1937 Present: Abrahams C. J. and Fernando J.

RAYMOND v. WIJEYWARDENE.

20-D. C. Kurunegala, 18,365.

Possessory action-Possession for a year and a day-Predecessor's possession- Dispossession by predecessor-Prescription Ordinance. No. 22 of 1871. s. 4.

In a possessory action the plaintiff is entitled, in calculating the essential period of a year and a day to take advantage of the possession of his predecessor in title, even though the person dispossessing him happens to be his predecessor in title.

APPEAL from a judgment of the District Judge of Kurunegala.
 
H. V. Perera, K. C. (with him F. A. Tisseverasingam), for plaintiff, appellant.
 
F. A. Hayley, K. C. (with him Barr Kumarakulasingam), for defendants, respondents.

 Cur. adv. vult.

November 24, 1937. ABRAHAMS C. J. -

The plaintiff-appellant instituted this-action for the recovery of possession of a coconut estate of about a hundred acres in extent which was mortgaged to him by the defendants-respondents who all joined in the mortgage bond. What their various titles and interests were in the said estate did not emerge during the action, since the case was fought out entirely upon documents, but that point does not appear to be material. The plaintiff eventually obtained a mortgage decree in 1934, and three of the defendants made an . application Jo set aside the mortgage decree but

this was unsuccessful. An arrangement was come to on August 20, 1934, which was recorded by the learned District Judge, to the effect that if the defendants paid the full amount of the claim and costs within one year the sale under the decree should be set aside and in the meantime the plaintiff should remain in possession of the property purchased by him under the decree and take the rents and profits arising, keeping proper books of account in order to credit the defendants as against the decretal amount. It was further agreed that if at the end of the year the defendants did not pay to the plaintiff the amount remaining and due to him the sale was to be confirmed.
 
Later there appeared to be a dispute between the plaintiff and one or more of the defendants as to the identity of the land covered by the mortgage decree, and it was agreed that the sale should be confirmed and that the plaintiff should take such action as he might be advised to take in order to obtain possession of the property sold. This confirmation was effected on March 1, 1935, and seven days later the plaintiff obtained a Fiscal's conveyance.

On December 2, 1935, the Fiscal purported to put the plaintiff into possession of the whole of the land, and when this operation was performed it was found that some of the defendants were actually in possession of a portion of the land described in these proceedings as lot B, and he told them to quit and they quitted. On the following day, however, these defendants with others returned and took possession of the whole of the land in the absence of the plaintiff. It was to regain possession of the whole of the land that the plaintiff then brought an action.

The learned District Judge held that by the agreement of August 20, 1934, the plaintiff was placed in charge of the property and was to collect the rents and profits on behalf of the defendants. He held that his possession from August, 1934, till December 2, 1935 (the date that, the Fiscal put him into possession) was not of such a nature as to be taken into consideration in calculating the period of a year and a day during which, according to the law of Ceylon, the plaintiff in a possessory action must prove that he was in possession in order to recover the land from his dispossessor. It would appear from this judgment that the learned District Judge regarded the plaintiff as being disqualified from calculating the period from August 20, 1934, to March 1, 1935, the date on which he obtained confirmation of the sale. He dismissed the plaintif