Cadija Umma, I.L.M And Another V. Don Manis Appu, S. And Others

[IN THE PRIVY COUNCIL.]

1938 Present: Lord Atkin, Lord Macmillan, Lord Porter, Sir Lancelot Sanderson,
and Sir George Rankin.

I. L. M. CADIJA UMMA AND ANOTHER v. S. DON MANIS APPU AND OTHERS.

Prescription-Adverse possession-Meaning of parenthetical clause-Roman law.

The words in section 3 of the Prescription Ordinance, viz., by a ?title adverse to or independent of the claimant or plaintiff? cannot be construed as introducing the requirement known to the Roman law as Justus titulus or justa causa,.

The purpose of the parenthetical clause in the section, viz., ?possession unaccompanied by payment of rent or produce or performance of service or duty or by any other act by the possessor from which an acknowledgment of a right existing in another person would fairly and naturally be inferred? is to explain the character of the possession which, if held without disturbance or interruption for ten years, will result in prescription.

The dictum of Bertram C. J. in Tillekeratne v. Bastian (21 N. L. R. 12) that the parenthesis has no bearing on the meaning of the words ?adverse possession?, disapproved.
 
APPEAL from a judgment of the Supreme Court.
 
L. M. D. de Silva, K. C. (with him Stephen Chapman), for appellant.

No appearance for respondent.

November 17,1938. Delivered by SIR GEORGE RANKIN. -

The appellants on April 16 and 25, 1930, brought in the District Court of Colombo two actions to recover possession of two contiguous plots of land measuring in the aggregate 2 acres and 38 perches and forming a triangular area to the north of land which is admittedly theirs. The

disputed land is known as Maha Ettambagahakumbura. In the first suit they impleaded four defendants as being in wrongful possession, S. Don Manis Appu being the first defendant. In the second suit he was the sole defendant. The District Judge dismissed both actions on March 23, 1933, finding against the appellants on the issue as to title and also on the question whether the first defendant had acquired a prescriptive title under Ordinance XXII of 1871. The Supreme Court on January 22, 1936, affirmed the decrees of the District Judge. Without pronouncing upon the issue as to the appellants' title the learned Judges of the Supreme Court proceeded solely upon the ground of prescription under the Ordinance. The defendants have not appeared at the hearing of this appeal by the Board.

The two acres (or thereabouts) now in dispute are said by the District Judge to be to a great extent swamp on which lotus grows : he states that on the portion which is not swampy there is a little wild grass, and buildings which have been put up from time to time. Akbar J. (with whose judgment Poyser J. agreed) says that the fact appears to be that the portion in dispute was at one time liable to be flooded and waterlogged, but that now, owing to a bund built by the Government, the floods do not seem to affect the portion in dispute.

Section 3 of Ordinance No. XXII. of 1871, so far as applicable to this case, is in the following terms: -

?Proof of the undisturbed and uninterrupted possession by a defendant in any action, or by those under whom he claims, of lands or immovable property, by a title adverse to or independent of that of the claimant or plaintiff in such action (that is to say, a possession unaccompanied by payment of rent or produce or performance of service or duty, or by any other act by the possessor, from which an acknowledgment of a right existing in another person would fairly and naturally be inferred) for ten years previous to the bringing of such action, shall entitle the defendant to a decree in his favour with costs. And in like manner, when any plaintiff shall bring his action, or any third party shall intervene in any action for the purpose of being quieted in his possession of lands or other immovable property, or to prevent encroac

Click Here to Read the rest of this document