1942 Present: Wijeyewardene J.

FERNANDO v. FERNANDO

108-C. R. Negombo, 44,783.

Co-owners-Purchaser of entire property from a Co-owner-Prescription- Ouster.

A purchaser of property from a co-owner, who purported to sell the entirety of the property, is bound to prove an ouster or to lead such evidence as would justify the Court in presuming that an ouster has taken place at least ten years before the institution of the action.

APPEAL from a judgment of the Commissioner of Requests, Negombo.

C. E. S. Perera (with him C. J. Ranatunge), for defendant, appellant.

L. A. Rajapakse (with him R. N. Ilangakoon), for plaintiff, respondent.

Cur. adv. vult.

October 27, 1942. WIJEYEWARDENE J.-

The plaintiff instituted this action to obtain a declaration of title to lots N and O of a field called Davatagaha Cumbura. The defendants admitted the title of the plaintiff to the entirety of lot O and two-eighth shares of lot N. They further pleaded that the second defendant was entitled to five-eighth shares of lot N and the added-defendant to the remaining one-eighth share of lot N.

The following is a brief statement of the devolution of title on deeds to lots N and O as proved by the evidence in this case : -

(a) By virtue of a partition decree entered in D. C. Negombo, 1,764, and by right of inheritance from their parents, eight persons, Allis, Noiya, Roido, Mendiris, Carolis, Suwaris, Mango and the added-defendant, became entitled to an undivided one-eighth share each of lot N. Noiya conveyed his one-eighth share to Carolis by deed D 5 of 1918, Mango her one-eighth share to the added-defendant by AD 1 of 1920, and Roido her one-eighth share to the second defendant by D 4 of 1920. Mendiris, Carolis and Suwaris and the added-defendant conveyed four-eighth shares to the second defendant by D 3 of 1921. The heirs of Allis conveyed their one-eighth share to Carolis by P 1 of April 7, 1926. Thus, in 1926, Carolis was entitled to two-eighth shares, the second defendant to five-eighth shares and the added-defendant to one-eighth share of lot N.

(b) Allis and Carolis were each entitled to a half share of lot O. The heirs of Allis conveyed their half share of lot O to Carolis by P 1 of 1926, who thus became entitled to the entirety of lot O.

(c) By deed P 2 of February 4, 1935, Carolis purported to convey the entirety of lots N and O to Migoris, who by P 3 of March 2, 1940, conveyed them to Cornells, who in turn conveyed them to the plaintiff by P 4 of June 15, 1940.

It is, therefore, clear that the plaintiff can claim only two-eighth shares of lot N and the entirety of lot O by virtue of deed P 4, as his predecessor in title, Carolis, was entitled to only those interests in 1926, though the deed P 3 executed by him in 1935 purported to convey the entire lots N and O.

In order to substantiate his claim to the entirety of lot N, the plaintiff must prove that he acquired a prescriptive title against his co-owners, the second defendant and the added-defendant. The plaintiff relies, for this purpose, on a usufructuary mortgage bond P 6 of July 12, 1926, executed by Carolis in favour of one Sanchina in respect of the lots N and O and the oral evidence given by himself and the two witnesses, Sanchina and Davith Perera. Sanchina stated that lots N and O were cultivated for her by Migoris up to 1935, when the bond was discharged. Davith Perera corroborated Sanchina and added that from 1935 up to the date of the action neither Carolis nor the second defendant cultivated the field. The plaintiff, too, gave similar evidence. No explanation has however, been given for the failure of the plaintiff to call Migoris to prove

the possession from 1935 to 1940. On the other hand, Carolis, who was called as a witness by the defence, stated that the field was not cultivated by Migoris from 1935 to 1940. He explained that he mortgaged the whole of lot N as the second defendant, his son, was