Segoe Mohideen V. Ismail Lebbe Maricar

Present : The Hon. Mr. A. G. Lascelles, Acting Chief
Justice, and Mr. Justice Wendt.
 
SEGOE MOHIDEEN v. ISMAIL LEBBE MARICAR.

D. C, Colombo, 21,973.

Heir ab intestato, possession by-Appointment of administrator-Prescription-Sale by administrator-Title-" Adverse possession "- Ordinance No. 28 of 1871, s. 3.

    Held, that possession by heirs succeeding ab intestato is, always, a possession subject to the title of a legal representative, if one should be appointed; but that it is competent for an heir, after the appointment of an administrator, by overt acts to change the character of his possession into an " adverse " one.

Held, also, that the onus is on the heir, in such a case, to prove when, and how, his subordinate and derivative possession became converted into an " adverse " one; and that the mere enjoyment) of the rents and profits, or the erection of buildings, or the making of other improvements, would not amount to proof of such " adverse " possession, as such acts are not inconsistent with possession as an heir only.

ACTION rei vindicatio.

One Casie Lebbe, being owner of the premises in dispute, died intestate on 12th June, 1892. Administration was granted to his estate in August, 1904, in case No. 1,884, D. C, Colombo; the administrator sold the property by public auction in February, 1905, and it was purchased by the plaintiff, who obtained a conveyance dated 2nd May, 1905. The plaintiff sought to vindicate the premises from the defendants, who were in possession. The first defendant, admitting that Casie Lebbe was the owner and that he died intestate, alleged that he was his sole heir, and that as such he has been in possession since 1892, and had acquired title by prescription.

    The other defendants claimed to be tenants of the first defendant.

    The question whether the first defendant was the sole heir of Casie Lebbe was raised in the testamentary proceedings, and the Judge had held that the first defendant was not the sole heir, and that one Avoo Lebbe was also one of the heirs of the deceased.

    The District Judge (F. R- Dias, Esq.) gave judgment for the first defendant, holding that he had acquired title by prescription. The plaintiff appealed.

    Dornhorst, K.C., and Walter Pereira, K.C. (with them Samarawickreme), for the plaintiff, appellant.

    H. J. C. Pereira (with him F. M. de Saram), for the defendants, respondents.

Cur. adv. vult.

5th  June , 1906 WENDT J. -

    This is an action to vindicate a small plot of land with the buildings thereon, bearing assessment No. 8, Dean's passage, in the town of Colombo. Admittedly, one Casie Lebbe Marikar died possessed of this land. He died on 12th June, 1892. The plaintiff's title is based on a sale by his administrator in February, 1905, followed by a conveyance dated 2nd May, 1905. The first defendant, who is Casie Lebbe's brother, claims title by prescription, and, in the alternative, asks for compensation for improvements, asserting that all the buildings were erected by him. The other defendants are his tenants. The learned District Judge has dismissed the action, and the question is, whether first defendant has made out his prescriptive title.

    Casie Lebbe left, besides the property in question, an interest in another parcel of land bearing No. 20, which adjoins it. He died intestate and unmarried, survived by the first defendant and one Avoo Lebbe, who claimed to be his brother, but whom first defendant alleges to have been only the adopted son of their father. No application was made for administration of Casie Lebbe's estate. Defendant states that he entered into possession of No. 8 as his heir, and that he regarded himself as sole heir. In fact, however, the estate became divided between him and Avoo Lebbe, defendant having exclusive enjoyment of No. 8 and Avoo Lebbe of No. 20. In the testamentary proceedings the question whether Avoo Lebb

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