[FULL BENCH.]

1919   Present ; Bertram C.J., De Sampayo J., and Loos A.J.

ALWIS v. PERERA.

269-D. C. Colombo, 52,257.

Prescription-Transfer of land-Possession by vendee and his heirs thereafter for sixty years-Adverse possession.

Where a person transferred MB lands to certain family connections, but continued in possession till date of action (sixty years), the Supreme Court held (in the circumstances) that the possession was not permissive, but that it should be presumed to have become
adverse,

Tillekeratne v. Bastian [1 (1918) 21 N. L. R. 12.] followed.

Semble, even apart from this presumption, a vendor, who after sale remains in possession, should be considered as possessing adversely to the purchaser.

ONE Bastian Alwis was the original owner of the land in dispute. In 1850 he transferred a divided one-fifth share of it to his sister Toronchi, and in 1851 transferred two-fifths to one Don Cornelis. Later, in 1852, he and his sister Toronchi together conveyed three-fifths of the land to the same Don Cornelis. In 1864, Helena, the widow of Don Cornelis, transferred the divided one-fifth share back to Toronchi. Thus, the paper title was partly in Helena and partly in Toronchi, but the possession of the land remained with Bastian Alwis and his family. In 1917, when the land belonging to John, a grandson of Don Cornelis, was seized by his creditors, it was claimed by Sadiris, son of Bastian Alwis. The claim was allowed, and the seizure was withdrawn later. In the same year a portion of this land was sold under the Riot Damages Ordinance as the property of the same Sadiris. Later, Sadiris bought it back from the purchaser. At this stage the defendant bought a portion of ' the interest of Toronchi and commenced to build a road right across the portion which he purported to have acquired. Christina, the daughter of Bastian Alwis, brought this action, and claimed to be entitled to the land over which the road is being constructed The District Judge held that the plaintiff occupied it by permission of the defendants, and dismissed the action.

E. W. Jayawardene (with him Nagalingam), for the plaintiff, appellant.-The possession by the plaintiff was not permissive at any stage. It is not proved that the plaintiff got into possession with the permission of the defendant or his predecessors in title.

[Bertram C.J.-There may be a presumption of permissive possession in the case of relatives.]

There is no evidence that Bastian Alwis and Don Cornelis were relatives, except that they had the same ge name. Where vendor continues to be in possession after his sale, his possession would be adverse. Tew v. Jones; [1 (1844) 13 M. & W. 12.] Anand Coomari v. Ali Jamin. [2 (1886) 11 Cal. 229.] Bastian. Alwis and his family have been in uninterrupted possession, although the lands were alienated.

If there be long treatment of possession amounting to ownership, effect must be given to such possession. The family of Cornelis had never challenged or disturbed the plaintiff's rights. When the land was seized as the property of John, it was claimed by Sadiris, and the claim allowed. A portion of this land was also sold under the Riot Damages Ordinance as the property of Sadiris.

F. de Zoysa (with him Croos-Dabrera), for the defendant, respondent.-The paper title was in the defendant's predecessors in title, and the parties are relatives. We only admitted that the plaintiff was in occupation. There is no evidence of possession by the plaintiff or by Bastian. The claim by Sadiris in 1917 and the sale under the Riot Damages Ordinance can only point to a period from which prescription may have begun, but no presumption can be drawn from that regarding previous possession.

There is no evidence to prove the exclusive possession of the whole land by Bastian.

December 17, 1919. BERTRAM C.J.-

This is an appeal which was argued before us on materials that appear to be of a very m