Present : Schneider J.  1922

APPUHAMY et al. v, APPUHAMY et al.

153-C. R. Dandugamuwa, 5,420

Adverse user of a path when land mat being planted under an agreement by a planter-Right of way acquired as against owner and planter- Right of way acquired by a person over land of which he was co-owner,

A used a path over B's land for over ten years, when the land was being planted by C under a planting agreement with B.

Held, that A acquired a title by prescription to the right of way against both B and C,

The planter is on the land for a limited purpose, namely, the planting of the land and the possession, in fact and in law, is with the owner of the land, and, therefore, rights acquired against the land would be adverse to the owner as well as to the planter in so far as the planter's interests are concerned in the land.

Plaintiffs used a path over defendants' land for over ten years. The first plaintiff was a planter under the predecessor of defendant, and was as such a co-owner.

Held, in the circumstances, that the plaintiffs' user was adverse to defendant and his predecessor, in spite of the fact that the first plaintiff was a co-owner with the defendant.

THE facts are set out as follows in the judgment of the Commissioner of Bequests (P. Saravanamuttu, Esq.):-

The plaintiffs in this case claim a right of way over the second defend? ant's land called Palugahawalawatta to the plaintiff's land called Ethudiyakeliyaweagare Palugahawalawatta. The right of way claimed is the portion A to B depicted in plan No. 894 filed of record.

Palugahawalawatta was originally owned by the first defendant, Don Philip Appuhamy, who gave the land to the first. plaintiff, Lawns Appuhamy, to be planted on an agreement. According to the terms of the agreement, the first plaintiff became a co-owner with the first defendant, and both possessed the land in common. About the time the first plaintiff began to plant this land, one Joronis was the owner of the land called Ethudiyakeliyaweagare Palugahawalawatta, i.e., the land now belonging to the plaintiffs. Joronis planted this land about the same time. The coconut trees on this land and on defendant's land are of about the same age. By deed No. 4,624 dated October 11, 1911 (P 1), Joronis sold this land to plaintiffs. On March 18, 1930, a deed of partition (D 5), with plan No. 39 (D 4), was drawn up between the first plaintiff and the first defendant, i.e., the co-owners of the land called Palugahawalawatta. By this deed the first plaintiff became the owner of the southern portion, and the first defendant the owner of the northern portion of the land. The choice of the portions was perhaps decided by the fact that the southern portion adjoined the first plaintiff's present residing land, and the northern portion was in proximity to another land owned by first defendant. The first defendant soon after on April 1, 1920, sold his portion of the land together with other lands to second defendant by deed No. 931 (D 3). It is obvious that the partition between the first plaintiff and the first defendant was made with it view to gelling the first defendant's portion to the second defendant. I shall now deal with the point of law raised in issue No, 6 by defendant's Counsel. Mr. Samarakoon contends that as the first plaintiff was a party to deed of

partition No. 11,498 dated March 13, 1920, and plan No. 30 attached thereto, the first plaintiff cannot lead oral evidence to contradict deed of partition and flan. He quotes section 92 of the Evidence Ordinance in support of his contention. He also contends that a deed of partition is analogous to a partition decree. I cannot agree with him. A partition decree i" valid as against the whole world, and it in a-decree entered by Court after a careful examination of the titles of all the interested parties. A deed of partition is merely a " cross transfer," and most be regarded mor