ROSALIN HAMI V HEWAGE HAMI AND 8 OTHERS

ROSALIN HAMI V. HEWAGE HAMI AND 8 OTHERS

SUPREME COURT
SHIRANEE TILAKAWARDANE, J.
AMARATUNGA, J AND
IMAM, J.
S.C APPEAL NO. 15/2008
S.C (SPL.) L. A. NO. 01/2008
C. A. APPLICATION NO. 362/1995
D. C. TANGALLE NO. 215/L
OCTOBER 28TH 2010

Possessory action - Possession must be continuous, and peaceful and for a certain period - Possession disturbed by acts which prevent the possessor from enjoying the free and full use the land - Interrupted - If the continuity of possession is broken? Exllna ordina - Section 114 (d).

At the commencement of the trial, the parties agreed that the only two matters for determination was whether possession had been handed over to the Plaintiff by the Fiscal of the District Court of  Tangalle in Case L/882 and whether there is evidence to prove exclusive and un- interrupted possession of the disputed corpus by the 2nd Defendant -Appellant - Petitioner.

Case bearing No. L/ 882 of District Court Tangalle was filed by the Respondent to obtain a declaration of title and possession by evicting the 1st Defendant who was in occupation of this land and who was the spouse of the present Appellant. The Appellant claimed that though judgment had been entered in favour of the Respondent in that case, the writ for possession was never executed and that the possession of the land had not been delivered to the Respondent, a fact that was strongly challenged by the Respondent.

However, it transpired after careful perusal by the court, writ was executed on 23.7.1962 and there is an explicit endorsement that the possession of the land had been delivered to the Respondent. Upon perusal of all relevant documents the District Court came to the finding that the possession had been duly handed over to the Respondent by the Fiscal who executed the writ of delivery of property.

The Respondent had been in occupation until the possession was disturbed by the Appellant on 18.10.1962.

Held :

(1) There was no error in law in the judgment of the Court of Appeal where it concluded that the possession was handed over to the Respondent and the legality of the Fiscal's Report has not been assailed.

(2) The Appellant has not proved prescription and she has also failed to prove that she was in an undisturbed possession adverse to the interest of the Respondent for a continuous period of 10 years.Furtheremore, as the land is an undivided portion of the land which was co-owned the Appellant has not proved ouster or ad- verse possession against the Respondent.

Cases referred to:

(1) Hariette u. Pathmasiri (1996) 1 Sri L.R. 858

(2) Sura u. Fernando 1 ACR95

(3) Simon Appu v. ChristianAppu (1896) 1 NLR 288

(4) Ettana u. Naide (1878) 1 SCC 11

APPEAL from the judgment of the Court of Appeal

Faiz Musthapa, P.C.with Amarasiri Panditharaine for the 2nd Defendant - Appellant - Petitioner

D. M. G. Dissanayake for the substituted plaintiff - Respondent _ Respondents.

Cur.adu. vult

December 03,2010

MS. SHIRANEE TILAKAWARDANE, J.

    Special Leave to Appeal was granted on the Application of the 2nd Defendant-Appellant-Petitioner (hereinafter

referred to as the Appellant) on the questions of law set out in paragraph 8 (a)- (g) of the Petition dated 01.01. 2008.

    However at the commencement of the arguments Counsel agreed that the only two matters for determination was whether possession had been handed over to the Plaintiff by the Fiscal in District Court  Tangalle Case No. L.882 and whether there is evidence to prove exclusive and uninterrupted possession of the disputed corpus by the 2nd Defendant Appellant-Petitioner

    An earlier action was instituted in District Court Tangalle Case bearing No. L.882 by the Plaintiff-Respondent-Respondents in relation to the same land that is presently in dispute, between the parties who were in occupation of the land at that time, and the Appellant at the time of the institution of the said action was not a party, but was

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