prescription- adverse possesion
Sri Lanka Law Reports
1994 - Volume 3 , Page No - 245
GUNASEKERA v. TISSERA AND OTHERS
SUPREME COURT
Plaintiff filed this action to partition
Batadombagahawatta shown in totality as an extent of 12A-1 R-37.4P in plan
No.1053 dated 5.8.52 made for an amicable partition. At the preliminary survey
a corpus of 13A-OR-24.7P was superimposed on it, Lots 5B, 5C, 5D and 66 of a
total extent of GA-3R-21 P fell outside the corpus shown in plan No. 1053.
By right of purchase from five out of
eight of the surviving heirs of the original owner, one H. P. Ratnayake and
George Wijewardene acquired title to 5/8 shares of the entire corpus. Of the
balance the plaintiff purchased 232/960 shares, 4/960 shares devolved on the
1st defendant and 124/960 shares on the 2nd defendant. To the heirs of
Ratnayake (4th defendant) the plaintiff conceded 5/16 shares and to the heirs
of Wijewardene (3rd defendant) another 5/16 shares.
However acting on the footing that
Ratnayake and Wijewardene had become entitled to the whole land, the 4th
defendant and her mother as heirs of Ratnayake and the heirs of Wijewardene
purporting to make an amicable partition caused Plan No. 1053 of 5.8.1952 to be
made and on the basis of this plan Lot 4 in extent 6A-OR-16.7P was possessed by
the 3rd defendant and her heirs and Lot 5 was possessed by the 4th defendant
and her mother who by deed No. 3853 dated 20.8.52 conveyed her interests also
to the 4th defendant. By lease bond No. 1427 dated 29.10.53 the 4th defendant
leased a portion of land 100 feet by 100 feet out of lot 5 to the plaintiff.
The plaintiff 4th defendant claimed that the lots 5B, 5C, 5D and 6B contiguous
on the north to lot 5 were part of a district land called Kendagahalanda which
until the mid 1950's belonged to her husband on a different chain of title.
Plan 1053 had been prepared to support an application made by 4th defendant's
husband to the Rubber Control Department to plant an extent of 25 acres
comprising Kendagahalanda (19A-1R-32.75P) to the north of lot 5. Rubber was in
fact planted on Kendagahalanda and the greater part of lot 5
Held:
(2) The causes of the 3rd defendant and
4th defendant had to be considered separately. The deeds of the 3rd defendant
referred to undivided interests in the whole land, while the deed by which'
Ratnayake's widow conveyed her interests to the 4th defendant referred to
interests in a divided lot.
(3) The amicable partition on Plan 1053
with the amalgamation of lot 5 with Kendagahalanda in 1951, significant
improvement of lot 5 by planting the entirety of lot 5 (except the paddy
portion and a narrow slip adjoining the main road) and the 4th defendant's
dealing with lot 5 as a distinct entity along with the continuous exclusive,
undisturbed, adverse and uninterrupted possession by herself and her
predecessors in title prove her claim to have prescribed to lot 5.
(4) The partition should be confined to
lots 3, 4 and 7 as shown in the preliminary plan but 4th defendant will not be
entitled to any shares.
(5)
The interests of Tudor, one of the three children of the 3rd defendant, will
remain unallotted if the 3rd defendant, on being given an opportunity, fails to
prove that these rights passed to her.
25 decisions have been referred to in this judgment either as binding or persuasive authorities
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