PRESCRIPTION-LICENSEE-LENTH OF POSSESSION IS OF NO RELEVANCE
PRESCRIPTION-LICENSEE-LENTH OF POSSESSION IS OF NO RELEVANCE
When someone enters a land in a particular
capacity, he continues in possession in the same capacity, and his possession changes not or
can be put an end to by secret intention unless nothing short of ouster or
equivalent is proved. If the evidence relating to prescription is slender, the length of one’s
possession is of no use to decide a prescription. relationship of the parties
sometimes would be of immense importance to resolve disputes touching upon claims for the
prescriptive title.
A synopsis of the Judgment written by the BLOGGER
In
summary, the case involved a plaintiff seeking to partition a specific property
(lot h) among co-owners, including the 22nd defendant who claimed ownership of
the entire land based on a deed of gift. The trial judge ruled against the 22nd
defendant's claim, stating there was no evidence of adverse possession or valid
prescriptive title. The 22nd defendant appealed, arguing that his long-standing
possession and improvements on the land supported his claim. However, it was
established that the donor of the land did not have legal ownership at the time
of the gift, and there was no evidence of prescriptive title before the gift
was made. The deed of gift also lacked clarity regarding the donor's title. The
court concluded that silent possession without ousting the true owner does not
constitute adverse possession and that a licensee's long-standing possession
does not grant prescriptive rights.
A. W. A. SALAM, J.
The plaintiff filed an action for
partition of lot h depicted in the preliminary plan no 681 the identity of
which was undisputed. in terms of the plant, undivided rights from and out
of the corpus were to be distributed among the plaintiff and 1st to 21st defendants. There was no
contest regarding the devolution of title either.
The 22nd defendant was admittedly
not a co-owner of the corpus but made a party to the action, based on the
purported assertion of title to the whole land on a deed of gift-bearing no 498
dated 12 October 1962 produced as 22d2.
The
pivotal question as to whether the 22nd defendant had acquired a valid
prescriptive title to the entire land was answered by the trial judge in the
negative and consequently, an interlocutory decree was entered for partition of
the corpus among the co-owners who were declared entitled to undivided rights.
the parties who were thus declared entitled as co-owners were the plaintiff and
1st to 21st defendants. aggrieved by the interlocutory decree the 22nddefendant
has preferred the present appeal.
The 22nd defendant relied on deed
of gift no 498 dated 12 october 1962 produced as 22d2 and his long and
continued possession of the subject matter in proof of his prescriptive title.
by 22d2 Percy Batugedara gifted the subject matter of the partition action to
the 22nd defendant who incidentally is his son-in-law.
In this background, the real crux
of the issue was whether the 22nddefendant had acquired a valid prescriptive
title to the subject matter of the action as asserted by him or whether he was
a mere licensee of the plaintiff’s predecessors in title as stressed by the
plaintiff and 1st to 21st defendants. it was the position of the plaintiff that
the 22nd defendant was the speaker of the national state assembly at or around
the time he entered into possession of the corpus and he was a close relative
of the plaintiff. despite the 22nddefendant was in long and continued
possession, as is accepted by the district judge there was no semblance of any
adverse possession.
conversely,
the 22nd defendant urged that the following improvements effected by him on the
subject matter ought to have been considered by the learned trial judge as
improvements strengthening his prescriptive claim. some of the improvements
effected by him are as follows…
1. construction
of a retaining wall around the corpus.
2. filling
the corpus with earth.
3. construction
of a boundary wall with an iron gate.
4. landscaping
the corpus with two ponds.
5. construction
of a permanent building on the corpus consisting of an office room, two other
rooms and a kitchen.
it is
common ground that Percy Batugedara had no paper title to lot “h” when he
purportedly gifted it to the 22nd defendant on 22d2. as a matter of fact, Percy
Batugedara had executed the deed of gift in favour of the 22nd defendant on 12 October
1962, barely three years after the demise of don David. it is to be observed
that no evidence whatsoever was adduced by the 22nd defendant to establish the
prescriptive title of Percy Batugedara prior to the execution of 22d2. hence,
it is quite appetent that Percy Batugedara could not have prescribed to the
corpus as at the date of 22d2, although the 22nd defendant had incorrectly
stated in his evidence that Percy Batugedara had prescribed to the subject
matter against don David.
As far as the deed of gift
(22d2) is concerned, a glaring infirmity appears to be the imprecise nature of
the deed which lacks in clarity. in that deed the donor has deliberately omitted
to recite his title and/or suppressed the mode of acquisition of title. if Percy
Batugedara had acquired ownership to the subject matter by reason of his long
and prescriptive possession, admittedly there was nothing that prevented him
from reciting the title as such.
Percy Batugedara
was no stranger to transactions relating to alienation of immovable properties.
the 22nd defendant as at the date of execution of 22d2 was a lawyer. both of
them were aware of the death of don David three years prior to the execution of
22d2. in this background, it remains a complete mystery as to what made the
donor to choose not to make any reference to the prescriptive possession as the
mode of acquisition of his title or for the failure of the done to insist on the
disclosure of the donor’s title. it is trite law that silent possession without
any act of ouster cannot be construed as adverse possession. in the case of a
licensee mere possession however much exclusive or long-continued it may be, if
silent, no prescriptive benefit would accrue to him.
As has been submitted by the
learned president’s counsel several important principles touching upon the law
of prescription have been succinctly laid down in the celebrated judgment in Corea
vs Iseris Appuhamy 15 NLR 65. it is thus laid down where a person enters into
possession of land in one capacity, he is presumed to continue in possession in
that same capacity. the head note of that judgment which applies to licensees
with necessary changes reads as follows….
“a co-owner's
possession is in law the possession of his co-owners. it is not possible for
him 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”.
An the case of Tillakaratne
vs Bastian 21 NEW LAW REPORT 12 it was held interalia that where possession of
immovable property originally is not adverse, and in the event of a claim that
it had later become adverse, the onus is on him who asserts adverse possession
to prove it. then proof should be offered not only of an intention on his part
to possess adversely, but a manifestation of that intention to the true owner
against whom he sets up his possession.
Quite remarkably, overwhelming
evidence had been led in the original court pointing to the 22nd defendant’s
possession as being one of leave and licence under don David which
was later continued with the permission of the administrator of his
estate. the evidence relating to the leave and licence granted to them has been
accepted by the learned district judge after careful scrutiny. when the legal
principle set out above is applied to the proved facts in this case, i do not
think it can be gainsaid that the possession of Percy Batugedara and his son-in
law is essentially referable to the lawful right to possess the subject matter
granted by the owner of the subject matter and his agent. by reason of their
having commenced possession of the land in question in this manner, it is
incumbent to presume that they continued to possess the property in the same
capacity. as has been submitted by the learned president’s counsel, the
possession of the 22nd defendant and his father-in-law should necessarily be
presumed to have continued as licensees or permissive users until they
distinctly prove that their title changed.
As the 22nd defendant had
entered the property as a licensee, the onus of proving that his possession has
become adverse is fairly and squarely on him and he is expected to establish
this by adducing cogent evidence of ouster. upon a careful analysis of the
evidence led at the trial including that of the 22nd defendant, i find it
difficult to endorse the view of the 22nd defendant that the learned trial
judge had erred in coming to the conclusion that the 22nd defendant had not
established his prescriptive claim.
Basically, the plaintiff's case was
that the two original owners of the corpus had transferred their rights by p2
to don David in the year 1950. don David and Percy Batugedara were first
cousins and the latter had purchased lot "i" which is the land
immediately adjacent to the corpus on the western boundary almost at the same
time when don David purchased rights in the corpus.
The main witness who
testified on behalf of the plaintiff at the trial was one don Neville Wijesinghe.
the relationship of witness Wijesinghe is worthy of attention. he is the nephew
of don David and to be more precise the son of charlotte Helena Wijesinghe who
is a sister of don David. one of the subscribing witnesses to p2 was Percy Batugedara
who had been asked to look after the property and pay taxes.
Don David had passed away in
1959 and the administrator of his estate was Neville Wijesinghe. no claim has
been made by Percy Batugedara to the corpus during the pendency of the
testamentary case in which the estate of don David had been administered. the
learned trial judge has considered the failure on the part of the 22nddefendant
and Percy Batugedara make such a claim as unfavourable to the prescriptive
claim the former sought to set up in this case.
The 22nd defendant contended
that to obtain title by prescription the possession of the 22nd defendant must
be taken as possession of the owner and not as possession under the owner, such
as tenant or licensee or some other subordinate capacity. he claims that the
22nd defendant commenced his possession with deed of gift no 498 dated 22nd of October
1962 in his favour and that he entered into possession as the owner. as his
deed is duly registered, the learned counsel has urged that such registration
is notice to the whole world as to his ownership.
In Corea v. Iseris (1911) 15
New Law
Report 65], the
privy council stated the law with regard to prescription among co-owners in the
following terms and the statement of law is equally applicable to a licensee as
well. the relevant passage from the judgment reads as follows...
“His
possession was in law the possession of his co-owners. it was not possible
for him 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."
Even though 22d2 had been
registered at the land registry it cannot be taken as the donor or donee having
made their intention known to the owner. the authorities clearly state that
deeds executed secretively and unknown to the owner cannot be considered as a
starting point in prescription.
As regards the first
argument that the 22nd defendant had entered the subject matter as the owner,
it must be emphasized that he has entered the land as the successor in title of
Percy Batugedara. as such he cannot have or expected to have a better title
than what his predecessor held. Percy Batugedara was the first cousin of David.
the relationship between both of them was so close that both of them have
purchased the two adjacent lots at one and the same time. further, Batugedara
has been requested to take the produce, look after the land and pay the taxes.
the learned district judge has accepted this evidence as being quite probable.
the evidence of Neville Wijesinghe had sounded very convincing to the learned
district judge. having perused evidence of Neville Wijesinghe, i am not
inclined to take a different view with regard to the credibility attached to
the evidence of Wijesinghe, for the reason that the learned district judge has
heard the witness testifying from the witness box and observed his demeanour
while giving evidence.
If Percy Batugedara was a
mere licensee his deed in favour of the 22nd defendant could only place the
latter in the same capacity as Batugedara was in relation to the land. the mere
registration of the deed in the proper folio cannot be taken as evidence to
strengthen his alleged prescriptive possession.
The learned
trial judge has accepted the evidence adduced on behalf of the plaintiff that Percy
Batugedara sought permission of Neville Wijesinghe, the plaintiff’s brother, in
the presence of the 22nddefendant, to put up a temporary garage on the subject
matter of the action. in my view the appellant has not been able to impress
upon this court that the finding of the learned district judge on that account
is incorrect and/or had ended up in a miscarriage of justice.
In deciding
the issue relating to the leave and licence granted to the 22nd defendant, the
learned district judge has taken into account the position held by the 22nd
defendant, as the speaker of the national state assembly and the fact that he
was not only close but an influential and trusted relative of the plaintiff.
this approach of the learned district judge cannot be faulted when she finally
decided the issue relating to prescription.
The 22nd
defendant had sought the permission of Neville Wijesinghe to dump debris from a
building that stood on the adjacent lot “i”. the 22nd defendant had also sought
permission to build a boundary wall along the land in suite for purpose of his
own security at a time when his personal security was an issue. according to
the evidence as accepted by the learned district judge, Neville Wijesinghe had
no reason to doubt the bonfires 22nddefendant when he sought permission to
build the parapet wall around the corpus, as he was the speaker of the national
state assembly at the time. as regards the several occasions on which
permission of neville Wijesinghe had been sought by the 22nddefendant and/or Batugedara
and the consequences have been sufficiently dealt by the learned district
judge.
Undoubtedly
the evidence to establish prescription was slender, despite the length of
possession. the facts that Batugedara was a close relative of don David and
that he was a signatory to p2, render it rather improbable to make his
possession adverse in the strict sense of the law, particularly while
proceedings to administer the estate of don David were yet pending. although
the 22nddefendant has had possession of the corpus for an uninterrupted period
of more than 10 years, such possession when examined in the light of the
circumstances peculiar to this case, cannot be considered as adverse
possession. Moreover, the learned trial judge does not appear to have in any
way misdirected herself, or applied the wrong standard or test in order to
decide whether the ingredients to constitute adverse possession had been
proved. in the absence of any error in law, which in my opinion, the
22nddefendant has failed to demonstrate, the trial judge’s finding on the
disputed issue in no way disturbing or shocks the sense of right and wrong.
For the
foregoing reasons, i am of the opinion that the 22nddefendant is unable succeed
on the issue of prescriptive title and hence his appeal merits no favourable
consideration. as such, i am compelled to affirm the interlocutory decree
entered in the district court and accordingly dismiss the appeal. the appellant
is entitled to recover the costs of this appeal from the substituted 22nd
defendant-appellant.
judge of
the court of appeal
End of the Judgment
C.A.
Appeal No.1175/99(f)
D.C. Mt.
Lavinia Case No. 2197/P
1. Hettitantrige
Dona Pathmawathie Mallika Abeygunawardena,
No.178/1, Hill Street, Dehiwala.
2. Hettitantrige
Dona Sumanawathie
Dharmatilleke,
No.40/3, Attidiya Road, Ratmalana
3. Hettitantrige
Dona Suwineetha Mayurawathie Kapugeekiyana
No.96, Bangalawatte, Pannipitiya
4. Hettitantrige
Don Jayantha Sri Ananda Perera,
5. Sujatha
Perera
6. Hettitantrige
Don Sumedha Perera
7. Hettitantrige
Dona Hashanthi Perera
8. Hettitantrige
Dona Krishanthi Perera
All Of No. 40/3, Attidiya Road,
Ratmalana
9. Ruby
Rosalin Perera
10. Hettitantrige
Kapila Haritha Perera
11. Hettitantrige
Dona Uditha Manjalie Perera.
12. Hettitantrige
Dona Deepthi Nandika Perera.
13. Hettitantrige
Don Ajith Nandana Perera.
14. Hettitantrige
Dona Uroma Bandumathie Perera.
All Of No.130, Hill Street,
Dehiwala
15. Haputantrige
Don Ananda Mangala Meewanaplana
No.21, Huludagoda Road, Mount Lavinia
16. Haputantrige
Dona Indrani Chinta Devendra Meewanapalana
No.21, Huludagoda Road, Mount Lavinia
17. Haputantrige
Don Ashoka Chandrawansa Meewanapalana
No.21, Huludagoda Road, Mount Lavinia
18. Haputantrige
Dona Manel Ranjanie Wijesiriwardena.
No.21, Huludagoda Road, Mount Lavinia
19. Haputantrige
Dona Shivanthimala Meewanapalana.
No.21, Huludagoda Road, Mount Lavinia
20. Don
Neville Wijesinghe
No.178, Udupila, Delgoda
21. Don
Bernard Wijesinghe (Deceased)
No.587/1d, Thambigewatte,
Madiwela Road, Thalawatugoda
21a. Lalith
Candrasiri Wijesinghe
No. 567/1d Thambigewatte, Madiwela
Road, Thalawatugoda
22. Wanniarachchige
Don Stanley Tiliekeratne
‘Sri Nagar’ , Mirihana, Nugegoda.
Defendants
And
Kandanarachchige Chandra Malani
Gunaratne Batugedara,
Jubilimawatha, Mirihana, Nugegoda.
Substituted 22nd Defendant-Appellant
Vs.
Don Lincoln Lionel Wijesinghe (Deceased)
No.179,
Hill Street, Dehiwala.
Plaintiff-Respondent
1. Hettitantrige
Dona Pathmawathie Mallika Abeygunawardena,
No.178/1, Hill Street, Dehiwala.
2. Hettitantrige
Dona Sumanawathie
Dharmatilleke,
No.40/3, Attidiya Road, Dehiwala
3. Hettitantrige
Dona Suwineetha Mayurawathie Kapugeekiyana
No.96, Bangalawatte, Pannipitiya
4. Hettitantrige
Don Jayantha Sri Ananda Perera,
5. Sujatha
Perera
6. Hettitantrige
Don Sumedha Perera
7. Hettitantrige
Dona Hashanthi Perera
8. Hettitantrige
Dona Krishanthi Perera
All Of No. 40/3, Attidiya Road,
Ratmalana
9. Ruby
Rosalin Perera
10. Hettitantrige
Kapila Haritha Perera
11. Hettitantrige
Dona Uditha Manjalie Perera.
12. Hettitantrige
Dona Deepthi Nandika Perera.
13. Hettitantrige
Don Ajith Nandana Perera.
14. Hettitantrige
Dona Uroma Bandumathie Perera.
All Of No.130, Hill Street,
Dehiwala
15. Haputantrige
Don Ananda Mangala Meewanapalana
No.21, Huludagoda Road, Mount Lavinia
16. Haputantrige
Dona Indrani Chinta Devendra Meewanapalana
No.21, Huludagoda Road, Mount Lavinia
17. Haputantrige
Don Ashoka Chandrawansa Meewanapalana
No.21, Huludagoda Road, Mount Lavinia
18. Haputantrige
Dona Manel Ranjanie Wijesiriwardena.
No.21, Huludagoda Road, Mount Lavinia
19. Haputantrige
Dona Shivanthimala Meewanapalana.
No.21, Huludagoda Road, Mount Lavinia
20. Don
Neville Wijesinghe
No.178, Udupila, Delgoda
21a. Lalith
Candrasiri Wijesinghe
No. 567/1d Thambigewatte, Madiwela
Road, Thalawatugoda
Defendant-Respondents
Before A.
W. A. Salam, J.
Counsel Dr.
Sunil Cooray For The Substituted
22nd
Defendant-Appellant
Gamini Marapana P.C. With Navin Marapana For
The Plaintiff-Respondent
Argued
On 29.11.2010,
21.02.2011, And 01.04.2011
Decided
On : 22.08.2011
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