FERNANDO v. MARSHALL

FERNANDO v. MARSHALL.

D. C., Kandy, 9, 077.

 

Title to land-Prescription-Absence in plaint of averment of prescriptive possession-Issues as to possession-Judgment on proof of possession by plaintiff.

In an action to be declared entitled to a parcel of land and to recover possession of the same, plaintiff did not expressly claim the benefit of Ordinance No. 22 of 1871. He, however, averred in his plaint possession for upwards of ten years of the parcel on the part of himself and his predecessors in title, and some of the issues stated, and agreed to at the trial, were as to such possession.

Held, that defendant was not prejudiced by plaintiff's omission to pray for a decree under the Prescription Ordinance, and as it appeared that plaintiff had discharged the burden on him on the issues as to possession, judgment was entered in his favour for the parcel of land claimed.

THE facts of the case appear in the judgment of Bonser, C. J.

Wendt, for appellant. Dornhorst, for respondent.

3rd December, 1896. Bonser, C. J. -

In this case the plaintiff sues to recover an undivided one-third share of a piece of land in the Matale District, which appears to have been originally a coffee estate. In 1879 this estate was owned as to two-thirds by one Mr. Brown, and the remaining one-third belonged to Mr. G. R. Bray. Mr. Bray mortgaged his one-third share to his Ceylon agents, Skrine & Co., to secure advances for the purpose of working the estate. The mortgagees put their mortgage in suit and recovered judgment thereon on the 27th May, 1881. This judgment they assigned to the present plaintiff in September, 1881. In 1883 the plaintiff procured himself to be substituted in the record (of Skrine & Co. 's hypothecary action) in the place of the plaintiff's mortgagees, and on the 15th June of that year caused the property to be put up for sale in execution of that judgment. At that sale he became the purchaser, and it is proved that he entered into possession of this one-third share which he had purchased. He did not however get a Fiscal's conveyance till nearly ten years after, namely, on the 5th June, 1893. The conveyance was registered on the 8th of the same month. In the meantime much had happened; for on the 30th of June, 1884, he was adjudicated insolvent. His assignee put up for sale this one-third share, and it was purchased by & man called Salgado, who obtained a conveyance from the assignee. In the interval also Mr. George Bray, who had left the Island, and was then resident in the Colony of

 

New South Wales sent a power of attorney to this Island, and his attorney sold his one-third share to a gentleman then residing in Matale, the Rev. Henry Bray. The conveyance was dated 30th August, 1892. The defendants claim under that conveyance, having in the following year purchased this one-third share from the Rev. Henry Bray. The defendants had also, in some way not explained, become the owners of the other two-third shares, so that they thus claim to be the owners of the entirety. On the 20th August, 1894, Salgado conveyed the one-third share which he had purchased from the assignee to the plaintiff. The plaintiff-alleges that in February, 1895, he being in possession by his agent of his one-third share, was forcibly turned out of possession by the defendant's agent, and there is no dispute as to this. The plaintiff claims that he is entitled to this land, and asks for a declaration to that effect, and also to be restored to possession. At the trial a number of issues were framed- seventeen in all. Of these, the seventh issue was whether the plaintiff possessed the land, that is, after the Fiscal's sale. The twelfth issue was whether Salgado possessed the land, that is, after the purchase from the assignee. The thirteenth issue was whether Salgado put the plaintiff into possession of this land, that is, after he sold it to the plaintiff.

The plaintiff adduced evidence

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