Tillekeratne V. Bastian

1918.  [Full Bench]

Present: Bertram C.J., Shaw and De Sampayo J J.

TILLEKERATNE et al. v. BASTIAN et al.

185-D. C. Kalutara, 7,216.

Prescription-Long-continued exclusive possession by one co-owner- Presumption - Lost grant - Dedication of highway - Ouster - Adverse possession.

It is open to the Court, from lapse of time in conjunction with the circumstances of the case, to presume that a possession originally that of a co-owner has since become adverse.

"It is a question of fact, wherever long-continued exclusive possession by one co-owner is proved to have existed, whether it is not just and reasonable in all the circumstances of the case that the parties should be treated as though it had been proved that that separate and exclusive possession had become adverse at some date more than ten years before action brought. "
 
THE facts appear from the judgment.

Bawa, K.C., and De Zoysa, for appellants.-A co-owner cannot prescribe against other co-owners unless he has actually ousted them, or has by some overt act intimated to them that he is no longer possessing on their behalf but is possessing adversely to them.

[Shaw J.-Even if a co-owner possess for 150 years, is he supposed to be possessing on behalf of the other co-owners?] That would not make any difference.    Law is not founded on relationship.

[De Sampayo J.-Must not lapse of time shift the burden?] No. See Corea v. Appuhamy.1 None of the co-owners can prevent the possession of the whole land by one co-owner.

[Shaw J.-The. only question is whether a presumption of ouster can be gathered from the length of time.] There is no room for the presumption of ouster here. If an ouster took place it can be proved, as the persons interested are alive and can give positive evidence of ouster. Counsel cited 2 Leader 74; Morgan Digest 21, 169, 273; 7 N. L. R. 91; 10 N. R. 183 (at 186); 3 N. L. R. 213, 137; 7 N. L. R. 91; 1 Cowp. 217; 3 A. C. R. 84; Koch 61 and 42; 1 S  C. R. 64; Lightworn on Time Limit of Action 161; Indian Limitation Act 9 of 1908, s. 127; I. L. R. 33 Bom. 317; I. L. R. 35 Cal. 961. The Prescription Ordinance has completely repealed the Roman-Dutch law on the subject. Before Corea v. Appuhamy 1[1 (1911) 15  N. L. R. 65. ] was decided there is no reference in our cases to a presumption of ouster. If there be evidence of exclusive possession for a very long time, and evidence of something which ought to have put the

co-owner who is out of possession on his guard, and if he is guilty  of   gross   laches,   then   there   may   be   prescription.    The   evidence must be strong and convincing, and that is not the case here. See Brito v. Muthunayagam.1 [1(1915) 19 N. L. R. 38. ] If we introduce the theory of fictitious ouster, the decisions become valueless.

E. W. Jayawardene (with him Batuwantudawa), for defendants, respondents.-Whether possession was adverse or not must be judged by the circumstances of each case. In 1893, when Tillekeratne bought the property, he did not enter into possession, nor was the property included in the inventory of Tillekeratne's properties when he declared himself an insolvent. We were allowed to have exclusive and notorious use of this land for forty years, and to take plumbago from it. In 2 S. C. C. 166 it was held that a co-owner cannot dig plumbago without the consent of the other co-owners. Counsel cited also S.  C. A. C. 8 and 1 C. W. R. 92 and 175.

Ouster can be presumed from long and continued possession (2 Thorn. 188; 15 C. D. 87). Counsel also cited 29 Bom. 300; 33 Bom. 317, at 322; 1 S.C. R. 64; Koch 62; 13 N. L. R. 309; 1 Bal. Notes 88; 2 Bal., 40 and 70.

Bawa, in reply.

Cur. adv. vult.

 December 16, 1918.    Bertram C.J.-

The facts of this case seem to raise in a very clear and succinct form a question which was discussed, but not decided, in the case of Corea v. Appuhamy. 2 [ 2 (1912) A. C 230 ; (1911) 15 N. L. R. 65.]The decisio

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