Back
MADUANWALA v. EKNELIGODA
NLR3V213
MADUANWALA v. EKNELIGODA.
D. C, Ratnapura, 727.
Prescriptive possession-Ordinance No. 22 of 1871, s. 3-" Adverse? possession--Difference between possession and occupation- Nature of occupation by tenant or licensee-Attempt to change occupation into possession by secret act adverse to owner.
A person who is let into occupation of property as a tenant, or as a licensee, must be deemed to continue to occupy on the footing on which he was admitted, until by some overt act he manifests his intention of occupying in another capacity. No secret act will avail to change the nature of his occupation.
Bonser, C.J.-Possession, as I understand it, is occupation either in person or by agent, with the intention of holding the land as owner.
Withers, J.-The " adverse " possession spoken of by the Ordinance No. 22 of 1871 implies use of occupation ut dominus.
THIS was an action in ejectment. The plaintiff averred that under a writ of execution sued out in case No. 7,477 of the District Court of Ratnapura on 12th February, 1861, against one Muttetuwegama Banda, Korale Mahatmaya, the Fiscal seized the land called Durayagodella, and sold the same to Ekneligoda Tikiri Banda on the 22nd June, 1861, and subsequently, on 22nd September, 1896, conveyed the land to the purchaser by deed No. 3,506; that the land was situated in Batugedara, which was a gabadagama, or royal village, and which the Crown granted to the said Tikiri Banda by grant dated 15th October, 1873; that the said Tikiri Banda having held possession of the land for upwards of thirty years conveyed the land to plaintiff by deed dated 10th June, 1896; that defendants have since that date been in unlawful possession of the said land and prevented the plaintiff from possessing it.
The defendants denied that the sale in execution was legal, that Tikiri Banda ever possessed the land, that Batugedara was a royal village, or that the Crown granted the land to Tikiri Banda, and stated that the original owner of the land was Ekneligoda Kumarihami, who possessed the same for over thirty years till her death in 1893, when the defendants and three others entered into possession as her only heirs.
The District Judge found that M. Banda, Korala, was the original owner of the land in dispute; that it was validly sold by the Fiscal to Ekneligoda Tikiri Banda; that the land was afterwards claimed by the Crown; that the Crown granted it to
Ekneligoda Tikiri Banda; and that Tikirihamy possessed the land, not in her own right,
but on behalf of her brother, the plaintiff's vendor, during the whole period of his possession.
The District Judge, therefore, gave judgment for plaintiff.
The defendants appealed.
Wendt, for appellant.
Dornhorst, for respondent.
10th August, 1898. Bonser, C.J.-
In this case the property in dispute is a piece of land about 8 acres in extent with a house on it, which originally belonged to and was the residence of Muttetuwegama Banda, Korala. He was the husband of a lady who is the sister of the real plaintiff in this action, Tikiri Banda. Immediately after the purchase Tikiri Banda went to live in the house, and lived there for four years until, on being appointed Korala in another village, he went to live in that village. It would appear that there is some evidence that the former owner lived on in the house, at all events they lived there after Tikiri Banda removed to another village. Tikiri Banda says he allowed his sister, who had no means of support, and who was abandoned by her husband about this date, to live on in this house as an act of charity; that he supplied her with provisions and clothing, and allowed her to take what fruit and produce she pleased from the land. It also appears that he did not give up the house entirely to her, for he kept his furniture and crockery there, and used it as his residence whenever his official duties from time to time called him to the neighbourhood.
In
