NAGUDA MARIKAR v. MOHAMMADU.

BEFORE THE LORDS OF THE JUDICIAL COMMITTEE
OF THE PRIVY COUNCIL.

(18th June, 1903.)

NAGUDA MARIKAR v. MOHAMMADU.

D.C., Colombo, 7,068.

Prescription-Entry into possession as agent-Outlay of money on repairs of houses occupied and enjoyment of rents-Exclusive possession-Want of change of quasi fiduciary possession to adverse possession-Ordinance No. 22 of 1871, s. 3.

    Where M, in consideration of certain services and outlays of money, was permitted by the owners of a house to enjoy its rents and recoup himself, and he repaired the house, paid taxes due thereon, leased it, and did not account for the rents or any surplus for about twenty years,-

    Held, by the Judicial Committee of the Privy Council, that in the absence of any evidence to show that he got rid of his character of agent, he was not entitled to the benefit of section 3 of Ordinance No. 22 of 1871.

     Anthonisz v. Cannon (3 C. L. R. 65) over-ruled.

THIS was an appeal preferred to the Judicial Committee of His Majesty's Privy Council by the plaintiff from a judgment of the Supreme Court of Ceylon delivered on the 18th January, 1898, setting aside the decree made by the District Court of Colombo in favour of the plaintiff.

    The only question pressed in this appeal was whether one Wappu Marikar, the added defendant in the case, had acquired a title by prescription to the immovable property claimed in the action.

    The action was raised against one Nina Mohammadu (the original defendant) to recover possession of certain premises occupied

by the defendant in Sea Street, Colombo. The defendant pleaded that he held the premises under a lease granted by Wappu Marikar in 1893. Thereupon Wappu Marikar was added as a defendant in the case.

    The added defendant, now deceased and represented by his administrator, Wappu Marikar Mohammadu, in his reply alleged that he was put in possession of the premises by one Pattuma Nachchiya twenty-five years before that date, and that he had undisturbed and uninterrupted possession for that period by a title adverse to and independent of the plaintiff and his alleged predecessors in title, and had thus acquired a prescriptive title thereto by virtue of section 3 of Ordinance No. 22 of 1871.

    It was admitted by all the parties that the property belonged at one time to Pattuma Nachchiya, widow of Uduma Lebbe Mapillai ; that the rents were collected for her up to .1871 by her son-in-law and her grandson, the added defendant; that in 1871 Pattuma Nachchiya gifted the northern portion of the land to her daughter Muttu Nachchiya, the central portion to her granddaughter Zeynambu Nachchiya, and the southern portion to her daughter Kadija Umma, who in turn shortly afterwards conveyed her share to her daughter Tumumma; that though these gifts appeared to be absolute, Pattuma Nachchiya continued to enjoy the rents until her death in 1878; that in 1878 the added defendant leased the premises to one Karupen Chetty for three years ending 30th November, 1881; that at the commencement of that lease one Meera Saibu, being in possession as monthly tenant, refused to quit owing to a claim against the owners for improvements made by him during his tenancy; that the added defendant gave Meera Saibu a lease for five months from the 1st November, 1878, to the 31st March, 1879, covenanting to pay him compensation; that in June, 1879, Meera Saibu instituted action No. 78,280 in the District Court of Colombo against the added defendant claiming compensation for improvements made by him, and obtained judgment in due course for Rs. 804 and costs; that this judgment was satisfied by the added defendant, and thereupon the premises were vacateo by Meera Saibu; that Karupen Chetty, not being satisfied with the lease signed in his favour by the added defendant on the 13th November, 1878, obtained nearly a year later from Muttu Nach-chiya, Zeynambu Nachchiya, a

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