BIN AHAMED

Vs.

BIN HASSAN

SUPREME COURT
B.P.ALUWIHAREP.C..J.
PRIYANTHA JAYAWARDENA P.C., J.
ANIL GOONERATNE
SC APPEAL NO. 53/2011
SC/HCCA/LA APPLICATION NO. 328/2010
HCCA GAMPAHA CASE NO.
WP/ HCCA/ GAM/ 218/ 03 (F)
DC NEGOMBO CASE NO. 5155/ L
06.11.2017

Rei vindicatio - Declaration of title - Extent - Leave and licence - Prescription -Separate blocks - Partition plan - Exclusive possession

Plaintiff- Respondent -Appellant prays for a declaration of title that Plaintiff is owner of lot 10 in plan 14/1959, and damages as prayed for in the plaint, and Plaintiff - Respondent to be placed in possession of lot 10. Defendant prayed for a dismissal of the action. Extent of estate was 210 acres, 3 roods, 23 perches.

On 31.03.1931 Bin Ahamed sold the entire estate to Mohamed Ismaii Bin Ibrahim by deed no. 1223. Thereafter Mohomed Ismail Bin Ibrahim gifted the said land to his four children including Plaintiff's mother. Plaintiff's mother by deed of gift No. 9431 gifted 5 acres depicted as lot 10 out of 52 acres to her son the Plaintiff. The co- owners are the above 4 children of M. I. Bin Ibrahim. Lot 10 is the subject matter of the suit.

Defendant's position is a case of prescription among co - owners. Defendant states lot 10 never existed as a separate land, and claimed that lot 10 was always possessed by the Defendant and his predecessors in title.

HELD:

2. The Defendant's father possessed lot 10 of plan P1 only as a licencee. As such the Defendant cannot take up the position that he acquired prescriptive title to the land (lot 10) in question. Defendant argues that there was no partition among the co- owners. If that be so defendant cannot take up the position that he had acquired prescriptive title against co- owners over an undivided land. This seems to be that the Defendant is seeking to approbate and reprobate. Nor did the Defendant establish exclusive adverse possession, as regards his own rights.

3. The Judgments cited by the learned High Court Judge have been applied to this case on an incorrect perspective. No doubt the Judgments cited is a guide to be only considered by a court of law. When there is fool proof evidence with cogent reasons one has to consider the evidence led before the original court, which could be termed as the best evidence in the context and circumstances of the case in hand.

4. Evidence transpired in the original court establish the fact that there had been an amicable partition between all previous co- owners of the land which consists of about 211 acres, 3 roods and 23 perches. Lot 10 of the said land was allocated to the mother of the Plaintiff who later on gifted same to her son the Plaintiff. Therefore I set aside the Judgment of the High Court. As such I answer the questions of law asu yes" in the affirmative.

cur. adv. vult.

REI VINDICATIO action.

Cases referred to:-

1. 1993(1) SLR 119
2. 20 NLR 332
3. 20 NLR 282
4. 1955 (1) AER 583-4;
5. 1955(1 ) AER 326
6. Dona Cecilia vs. Cecilia Perera and others 1987 (1) SLR Pg. 235 (SC)

M. U. M. AH Sabry P.C. with Shamith Fernando for the Plaintiff - Respondent -Appellant Dr. S. F. A. Cooray for the Defendant - Appellant - Respondent

Cur.adv.vult.

November 29, 2017

ANIL GOONERATNE J.

This is an action rei vindicatio. Plaintiff-Respondent-Appellant by his plaint dated 18.12.1995 prays for a declaration that the Plaintiff is the owner of lot 10 in plan No. 14/1959 and damages as prayed for in the plaint i.e until the Plaintiff-Respondent-Appellant is placed in possession of the said lot 10. The above plan was prepared by Surveyor Croos Dabarera in January 1959. Defendant-Appellant-Respondent prayed for a dismissal of the action. The action was filed in the District Court of Negombo. Parties proceeded to trial on 17 issues. It was admitted that estate called 'Sabadeeya' estate was owned by Ibrahim Bin Ahamed. The extent of the estate was 210 acres, 3 roods and 23 perches. It was also admitted that t