038-NLR-NLR-V-48-SIMPSON-Appellant-and-OMERU-LEBBE-Respondent.pdf
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SOERTSZ S.P.J.—Simpson v. Omeru Lebbe.
1947Present: Soertsz S.P.J. and Jayetileke J.
SIMPSON, Appellant, and OMERU LEBBE, Respondent246—D. C. Kurunegala, 1,013
Co-owners—Prescription—Evidence of adverse possession.
As between co-owners separate possession on grounds of conveniencecannot be regarded as adverse possession for the purpose of establishingprescriptive tit1"
^^PPEAL from a judgment of the District Court, Kurunegala.
N. E. Weerasooria> K.C. (with him H. W. Jayewardene), for thedefendant, appellant.
N. Nadarajah' K.C. (with him E. A. P. Wijeyeratne and E. B.Wikramanayake), for the plaintiff, respondent.
Cur. adv. vult.
February 20, 1947. Soertsz S.P.J.—
Both the plaintiff-respondent and the defendant-appellant wereagreed that Gamaya Henaya was the owner of the lands in dispute inthis case and other lands. The plaintiff-respondent bought a one-thirdshare of the lands in dispute from one Rani, the only child of Manikkuwa,who, admittedly, was one of the three heirs of Gamaya Henaya, and theplaintiff-respondent sought a partition of these lands as between him andthe defendant-appellant on the footing that he was entitled to a one-third share and the defendant-appellant to the remaining two-thirds.The defendant-appellant, however, claimed the entirety of these landson deeds from the other two heirs of Gamaya Henaya. His case w‘asthat there had been a division of Gamaya Henaya’s lands among histhree heirs and that Manikkuwa got lands other than the ones in disputein this case and that the two other heirs had acquired a prescriptive titleto the lands in dispute. He claimed the benefit of that prescriptivetitle.
There is no documentary evidence of any division and in view of thefact that the defendant-appellant’s case involves the question of prescrip-tive title among co-owners, very clear and strong evidence of an ousterand of adverse possession is called for. There is no such evidence. It isimpossible for us to hold, on the evidence, that the learned trial Judgeerred in taking the view that such separate possession of some lands as
CANEKERATNE J.—Me era Lebbe v. Vannarponnai West Co-operative Soc. 113
there were indications of was separate possession on grounds of convenienceand not adverse possession. The plaintiff-respondent appears to havea grievance against the defendant-appellant and that was very probablywhy he went in search of his vendor and bought these interests. But,,whatever his motives, his position in law is sound.
I would dismiss the appeal with costs.
Jayetilleke J.—I agree.
Appeal dismissed: