Ayanahamy V. Silva

Present: Pereira J.

AYANAHAMY v. SILVA.

417-418-C. R. Balapitiya, 9, 394.

Undertaking to abide by the ruling of the Court-Restriction-Adverse possession.

An undertaking by a party to an action to abide by a ruling of the Court is of no avail, unless the opposite party is himself prepared to acquiesce in the decision.

A person who possesses land of smother without being aware that it belongs to that other person may still acquire as against him prescriptive rights in respect of the land.

Observations on the term " adverse possession " as understood under our law.

THIS was an action for declaration of title. The learned Commissioner held that the defendant had acquired title to the land by prescription, but ordered him nevertheless to pay plaintiff Rs. 25. Both parties appealed.

A. St. V. Jayewardene, for the plaintiff. -The defendant consented to abide by the order of the Court. He has no right so appeal against the judgment of the Court. See Babunhamy v. Andris Appu, 1 Gooneratne v. Andradi. 2

The defendant possessed the land by mistake. He did not know that the land belonged to the plaintiff. He did not intend to appeal possess it adversely to the plaintiff. Under these circumstances it could not be said that he had acquired title by prescription. See Fernando v. Menika, 3 Angel on Limitation 399.

E. W. Jayewardene, for the defendant. -The defendant did not formally constitute the Judge an arbitrator. In answer to a question he said, " If I have even by mistake gone and planted the land, I am prepared to abide by the order of the Court. " The plaintiff in this case did not himself consent to abide by the order of the Judge. On the other hand, the plaintiff himself has appealed. In the case cited both parties undertook to abide by she order of the Court. There was either tacit or express agreement to be bound by the order.

The fact that defendant did not know that it was plaintiff's land does not affect the question whether the possession was adverse or not.

1 5 Bal. 89. 

2 3 C. A. C. 69.

3 3 Bal. 115.

In the passage cited from Angell on Limitation 399 the party in possession did not have an intention to claim title. It does not matter whether the possession is bona fide or mala fide. Adverse possession is defined in section 3 of the Prescription Ordinance, No. 22 of 1871. See also Carrim v. Dholl. 1

On the finding of the Commissioner the defendant has acquired title by prescription. The order to pay Rs. 25 to plaintiff is wrong and inconsistent with the finding.

A. St. V. Jayewardene, in reply.

Cur. adv. vult.

December 1, 1913. Pereira J. -

There are cross appeals in this case. The Commissioner declared the defendant entitled to lot A on figure of survey No. 141, and condemned him to pay the plaintiff Rs. 25. Each party has appealed against the part of the decree that is adverse to himself, and I shall deal with both the appeals in one judgment. The Commissioner has held that the defendant has had possession of the portion of land in claim for over the prescriptive period. I have read the evidence carefully, and on this point I need only say that the balance of testimony appears to me to support the Commissioner's finding. Two points have been urged by the plaintiff's counsel: (1) that the defendant had no right to appeal, inasmuch as he had consented to abide by the order of the Court on the question as to possession; (2) that the defendant could not he said to have had adverse possession of the land in claim, inasmuch as he possessed the land by mistake, that is to say, in ignorance of the fact that it belonged to the plaintiff. It has been sought to support the first contention by a reference to the defendant's evidence, where he says, "If I have even by mistake gone and planted that land, I am prepared to abide by the order of the Court. "

In the first place, an undertaking of this nature, to have a binding effect, should, in my opinion, be given in a more fo

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