SILVA v. SIMAN.

C. R., Colombo, 5,625.

Ordinance No. 22 of JST1, s. 3-" Possession for ten years previous to the bringing of the action "-Necessity of plaintiff being in possession at time of suit.

Per Bonser, C.J.-It is essential that a plaintiff who claims the benefit of section 3 of the Ordinance No. 22 of 1871 should be in possession when ho brings his action.

If plaintiff has suffered ouster, his remedy under section 4 is to recover possession within one year of his dispossession, without going into the question of title. But if he acquiesces in his dispossession for a year, he must prove his title.

ACTION instituted on 8th March, 1898, for declaration of title, ejectment of defendants, and damages.

Plaintiff alleged that his father, being " seized and possessed " of a certain land, leased the same to one Jaya (the father of the defendants) in 1879; that Jaya held it till plaintiff's father died in 1884, and then as tenant of plaintiff till he (Jaya) died; that thereafter Jaya's widow, and after her death in 1893 her son, the first defendant, paid rent to plaintiff till 1894; that in July 1895, plaintiff sued the first defendant and had him ejected from the land; that in April, 1896, the defendants " unlawfully entered upon said premises and are disputing plaintiff's right thereto;" and that " plaintiff and his predecessors in title have been in the " undisturbed and interrupted possession of the said premises by a " title adverse to and independent of the defendants and all others " for upwards of thirty years, and the plaintiff in this behalf claims " the benefit of section 3 of Ordinance No, 22 of 1871."

The defendants denied possession under plaintiff or his father of the land described in the plaint, and claimed it by prescriptive right.

After hearing the evidence for plaintiff and defendants the Commissioner found that Jaya, the father of the defendants, entered under plaintiff's father and paid rent to him; that plaintiff and first defendant had also paid rent to plaintiff; that all the defendants were ejected by process of law in 1895; and that they had unlawfully entered on the land again in 1896. He gave judgment for plaintiff as prayed. The defendants appealed.

Bawa, for appellants.-The words of Ordinance No. 22 of 1871 are explicit as to the kind of possession necessary to entitle plaintiff to a decree in his favour. Section 3 deals first with the prescriptive title of the defendant to an action, and then proceeds

to state that " proof of such undisturbed and uninterrupted possessions as hereinbefore explained shall entitle plaintiff to a "decree in his favour." The words of the section are " proof of the undisturbed and uninterrup ed possession by a defendant in any action, or by those under whom he claims, of lands or immovable property, by a title adverse to or independent of that of the plaintiff (that is to say, a possession unaccompanied by payment of rent or produce or performance of service or duty, or by any other act by the possessor, from which an acknowledgment of, a right existing in another person would fairly and naturally be inferred) for ten years previous to the bringing of such action, shall entitle the defendant to a decree in his favour with costs. And in like manner, when any plaintiff shall bring his action for the purpose of being quieted in his possession of lands or to prevent encroachment or usurpationthereof, or to establish his claim in any other manner to such land proof of such undisturbed and uninterrupted possession, as hereinbefore explained, by such plaintiff shall enable such plaintiff to a decree in his favour with costs." Here "possession for ten years previous to the bringing of such action " means possession for a period of ten years uninterruptedly from the date of the action. Hence it is essential that the plaintiff must be in possession at the time of the suit. In the present case he is not. He admits in his plain