1921. Present : Bertram C.J.

KIRIMENIKA v. MENIKHAMY.

10-C. R. Ratnapura, 16,748.

Informal partition among members of a family-Adverse possession- Permissive agreement-Possession of definite blocks for a long time-Presumption that possession became adverse.

When members of a family make an informal but definite partition of their lands, and each party enters into possession of his share, then the possession of the several shareholders becomes adverse from the date of their doing so, and title by prescription can be acquired.

Whore the arrangement is permissive, then each co-owner must be deemed as possessing on behalf of himself and others, unless the arrangement continues so long that on equitable grounds it is presumed that at some point it became adverse. Such a presumption is only drawn upon a consideration of all the circumstances of the case.

THE facts are set out in the judgment.

R. L. Pereira, for appellant.

E. G. P. Jayatilake, for respondent.

July 18, 1921. BERTRAM C.J.-

This is a dispute between two members of a Kandyan family with regard to a land which forms part of the family inheritance. It was at one time possessed by one Ukku Hamy who died leaving eight children. These children by deaths and diga marriages were in the course of time, for the purposes of the present case, reduced to two, Bauddahamy and his sister, Ramalhamy, the present first defendant.

The present action is the sequel to another which was tried out between the same parties, namely, C.R. Ratnapura, No. 15,894.

A question of fact has been raised to which it is first necessary to refer. Ramalhamy was originally married in diga, but her present claim is made on the basis that she had re-acquired binna rights. The learned Commissioner refused to frame an issue on this question, holding that the point had practically been conceded in the previous action. The learned Commissioner was perhaps not technically right in this course, but there can be no doubt, in view of the coarse taken at the previous action, and the evidence given in the case that Ramalhamy had in fact for years been treated as having re-acquired binna rights. She must therefore be so treated for the present case,

There were two family lands, the first Iriyankumbura now in dispute, and the other Meddekumbura, which was the land in dispute in the previous action. The shares of Bauddahamy and Ramalhamy in these two lands were based partly upon inheritance, partly upon transfers from other members of the family, which it is not necessary to particularize. In this way, brother and sister became entitled in respect of Iriyankumbura to shares in the proportion of 3/8 to 5/8 ; and in respect of Meddekumbura to shares in the proportion of 9/16 to 7/16. They, nevertheless, by a sort of tacit permissive arrangement possessed the lands in equal halves, and in the present case Bauddahamy possessed the upper portion, two pelas in extent, and Ramalhamy the lower portion, also of two pelas in extent. This arrangement by which the lands were possessed in halves had prevailed even before the members of the family interested had been reduced to two.

On November 5,1906, Bauddahamy conveyed his interests in both lands to his step-daughter, Kirimenika, the plaintiff in the present action, purporting in each case to convey a half. Possession o continued on the footing already explained. By the action C.R. Ratnapura, No. 15,894, this state of affairs was for the first time disturbed. Plaintiff attacked Ramalhamy and her family by this action and claimed 5/8 of Meddekumbura. Eventually, this action was settled on the basis that plaintiff was entitled to 9/16 and defend-ant to 7/16. An order on the basis of this settlement was made providing for cultivation of the field in rotation and entitling plaintiff to cultivate the whole of the field for one year, so as to give her the advantage of her additional 2/16.

As I have