SELENCHI APPUHAMI v. LIVINIA et al.

Present : Sir Charles Peter Layard, Kt., Chief Justice,
and Mr. Justice Moncreiff.

SELENCHI APPUHAMI v. LIVINIA et al.

D. C, Negombo, 4,049.

Co-owners-Divided possession for over ten years-Prescription-Abuse of Partition Ordinance-Ordinance No. 10 of 1863.

Where the two co-owners of a land divided it into two portions and one of them exclusively possessed and dealt with the northern, and the other with the southern portion, and after such possession for over ten years one of them instituted a partition suit against the other to partition the land-

Held, that the partition suit was not maintainable, there being no common possession between the two co-owners, and each party having acquired a prescriptive title to a divided portion.

LAYARD C.J.-The action is a manifest attempt to abuse the Partition Ordinance, the object being to obtain a good title against all the world in respect of a land not held by the parties in common.

Ram Menika v. Ram Menika, 2 S. C. C. 153, referred to and commented on.

APPEAL by the added parties from a judgment of the District Judge decreeing a partition between the plaintiff and the defendant.

The facts sufficiently appear in the judgment of Layard C.J.

Morgan de Saram, for appellants (added defendants).

H. Jayewardene, for respondent (plaintiff).

Cur. adv. vult.

23rd February, 1905. LAYARD C.J.-

It is not necessary for the purpose of this judgment to recite all the facts of the case. The District Judge has very properly held that the plaintiff has failed to prove a paper title. It appears that plaintiff and Cornis Appu under some misapprehension had taken possession of the land, the subject of this partition suit, in 1906 under the belief that they had purchased it from the Crown. The Crown grant on which they relied, however, has been found by the Judge to be in respect of altogether another portion of land. From the first the plaintiff occupied the northern portion of the land and Cornis the southern portion. The plaintiff in his cross-examination admits that in 1884 the land was divided by a surveyor and an amicable partition arrived at, and according to that partition Cornis and his heirs (the defendants) ever since possessed the southern portion and the plaintiffs the northern portion. There can be no doubt about th division and partition in 1884, because the plan made by the surveyor in 1884 is amongst the documents filed in the case, and Cornis

leased his divided portion in 1893 for twelve years, and the plaintiff's deed of gift of 1896, in which he alleges sole possession of his divided portion (the northern) and refers to the partition of 1884, clearly shows that the land in dispute has not been held in common since 1884 by the plaintiff and Cornis or the latter's heirs. Can the plaintiff in collusion with the defendants be allowed to say that the two portions form one land, and are held in common by the plaintiff and defendants? I think not. It appears to me it would be an abuse of the Partition Ordinance to allow the plaintiff and defendants to use that Ordinance merely to confirm a partition that already had taken place seventeen years before, and which by possession of over ten years had ripened into a prescriptive right in favour of the plaintiff as to his divided portion, and in favour of the defendants, as to their divided portion.

There can only be one object for the bringing of this action, viz., to enable the plaintiff and defendants by a decree of this Court to provide themselves with an indefeasible title against the world, there being absolutely no necessity for further partition, there being really no one land held in common but two divided lands held separately by the plaintiff and defendants. Now, the most important essential to be alleged and established in a. partition suit is that the land sought to he partitioned is held in common, and failing that being established the sui

Click Here to Read the rest of this document