DABARE v. MARTELIS APPU.

DABARE v. MARTELIS APPU.

D. C., Colombo, 11,048.

Evidence of ouster-Abandoning of possession became of threatened beating-Validity of judgment of a Supreme Court Judge read in Court after he has left the Island-Prescription-Ordinance No. 22 of 1871-Possession previous to action.

Per Curiam.-A person who abstained from acts of possession because he feared a beating cannot be said to have been ousted.

Bonser, C.J.-Further consideration has not shaken in any degree the opinion I expressed in Silva v. Simon, 4 N. L. R. 144.

As the judgment of Moncreiff, J., in Banda v. Banda (4 N. L. R. 302), over-ruling Silva v. Siman, was read in Court by Browne, A.J., after the former had left the Island, the decree entered in that case does not bind the parties, nor can the judgment of those judges pronounced in that case be relied on as authority.

The word prescription is not usable in Ceylon in the sense of usucapio in which it was used by Roman-Dutch Law writers, because the effect of the Regulation No. 13 of 1822, was to establish the law of usucapio and to entitle a defendant in possession, who has been sued by a plaintiff for the recovery of immovable property, "to a sentence in his favour," if for ten years before the bringing of such action the defendant has been in undisturbed possession by a title adverse to and independent of the plaintiff.

The expression " entitle the defendant to a sentence in his favour " means the usual decree that the " defendant be absolved from the instance," which is the equivalent of the English judgment that "the plaintiff take nothing by his writ and the defendant go without day " (sine die).

The Ordinance No, 8 of 1834, which repealed the Regulation of 1822, did not re-introduce the old law of acquiring title by prescription. Its object was inter alia to extend to plaintiffs in possession the right which that Regulation had given only to defendants in possession.

The Ordinance No. 22 of 1871, which repealed the Ordinance of 1834, did not alter in any substantial way the previous state of the law.

Browne. A..J.-Possession (of a party to a suit or his predecessor in title) by a title adverse to and independent of the other party for the period of ten years gives a statutory title by prescription, in the sense of usucapion, equal to that which the old Common Law gave. If usucapion was ever abolished, it has been so fully restored that a plaintiff may establish thereby his claim to land.

When a person has held possession by a title adverse to, &c, and loses such possession at any time previous to his institution of an action rei vindicatio, such action is maintainable against any one who cannot by grant or deed or like possession for a period later than his. establish in his defence a title superior to that of the plaintiff.

THE plaintiff. alleging that he had jointly with two sisters inherited from his father an undivided one-fifth of a divided western half of Etambagaha owita and purchased two undivided fifths of the half, sought in this action to vindicate from the defendants, who were joint heirs with him and his vendors, a divided

three-fifths of the land. He alleged that the said three fifth parts was separated off and possessed by the plaintiff with the consent of the other heirs for the last sixteen years, and that it was bounded on the north, &c, and that he was ousted on 8th January. 1898. The action was brought on 28th February, 1898. Plaintiff prayed that he may be declared entitled to the said divided three-fifths, and that defendants be ejected therefrom.

The Additional District Judge (Mr. F. R. Dias) found that Etambagaha-owita was in 1857 the property of one Dinis Dabera; that he had five children, viz., Siman, Lewis,. jeeris, Sarah. and Punchi Nona; that Sarah was given in marriage to one Carolis, and by deed dated 2nd October, 1857, Dinis Dabera conveyed him the eastern half of the land; that the defendants were the grandchil

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