Appu Naide V. Heen Menika Et Al.,

1948  Present: Basnayake and Gratiaen JJ.

APPU NAIDE, Appellant, and HEEN MENIKA et al., Respondents

S. C. 53-D. C. Badulla, 8,142

Kandyan law-Daughters married in deega-No re-acquisition of binna rights- Lands possessed in common by daughters also-Acquiescence.

Where a Kandyan permits his sisters, in spite of their marriage in deega. to possess their share of the land for a long period of time, he has acquiesced in their right and cannot be permitted to deny it.

APPEAL from a judgment of the District Judge, Badulla.

 Cyril E. S. Perera, for plaintiff appellant.

N. Kumarasingham., for defendants respondents.

Cur. adv. vult.

September 13, 1948. BASNAYAKE J.-

This is an action instituted by the plaintiff-appellant (hereinafter referred to as the plaintiff), one D. M. Appu Naide, against the defendant-respondents (hereinafter referred to as the defendants), Samarakoon Mudiyanselage Heen Menika and Samarakoon Mudiyanselage Hudu Menika, two sisters who were married in deega. The plaintiff asks that he be declared entitiled 2/3rds of a field called Udaarawa of three pelas paddy sowing extent that the defendants be ejected therefrom, and for damages. The plaintiff claims title to the land on deed No. 725 of September 9, 1943 (P 3), by which he purchased a 2/3 share of the land in dispute and the entirety of another land called Willarawatta from the brother of the defendants, one Samarakoon Mudiyanselage Kiri Banda.

The defendants deny plaintiff's title and state that on the death of their father, the original owner of the land, they and their brother, the plaintiff's vendor, in pursuance of an arrangement among themselves, possessed and enjoyed their father's lands in equal shares. The defendants also claim to be entitled to the subject-matter of the action by virtue of prescriptive possession.

'The case went to trial on the following issues : -

(1) Was Kiri Banda, son of Appuhamy, the sole owner of the land
described in the plaint ?

(2) Did denfendants 1 and 2 go out in deega and forfeit their right ?

(3) Prescriptive rights of parties.

(4) Damages.

(5) On the death of Appuhamy, did defendants and their brother Kiri Banda, in pursuance of a family arrangement, divide the paternal properties amicably in the proportion of one third share to each. ?

The learned District Judge held that, although the defendants were married in deega, their brother was not the sole owner of the land ; that the defendants did not forfeit their rights as they re-acquired them. On the question of prescription, he held that the plaintiff had not acquired a prescriptive title and therefore was not entitled to any damages. He further held that on the death of the defendants' father the property was enjoyed in equal shares by the defendants and their brother in pursuance of an arrangement among them. The plaintiff appeals against that order of the District Judge.

It appears from the evidence that the father of the defendants died when they were children aged 4 years and 1 1/2 years respectively. The defendants married long after their father's death, but while their mother was alive. The marriage of the first defendant was registered in 1903 (P1), and that of the second in 1910 (P2). It appears from an entrain P1 that the first defendant married in 1898, though her marriage was not registered till 1903.

In support of their allegation that their brother and they possessed the paternal lands in common in equal shares, the defendants produced certain deeds. I shall refer to them in their chronological order. By deed No. 516 of January 24, 1901 (D2), the first defendant, her mother, and her brother sold a paddy field called Himbiliyagaha Kumbura to one Muthu Menika ; by deed No. 5,492 of May 8, 1932 (D3), the defendants sold two-thirds of a land called Pellagaha-arawe Paulapanguwa to two daughters of Badderala ; by deed No. 9,306 of October 23, 1932 (Dl); Kiri Banda

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