1928 Present: Garvin and Drieberg JJ.

SILVA v. DAVITH et al.

226, 226A-D. C. (Inty.) Kalutara, 9,873.

Registration of deeds-Ola deed of 1815-Starting point of prescriptions-Mortgage action-Lis pendens-Non-registration of decree-Transfer pendente lite-Subsequent purchaser.

An ola instrument of 1815, which has not been registered in accordance with the provisions of Ordinance No. 6 of 1866, may be admitted in evidence for the purpose of establishing a starting point for a prescriptive title.

An unregistered decree in a mortgage action instituted prior to Ordinance No. 29 of 1917 (Registration of lis pendent) operates as a valid charge against a transfer effected by the mortgagor pendants lite.

Where a purchaser from such transferee obtained his conveyance after the decree and registered it,-

Held, that the registration of His conveyance did not give it priority over the unregistered decree.

APPEAL from a judgment of the District Judge of Kalutara. The question in dispute in case No. 226 is stated by the learned Judge as follows:-" The plaintiff's title is based on a Dutch grant of 1704. The contesting defendants claim the right by prescriptive possession to work this field in perpetuity on then paying one-fifth share to the owners as ground rent. Their Counsel has moved to produce an ola document of 1815. which has not been registered as required by the provisions of Ordinance No. 6 of 1866, to prove the starting point of prescription In their favour.

Objection is taken to its production by the other side on the ground that, as it has not been registered, it cannot be produced for any purpose whatever in view of the express provisions of section 7 of the Ordinance. In my opinion the document cannot be produced for the purpose indicated."

H. V. Perera, for appellants in Case No. 226.

E. W. Jayewardene, K.C. (with E. W. Perera and N. E. Weerasooriya), for respondents in Case No, 226 and appellants in Case No. 226A.

De Zoysa, for respondents in Case No. 226A.

February 15, 1928. GARVIN J.-

The first of the two appeals in this case (No. 226) was entered by the 12th to the 21st, 24th to the 32nd, 79th, and 80th defendants. To this appeal the plaintiff is the respondent. It was taken from an order made in the course of these partition proceedings refusing to admit in evidence a certain ola instrument bearing date November 10, 1815.

It was the case for the defendants that they were entitled to the perpetual user and enjoyment of the subject of partition upon terms that they paid to the owner a one-fifth share of the produce. In the answer filed by them they claimed to be declared entitled to 4/5ths share of the soil. But that was evidently a mistake, and the true nature of their claim was disclosed at the trial. The ground upon which the document was rejected was that it had not been registered under the provisions of Ordinance No. 6 of 1866 and consequently fell into the category of documents, the reception in evidence of which was barred by the provisions of section 7 of that Ordinance. It was stated, however, that it was not sought to submit the document as evidencing the right which the plaintiff claims, or to base any claim of right or title upon it, but for the purpose of establishing what has been referred to as the " starting point " for a prescriptive title.

Now, the right which these defendants are claiming is in the nature of an emphyteusis. There is authority to be found in the works of Grotius and of certain other recognized authorities of the Roman-Dutch law for the proposition that such an interest may be acquired by user for the third of a century, and there is local authority for the proposition that such a right may even be acquired under the local enactment relating to the law of prescription, see Daniel v. Silva,1 [16 N. L. R. 481.] Jayawardene v. Silva,2 [18 N. L. R. 269.] and Podi

Singho v. Jaguhamy.1[26 N. L. R. 87.] The questi