Silva V. Appuhamy

Present: Lascelles C.J. and Wood Renton J.

SILVA v. APPUHAMY.

87-D. C. Kurunegala, 4,288.

Possessory action-Proof of possession for a year and a day essential- Plaintiff may take advantage of predecessor's possession-Action for declaration of title-Court may ex mero motu grant possessory decree.

In a possessory action a plaintiff might take advantage of his predecessor's possession; it is not necessary that he should himself have had a year and a day's possession.

In an action for declaration of title there is nothing to prevent the Court from granting a possessory decree ex mero motu when all the necessary evidence is before it.

Obiter,-Section 4 of Ordinance No. 22 of 1871 has not dispensed with the requirement of the common law that to maintain a possessory action proof of possession for a year and a day prior to ouster is essential except in cases of ouster by violence.

THE facts are set out in the following judgment of the District Judge (Bertram Hill, Esq.): -

Plaintiff in this case leased Ambagahawatta from one Punchappu hamy in March, 1910. He complains that the defendant, who has no right to the land, ousted him in about January or February, 1911.

1 (1904) 7 N. L. R. 280.                                                                                                         2 (1891) 9 S. C. C. 203.

The defendant admits plaintiff's right to one-half the land, but claims the other half by virtue of a deed dated February 28, 1911. i.e.. nearly one year subsequent to plaintiff's lease.

The evidence, in my opinion, establishes the following facts. Plaintiff's lessor in 1900 purchased the entirety of the land from one Kiri Etana and began to plant it. Later on his son, the defendant, came and lived with him and helped him to look after it, and perhaps plant. The defendant must have been aware that his father, Punchappuhamy Wadurala, had a deed for the whole land and claimed the entirety of it, and any assistance he may have rendered his father must be presumed to have been rendered for his father's benefit.

Later, in 1910, defendant's father leased the land to the plaintiff. The defendant acquiesced in this, and plaintiff was in possession. The defendant then got dissatisfied with his prospects as his father's heir and purchased the rights of another Punchappuhamy, who claimed to be entitled to half the land. There appears to be evidence that this Punchappuhamy is entitled to a share of the land on the pedigree, but he admittedly had nothing to do with the planting, and I do not believe the evidence that defendant planted under him. At any rate, he cannot dispossess the plaintiff until he has paid plaintiff's lessor compensation.

I treat this as a possessory action. I find that plaintiff was in lawful possession of the entirety of the land at the date of the ouster, and that he was dispossessed by the defendant without due process of law.

I give judgment for plaintiff for possession, for damages at Rs. 75 a year from March, 1910, until restored to possession, and costs.

H. A. Jayewardene, for the defendant, appellant--The plaintiff, who is a lessee, prayed in this action for declaration of title (as a lessee). The District Judge was wrong in giving a possessory decree when the plaintiff did not ask for it.

The plaintiff was in possession for only ten months. That possession is not sufficient to entitle the plaintiff for a possessory decree. There has been a series of decisions, in which it has been held that in a possessory action the plaintiff must have possession for a year and a day. The only case that can be cited against that is Silva v. Dingiri Menika.1

Gooneratne (with him A. St. V. Jayewardene), for the respondent.-Silva v. Dingiri Menika1 is the latest case on the subject, and is a direct authority for the proposition that possession for a year and a day is not necessary for maintaining a possessory action. [Wood Renton J.-What are " the other require

Click Here to Read the rest of this document