Back
SILVA v. DINGIRI MENIKA et al.
NLR13V179
Present : The Hon. Sir Joseph
T. Hutchinson,
Chief Justice, and Mr. Justice Middleton
SILVA v. DINGIRI MENIKA et al.
D. C, Kandy, 18,314
Possessory action-Proof of possession for a
year and a day before ouster not necessary-Dispossession otherwise than by
process of law.
To succeed in a possessory action all that is necessary for the plaintiff to
prove is that he was in possession, and that he was dispossessed otherwise than
by process of law. It is not necessary to prove possession for a year and a day
before ouster.
THE
facts material to the report are fully set out in the judgment of Hutchinson
C.J.
Seneviratne, for the appellants.-The' finding of the District Judge that
plaintiff had possession for a year and a day previous to ouster is unsupported
by the evidence. Without proof of such possession the plaintiff cannot succeed
in this action. See judgment of Lawrie J. in Perera v. Fernando.[1
(1892) 1 S. C. R. 329. ]
H. A. Jayewardene, for the respondent.-Under section 4 of Ordinance No. 22 of
1871 proof of possession for a year and a day is not necessary to maintain
possessory action. See Goonewardene v. Perera,[2 (1902) 5 N. L. R.
320.] Menu Etana v. Gabriel Appuhamy.[3 (1909) 1 Cur. L. R. 2.]
April 22, 1910. HUTCHINSON C.J.-
This is a possessory action in which the plaintiff claims to be entitled to
possession of certain land marked A on the plan, alleging that he was in
possession for a year and a day, and that he was afterwards, in October, 1906,
forcibly ousted by the defendants. The issues agreed to were: Was the plaintiff
for a year and a day prior to the alleged ouster in possession of lot A; and,
secondly, did the defendants take wrongful and forcible possession? The District
Judge answered both the questions in the affirmative. On the first issue there
was a contest in the District Court and in this Court as to whether or not the
first defendant did not obtain possession of lot A in April, 1906. The Judge
finds that he did not, and I think on the evidence that that was right, but I
cannot find any evidence to support the finding that the plaintiff had
possession for a year and a day. I think it is proved that the plaintiff was in
possession before and up to October, 1906, and
that the defendants then, took possession forcibly; but there is no evidence how
long the C. J. plaintiff had had possession. The question is, therefore, whether
Silva v. was necessary for the plaintiff to prove possession for a year and g a
day. Section 4 of the Prescription Ordinance, No. 22 of 1871 enacts that "any
person who has been dispossessed of land otherwise than by process of law may
within one year of his dispossession, and on proof of his dispossession, obtain
a decree for restoration of possession without proof of title"; but this is not
to affect the other requirements of the law as respects possessory cases. Two
decisions affecting this point have been quoted to us. In Perera v. Fernando,[1
(1892) 1. S. C. R. 329. ] a Full Court case, Mr. Justice Lawrie thought that the
plaintiff's claim should be dismissed because he did not prove possession for a
year and a day before ouster. The other Judges decided the case on a different
ground. In Goonewardene v. Pereira [2 (2902) 5. N. L. R. 320.]
Chief Justice Bonser expressed the opinion that where there was an ouster by
violence nothing more is required to be proved by the plaintiff than that he was
in possession, and that he was violently ousted; and Mr. Justice Wendt agreed
with him; and in Menu Etana v. Gabriel Appuhamy [3 (1909) 1. Cur. L.
R. 2.] Mr. Justice Wendt expressed a similar opinion. I think that section 4 of
the Ordinance was intended to do away with the requirement of the Roman-Dutch
Law as to length of possession which was required in a possessory action, and
all that is necessary for the plaintiff in such a case as this to prove is that
he was in possession, and that h
