Carolisappu V. Anagihamy Et Al.,

1949 Present: Nagalingam J. and Windham J.

CAROLISAPPU, Appellant, and ANAGIHAMY et al, Respondents

S. C. 456-D. C. Tangalla, 5,617
 

 Prescription-Adverse possession-Continuity between an intestate and his Prescription Ordinance (Cap. 55), s. 3.

The period of possession of an intestate person can be tacked on to the possession of his heirs for the purpose of computing the period of ten years required to acquire prescriptive title under section 3 of the Prescription Ordinance.

APPEAL from a judgment of the District Court of Tangalla.

C. E. S. Perera, with T. B. Dissanayake, for plaintiff appellant.

G. W. Wijayaratne,.iov defendants respondents.

Cur. adv. vult.

November 30, 1949, NAGALINGAM J.-

This is an appeal from a judgment of the District Court of Tangalla dismissing the plaintiff's action for declaration of title to an allotment of land on the ground that though the plaintiff may have the documentary title to it the defendants have acquired a title by prescription to the allotment as against the plaintiff.

One A. M. A. Carolis who was the owner of the land under Crown grant P1 of 1914 hypothecated the allotment with the plaintiff who put the bond in suit and at the sale in execution one David Silva became the purchaser thereof in whose favour deed of conveyance P3 of 1935 was duly executed. David Silva died, and his widow and children conveyed the land to the plaintiff by deeds P5 of 1936 and P6 of 1941. That notwithstanding the execution sale of 1935 A. M. A. Carolis continued to possess the land up till the date of his death in 1937 is clear from the evidence. It is also equally clear that after A, M. A. Carolis's death his widow and children continued in possession up to the date of the institution of the action which was on May 23, 1947.

Learned Counsel for the appellant contends that the possession of A. M. A. Carolis between the years 1935 and 1937 cannot be tacked on to the possession of his widow and children for the purpose of computing the period of ten years required to acquire prescriptive title under the Ordinance. He amplified his argument by asserting that it had to be shown either that A. M. A. Carolis had himself possession for ten years subsequent to the date of the execution sale against him or that the widow and children had possession themselves for a complete period of ten years before advantage could be taken of section 3 of the Prescription Ordinance by the defendants, and that it was not permissible to aggregate the broken periods of possession of A. M. A. Carolis and of the wife and children which separately did not amount to over ten years in each case. Learned Counsel relied upon two judgments of this Court in support of the proposition he advanced. One is the case of Fernando v. Podisinno [1 (1926) 6 C. L. Rec. 73.] and the other an unreported judgment. [2 S.C. 90-91 D. C. Kandy, 48,783, S. C. minute 11.11.40.].

In the former of the two cases the facts were that a co-owner who had possessed in lieu of his undivided share certain divided portions of the common land and acquired a prescriptive title to the divided portions in transferring his interests conveyed not the specific allotments to which he had acquired a prescriptive title but his undivided interest in the entirety of the land. On a contest as to the right of the transferee to the specific allotments to which the vendor had acquired a title by prescription it was held that the transferee was not entitled to take advantage of the possession of his vendor but that if he relied upon prescription for his title he had to show that his possession had been for the required prescriptive period. The reason underlying the judgment is easy to see. The vendor did not convey the specific portions of his land and it cannot be said that the transferee was a person who was claiming under the vendor in so far as the specific allotments which he claimed