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SUBRAMMANIAM v. SIVARAJA et al.
NLR46V540
1945 Present: Soertsz
A.C.J. and Canekeratne J.
SUBRAMANIAM, Appellant, and SIVARAJA et al., Respondents.
32-D. C. Pont Pedro, 1,786.
Prescription-Co-tenants-Exclusive possession by one for over sixty years- No
express declaration of sole claim-Presumption of ouster.
It is not necessary, in order to prove that a tenant in common has claimed the
whole property exclusively, that it should be proved that he made an express
declaration to that effect: for it may be shown clearly by acts as well as
words. Where one enters and takes the profits exclusively and continuously for a
very long period under circumstances which indicate a denial of a right in any
other co-tenant to receive them, as by not accounting with the acquiescence of
the other co-tenants, an ouster may be presumed.
APPEAL
from a judgment of the District Judge of
Point Pedro.
H. V. Perera, K.C. (with him H. W. Thambiah), for the twentieth
defendant, appellant.
S. J. V. Chelvanayagam (with him N. Kumarasingham), for the plaintiff,
respondent.
N. Nadarajah, K.C. (with him P. Navaratnarajah), for the ninth and tenth
defendants, respondents.
A. C. Nadarajah, for the eighteenth defendant, respondent.
S. Mahadevan, for the nineteenth deferent, respondent.
Cur. adv. vult.
October 26, 1945. CANEKERATNE
J.
An action for partitioning the divided southern half-share of the land called
Veerolai in extent 9 lachams 141/2 kulies was instituted by the plaintiff on
January 22, 1943; he averred that his father, Kandiah, purchased one-eighth
share of the land in 1923 and that he died leaving six children, the plaintiff
and the first to fifth defendants: he claimed l/48th share and allotted 148th
share to the first to fifth defendants and the remaining shares to ten persons:
sixth to eighth, tenth, twelfth and fourteenth to nineteenth defendants. All
these parties live in the neighbourhood of the premises in dispute.
The plaintiff's case was that one Kanthar Kathirkamar became entitled to this
portion of land on a deed executed in 1801 and that a half-share passed to his
grandson, Arumugather, by a deed executed in 1805. These deeds being instruments
executed before February 1, 1840, ought to have been registered before February
1, 1875, according to the provisions of Ordinance No. 6 of 1866 (Chapter 102);
as they were not registered the deeds were not receivable in evidence and must
be left out of account in considering the title of the parties; this point was
not disputed at the argument. The other half-share devolved, according to
plaintiff, on Arumugather, Sitharnpara, Candar and Valliar. Candar, it is said,
made a gift of his eighth-share to his grand daughter, Sinnapillai, in 1879 and
she transferred this share to her husband, Paramu. Sithampara was said to have
gifted his share verbally to his daughter, Kalalaipeddiyar, from whom it passed
to her son, Sandrasegara; on the death of the latter it devolved on his
children, Parupathy and Sithamparapillai: in execution of a writ against the
brother and sister this one-eight share was purchased by Paramu. The one-fourth
share that Paramu was entitled to ultimately passed to the nineteenth,
defendant.
The premises were surveyed by a Commissioner appointed by the Court on March 18,
1943. According to the Surveyor's Report the extent of the land was 9 lachams 2
kulies and there were 10 houses and sheds and a number of trees on it -20
coconut trees about 80 years old 9 coconut trees. 10 to 15 years old, 7 coconut
trees about 5 years old, 21 arecanut trees about 5 to 10 years old, 5 lime
trees, a velumpili tree, 7 pomegranate trees, 5 murunkai trees, 3 of them were
about 40 years old, an elanthai tree about 20 years old, 6 margosa trees one of
which was about 40 years old, 4 other trees and a number of plantain bushes. The
land was enclosed by a live fence about 10 to 15 years old which was covered
with cadjans on three sides and on the fo
