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SILVA v. SINNO APPU
NLR7V5
SILVA v. SINNO APPU.
C.R.Galle, 1,611.
PosProssessory action by part-owner-Civil Procedure Code, s. 12-Ordinance No. 22 of 1871, s. 2.
The owner of an undivided share of land can maintain a possessory action in respect of such share, provided he joins the other co-owners as parties either plaintiff or defendant.
D. C... Chilaw, 261 (i S. C. R. 329), distinguished.
IN this possessory suit plaintiff pleaded possession for over a year and a day previous to the ouster complained of, and prayed for ejectment of the defendant. He alleged that he was entitled under a purchase in execution to an undivided half part of Higgahawatta, and that the defendants, who had no title or interest in that share or any other share of the land, forcibly opened a road on the said land, took possession of it, and deprived him of the produce there of.
The District Judge dismissed the action on the ground that plaintiff could not maintain such an action. He held that as the second defendant claimed to be a co-owner, the plaintiff should have instituted an action rei vindicatio.
The plaintiff appealed. The case was argued on 5th June, 1903.
Walter Pereira, for appellant.
Dornhorst, K.C., for respondent.
Cur. adv. vult.
11th June, 1903. WENDT, J.-
The plaintiff alleged that he was entitled under a purchase in execution to an undivided half of certain land, and that he had been in the undisturbed and uninterrupted possession of that share
for more than a year and a day prior to the ouster by defendants. and He alleged that the other half share belonged to the estate of Odrisde Silva. He complained that the defendants, who had no right or title to the land, about a month before action had forcibly opened a road over the land, and about four days before action forcibly taken possession of plaintiff's share. The first defendant denied plaintiff's possession, denied the ouster, and disclaimed title, but admitted Odris' ownership of one-half. The second defendant also admitted Odris' title to one-half, but denied plaintiff's possession, and setting up title in himself to the other half under conveyances dated September, 1899, and January, 1900 said that he was in possession since his purchases. He also set up a prescriptive right and denied that he had opened the road. The action was treated by the parties as a purely possessory one, and the issues agreed upon were as follows:-
(1) Can plaintiff maintain this action ?
(2) If he can, was he for a year and a day before the date of the cause of
action in possession of half of the land ?
(3) Did defendants dispossess plaintiff as averred in the
plaint ?
The learned Commissioner held on the first issue that, as the "second defendant claimed to be a co-owner, plaintiff could not maintain the action, but should have sued in rei vindicatio. In view of this opinion he considered it unnecessary to pronounce any finding on the other issues. The action was dismissed, and plaintiff has appealed.
Defendants' counsel felt themselves unable to support the opinion of the learned Commissioner, but they argued that the dismissal was right on two other grounds. The first was that a possessory action was not competent in respect of an undivided share, and the case of Perera v. Fernando (1 S. C. R . 329) was relied upon. That case appears to have been decided on the Roman-Dutch Law, and although Withers, J., refers to the Ordinance No. 22 of 1871, section 4, he does not refer to section 2, which defined immovable property as including a share in such property. Section 4 must be taken in the light of this interpretation to enact that any person dispossessed of any share of immovable property might maintain a possessory action, and the reference in the latter part of section 4 to the " other requirements of the law " must, of course, be exclusive of the substantial enactment contained in the earlier part
