Theivanipillai V. Arumugam Et Al.,

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

THEIVANIPILLAI v. ARUMUGAM et al.

110-D. C. Batticaloa, 3,493.

Prescription-Adverse possession-Verbal dower-Possession for over ten years.

Where A made an informal grant of a land to B by way of dowry, and B entered into possession with the full intention of occupying it as owner and possessed it for over ten years-

Held, that the possession was adverse, and that he had acquired a prescriptive title to the land.

Lebbe Marikar v. Sainu 2 distinguished.

IN this action the plaintiff sought to set aside a deed of transfer of a land dated August 31, 1911, executed by the first and second defendants in favour of the third. The plaintiff claimed the land by virtue of a deed of gift dated July 9, 1897; executed by her parents in her favour and in favour of her husband, Kumaravelu Maarimuttu.

The second defendant is the daughter of the plaintiff, and first defendant is the husband of the second defendant. These defendants alleged that they were married about eighteen years before date of action, and that the land was dowried to them by the plaintiff's father Veeracutty by word of mouth, and they set up title thereto by prescription. The third defendant was the purchaser of the land from first and second defendants. The first defendant in giving

1 ( 1894) A. C. 670.                                                                                                                      2 (1907) 10 N. L. R. 339.

evidence said: " The land in dispute was given to us in dower. No deed was executed. The dowry was promised before our marriage. After I married I was let into possession the same year. I have been in possession ever since: Veeracutty, who gave the dower, put me off, saying: ' Why are you in such haste about a deed? You are in possession of the land. Has any one tried to disturb you? ' About six months before we sold to the third defendant we asked the plaintiff to make a deed in our favour. She said she had to make a pilgrimage and would come back and execute a deed. She finally refused. It was after that that I executed the deed in favour of the third defendant. "

The learned District Judge (G. W. Woodhouse, Esq.) dismissed plaintiff's action.

The plaintiff appealed.

Bawd, K. C, for the appellant.-The possession of the first and second defendants was not adverse. They were possessing the land as licensees or agents of Veeracutty. Their occupation was permissive and on sufferance. The first defendant asked for a conveyance from Veeracutty, and from the plaintiff after Veeracutty's death. That clearly shows that he acknowledged Veeracutty was the owner. Counsel referred to Nagudu Marikar v. Mohamadu,1 Orloff v. Grebe,2 Joseph v. Annappillai and Raphael,3 Lebbe Marikar v. Sainu.4

J.W. de Silva, for the first and second defendants, respondents.- The defendants did not possess as agents. They possessed from the very beginning as owners. The plaintiff herself has admitted the ownership of the defendants by not including this land in the inventory of Veeracutty's estate.

In Lebbe Marikar v. Sainu4 there was a notarial agreement to purchase. The possessor, moreover, was aware that the intending vendor was expecting to get a Crown grant.

Balasingham, for the third defendant, respondent.-The action is not maintainable in this form. According to the plaintiff she was the owner at the date of the action, and the defendants were in unlawful possession. Under these circumstances, an action quia timet does not lie. The action should have been one for declaration of title. The Ceylon Land and Produce Co., Ltd., v. Sevaratna 5 relied on by the District Judge, does not apply to the facts of this case; there the party in possession brought an action quia timet against a person who had obtained a mortgage decree against a third person with respect to the land which the plaintiff in the quia timet action claimed.

1 (1903) 7 N. L. R. 9

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