Sideris Et Al. V. Simon Et Al.,

1945 Present: Howard C.J. and Canekeratne J.

SIDERIS et al, Appellants, and SIMON et al., Respondents.

57-D. C. Colombo, 2,880.

Prescription-Co-owners-Long continued and undisturbed possession-Presumption of ouster-Question of fact.

In an action between co-owners the question whether a presumption of ouster may be made from long continued and undisturbed and uninterrupted possession is one of fact, which depends on the circumstances of each case.

APPEAL from a judgment of the District Judge of Colombo.

H. V. Perera, K.C. (with him S. P. Wijewickrema), for the first to fourth defendants, appellants.

N. E. Weerasooria, K.C. (with him M. D. H. Jayawardene), for the plaintiffs, respondents.

Cut. adv. vult.

June 18, 1945. HOWARD C.J.-

The first to fourth defendants appeal against a judgment of the Additional District Judge of Colombo, declaring the plaintiffs entitled to an undivided share in certain land, and ordering that the first to fourth defendants be ejected therefrom and the plaintiffs placed in possession.

The plaintiffs claimed that they and the fifth defendant were jointly entitled to the land in dispute and that the first to fourth defendants who had no manner of right or title to any portion of the said land wrongfully and unlawfully entered into a portion and cut and removed the crop which the plaintiffs had raised thereon. It was conceded that the land in dispute originally belonged to one Henchappu who had 4 sons and 3 daughters. The plaintiffs and the fifth defendant maintained that the four sons entered into exclusive possession of the land and acquired a title by prescription. The plaintiffs are the successors in title of the four sons of Henchappu whilst the second defendant is the son of one of the daughters of Henchappu and the first, third and fourth defendants are her grandchildren. The learned Judge held that the four sons of Henchappu and their successors were in exclusive possession of the land in question and acquired a prescriptive title thereto. In coming to this conclusion he thought that taking all the circumstances of the case into consideration and having regard to the documents produced and accepting the fact that the four sons of Henchappu and their successors possessed the field to the exclusion of the three daughters he was entitled to presume an ouster. It has been contended by Mr. Perera on behalf of the appellants that, inasmuch as the four sons and three daughters of Henchappu were co-owners, the learned Judge was wrong in coming to the conclusion that there had been an ouster. There have been numerous cases on the question as to the acquisition of rights by prescription against co-owners. In Thomas v. Thomas 1 it was held by Wood V.C. that possession is never considered adverse if it can be referred to a lawful title. This dictum was cited with approval in the Privy Council case of Corea v. Appuhamy 2. In that case the principle was formulated that the possession of one co-parcener could not be held as adverse to the other co-parcener and in spite of over thirty years' possession the defendant's title by prescription was not upheld. The possession of one co-owner was the possession of all the co-owners. It was not possible, for one co-owner to put an end to that possession by any secret intention in his mind. Nothing short of ouster Or something equivalent to ouster could bring about that result. The principle as laid down by the Privy Council in Corea v. Appuhamy was cited with approval in the later Privy Council cases of Brito v. Muttunayagam 3 and Cadija Umma v. S. Don Mania Appu 4. It has been followed in the local cases of Cooray v. Perera 5 Fernando v. Fernando6 and Fernando v. Fernando and others7. Doubts however, as to what was necessary to prove ouster have arisen since the judgment of Bertram C.J. in Tillekeratne v. Bastian 8 who accepted the principle formulated in Corea v. Appuhamy b

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