Sadirisa V. Attadasi Thero

1936 Present : Akbar and Koch JJ.

SADIRISA v. ATTADASI THERO

115-D. C. Avissawella, 1,660.

Possessory action-Brought by one co-owner against another-Nature of possession required-Possessio civilis-Roman-Dutch law. A co-owner of a land may maintain a possessory action against another provided the other co-owners are parties to the action, whether as plaintiffs or defendants.

In such an action the plaintiff must establish that his possession was possessio civilis.

Silva v. Sinno Appu (7 N. L. R. 5) followed. APPEAL from a judgment of the District Judge of Avissawella.

N. E. Weerasooria (with him T. S. Fernando), for defendants, appellants.

Rajapakse (with him D. W. Fernando), for plaintiff, respondent.

Cur. adv. vult.

July 15, 1936. AKBAR J.-

The plaintiff brought this action originally claiming title to a certain land and alternatively on a second cause of action, claiming a possessory

decree in respect of this land. On the plaint, as regards the first cause of action, he became entitled only to a l/10th undivided share of the land claimed from the owner of the land on a deed of gift (P 1) dated April 12, 1914, executed by the then owner of the land. The plaintiff also admitted that the persons under whom the defendants claimed were also co-owners of this land which is the subject-matter of the action, under another deed, P 2, dated August 31, 1915. At the trial, the plaintiff abandoned his claim for title and confined his action to one of possession only. I cannot accede to the argument of Counsel for the appellants that the plaintiff had not this right; the learned Judge was right in allowing the trial to proceed on the footing of a possessory action.

The law relating to possessory actions, so far as it affects the rights of one co-owner against another, seems to be in some confusion owing to the apparently conflicting decisions of this Court. It is therefore necessary to state briefly what the effect of these judgments appears to be.

The remedy of possessory action is given by statute - Ord. No. 22 of 1871 (section 4). It will be seen from that section that it is provided that the law that should govern such actions was to be the Roman-Dutch law. In other respects, that section only provides the time within which the action is to be brought, reckoning it from the date of ouster.

The earliest case we have been referred to by the Supreme Court on this question of a possessory action is the case of Changarapillai v. Chelliah [1 5 N. L. R. 270. ], wherein Bonser C.J. indicated what the nature of the possession should be, which would entitle a plaintiff to ask for a possessory decree. This case was quoted with approval by the Privy Council in the case of Abdul Azeez v. Abdul Rahiman 2.

Referring to the case of Changarapillai v. Chelliah (supra), their Lordships stated that in their view, " that decision was sound in principle and is applicable to the circumstances of the present case ". What the plaintiff in a possessory action had to prove was possessio civilis, or, in other words, possession " animo domini" (see Walter Pereira's Laws of Ceylon (2nd ed.) pp. 354 and 544). So that all that the Roman-Dutch law requires is such possession as the evidence would indicate that the plaintiff regarded himself as the sole owner of the land he was so possessing. If we look at this question from this point of view it seems to me that one co-owner cannot, strictly speaking, be said to have such possession in a possessory action brought by him against his other co-owners in which he claims to be restored to the possession of his undivided share. As Bertram C.J. stated in the case of Tillekeratne v. Bastian 3, every co-owner, has a right to possess and enjoy the whole property and every part of it, and the possession of one co-owner in that capacity is in law the possession of all. It will be observed, however, in this case, that the plaintiff claim

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