BANDA et al. v. BANDA.

BANDA et al. v. BANDA.

D. C., Kandy, 11,992.

Ordinance No. 22 of 1871, s. 3-" Possession for ten years previous to the bringing of the action "-Proof of appointment of assignee in insolvency.

Per Moncreiff, J.-The natural meaning of section 3 of Ordinance No. 22 of 1871 is not, in my opinion, that the ten years' possession must endure until the bringing of the action. The words-" the bringing of the action "-were introduced simply to prevent any dispute as to the stage in the action before which the ten years' possession must be complete. Those words do not confine the ten years to the period next before the bringing of the action.

Per Browne ,A.J.-I agree with my brother's views, and feel bound by the decision in Nakar v. Sinnatty (Ram. 1860, p. 75).

Silva v. Siman (4 N. L. R. 144), disapproved.

The method of proving the appointment of an assignee in insolvency explained.

ACTION for ejectment, and that plaintiffs should be placed in possession of the lands unlawfully held by defendant.

Plaintiff alleged title to an undivided half share in several lands by. right of purchase from one Kumarihamy upon deed dated 19th July, 1897. The action was instituted on the 7th December, 1897.

Defendant alleged that Kumarihamy was adjudged an insolvent in 1878. and that defendant's right was by inheritance under Bandara Mahatmaya and his wife, who died, the former in 1878 and the latter in 1895.

The District Judge found that Kumarihamy was declared insolvent and an assignee appointed to her estate on 6th December, 1878, and that therefore the insolvent's immovable property vested in him from that date.

A further issue framed by the District Judge was whether the plaintiff and his predecessor in title had acquired a prescriptive right by adverse possession for ten years previous to action. The District Judge found against the plaintiff upon this issue and dismissed the action with costs.

Plaintiff appealed.

The case came on for argument in appeal on 26th September, 1900, before Moncreiff, J., and Browne, A.J

Wendt, Acting A.-G., for appellant.

Pieris, for respondent.

Cur. adv. vult.

22nd October, 1900. The judgment of Moncreiff, J., was delivered as follows by Browne, A.J.: -

By deed dated the 19th July, 1897, the plaintiffs bought from one Kumarihamy one-half of a piece of land situated at Pattipola in Tumpane. Kumarihamy had possessed the land by virtue of a deed executed in her favour by her father on the 7th October, 1807.

Finding the defendant in possession, the plaintiffs brought this action for vindication of the land and damages.

The defendant did not think it necessary to go into the whole of his case, but said that the plaintiffs had no title to sue upon, because their vendor Kumarihamy had become insolvent in 1878, and, upon the appointment of Mr. J. H. Wijenaike as assignee on the 6th December. 1878, the whole of Kumarihamy's property vested in the assignee. The plaintiffs do not admit this, and they say that, even if it were true, Kumarihamy was left in undisturbed possession of the land from 1878 to 1895, and acquired a prescriptive title to it.

The case having arrived at this point, the defendant protested that the plaintiffs should not be allowed to prove a title acquired by prescription, because they were out of possession; that by the terms of section 3 of the Prescriptive Ordinance (No. 22 of 1871) they were debarred from setting up a title founded upon undisturbed and uninterrupted possession for ten years, unless they were still in possession at the date of the bringing of this action. We are asked to say whether the defendant has correctly interpreted the section.

The effect of the section-in so far as it relates to this question -is as follows: -

When any plaintiff shall bring his action for the purpose of being quieted in his possession of lands or other immovable property, or to prevent encroachment or usurpation thereof, or to establish his clai

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