judgment of Dalton J. in Hamidu Lebbe v.Ganitha *. In Tittekeratne v. Bastian there was long continued, un-disturbed and uninterrupted possession for a period of over 40 years.The nature of the possession was for the purpose of digging plumbago bothby the defendants and their lessees. In this connection De Sampayo J.in his judgment at page 28 drew a distinction between the possession ofland for the purpose of extracting minerals and the possession for thetaking of natural produce in the following passage: —
“ Moreover, the nature of the possession is significant. The landhad no plantation worth considering; it was plumbago land, and thedefendants dug plumbago therein both by themselves and throughlessees all throughout.. While a co-owner may without any inferenceof acquiescence in an adverse claim allow such natural produce as thefruits of trees to be taken by the other co-owners, the aspect of thingswill not be the same in the case where valuable minerals are taken for along series of years without any division in kind or money.”
Moreover, it would appear that the plaintiff Tillekeratne had bought theshare of the co-owner, had worked a plumbago pit himself on anotherland in the neighbourhood, and had never claimed or taken a share in theplumbago which to his knowledge was being dug from the disputed landby the defendants and their lessees. It seems to me that the distinctiondrawn between the excavation and removal of minerals, an act definitelydepreciating the value of the holding, and the taking of natural produce
1 27 N. L. B. at p. 39.
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H.OWABD C.J.—Sideris and Simon
such as the fruit of trees or the development of lands for the cultivationof paddy by expenditure incurred by the occupier is both logical andsound.
The only matter remaining for consideration is whether the learnedJudge has correctly upheld the principles to which I have referred andrightly come to the conclusion that he was entitled to presume ouster.It may be conceded that the possession from 1904 to 1942 was longcontinued, undisturbed and uninterrupted. But this is not enough.What other circumstances existed leading to the presumption thatthere was an ouster ? It is suggested that various deeds written on thebasis that the four sons of Henchappu are the owners supply the othercircumstances from which ouster can be presumed. The earliest deed(5 D3) dated October 4, 1894, was by Davith Appu, one of the four sonsand conveyed an undivided one-third share of the land to Peeris Appuand Deonis Appu. Davith Appu on the assumption that the four sonswere entitled, should have conveyed one-fourth only. But it is clearthat Davith conveyed more than the one-seventh share to which he wasentitled if all the brothers and sisters were co-owners. The next documentis a deed of lease (P 12) dated January 12, 1901, in which the lessors aretwo of the sons of Henchappu, Velun and Jeelis, William, a child of Saranwho was another son of Henchappu and Peeris, one of the transferees on5 D3. This deed dealt with the entirety of the land and none of thedaughters of Henchappu joined in. There is also another deed datedJanuary 20, 1904 (5 Dl), in which Velun, one of the sons of Henchappu,reciting that he was entitled to an undivided one-fourth share of the landwhich he and his three brothers held and possessed by right of “ Sam-buddi ” possession and “ asweddumising ”, sold to his daughter and herhusband an extent of 10 kurunies. This deed ignores the rights of thedaughters of Henchappu. But do these deeds inevitably point to anacquiescence by the daughters of Henchappu in the acquisition of theirrights as co-owners by the sons? Was the making of these deeds some-thing equivalent to an ouster? The land was being cultivated by thegrowing of paddy and hence any inference of acquiescence would notarise as it did in the case of Tillekeratne v. Bastian where the co-ownerstood by when plumbago was excavated and removed. Moreover,there is no evidence that the daughters of Henchappu knew of the exe-cution of the various deeds. Without such proof there was nothingmore than a secret intention in the mind of the transferors and lessorsto initiate a prescriptive title and put an end to the co-owners’ co-possession. This is not sufficient to constitute oustei.
The judgment of the District Court is set aside and judgment must beentered for the first to fourth defendants with costs in this Court and theCourt below.
Canekeratne J.—I agree.
Appeal allowed.