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FERNANDO et al. v. PODI NONA et al.
NLR56V491
1955 Present : Gratiaen J. and
Gunasekara J.
R. S. FERNANDO et al., Appellants, and K. PODI NONA et al.,
Respondents
S. C. (Inty.) 124-D. C. Colombo, 5,140/P
Co-owners-Prescription-Adverse
possession-Distinction between possession by a-co-owner and possession by a
stranger.
Where a stranger enters into possession of a divided allotment of land claiming
to be sole owner, although his vendor in fact had Regal title only to a share,
Corea v. Appuhamy (1911) 15 N.L.R. 65 has no application unless his occupation
of the whole was reasonably capable of being understood by the other co-owners
as consistent with an acknowledgment of their title.
C, who was entitled to only an undivided 1/10 share of a land, entered into a
notarial agreement with a stranger, M. By this agreement, 0, purporting to be
Bole owner, employed M to cultivate the entire land as planter for a period of
six years expiring on August 21, 1877, after which C undertook to separate a
half of the land and the new plantations and to grant the same (i.e., the soil
as well as the plantations) to M. M carried out his part of the agreement, but C
did not apparently execute a formal conveyance of any part of the common land to
M in implementation of his contractual obligation. Nevertheless, the land was in
fact divided up into two allotments, Nos. 1 and 2, and lot 2 and the plantations
standing on it were openly and exclusively occupied ut dominus by M and his
hairs after the expiry of the six-year period.
Held, that M and his heirs acquired prescriptive title to the
entirety of lot 2, although its area far exceeded the extent which C had legal
title to convey to a stranger.
APPEAL
from an order of the District Court,
Colombo.
F. R. Dias, with H. L. de Silva, for the 30th, 31st and 32nd
defendants appellants.
H. W. Jayewardene, Q .C., with D. R. P. Goonetilleke, for the
plaintiffs respondents.
Cur. adv. vult.
May 19, 1955. GRATIAEN J.-
The plaintiff in this case was granted an interlocutory decree for the partition
of two contiguous allotments of land marked A and B in the plan No. 4148 filed
of record. The surveyor reported that Lot B was in the possession of the 8th
defendant and of the appellants who were accordingly added as parties to the
action. They claimed no interests in lot A, but asked that Lot B should be
excluded from the partition for reasons which I shall later explain.
Lots A and B had originally formed part of a single land, a little over three
acres in extent, belonging to two brothers named Nandochchi and Samichchi in
equal shares. In due course Nandochchi's share passed by inheritance to his five
children one of whom was named Cornis.
On 22nd August, 1871, Cornis, who in fact had legal title to only an undivided
1/10 share, entered into a notarial agreement 30D1 with a stranger called
Maththa. By this agreement, Cornis, purporting to be sole owner, employed
Maththa to plant the entire land (described as " sufficient to plant 150 coconut
trees ") in coconuts and other crops.
Maththa was to cultivate the
property as planter for a period of 6 years expiring on 21st August, 1877, after
which Cornis undertook " to separate a half of the land and the new plantations
and to grant the same (i.e., the soil as well as the plantations) to Maththa ".
Maththa carried out his part of the agreement, but Cornis does not appear, in
implementation of his contractual obligation, to have executed a formal
conveyance of any part of the common land to Maththa. Nevertheless, the land was
in fact divided up into two allotments and lot B (or at least a substantial part
of it) and the plantations standing on it were exclusively occupied by Maththa
after the expiry of the 6 year period referred to in 30D1. The learned Judge was
also satisfied that Maththa, and members of his family after him, " built on
this portion and raised other plantations on it " Nor did Cornis or his
co
