EMANIS v. SADAPPU et al.

EMANIS v. SADAPPU et al.

D. C., Galle, 2, 758.

 

Prescription-Adverse possession of land-Effect of abortive action for recovery of such land-Interruption of possession-Roman-Dutch Law as to adverse possession--Ordinance No. 8 of 1834, s. 2, and Ordinance No. 22 of 1871, s. 3-Effect of unanimous decision of Collective Court.

Held, by Lawrie and Withers, J. J., following the decision in Unambuwe v. Janohamy (2 C. L. R. 103), that an action for the recovery of land, which had ended in a non suit or other decree against the plaintiff, was not such an interruption of the defendant's adverse possession of the land as disentitled him to a decree in his favour in terms of section 2 of Ordinance No. 8 of 1834, or section 3 of Ordinance No. 22 of 1871, in a subsequent action against him for the same land by the same plaintiff.

Per Bonser, C. J. -A solemn and unanimous decision of the Supreme Court in its collective capacity on a question of law must be treated as a binding authority in all subsequent cases. Even if the Court as constituted at a later date was unanimously of opinion that the original decision was wrong, it would be out of its power to alter the law as there laid down. That can only be done by the Privy Council altering such decision, or by an enactment of the Legislative Council.

THE facts of the case appear in the judgment.

Dornhorst, for appellant.

Wendt and Sampayo, for respondent.

Cur. adv. vult.

2nd Feburary, 1897. Bonser, C. J. -

In this case, which raises a serious question as to the authority of decisions of the Collective Court, I have the misfortune to differ from the rest of the Court. That question may be shortly stated thus: Is a solemn and unanimous decision of the Collective Court on a question of law delivered in 1862-a decision which followed previous decisions of this Court-to be treated as a binding authority or not ?

It is obvious that if this question is to be answered in the negative, it will be impossible in the future to regard any question of law as finally settled. The result will be that the law, which is proverbially uncertain, will be rendered more uncertain still, and the passion for litigation, which is one of the curses of this Island, will be fostered. Cases will be instituted and appeals taken on the chance that the Court will be induced to refuse to follow its former decisions.

The appellant in this case was the defendant in an action rei vindicatio, and he appeals against a decision of Mr. Moysey, Acting District Judge of Galle, who gave judgment for the plaintiff, overruling the appellant's plea under Ordinance No. 22 of 1871 of ten years' undisturbed possession.

It appears that the plaintiff had brought a previous action within the ten years, which ended in a non suit.

The Acting District Judge held that the possession was thereby disturbed, and the Ordinance prevented from running. In so holding he followed a long chain of authority, which I will shortly state.

Marshall, C. J., in his valuable treatise published in 1839 under the title of Judgments of the Supreme Court of Ceylon from 1st October, 1833, to March, 1836* commenting on Ordinance No. 8 of 1834, which, so far as is material to the present case, is identical with Ordinance No. 22 of 1871, thus states his view of the law: -

" The question to be asked would seem to be this: Can the " possession under which the party claims be considered to have "been undisturbed and uninterrupted by the assertion of other " claims for the space of ten years ?" And he goes on to say that when Chief Justice he was of opinion that the presenting a petition to the Judicial Commissioner of Kandy (the usual mode of commencing actions in that Court) respecting the land in dispute was sufficient to bar a title by prescription.

This opinion of Marshall, C. J., was adopted by Carr, C. J., and Temple, J., in 1864, in the case of Medankara Unanse v. Hali-gomua Unanse

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