Prescrition co-owners- pdf

Contents
PONNAMBALAM V. VAITIALINGAM CO OWNERS PARTITION ACTION CLAIM BY DEFENDANTS THAT
CORPUS AMICABLY DIVIDED AND SO POSSESSED PRESCRIPTION PRINCIPLES APPLICABLE..............4
COREA v. APPUHAMY et al.Prescription-Possession by one co-heir enures to
the benefit of the other co-heirs-Adverse possession.................................................13
TILLEKERATNE et al. v. BASTIAN et al. Prescription-Long-continued exclusive
possession by one co-owner- Presumption - Lost grant - Dedication of highway
- Ouster - Adverse possession..............................................................................................34
ABDUL MAJEED, APPELLANT, AND UMMU ZANEERA CO-OWNERS-PRESCRIPTIVE POSSESSION BY A
CO-HEIR-OUSTER-FIDEICOMMISSUM FOR FOUR NERATIONS-COMPUTATION OF PERIOD-
PRESCRIPTION AGAINST REMAINDER-MEN AND MINORS-BURDEN OF PROOF-PRESCRIPTION
ORDINANCE (CAP. 55), SS. 3, 13- EVIDENCE ORDINANCE, S. 114.....................................................60
HUSSAIMA Vs A. L. UMMU ZANEERA Respondents Co-owners-Prescriptive possession by a co-
owner-Adverse title-Burden of proof- Fideicommissum for four generations-Burden of proof
regarding termination of successive interests and of any disability-Prescription Ordinance, ss. 3,
13. .....................................................................................................................................................93
DANTON OBEYESEKERE vs ENDORIS Co-owners-Separate possession of a portion of the co-owned
land by one of the co-owners-Inference of prescriptive possession and title. ..............................103
P. K. J. NONIS vs H. D. PETHTHA Co-owners-Informal partition of a number of
lands-Exclusive possession, by one co-owner, of a specified land thereunder-
Adverse possession-Prescription Ordinance (Cap. 68), s. 3 73 New Law
Reports Page No 1 ...................................................................................................................119
U. G. JAYANERIS VS U. G. SOMAWATHIE Volume 76 New Law Reports Page No 206Partition
action-Claim to part of corpus by the contesting defendants on basis of prescriptive possession-
Possession by same person as agent of the contesting defendants and on behalf of some of the
co-owners-Adverse possession-Burden of proof............................................................................126
Y. C. PERERA vs D. L. D. C. KULARATNE Partition action-A co-owner's claim to a portion of the
corpus exclusively-Evidence led, by him that a subsidy to replant rubber on that portion was
granted to him upon an application made by him under the Rubber Replanting Subsidy
Regulations, 1953- Weight of the evidence-Trusts Ordinance, s. 92-Rubber Replanting Subsidy Act
(Cap. 437)........................................................................................................................................132
M. M. BELIN NONA, Appellant, and H. K. PETARA- Co-owners of two lands-Averment that both
lands were amalgamated and divided among the co-owners-Prescriptive possession thereafter of
the parts severally allotted-Proof. It is only rarely possible for a party successfully to maintain that
there had been an actual division of a land among co-owners and prescriptive possession
thereafter of the parts severally allotted. The difficulty of proving separate title is all the more
difficult when two lands are said to have been amalgamated and the same persons are not shown
to have owned the same shares in the two lands..........................................................................142
HAMTOU LEBBE v. GANITHA. Co-owners-Prescriptive title-Long-continued exclusive possession-
Presumption of ouster....................................................................................................................144
SIDERIS vs SIMON Prescription-Co-owners-Long continued and undisturbed possession-
Presumption of ouster-Question of fact. In an action between co-owners the question whether a
presumption of ouster may be made from long continued and undisturbed and uninterrupted
possession is one of fact, which depends on the circumstances of each case...............................157
RAJAPAKSE vs HENDRICK SINGHO Co-owners-Exclusive possession of the common property by
some of the co-owners- Effect-Ouster- Prescription. Fresh evidence-Retrial-Permissibility.........163

JAMIS PERERA AND ANOTHER v. CHARLES DIAS AND OTHERS Prescription - Prescription among co-
owners - Division and adverse possession of co-owned property. ................................................171
LEISA AND ANOTHER v. SIMON AND ANOTHER Rei Vindicatio - Prescriptive rights - Presumption
of right to possess - Difference between possession, occupation and dominium - Prescription
Ordinance, section 3 - Plaintiff claims paper title as well as by prescription - Should the plaintiff
prove prescription...........................................................................................................................175
FERNANDO v. FERNANDO New Law Reports Volume 44, Page No 65 Co-owners-Purchaser of
entire property from a Co-owner-Prescription- Ouster. ................................................................187
MARIA PERERA v. ALBERT PERERA Partition Amicable partition Ouster Prescription Sri Lanka Law
Reports 1983 - Volume 2 , Page No - 399 ..........................................................................................194
BANDARA, Vs SINNAPPU 47 NLR 249 Where a Iand Panguwa consisted of gardens, deniyas and
chenas and it was established that these deniyas were assweddumized by the various co-owners
and possessed separately by them without interference by the other co-owners for a period of
over twenty years-..........................................................................................................................203
P. P. G. SEDIRIS, vs M. S. ROSLIN In considering whether or not a presumption of ouster should be
drawn by reason of long-continued possession alone of the property owned in common, it is
relevant to consider the following, among other matters: (a) The income derived from the
property. (b) The value of the property. (c) The relationship of the co-owners and where they
reside in relation to the situation of the property. (d) Documents executed on the basis of
exclusive owner ship. ......................................................................212
ANGELA FERNANDO VS. DEVADEEPTHI FERNANDO Partition Law, No. 21 of 1977, sections 2(1) and
25(1) -If land is not commonly owned is investigation of title necessary? - Ouster - Possession
becoming adverse - Long continued possession by a co - owner? - Counter presumption of ouster.
........................................................................................................................................................233
LESLIN JAYASINGHE VS ILLANGARATNE - Sri Lanka Law Reports - 2006 - Volume 2 , Page No – 39
Partition Action-Evidence Ordinance, section 103-Burden of proof-Prescription 'Ordinance, No. 22
of 1871-section 3-Symbolic Possession-section 31, section 33,-Notaries Ordinance-t: Due
Execution?-Notaries failure to observe his duties with regard to formalities 7- Registration of
Documents Ordinance section 7-Prior Registration-Can it be raised in appeal 7- Mixed question of
law and fact 7 - Co-ownersRights7-ouster vital..............................................................................244
PUNCHI MENIKE v. APPUHAMY et at. Diga marriage of daughter-Re-acquiring binna rights-
Prescription among co-owners. A daughter married in diga can regain, even after her father's
death, binna rights during the lifetime of her husband and without any divorce from him, or re-
marriage in binna, by maintaining a close and constant connection with the mulgedara.There may
be prescription among co-heirs where there is an overt act of ouster or something equivalent to
ouster. But what might be acts of adverse possession against a stranger have, in questions arising
between co-heirs, to be regarded from the standpoint of their common ownership. New Law
Reports Volume 19, Page No 353 View - Volume 19....................................................................257
J. M. DON HANNY ALEXANDRA, vs Thomas Jayamanna Prescription-Co-owners-Family
arrangement whereby property of deceased given to one of the heirs by the others-Oyster-
Evidence of adverse possession thereafter by such heir-Acquisition of title by prescription........269
WICKREMARATNE AND ANOTHER v. ALPENIS PERERA Prescription among co-owners- Proof of
ouster-Partition action. In a partition action for a lot of land claimed by the plaintiff to be a divided
portion of a larger land, he must adduce proof that the co owner who originated the division and
such co-owner's successors had prescribed to that divided portion by adverse possession for at
least ten years from the date of ouster or something equivalent to ouster. Where such co-owner
had himself executed deeds for undivided shares of the larger land after the year of the alleged
dividing off it will militate against the plea of prescription. Possession of divided portions by
different co-owners is in no way inconsistent with common possession. .....................................280

PIYADASAAND ANOTHER VS. BABANIS AND ANOTHER Partition Law, No. 21 of 1977 - Plea of
Prescription - Co-owner prescribing to entire land?-Presumption of ouster - Essentials of a
Kandyan Marriage - Special Law in derogation of the Common Law -Can a new point be raised for
the first time in appeal?-Can there be a valid Kandyan marriage by way of habit and repute -
Kandyan Marriage and Divorce Act, Section 3 - Presumption in favour of marriage under Roman
Dutch Law - Evidence Ordinance, section 103. 2006 - Volume 2 , Page No - 17............................294

1978-79 - Volume 2 , Page No - 166
Sri Lanka Law Reports - 166 - and another - COURT OF
APPEAL.
RANASINGHE, J. AND TAMBIAH, J.
C. A. (S.C.) 237/73 (I) D. C. JAFFNA 539/p.
MARCH 27, 30, 1979.
PONNAMBALAM V. VAITIALINGAM CO OWNERS PARTITION ACTION CLAIM BY
DEFENDANTS THAT CORPUS AMICABLY DIVIDED AND SO POSSESSED
PRESCRIPTION PRINCIPLES APPLICABLE.
Held
The question whether a co owner has prescribed to a divided
lot as against the other co owners is one of fact and is to be
detonated by the circumstances of each case. The mere
reference to undivided shares in deeds executed after the
alleged date of division does not have the effect of restoring
the common ownership of a land which has been dividedly
possessed and where such divided portions have become
distinct and separate entities. The learned trial Judge had in
this case correctly found that the corpus had been divided and
separately possessed to the exclusion of the other co owners
for about 30 to 40 years prior to this action and accordingly
dismissed the action holding that at the time of its institution
the corpus was not owned in common.
Cases referred to
(1) Corea v. Iseris Appuhamy, (1911) 15 N.L.R. 65; 1 C.A.C.
30.
(2) Tillekeratne v. Bastian, (1918) 21 N.L.R. 12 (F. B.).
(3) Abdul Majeed v. Ummu Zaneera, (1959) 61 N.L.R. 361 ; 58
C.L.W. 17.
(4) Hussaima v. Ummu Zaneera, (1961) 65 N.L.R. 125, 64
C.L.W.7
(5) Danton Obeysekera v. Endiris. (1962) 66 N.L.R. 457.
(6) Simon Perera v. Jayatunga, (1967) 71 N.L.R. 338.

(2) Nonis v. Petha, (1969) 73 N.L.R. 1 ; 78 C.L.W. 33.
(3) Jayaneris v. Somawathie, (1968) 76 N.L.R. 206.
(9) Perera v. Kularatne, (1972) 76 N.L.R. 511.
(10) Belin Nona v. Petara, (1972) 77 N.L.R. 270.
(11) Hamidu Lebbe v. Ganitha, (1925) 27 N.L.R. 33; 6 C. L.
Rec. 159: 3 Times L.R. 102.
(12) Sideris v. Simon, (1945) 46 N.L.R. 273.
(13) Mensi Nona v. Neimalhamy, (1927) 10 C. L. Rec. 159.
(14) Girigoris Appuhamy v. Mary Nona, (1956) 60 N.L.R.
330.
APPEAL from the District Court, Jaffna.
C. Thiagalingam, Q.C., with V. Arulampalam, for the plaintiffs
appel¬lants.
C. Ranganathan, Q.C., with K. Sivanathan, for the 2 (a), (b)
and (c) defendants respondents.
Cur. adv. vult
RANASINGHE, J.
The plaintiffs appellants (hereinafter referred to as plaintiffs)
who are husband and wife respectively instituted this action to
have the land called and known as Ella Silum and other
parcels, 20 Ims in extent and described in the schedule to the
plaint partitioned as between the plaintiffs and the 1st to 3rd
defendants.
The contesting defendants, who are the 2a 2c, and the 3rd
defendants appellants, have taken up the position that the
corpus had been amicably divided over 60 years ago, and has
ever since the said division been dividedly possessed and that
it is now not commonly owned, and that, therefore, the
plaintiffs' action Should be dismissed.

The learned trial judge has upheld the position taken up by the
contesting defendants and has accordingly dismissed the
plaintiffs' action.
This appeal therefore raises once again the question of
prescription among co owners, a question which has come up
over and over again before our Courts and has received careful
and exhaustive consideration both by the Supreme Court and
by Their Lordships of the Privy Council.
The co ownership of a land owned in common could be
terminated broadly in one of two ways either through Court or
out of Court. Common ownership could be brought to an end
by an action instituted in Court for a partition in terms of the
provisions of the Partition Act. The best evidence of such a
termination would be the Final Decree entered by Court.
Termination of common ownership without the intervention of
court could be in one of two ways either with the express
consent and the willing participation of all the co owners, or
without such common consent. An amicable division with the
common consent of all the co owners can take one of two
forms: a division given effect to by the execution of a deed of
partition or of cross conveyances which said notarial
documents would then be the best evidence of such a
termination or an internal division and the entry into separate
possession of the divided allotments by the respective co
owners to whom such lots were allotted at such division. In the
case of a partition by court and an amicable division by the
execution of the necessary deeds, the common ownership ends
forthwith. In the case, however, of an internal divisions
effected by the co-owners with the express common consent of
them all, the common ownership does not in law come to an
end immediately. In such a case common ownership would, in
law, end only upon the effluxion of a period of at least ten
years of undisturbed and interrupted separate possession of
such divided portions. Proof of such termination will depend on
evidence, direct and or circumstantial, and is a question of fact.
The termination of common ownership without the express
consent of all the co-owners could take place where one or
more parties either a complete stranger or even one who is in

the pedigree¬ claim that they have prescribed to either the
entirety or a specific portion of the common land. Such a
termination could take place only on the basis of unbroken and
uninterrupted adverse possession by such claimant or
claimants for at least a
period of ten years. Here too proof of such termination would
be a question of fact depending on evidence, direct and or
circumstantial.
I shall, before I proceed to deal with the facts and
circumstances of the case, set down the relevant principles of
law which are applicable to a case such as this.
Any discussion of the principles relating to prescription among
co owners must necessarily commence with the judgment of
Their Lordships of the Privy Council, delivered in 1911 in the
case of Corea v. Iseris Appuhamy (1)where it was clearly and
authoritatively laid down: that a co owner's possession is in law
the possession of other co owners : that every co owner is
pre¬sumed to be possessing in such capacity : that it is not
possible for such a co owner to put an end to such possession
by a secret intention in his mind: that nothing short of ouster
or something equivalent to ouster could bring about that result,
Thereafter in the year 1918, in the case of Tillekeratne v.
Bastian (2) a Full Bench of the Supreme Court was called upon
to apply the principles laid down in Corea v. Iseris Appuhamy
(supra) and con¬sider, inter alia, the meaning of the English
law principle of a "presumption of ouster ", and it was held:
that it is open to the Court, from lapse of time in conjunction
with the circumstances of the case, to presume that a
possession originally that of a co¬-owner has since become
adverse : that it is a question of fact, whenever long continued
exclusive possession by one co owner is proved to have
existed, whether it is not just and reasonable in all the
circumstances of the case that the parties should be treated as
though it had been proved that that separate and ex¬clusive
possession had become adverse at some date more than ten
years before the institution of the action. Thereafter the,
question has been considered over and over again by the
Supreme Court, and in the year 1959, in the case of Abdul
Majeed v. Umma Zaneera (3) in a very lucid and exhaustive

discussion of the principles relating to prescription among co
owners and the presumption of ouster, which had been laid
down up to that point of time by both the Privy Council and the
Supreme Court con¬cluded : that the inference of ouster could
only be drawn in favour of a co owner upon proof of
circumstances additional to mere long possession : that proof
of such additional circumstances has been regarded in our
Courts as a sine qua non where a co-owner sought to invoke
the presumption of ouster. This case thereafter went up in
appeal to the Privy Council, and the Judg¬ment of the Privy
Councli is reported (4). Although their
Lordships regretted having to advise Her Majesty to dismiss the
appeal, Their Lordships were nevertheless content to accept
the relevant principles of law, as expounded by the Supreme
Court.
I shall now refer to the judgments reported after the judgment
(4) referred to above which have dealt with the question.
In the case of Danton Obeysekera v. Endiris (5), Sansoni, J.
held that where an outsider bought a 2/3 share, about two
roods in extent of a co owned property, from two co owners
and sepa¬rated off such portion, not as a temporary
arrangement for conveniences of possession, but more likely as
a permanent mode of possession, and possessed it for over
twenty years, the lot so separated off ceased, with the lapse of
time and exclusive pos-session, to be held in common with the
rest of the land, and that those who so possessed it were
entitled to claim that they have prescribed to it. This decision
does not, in my opinion, in any way offend against the principle
referred to by (H. N. G.) Fernando, J. The additional
circumstance that was required was supplied by the 1st
defendant's prosecution of the 2nd defen¬dant for destroying
the barbed wire fence which had, been erected to separate off
the portion which was then being sepa¬rately possessed by the
1st defendant.
The subsequent Judgments of Siva Supramaniam, J. in Simon
Perera v. Jayatunga (6) at p. 431 of the Privy Council in the
case of Nonis v. Peththa (7), of Weeramantry, J. in Jayaneris v.
Somawathie (8), of Pathirana, J. in Perera v. Kularatne,(9),
and of H. N. G. Fernando, C.J. in Belin Nona v. Petara (10),

which have also dealt with the question of prescription among
co owners, have not expressed any views which in any way,
tend to deviate from the principles made explicit in the
judgments of the Supreme Court in the case of Abdul Majeed v.
Ummu Zaneera (supra) and approved by the Privy Council.
It has also been laid down that the question whether a co-
owner has prescribed to a particular divided lot as against the
other co owner is one of fact and has to be determined by the
circumstances of each case (2). (11.), (12), (3), (5), (6) at p.
343. It is also now settled law that the mere reference to
undivided shares in deeds executed after the alleged date of
division does not have the effect of restoring the common
owner¬ship of a land which has been dividedly possessed and
where such divided Portions have become distinct and separate
entities (13), (14) at p. 332; (6) at 343.
The principles applicable are, therefore, quite clear and
unambiguous and have been authoritatively laid down ; but, as
it very often happens, the real difficulty arises only in their
application to the facts and circumstances which are
established in a particular case.
I shall now proceed to consider whether, having regard to the
principles set out above, the learned trial judge's finding that
the corpus sought to be partitioned had been amicably divided
and, had been dividedly possessed for a long period of time
prior to the commencement of the proceedings and that the
corpus had, therefore ceased to be owned in common at the
time the plaintiff instituted this action.
As already stated, the position of the contesting defendants in
this case is that the amicable division had taken place about 60
years ago. No witness is available to them to give direct
evidence with regard to the said division which the contesting
defendants claim had taken place. They, therefore, rely on
circumstantial evidence to establish their claim.
The learned trial judge hag found that the parties, who are said
to be entitled to interests in the corpus, have in fact been
separately possessing the several lots depicted in the Plan X :
that the said parties have so possessed the several lots
dividedly to the exclusion of the other co owners ; that such
exclusive possession has gone on for about 30 40 years prier to

the institu¬tion of this action ; that the fences separating the
various lots are very old live. fences; that the said fences are
boundary fences and not " screen fences ". These findings of
the learned trial judge are supported by the evidence placed
before him at the trial and there does not seem to be any good
reason to interfere with the said findings of the learned trial
judge.
It is also clear that lot, 7 on which the well stands has been
separately fenced in, and that access has been Provided to this
lot from all the other lots 2, 4, 8. 10 and 11 along well defined
path ways.
The learned trial judge has also found that, prior to the
dis¬pute raised by the plaintiff, shortly before the
commencement of these proceedings, to the construction of a
kitchen by the contesting defendants on lot 4, substantial
buildings had been put up by the contesting defendants on lot
4 without any protest from the plaintiffs. The 1st defendant has
also thereafter constructed a building on lot 4. The 1st plaintiff
who has been in possession of lot 2 stated that he himself has
built a house on lot .2, and that before that house was
constructed by him, there was on that same lot an old house in
which his grandmother and also his parents had resided.
It also transpired in evidence that the 1st defendant, who is
said to have been allotted lot 11, had removed the southern
boundary fence of lot 11 and amalgamated lot 11 in Plan X
with lot 12, which is a portion of the land lying to the south of
lot 11 and which also belongs to the 1st defendant. The learned
trial judge has stated that, when the 1st defendant carried out
such amalgamation, there had been no protest from the
plain¬tiffs and that such silence on the part of the plaintiffs
was because they, considered lot 11 to be the exclusive
property of the 1st defendant.
The deeds P2 of 1917, 1 13 and P4 both of 1935, and P5
executed only a few days before the plaintiff came in to court
in June, 1961, deal with undivided shares in the corpus. Whilst
P2 has been executed as far back as 1917 which is the year in
which the amicable division referred to by the contesting
defendants is said to have taken place, P3, which has been
executed in 1935 is in the chain of title" of those who have

been in posses¬sion of lot 11 which, as already stated, had
been separately possessed by the 1st defendant. Even though
evidence was placed on behalf of the plaintiffs that other co
owners too had ,exercised acts of possession over lot 11, such
evidence has not been accepted by the learned trial judge. The
deed P4, like P5 referred to above, figure in the Pedigree of
those who have been in possession of lot 2. The learned trial
judge has taken the view that the references to undivided
shares in these deeds do not militate against the position put
forward by the contest¬ing defendants, and that such
descriptions have been made not with reference to the actual
mode of possession but as a result of the notaries merely
following the descriptions in the earlier title deeds. Having
regard to the circumstances of this case, I do not think that the
view taken by the learned trial judge could be said to be
untenable.
The additional circumstances which, according to the principles
referred, to earlier, is required in a case of this nature has also,
in my opinion, been established in this case by the contesting
defendants. The contesting defendants produced marked 2D1 a
certified copy of a complaint made by the 1st plaintiff in this
case, on 21.2.1958, against the deceased 2nd
defendant to the
Rural Court of Chankani, in Case No. RC/C/CRM 1054, that the
said 2nd defendant has failed and neglected to fence the
southern boundary fence of the 1st plaintiff's dwelling land, in
breach of Rule 46 of the Village Committee Rules of 3.2.1928,
and the said 2nd defendant has therefore committed an offence
punishable under section 26 (1) Rural Courts Ordinance 12 of
1945. According to an entry dated 25.3.1958, appearing on the
face of the said document Dl itself, the 1st plaintiff had
thereafter informed court, that, as the said 2nd defendant had
erected the fence, he was withdrawing the case ; and that the
2nd defendant has then been discharged. According to the Plan
'X' the lot possessed by the 1st plaintiff and on which he
resides, is lot 2, and to the south of lot 2 is lot 4 which was
possessed by the said 2nd defendant. The southern boundary
of the 1st plaintiff's dwelling land would, therefore, be the
boundary between lots 2 and 4 in Plan 'X'. The 1st plaintiff, on
being questioned with regard to the said case, admitted having
filled it but denied that he described the fence in question as a

" boundary fence ". His position is that he himself called it a
"screen fence" but that the Chief Clerk, who had written out
the complaint (the original of 2Dl) had described it as a "
boundary fence " without his authority. The learned trial judge
has disbelieved the 1st plaintiff's evidence on this point. The
1st plaintiffs description of the fence which had been erected to
separate lot 2 from lot 4 in Plan X, shows that these lots have
been so separated off " not as a temporary arrange¬ment for
convenience of possession but more likely as a permanent
mode of possession ". As already stated, once the said 2nd
defendant re erected the fence in question, the 1st plaintiff had
withdrawn the case. It appears to me that the 1st plaintiff's
acts as embodied , 2D1, gives a clear indication of the nature
and the character of the possession of the various lots,
depicted in Plan 'X' by the respective co owners.
On a consideration of these facts and circumstances, I am of
opinion that the learned trial judge's finding that the corpus
was not, at the time of the institution of this action, owned in
common is correct and should be affirmed.
The appeal of the plaintiff s' appellants is accordingly dismissed
with costs.
TAMBIAH, J. I agree.
Appeal dismissed.
New Law Reports Volume 15, Page No 65
New Law Reports D.C. Chilaw, 3,934.
[PRIVY COUNCIL.]

Present: Lord MacNaghten, Lord Mersey, and Lord Robson.
COREA v. APPUHAMY et al.Prescription-Possession by
one co-heir enures to the benefit of the other co-heirs-
Adverse possession.
Possession by a co-heir ensures to the benefit of his co-heirs.
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 some thing equivalent to ouster could bring about
that result.
The whole law of limitation is now contained in Ordinance No.
22 of 1871.
THE facts of this case are fully set out in the judgment of the
learned District Judge (T. W. Roberts, Esq.): -
The plaintiff in the present action seeks a partition of the
fifteen lands mentioned in the schedule attached to his plaint
on the strength of his purchase in 1907 of two-thirds share
thereof from Balahami and her two nieces, Allina and
Nonnohami.
The plaintiff and his vendors say that they were at the date of
transfer under the impression that Balahami had married after
the Matrimonial Ordinance, and that her children had not on
their father's death become entitled to any part of Balahami's
share. It subsequently turned out, however, that Balahami's
marriage was dated before 1876, and was in community of
property. So her two children have intervened, and claimed
each one-third part of one-half of the share to which Balahami
was entitled. Their claim is admitted by the plaintiff.
In another point, too, the facts stated in the plaint are not
accurate. Therein all fifteen lands are asserted to have formed
part of the estate of one Elias, and so on his death to have
devolved in part on his sister Balahami and nieces and
nephews above mentioned. It was asserted, however, at the
trial that certain of these lands never formed part of Elias's
estate, and plaintiff thereupon disclaimed title to such of those
lands as, may appear on the title deeds to have been bought

originally in the name, not of Elias, but of first defendant,
Iseris.
The lands in question form a large and valuable estate of over
one hundred acres, mostly now in full bearing. The title deeds
thereto, on which both the contesting parties rely, convey title
to one Elias. Elias died in 1878. Since that date all the lands
have been in the occupation of the contesting defendant,
Iseris, the brother of Elias.
The plaintiff's vendors allege title by inheritance from Elias.
They say that Elias was a man from Baddegama, which is
situated in the Galle District, 120 miles distance from Chilaw;
that he migrated, and made a large fortune in Chilaw District
and died here. Their case is that Elias was one of a numerous
family, and had one brother, the first defendant. Iseris, and
three sisters, Babahami, Balahami, and Sinnatcho, Babahami,
according to the plaint, died childless. Balahami married, had
three children (the intervenients) by her first husband, and
another child, a bastard, by her second consort. She is still
alive. Sinnatcho died in Galle District, leaving two daughters,
Allina and Nonno.
The plaintiff led evidence to show that after the death of Elias
Balahami came to Chilaw District with her children and her
second consort to seek her patrimony on receipt of news that
Elias had died and left a big estate; that some years thereafter
Sinnatcho's husband and children also migrated to this district;
and that both have thereafter allowed first defendant, Iseris, as
the chief male member of their family, to manage and possess
their estate. They say that during the thirty years since their
migration the first defendant, Iseris, had up to 1907 all along
acknowledged their title as his co-heirs, and made them
continual advances of money and provisions pending final
settlement of the estate. They allege that Iseris deceived them
into the belief that he had taken out administration, and had to
pay all debts before the property could be divided among the
heirs.
To all this Iseris gives a total denial. He says that he was
partner with Elias, and that on Elias's death he took possession
of the estate as his own, and has all along possessed it as
such. He denies the allegations as to his kinship with plaintiff's

vendors, and says they are his cousins. During his de facto
possession for thirty years he has planted and leased,
mortgaged, and sold various of the lands, and generally dealt
with them as owner. He has, he says, been frequently liberal to
his cousins, and allowed Balahami to live on one of the lands in
question. But he denies that he thereby acknowledged their
title, and says that what he did was simply matter of charity.
The issues as to the pedigree and as to Iseris's alleged
partnership with Elias need not detain us long.
As to the pedigree, there is a considerable resemblance in
physiognomy between Iseris and Balahami; and two witnesses
from Baddegama, of a goodly age, have testified that the
plaintiff's account of the pedigree is the truth. Their
depositions, it is true, displayed a wonderful accuracy of
memory in regard to the names of many members of Elias's
family. Such accuracy in nomenclature could, in Sinhalese
village folk, only be the result of careful preparation. But the
drilling required to produce that exactitude may have been
their own effort. My impression, on the whole, was that these
two were honest witnesses, and their statement is confirmed
by facial resemblance above noted. I should have accepted that
evidence, even if it had stood alone. As it is, the plaintiff has
also filed a number of ola extracts of registration, which
conclusively prove the pedigree of his vendors. I accordingly
find for plaintiff on issues 4, 5, 6, and 8.
Similarly, I have no hesitation in finding for plaintiff on issue
10. The only proof that the title deeds, which stand in the
name of Elias represent purchases with partnership money,
consists in the ipse dixit of Iseris. Now, Iseris's evidence is
deeply interested, and worthless on that ground alone.
Moreover, Iseris is a convicted forger and thief. And his
deposition in the present case directly and categorically
contradicts on every possible point the evidence which he gave
in D. C. Chilaw, No. 3,855.
On the mere statement of such a witness, expert not only in
crime and incarceration, but also in perjury, I am not prepared
to find any fact proved in the absence of their corroboration
aliunde. On the contrary, I shall take steps to prosecute him for
his perjury.

There remains the crux of the case the question of prescription.
Iseris has admittedly had de facto possession for practically
thirty years, and it has to be decided whether that was
precarious possession or possession on an adverse and
independent title.
The law on this point was exhaustively discussed by the
plaintiff's proctor, but I find myself unable to agree with much
of his argument, endita as it was.
He argued, firstly-and this much, it seems to me, was clearly
sound-that no length of precarious possession, even if
unaccompanied by payment of rent or other such
acknowledgment, can found a valid prescriptive, title. Further,
non-enjoyment, for however long continued, will not by itself
destroy title to property precariously possessed by another.
To that extent it is manifest that the finding of the Privy
Council in Nagudu Marikar v. Mohamadu 1 has over-ruled the
decision reported at Vanderstraaten 44. But the plaintiff's
argument went further. Mr. C. A. Corea contended also that on
the over-ruling of the decision reported in Vanderstraaten 44
the law reverted to its condition as it stood under the more
ancient decision to be found in Morgan's Digest 21 and 273.
Now, this is clearly not the fact. While the Privy Council in
Nagudu Marikar v. Mohamadu did in fact over-rule any
previous decisions in so far as they may have held that a
precarious possession may give a prescriptive title, it over-
ruled nothing else, and nowhere has ruled that the law of
prescription is now the law laid down in the judgment in
Morgan's Digest, at page 273.
If the two decisions be examined, it will be found that they are
profoundly at variance. What was held in Nagudu Marikar v.
Mohamadu was that not even centuries of precarious
possession will found a valid prescriptive title. Whereas in the
decision reported in Morgan's Digest, it is clearly implied that
thirty years precarious possession will found and create a valid
title. The two decisions are therefore directly at variance on
that point, and it is a contradiction in terms to say that the
later re-establishes the earlier.
Again, it is now settled law that since the Ordinance of 1871
the Roman-Dutch law of prescription has been superseded

(vide l N. L. R. 200). This was a decision of the Full Court, and
there are others. There is nothing inNagudu Marikar v.
Mohamadu which over-rules this. But with this view of the law
it is impossible to reconcile the decision reported in Morgan's
Digest. The latter supports and defends the Roman-Dutch law,
the common law as it stood. Among other things, it decides
that a precarious possessor, in order to obtain a good title by
prescription, must transform the character of his possession,
not merely into an adverse possession, but into an adverse
possession based on a bona fide title. It also recognizes the
distinctions between prescription longi andlongissum temporis.
But our present law recognizes none of these distinctions.
Under the decision reported at lN. L. R. 200 and under many
others and clearly under the words of the statute, it matters
1 (1903) 7 N. L. R. 91.
not whether the prescriptive possession commences with a
bona fide title or otherwise. What is required, and all that is
required, is that there should be proof of ten years' unbroken
possession, or an adverse and independent title. It makes no
difference whether the title be just or unjust. It is necessary
only that it should be adverse and independent. To interpret
the word " title " in the statute as meaning only a Justus titulus
is unwarrantably to import in to it a meaning which is not
there. It is as if one were to agree that the abstract word "
colour " does not mean any colour but only blue, or the word "
triangle " refers only to the isosceles and not to the scalene
variety.
The law is, therefore, that one coheir, so long as he possesses
the property precariously on a derivative or dependent title
(which involves acknowledgment of the title of the other co-
heirs), cannot by such possession prescribe against his co-
heirs. It is not true that he can never, under any
circumstances, prescribe against them. If he sets up an
adverse title, and by overt acts to the knowledge of his co-
heirs defies their title and disclaims the precarious character of
his possession, and thereafter has the uninterrupted possession
on such adverse title for ten years without payment of rent or
other acknowledgment of their collateral title, he will thereby
acquire a good prescriptive title. To hold otherwise would be to

encourage the careless in his lack of care and the fool in his
folly, it would enable indolent co-parceners to rely on their own
laches and oust innocent purchasers for value of apparently
good prescriptive titles. The numbers of such purchasers are
great in Ceylon, and the view of the law which Mr. Corea
advocated would amount to a social revolution.
The burden, therefore, lay on plaintiff to prove that Iseris's
possession began or went on in a precarious or permissive
character. If he did so he would shift the burden on to Iseris,
who would have to prove how and when he converted this
dependent character of his title into one of independence.
I have come to the conclusion that plaintiff has wholly failed to
prove that Iseris's possession either began or went on in a
precarious character. He has equally failed to account for a
long series of overt acts ut dominus on Iseris's part, which
would long ago have transformed the character of his
possession from precarious to adverse, if it had ever stood in
need of such change. I have summarized above the
explanation which the plaintiff's vendors gave of the long
occupation by Iseris. When we come to consider the proof of
that story, its paucity and weakness are strikingly apparent.
Practically the only proof that Iseris possessed, not as owner
but as agent for his co-heirs, consists of the evidence of those
co-heirs. Their word deserves little credence. They are persons
neither of worth nor position. They stand to win or lose on this
litigation a large sum, in each case running into over Rs. 1,000.
With so large a stake involved, it is certain that persons of their
sort and position will depose to almost any falsehood. But I
consider at length their counsel's argument on the facts,
because the property involved is very large.
Mr. Corea appears to have recognized that his evidence on the
matter of possession was slender, and attempted by his
argument to show that the evidence for plaintiff was supported
by the balance of probability. He set out, in the first place, to
prove that Iseris had, on his brother's death, taken out
administration, and then got the record of administration
proceedings destroyed to cover up his track. Now, the record is
lost, and Iseris has, by document D 37, clearly demonstrated
that ha complained to His Excellency the Governor of its loss

and of other matter, and that on his complaint thirty years ago
a record keeper of this Court was dismissed. If Iseris had
wished to destroy it, and had got it destroyed, why should he
complain of its loss? And why should the Government of Ceylon
have on that complaint dismissed the record-keeper? These
facts are irreconcilable with the suggestion that Iseris procured
its destruction. That suggestion is evidently the merest
verbiage.
The proof of administration having been taken out by Iseris is
defective, and consists chiefly of a dubitant recollection of Mr.
Cooke's, of the general belief in and around Galmuruwa, and of
hearsay. It seems to me that the proof of that has failed, and
so I find on that issue. The argument of plaintiff's proctor was
to the following effect. Migrations of Sinhalese to distant
districts are rare, and never made without good reason. The
only reason why Balahami and her nieces could have come to
this district, he contended, was that they were seeking their
share of Elias's large estate. Having so come, they would, he
urged, be sure to demand that share and did so demand it. If
Iseris had then refused, litigation would have been, it was
argued, sure to have begun at once. Therefore, Iseris must, as
they say, have admitted their claim, and entered on and
thereafter continued his possession in the dependent title of
manager for his female relatives. Thereafter, it was natural,
and in accord with Sinhalese customs, that they should allow
him to manage as he pleased, as it was not inconsistent with
his position that he should give out the lands on planting
agreements; and leases, and mortgage them to meet
expenses. His sales were matter which they did not know or
understand to be sales of their shares. It will be seen at once
that this agreement begins with a daring petitio principii, and
continues along a road liberally paved with examples of the
fallacy of non sequitur.
In the first place, it is not true that the only reason why
Balahami and then Sinnatcho's children should have migrated
was that they came to demand share of Elias's estate. Any
number of equally natural reasons are possible and
conceivable. It may have been that Balahami found her own
village uncomfortable after her illicit relations with her second
consort. It may have been, and this was probably the case,

that they migrated in the simple hope of charity or
employment. With kinsfolk at the end of the journey, such
migrations are not in the least uncommon, because the people
of Ceylon invariably show the most admirable liberty to any of
their kinsfolk, at least any with whom they have not quarrelled.
The assertion that the object of their migration must have been
to demand a share of their dead brother's estate was the
coping stone of the whole argument. That assertion is not fact,
and consequently the whole argument crambles away. Not only
is it not true, there is on the record proof of facts which clearly
and firmly negative that suggestion. It is admitted that
Sinnatcho's children did not migrate till some years after
Balahami. But if the reason for migration had been to enter on
the estate of Elias, which they say had devolved on them, it
would have been most natural that they should migrate
simultaneously, or at any rate in quick succession one after the
other.
Again, it appears from the admission of plaintiff's own witness
that Elias's other sister, Babahami, did not die childless, as the
plaint avers she did. She left four children at her death. Neither
she nor her children, however, have ever migrated. Now, if the
statement of Balahami had been true, and if on the death of
Elias Iseris had apprised his kinsfolk in Baddegama of that
death, and their consequent title to Elias's estate, we may be
sure, with the same certainty with which we know that 2 plus 2
makes 4, that Balahami and the family would not have left that
fortune, which awaited them, to go a begging. It is, therefore,
beyond doubt that Balahami's evidence as to the object of her
migration is totally false.
In the next place, it is clear, since Iseris is not shown to have
been administrator, that at the date of his entry on Elias's
estate he did not ask, nor need to ask, the consent of his
sisters. Elias died in 1878. Iseris came out of jail at the end of
that year, or in 1879. Balahami, if we accept her own evidence
as given in 3,855, migrated five years after her father died,
and she was thirty or thirty-five years old when her father died.
She wag born in 1850. It follows that she was about thirty-five
when she migrated, and that fixes the date of migration at
1885, but almost certainly not earlier. Therefore, Iseris had

had seven years' possession before Balahami appeared on the
scene.
In the third place, supposing for the sake of argument that the
object of her migration was to claim share of Elias's estate, and
that she did so claim it does not in the least follow that Iseris
admitted her claim. She was a new arrival, and poor. Iseris
was a criminal, and had in his possession the title deeds.
Looking at his unsavoury past, it is infinitely more probable
that he did not admit her claim. His interest in the law as to co-
heirs was probably slight. It is far more natural to suppose that
his entry on the estate of Elias and his continuance therein was
based on nothing else than the ancient doctrine that he should
take who can, and he should keep who has the power.
That being so, supposing Balahami had demanded share of the
estate and Iseris had refused, it is not clear why litigation
should follow. He had seven years' possession behind him. He
had the title deeds. He had the money. Balahami had nothing;
what is more likely than that she accepted his bounty and
dropped her claim? She would buy her claim in those
circumstances? How could she fight the claim herself? That is a
double non sequitur,then, when it was argued that Balahami
must have demanded her share of the estate and must have
got it. These things were neither necessary nor probable.
Continuing further, the extraordinary temerity of the argument
and evidence for plaintiff reveals itself yet more glaringly.
According to Balahami-and the remark applies, mutalis
mutandis, to her nieces-she owned one-third share of the
estate, and Iseris admitted that. On Iseris's estimate in his
deed of gift the property is worth Rs. 70,000. On Balahami's
statement, of the value, Rs. 80,000 thirty years ago. According
to her present estimate of the crop (100,000 coconuts at a
plucking), it yields an income of Rs. 24,000 per annum, and
must be worth Rs. 240,000. Much of it has been in bearing for
many years. At the lowest estimate her share of the income for
the last twenty years ought to have been Rs. 3,000 per annum.
Nevertheless, she comes into Court in the garb of poverty. She
has admittedly remained poor, while Iseris has been rich. She
has given her sons and nieces in marriage without portions.
She has lived on Rs. 200 per annum, though the income should

have been Rs. 3,000, and had never complained about it. One
of the husbands of her nieces said that he used to come and
get Rs. 50 or Rs. 60 every other month from Iseris. Yet he,
too, showed no signs of wealth. On his statement of income
and expenditure he ought to have now in his possession Rs.
3,000 or Rs. 500 cash. He has not got it, and says he spent it
on vedaralas. To do so would take him over a century, I have
no doubt that his statement was false.
Finally, Balahami and the rest wish me to believe that for thirty
years they have believed Iseris's statement that he was still
administering the estate, though they received no notices as
heirs, and that they never suspected his intentions during that
long period, though he has leased and mortgaged the lands,
Sinhalese villagers may be ignorant, but they are not stupid in
this degree. The whole story, as the vendors to plaintiff told it,
appears to me be not only improbable, but hopelessly
incredible. I am of opinion that Iseris's possession began and
went on in defiance. He ejected the official receivers, and he
ejected the mistress of Elias. He continued in a long series of
overt acts, of which Balahami and his nieces were probably well
aware, to lease, mortgage, sell, and plant, and otherwise
dispose of the property as its sole owner. As he had entered in
the character of sole heir or plunderer, whichever it was, so he
continued, and acknowledged no title in any one else. He has
acquired a good prescriptive title.
The plaintiff's case must therefore fail, even if considered only
as an action in rei vindicatione. As an action for partition it
would fail even if his case had been true, because on his
witnesses evidence certain of the co-heirs, viz., Babahami's
descendants. remain unjoined , and because, doubtless, in the
long list of lands, many of which plaintiff and his witnesses
admittedly know little or nothing about, there are doubtless
some to which other strangers have or claim title; as, for
instance some of the persons who have planted them up.
Plaintiff has not proved a title as against the world, even if all
the witnesses evidence is true.
I have to discuss yet another point. Plaintiff's purchase was
criticized (1) as a speculative purchase, (2) as unprofessional
conduct and dishonourable conduct. With the first criticism I

agree. The deed recites a consideration of Rs. 18,000 as
received before its execution. In fact, plaintiff and his vendors
admit that the whole has not yet been paid. Up to date the
vendors have received about Rs. 8,000, partly and mostly in
cash, and partly in rice, kurakkan, legal advice, and such
curious though valuable equivalents of the solid rupee. For the
payment of the unpaid balance the vendors obtained no
security. The plaintiff was aware that his purchase was of a
disputed title, and that he could not lay his grasp on what he
bought except by process of expensive litigation. Certainly it
was a speculative purchase.
It does not follow that it was dishonest, and Mr. Bawa in
arguing at one and the same time that the purchase was a
speculative purchase of a bad title, and also that the purchaser
behaved unprofessionally in taking from his clients credit for
the large unpaid balance, clearly fell into the fallacy known to
the schoolmen under the name of circulus in arguendo. If the
purchase was a speculative purchase of a bad title, the vendors
have lost nothing, but gained considerably at the expense of
their legal adviser. In that there was no dishonour. They, i.e.,
the vendors, confirm plaintiff's statement that he has paid
them Rs. 8.000 of the consideration, and they make no
complaint against him. It was argued that plaintiff's statement
as to payment should be disbelieved. Reference was made to
his vivacious past in the matter of litigation and to his cases
with the present defendant. While, however, it is true that
plaintiff is addicted to the habit of buying disputed titles, and
has consequently been involved in plenty of litigation, both
criminal and civil, he has never been found to have done
anything dishonest or dishonourable. The criticism directed
against him in the Privy Council decision in Corea v. Pieris1
bore reference to a case wrongly laid in Chilaw Court, but was
based on a misapprehension of fact. And what is most material
of all the defendant in the present case ought easily to have
been able to show, if he seriously thought so. that the plaintiff
has not paid Rs. 8,000 to his vendors. If in fact he* has not
paid that sum, his vendors doubtless have not got it in their
possession, and would probably have been unable to explain
where it has gone to if they had been cross-examined on that
point. They were not so cross-examined, and I conclude that

defendant did not at all firmly believe that that sum had not
been paid.
Anyway, the plaintiff is an advocate of this Court and a
gentleman of wealth and position. His demeanour in the
witness box was perfectly honest. Nor do I see any good
reason, either in this case or in his some what lively and
litigous past, why I should believe him to be anything but an
entirely truthful witness. I cannot then agree that he has
swindled his clients, or sought to deal with them improperly in
omitting to secure them the unpaid balance of the
consideration in the deed. He admits he owes that still. If he
had denied it his conduct would have been unprofessional. If
theirs had been a good title, the same criticism may perhaps
have applied. In fact, it was a bad title; and his clients have
gained Rs. 8,000 at his expense. It is certainly a matter of
surprise that an advocate should indulge in such purchases of
disputed titles. Such is not, I am sure, the ideal; nor, as I
believe, or rather hope, the practice of his profession. But at
the same time it does not appear that plaintiff had done
anything dishonourable.
For the reasons given above, the plaintiff's action must be
dismissed with costs. I refrain from making an order that he
should pay double costs, because, while I am anxious to
discourage gambling in purchase of title to land and the
application of the Partition Ordinance to such, the plaintiff has
suffered enough in his loss or damage of loss of Rs. 8,000.
Plaintiff appealed.
H. A. Jayewardene (with him Chitty), for the appellant.
Bawa (with him Wadsworth), for the respondent.
The following judgment was delivered by the Supreme Court: -
May 26, 1910. HUTCHINSON C.J.-
This action was brought for partition of certain lands which the
plaintiff alleged had been the property of Elias Appuhamy, who
died unmarried and intestate in 1878 possessed of the said
lands; and the plaintiff claimed an undivided share by purchase
from some of the heirs of Elias. The first defendant, Iseris,
denied the plaintiff's

1 (1909) 12 N. L. R. 147.
claim; he alleged that some of the lands were bought in the
name of Elias with the money of Iseris and Elias. and that
others of them were partly bought in the name of Elias with the
money of Iseris and Elias, and partly bought by Iseris after
Elias's death; and he said that on the death of Elias he, as
Elias's sole heir, entered into possession of all the lands, and
has been in undisturbed and uninterrupted possession of them
for ten years by a title adverse to and independent of the
plaintiff and all others. The District Court held that Iseris had
acquired a title by prescription, and dismissed the action.
The contest is as to whether Iseris has proved his prescriptive
title. The appellant contends that the District Judge went wrong
in thinking that, when it was once proved that Iseris had had
de facto possession for more than ten years, the burden lay on
the plaintiff to prove that Iseris's possession began or went on
in a " precarious " or permissive character; he contends that if
the Judge had not made that mistake, he might have come to a
different conclusion upon the evidence; and that the evidence
raises in fact a presumption that Iseris took possession as one
of the heirs, and not as sole heir, and that that presumption
had not been rebutted.
The remarks of the learned Judge about the burden of proof
were mistaken. The burden lay on Iseris that he had such
possession as is explained in section 3 of Ordinance No. 22 of
1871. But the Judge finds that Iseris's possession "began and
went on in defiance"; that he acted from the time of his first
entry in 1879 onwards as sole owner; and that "as he had
entered in the character of sole heir or plunderer, whichever it
was, so he continued, and acknowledged no title in any one
else. He finds that Iseris had had at least seven years'
possession before Balahami, the first of the alleged coheirs,
appeared on the scene; he thinks it beyond doubt that
Balahami's statement that she went there in order to claim her
share is totally false; and that even if she did make a claim, it
is infinitely more probable that Iseris did not admit it. It
appears, therefore, that he was clearly of opinion that Iseris
had proved such possession as section 3 required by a title

adverse to that of the plaintiff and of those through whom the
plaintiff claims; and that his opinion as to the burden of proof
had no effect on his finding, for he finds that the evidence
establishes that Iseris had proved that which he had to prove.
With what intention did Iseris take possession on Elias's death?
Did he mean to take possession as sole owner (whether as sole
heir or otherwise), or only as one of the heirs? That is a
question of fact on which I think that, upon the evidence, the
Judge might fairly find as he did. Then, was his possession
unaccompanied by any act from which an acknowledgement of
a right in any other person would fairly and naturally be
inferred? That is again a question of fact, and I think that again
the finding of the District Court on it was supported by the
evidence.
I think that the appeal should be dismissed with costs.
VAN LANGENBERG A.J.-
This is an action brought under the Partition Ordinance. The
plaintiff, claiming to be entitled to two-thirds of certain lauds,
allots the remaining one-third to the first defendant.
According to the title deeds the lands belonged to one Elias,
who was born in the Southern Province, and migrated many
years ago, when a young man, to the Chilaw District, where he
traded successfully and amassed wealth. He died on July 23,
1878, leaving, according to the plaintiff, three sisters,
Babahami, Sinnatcho, and Balahami, and one brother, the
defendant, as his heirs.
The plaintiff says that about twenty years ago Babahami died
without leaving issue, and that Sinnatcho died about 1899
leaving two children. Allina and Nonno.
By deed No. 1,181 dated December 5, 1907, the plaintiff
acquired the right of Allina, Nonno, and Balahami. The first
defendant claimed the whole land by prescription, and stated
he had conveyed the lands in question to his son and the
second defendant, reserving a life interest for himself. The
second defendant was accordingly made a party in this action?
The intervenients are the three children of Balahami. They say
that their mother was married in community of property to

their father Ovinis Appu, who had died prior to the execution of
the deed in favour of the plaintiffs, and that therefore their
mother could not convey more than one-sixth. They claim the
remaining one-sixth for themselves. It has been proved that
Babahami had married and left children, all of whom, it is said,
are now dead. Who their legal representatives are has not been
ascertained and there is nobody in this case to represent them.
Further, it has been established that Elias lived with a woman
called Kittoria, who claimed to be his wife.; she is no party to
this action. I think our judgment should bind only those who
are parties to this case. I accepted the learned Judge's finding
as regards the pedigree.
The first defendant states that he joined his brother Elias and
traded with him in partnership but the lands which were bought
with the profits of the partnership were purchased in the name
of Elias alone; that when Elias died he was in jail, and when he
came out soon afterwards he found two headmen in
possession; that he turned them out and entered into
possession himself and remained in possession ever since; and
that he had dealt with the property for over thirty years as his
own.
Plaintiff, on the other hand, asserts that Balahami and her
children and Sinnatcho's children left their village on hearing of
the death of Elias and came to first defendant, who
acknowledged their rights to share the inheritance from Elias
by giving them from time to time sums of money, and by
allowing Balahami to live on Medawatta, a land which formed
part of that estate. First defendant, however, says that
whatever he did for his sisters and nephews
75
and nieces be did it out of charity, and that us a matter of fact
not one of them ever asserted title to any portion of Elias's
estate.
The learned Judge has gone very fully into the facts, and it is
enough for me to say that I agree with his conclusion, that
whatever may have been the first defendant's reasons for
doing so, the first defendant at the earliest possible moment,
i.e., directly he came out of jail, took possession of Elias's
property on his own behalf and for his own benefit, and that he

has done nothing since showing that he has acknowledged a
right in anybody else.
The Judge points out that for seven years not one of the family
raised any questions as regards the first defendant's right to
possession, and he does not accept the evidence led to show
that first defendant in any way altered his position after the
other members of the family appeared on the scene.
Under our law there can be no doubt that one co-owner can
acquire a prescriptive title as against his co-owners, though our
Courts insist on strict proof of adverse possession. On the facts
as found by the learned Judge, is the plaintiff in law entitled to
a declaration that he has acquired prescriptive titles as against
his co-owners?
I understood Mr. Jayewardene to say, in answer to a question
from me, that his contention was that when the owner of
undivided share of land entered into the possession of the
entirety, he must be presumed in law to have entered on
behalf of himself and his co-owners, and that the onus was on
him to show the starting of an adverse possession against
them by proof of some overt act. I asked for some authority in
support of this contention, but was referred to none. In the
absence of any authority, I am unable to say that the
contention is sound.
It seems to me that the facts in each case must be considered
before it can be inferred that one co-owner is in possession as
agent of another. In this case, holding, as I do, that the first
defendant entered in his own right and for his own benefit, I
find that his possession became adverse at once, and
continued so up to the date of the action.
I would dismiss the appeal with costs.
December 14, 1911. Delivered by LORD MACNAGHTEN: -
This seems to be a very plain case. The action out of which the
appeal has arisen was an action for partition of certain lands,
part of the estate of one Elias Appuhamy of Galmuruwa, in the
District of Chilaw.
Elias died in July, 1878. He was never married, and he died
intestate. His heirs were his brother Iseris and three sisters.

Taking by descent the heirs took as tenants in common in
accordance with the provisions of section 18 of the Partition
Ordinance of 1863.
76
Elias came originally from Baddegama, in Galle District, about
120 miles from Chilaw. His father and mother and the rest of
his family lived there, apparently in somewhat humble
circumstances. Elias prospered in Chilaw. After a time he was
joined by his brother Iseris, who says that he left home alone
when he was ten years old, though he was probably three or
four years older at the time. The two brothers kept a shop or
store in Chilaw, in which they seem to have been jointly
interested. But it is admitted that the lands in question in this
action were the separate property of Elias.
At the time when Elias died Iseris was in jail, under sentence of
imprisonment for assault and robbery.
The property being thus left derelict, possession was taken by
officials of the District Court. It must be presumed that such
possession was taken for the benefit of the persons rightfully
entitled.
Iseris came out of jail in December, 1878. Thereupon, or soon
afterwards, he entered into possession of the intestate's lands.
The circumstances under which the officials of the Court
relinquished possession in his favour do not appear in
evidence. It seems, however, to be immaterial whether there
was an order of the Court on the subject, or whether the
officials, who must have known who Iseris was, and must have
been aware of his relationship to the intestate, retired in his
favour without any specific directions. The Trial Judge says that
they were " ejected " by Iseris, but no statement or suggestion
to that effect is to be found in the evidence.
Some time after the death of Elias, two of his sisters made
their way to Chilaw. They seem to have been kindly treated by
Iseris, who gave them small sums of money from time to time,
and allowed them to obtain provisions from his shop without
payment. Indeed, one of the sisters, named Balahami, lived for
a long time in a house on Medawatta, which was one of the

plots or parcels of land belonging to Elias, and part of his
estate.
In 1907 Iseris by deed settled the intestate's land on his son,
reserving a life estate. This action on the part of Iseris was the
talk of the neighbourhood. Balahami, who was then the only
survivor of the three sisters, became alarmed. Lawyers were
consulted. Under their advice Balahami brought an action for
partition against Iseris. The action was confined to Medawatta,
on the score, it was said, of expense, in order to save the
stamp or fee which would have been payable if the whole
estate had been the subject of the action. Then Iseris turned
her out of her home. Being without means Balahami and other
co-proprietors in the same interest sold their rights or claims to
the plaintiff Corea, who was Balahami's legal adviser and
advocate. He brought this action against Iseris. Iseris's son was
afterwards made a party to the action.
Iseris in his defence claimed, the benefit of Ordinance No. 22 of
1871, entitled " An Ordinance to amend the Laws regulating
the
77
Prescription of Action." It is not disputed that by that
Ordinance, or by an earlier Ordinance of 1834, which was
repealed by the Ordinance of 1871, the old law was swept
away. The whole law of limitation is now contained in the
Ordinance of 1871. Section 3 enacts that " proof of the
undisturbed and uninterrupted possession by a defendant in
any action of lands or immovable property by a title adverse to
or independent of that of the claimant or plaintiff in such
action. ..... for ten years previous
to the bringing of such action shall entitle the defendant to a
decree in his favour with costs." The section explains what is
meant by undisturbed and uninterrupted possession. It is "
possession unaccompanied by payment of rent or produce, or
performance of service or duty, or by any other act by the
possessor from which an acknowledgement of a right existing
in another person would fairly and naturally be inferred. " Then
follows an analogous provision in favour of a plaintiff claiming
to be quieted in possession of lands or other immovable
property under similar circumstances.

In the present action the plaintiff, Corea, offered some
evidence tending to prove that Iseris took out administration to
Elias. There certainly was a testamentary case in the District
Court relating to the intestate's estate. But the record of the
case is missing, and it is not clear whether the case was
concerned with an application by officials of the Court, or with
an application by Iseris for administration. The District Judge
held that it was not proved that Iseris took out administration
to his brother's estate.
The plaintiffals also endeavoured to prove that Iseris had
acknowledged the title of his co-proprietors within ten years of
the commencement of the action. On this point also the District
Judge was against the plaintiff.
Their Lordships accept the decision of the District Judge on
these two points. In their Lordship's opinion they are not
material to the real question at issue. Assuming that the
possession of Iseris has been undisturbed and uninterrupted
since the date of his entry, the question remains, Has he given
proof, as he was bound to do, of adverse or independent title?
His title certainly was not independent. The title was common
to Iseris and to his three sisters. On the death of Elias, his
heirs had unity of title as well as unity of possession. Then
comes the question, Was the possession of Iseris adverse? The
District Judge held that Iseris " entered in the character of sole
heir or plunderer." " Whichever it was," says the learned Judge,
"so he continued, and acknowledge no title in any one else. He
has acquired a good prescriptive title " It is difficult to
understand why it should be suggested that Iseris may have
entered as " plunderer." He was not without his faults. He is
described by the learned Judge, who decided in his favour, as "
a convicted forger and thief," and " expert not only in crime
and incarceration, but also in perjury." But is perhaps going too
far
78
to hold that he was so fond of crooked ways and so bent on
doing wrong that he may have scorned to take advantage of a
good legal title, and may have preferred to masquerade as a
robber or a bandit and to drive away the officers of the Court in
that character. It is not a likely story. But would such conduct,

were it conceivable, have profited him? Entering into
possession, and having a lawful title to enter, he could not
divest himself of that title by pretending that he had no title at
all. His title must have enured for the benefit of his co-
proprietors. The principle recognized by Wood V.C., in Thomas
v. Thomas,1 holds good: " Possession is never considered
adverse if it can be referred to a lawful title."
The two learned Judges in the Court of Appeal did not adopt in
its entirety the suggestion of the Trial Judge. They both held
that Iseris entered as " sole heir," and that his title has been
adverse ever since he entered. They held that he entered as "
sole heir," apparently because he had it in his mind from the
first to cheat his sisters. But is such a conclusion possible in
law? 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. There is no provision in the Ordinance of 1871
analagous to the enactment contained in section 12 of the
Statute of Limitations, 3 & 4 Will. IV. c. 27, which makes the
title of persons '' entitled as co-perceners joint tenants or
tenants in common " separate from the date of entry. Before
the Act was passed it was a settled rule of law that the
possession of any one of such persons was the possession of
the other or others of the co-proprietors. It was not disputed at
the Bar that such is now the law in Ceylon.
The learned counsel for the respondent, who argued the case
with perfect candour, and said all that could be said on behalf
of his client, did not, of curse, question the principle on which
Wood V. C. relied in Thomas v. Thomas. His submission was
that the Court might presume from Iseris's long-continued
possession, undisturbed and uninterrupted as it was that there
had been an ouster or something equivalent to ouster. No
doubt in former times, before the statute of William IV., when
the justice of the case seemed to require it, juries were
sometimes directed that they might presume an ouster. But in
the present case the learned Judge did not make any
presumption of that sort. Nor, indeed, did Iseris before this
action was brought attempt to rely on adverse possession. His
pretence was that he was sole heir. In the first partition action

he swore that he did not know the name of his father or that of
his mother. He swore that Balahami was only a cousin; he
knew nothing, he said, about his family, except that he was the
only brother of Elias. For this audacious statement he was
indicted
1 2 K. and I. 83.
79
for perjury at the instance of the Judge. He was convicted, and
sentenced to fine and imprisonment. The Judge who
pronounced sentence observed: "It is clear that he was
determined to prove that he was the sole heir, and strenuously
to deny anything that might count against him." Be that as it
may. this is not a case in which the circumstances could justify
the presumption of ouster in favour of such a man as Iseris.
Their Lordships will therefore humbly advise His Majesty that
the appeal should be allowed, the judgment of the Supreme
Court and the judgment of the District Judge set aside, with
costs in both Courts, and a decree made for partition of the
lands which on the death of Elias passed by descent to his
heirs. The respondents will pay the costs of the appeal.
Appeal allowed.

TILLEKERATNE et al. v. BASTIAN et al. Prescription-Long-continued
exclusive possession by one co-owner- Presumption -
Lost grant - Dedication of highway - Ouster - Adverse
possession.
It is open to the Court, from lapse of time in conjunction with
the circumstances of the case, to presume that a possession
originally that of a co-owner has since become adverse.
"It is a question of fact, wherever long-continued exclusive
possession by one co-owner is proved to have existed, whether
it is not just and reasonable in all the circumstances of the case
that the parties should be treated as though it had been proved
that that separate and exclusive possession had become
adverse at some date more than ten years before action
brought. "
THE facts appear from the judgment.
Bawa, K.C., and De Zoysa, for appellants.-A co-owner cannot
prescribe against other co-owners unless he has actually
ousted them, or has by some overt act intimated to them that
he is no longer possessing on their behalf but is possessing
adversely to them.
[SHAW J.-Even if a co-owner possess for 150 years, is he
supposed to be possessing on behalf of the other co-owners?]
That would not make any difference. Law is not founded on
relationship.

[DE SAMPAYO J.-Must not lapse of time shift the burden?] No.
See Corea v. Appuhamy.1 None of the co-owners can prevent
the possession of the whole land by one co-owner.
[SHAW J.-The. only question is whether a presumption of
ouster can be gathered from the length of time.] There is no
room for the presumption of ouster here. If an ouster took
place it can be proved, as the persons interested are alive and
can give positive evidence of ouster. Counsel cited 2 Leader
74; Morgan Digest 21, 169, 273; 7 N. L. R. 91; 10 N. R. 183
(at 186); 3 N. L. R. 213, 137; 7 N. L. R. 91; 1 Cowp. 217; 3 A.
C. R. 84; Koch 61 and 42; 1 S C. R. 64; Lightworn on Time
Limit of Action 161; Indian Limitation Act 9 of 1908, s. 127; I.
L. R. 33 Bom. 317; I. L. R. 35 Cal. 961. The Prescription
Ordinance has completely repealed the Roman-Dutch law on
the subject. Before Corea v. Appuhamy 1[1 (1911) 15 N. L. R.
65. ] was decided there is no reference in our cases to a
presumption of ouster. If there be evidence of exclusive
possession for a very long time, and evidence of something
which ought to have put the
13
co-owner who is out of possession on his guard, and if he is
guilty of gross laches, then there may be
prescription. The evidence must be strong and convincing,
and that is not the case here. See Brito v. Muthunayagam.1
[1(1915) 19 N. L. R. 38. ] If we introduce the theory of
fictitious ouster, the decisions become valueless.
E. W. Jayawardene (with him Batuwantudawa), for defendants,
respondents.-Whether possession was adverse or not must be
judged by the circumstances of each case. In 1893, when
Tillekeratne bought the property, he did not enter into
possession, nor was the property included in the inventory of
Tillekeratne's properties when he declared himself an insolvent.
We were allowed to have exclusive and notorious use of this
land for forty years, and to take plumbago from it. In 2 S. C. C.
166 it was held that a co-owner cannot dig plumbago without

the consent of the other co-owners. Counsel cited also S. C. A.
C. 8 and 1 C. W. R. 92 and 175.
Ouster can be presumed from long and continued possession
(2 Thorn. 188; 15 C. D. 87). Counsel also cited 29 Bom. 300;
33 Bom. 317, at 322; 1 S.C. R. 64; Koch 62; 13 N. L. R. 309; 1
Bal. Notes 88; 2 Bal., 40 and 70.
Bawa, in reply.
Cur. adv. vult.
December 16, 1918. BERTRAM C.J.-
The facts of this case seem to raise in a very clear and succinct
form a question which was discussed, but not decided, in the
case of Corea v. Appuhamy. 2 [ 2 (1912) A. C 230 ; (1911) 15
N. L. R. 65.]The decision in that case had a very far-reaching
effect. It laid down for the first time, in clear and authoritative
terms, the principles that the possession of one co-owner was
in law the possession of the others; that every co-owner must
be presumed to be possessing in that capacity; that it was not
possible for such a co-owner to put an end to that title, and to
initiate a prescriptive title by any secret intention in his own
mind; and that nothing short of "an ouster or something
equivalent to an ouster " could bring about that result. The
question was raised in the argument in that case, and
discussed in the judgment, whether in the circumstances of the
case, even admitting these principles, an ouster should be
presumed from the long-continued possession of the co-owner
in question. The Privy Council, without negativing the
possibility of a presumption of ouster, held that this was not a
case in which the facts would justify such a presumption. The
questions, therefore, to be decided for the purposes of the
present case are:-

(1) What is the meaning of the principle of the English law
referred to under the expression " presumption of ouster "?
(2) How far is it to be considered as being in force in this
Colony?
(3) Do the facts justify its application in the present case?
The question of the conversion of a possession which in its
origin is not adverse into an adverse possession has been the
subject of prolonged, controversy in our Courts. The case with
which our authorities mainly deal is that of the possession of a
person occupy¬ing by the permission or license of the true
owner. That case is, however, so closely akin to that now under
consideration, namely, that of one co-owner possessing the
common property, that the two cases may be conveniently
discussed together. The principles governing them are
identical.
The problem before us is simply a problem of interpretation.
What we have to do is to interpret and to apply to these two
cases certain words which occur in section 3 of the Prescription
Ordinance, No. 22 of 1871, namely, " Proof of the undisturbed
and uninterrupted possession by a defendant in any action, or
by those under whom he claims, of lands or immovable
property, by a title adverse to or independent of that of the
claimant or plaintiff in such action (that is to say, a possession
unaccompanied by payment of rent or produce, or performance
of -service or duty, or by any other act by the possessor, from
which an acknowledgment of a right existing in another person
would fairly and naturally be inferred) ..."
Before addressing ourselves to this question, it would be
con¬venient to ascertain what was the common law" applicable
to it before this enactment, or those which it replaced, came to
be enacted. The principles of the Roman-Dutch law with regard
to these two cases, were as a matter of fact, not the same.
With regard to possession by permission or license, a person
who so possesses is said to possess precario. This form of
possession will be found discussed in Voet XLIII., 26. A person
who is in possession of property precario cannot prescribe

against the owner, however long his possession may be. A
restitutory action in such a case can never be extinguished: Sic
ut ne immemorialis quidem temporis prescription cesset (Voet
XLIII., 26, 3.) In order to initiate a prescriptive title, it is
necessary to show a change in the nature of the possession (
Cf Voet XLI, 2, 13.) It is otherwise with regard to possession
by a co-owner. If one co-owner is in exclusive occupation of
any part of the common property, or even of the whole' of it,
for a period of thirty years, the claim of other co-owners for a
partition of the property is absolutely prescribed, without the
necessity of showing any change in the nature of the
possession.
" Si tamen unus coheredum res hereditarias totis triginta annis
solus suo nomine proprio tanquam suas possederit ; magis est,
ut in univeraum deciceps hoc cesaet indicium. " (Voet X., 2,
33.)
See also Struvious X., 2,14; " Si autem unus ex coheredibus
tantum possidet res hereditarias communes; tunc alter, qui
non possidet, pest triginta annorum cursum actionem hanc
movere nequit. "
This distinction is recognized in French law, which in this
respect follows the principles enunciated by Pothier.
See Planiol, Droit Civil; vol. III., 2342.
These are the principles of the Roman and Roman-Dutch
law. Tillekeratne They are, however, only of historical
interest, as it is recognized that our Prescription Ordinance
constitutes a complete code; and though no doubt we have to
consider any statutory enactments in the light of the principles
of the common law, it will be seen that the terms of our own
Ordinance are so positive that the principles of the common
law-do not require to be* taken into account. Let us,
therefore, consider the terms of our own Ordinance.
In the first place, it will be convenient to put aside one part of
the enactment which at one time caused considerable
confusion, namely, the words enclosed in the parenthesis: ("
that is to say, a possession unaccompanied by payment of rent
or produce, or performance of service or duty, or by any other

act by the possessor, from which an acknowledgment of a right
existing in another person would fairly and naturally be
inferred.")
It was originally thought that these words, which appear for
the first time in Ordinance No. 8 of 1834, were inserted in
order to explain by way of an illustration the words " by a title
adverse to, or independent of, that of the claimant or plaintiff
in such action." This was so declared by the High Court of
Appeal (see Vand. 45); and this appears to be the view taken
by Chief Justice Marshall (see Marshall's Judgments 519).
Subsequently, how¬ever, the words were held to constitute a
complete definition. See Thompson's Institutes, vol. II., 189:-
" Sir C. Marshall looked upon the words added in the Ordinance
as a partial and incomplete explanation of the words ' adverse
title, 'leaving it open to the law, as found in English reports and
former decisions, to complete the explanation when
required. But, in 1844, the Supreme Court enunciated
that the words in the paren-thesis were not only ' some
explanation,' but a declaration of what an adverse title is
under the Ordinance. The Court, after repelling certain
decisions, on the ground that they were unfortu-nately found
on the general law independent of the express provisions of
the Ordinance, went on to say: ' the Ordinance of
prescription has not simply declared that a possession of ten
years adverse to, or independent of, that of the
claimant shall give a prescriptive title, leaving it to the Court
to say what is, in the law, an adverse possession; but in the
parenthesis in the second clause of the Ordinance it is also
declared what shall be considered such an adverse possession
under that Ordinance.' " See 6,587, C. E. Colombo, No. 4,
August 6, 1844.
The same interpretation was also enunciated in the judgment
of the Full Court in C. R. Batticaloa, No. 9,653, in the year
1870, reported in Vand. 44. So late as 1892 this
interpretation was adopted in its most unqualified form by
Burnside C.J. in the case of Carim v. Dholl l: "In the present
case the evidence leads to no other conclusion than that
the defendant's mother entered into possession of the

tenement out of the charity of the owner, her brother; that
she possessed it by residing in it with her family
alone, without interruption or disturbance from him, for long
over the prescriptive period, perhaps out of sheer benevolence,
which he might have terminated at his pleasure, and during
that period she never paid rent, nor performed service to him,
nor did she do any act by which his ownership was
acknowledged. I take it as beyond doubt that she acquired
prescriptive title as against him and those claiming under him.
"
Lawrie J., however, in that case refrained from basing his
judg¬ment on that ground. Thompson in his Institutes further
records that this principle was applied in the very question
since decided in Corea v. Appuhamy. 2Speaking with reference
to the definition of " adverse title " given by the Supreme
Court, he says on page 190: " It will be seen from the last of
these definitions that, as joint tenants have a unity of title,
time, interest, and possession, if one joint tenant obtains his
legal possession of his co-tenant's share, he cannot be said at
any time to have a possession inconsistent with the probability
of any just right or title on the part of his co-tenant; and thus,
under this old definition, which is that of the general law, no
joint tenant could prescribe against his co-tenant. But the
Ordinance is held to introduce a new definition, namely, that to
found adverse title, all that is sufficient is that the possession
should be unaccompanied with any acknowledgment of a right
existing in another person. A definition which allows a collateral
or joint tenant to prescribe as well as any other person.
Accordingly, in all recent cases the Court has uniformly held
that under that parenthesis there can be no exception drawn in
favour of the possession of one co-heir, joint tenant, or tenant
in common, not being adverse to the other, from the tenure of
their estates alone; and, looking to the evil arising from the
extreme subdivision of land in the Colony under the existing
law of succession, it may be reasonably presumed that the
Legislature intended to annul all distinctions in law between the
possession of such persons and others."

All this must now be considered as superseded by the decision
of the Privy Council in Corea v. Appuhamy (supra), which gave
the coup de grace, if a coup de grace was needed (see per
Wendt J. in Joseph v. Annapillai 3) to the theory that the words
in the paren¬thesis in section 3 were intended as a definition
of " adverse title. " It is only necessary carefully to scrutinize
the terms of the section to see that that interpretation was
untenable. The phrase upon which the parenthesis follows is
not " adverse title," but "by. a
1 (1892) 2 C. L. R. 118. 2(1911) 15 N. L. R. 65. 3
(1904) 5 Tomb. 20.
17
title adverse to or independent of." It is impossible to refer
the parenthesis purely to the words " adverse to," it
must also be referred to the words " independent of ";and
though the parenthesis might conceivably have been construed
as a possible definition of one of the alternatives, it cannot
possibly be construed as a definition of both.
The true explanation of this parenthesis appears to have been
first suggested by the late Mr. Justice Walter Pereira on page
388 of his Laws of Ceylon (1913 edition), namely, that the
parenthesis was intended to be explanatory of the expression "
undisturbed and uninterrupted possession " occurring earlier in
the section. This suggestion gives an explanation to the
parenthesis which is grammatically intelligible, and it may be
noted that it has been expressly adopted by the Privy Council
in Corea v. Appuhamy at 15 N. L. R. 77: " The section explains
what is meant by ' undisturbed and uninterrupted possession.'
It is ' possession un-accompanied by payment of rent or
produce, or performance of service or duty, or by any other act
by the possessor from which an acknowledgment of a right
existing in another person would fairly and naturally be
inferred.' " It is clear, therefore, that the parenthesis has no
bearing on the question of the meaning of the words " adverse
title "; it may henceforth be left out of account in the
discussion of the question.

The ground being cleared in this manner, it would be seen that
all we have to ask ourselves in this case is, what is the
meaning of the word " adverse "? And that the only question
we have to consider in any particular case is whether the
possession in question was " adverse," or, if it was not
originally adverse, at what point it may be taken to have
become so. It appears to me to a certain extent unfortunate
that the Privy Council in discussing this question should have
adopted the technical terms of certain rules of the English law
of real property which have now, in effect, been extinguished
by Statute; the more so, as these rules belonged to a
department of the English law which was recognized as being
involved in the greatest obscurity. It was in connection with
this subject that Lord Mansfield said: " The more we read,
unless we are very careful to distinguish, the more we shall be
confounded." See Taylor Atkyns v. Horde 1[1(1757) 2 Burr. 60.
] and 2 S. L. C. (11th ed.), at page 629.
The phrase " adverse possession " was not a statutory term in
the English law at all, nor was the word " ouster." The Statute
of Limitations passed in the twenty-first year of King James I.
did not contain either phrase. The material part of section 1 of
that Statute (21 James I., c. 16) simply said that " no person
or persons shall at any time hereafter make any entry into any
lands, tenements, or hereditaments but within twenty years
next after his or their right or title which shall hereafter
descend or accrue to the same."
On this it was held that the Statute only ran against a true
owner in cases in which at common law he was reduced to
what was known as his " right of entry "-a highly technical
question. No occasion to assert a right of entry arose unless
there has been an " ouster." The term " ouster " is itself highly
technical. Those who are curious on the subject will find it
explained" in Wood Renton's Encyclopaedia of the Laws of
England, vol. X., 214. It was considered and treated in old text
books under the heads of disseisin, abatement, discontinuance,
deforcement, and intrusion, terms which are no longer in
common use. See 2 8. L. C. (11th edition) 651.

The whole subject will be found explained in Mr. William
Smith's note to Taylor v. Horde in Smith's Leading Gases, from
which I will quote the following passage: -
" In order to determine whether the claimant had been out of
possession under circumstances which would turn his estate to
a right of entry, it was necessary to inquire in what manner the
person who had been in the possession during that time held.
If he held in a character incompatible with the idea that the
freehold remained vested in the claimant, then .... it followed
that the possession in such character was adverse. But it was
otherwise if he held in a character compatible with the
claimant's title."
As I have said, it would probably have been better if in Ceylon
we had been relieved of this technical and antiquated
phraseology. The word " ouster " is unknown to our local law,
and does not spontaneously convey any idea to the mind. It
would be well, I think, that we should drop the word " ouster,"
and that, instead of asking whether there has been an "
ouster," we should ask ourselves simply whether the
possession in question was or has become adverse. And it will
be sufficient for this purpose to adopt the definition given in
Smith's Leading Cases that " adverse possession " is "
possession held in a character incompatible with the claimant's
title."
What, then, is the real effect "of the decision in Corea v.
Appuhamy (supra) upon the interpretation of the word "
adverse " with reference to cases of co-ownership? It is, as I
understand it, that for the purpose of these cases the word "
adverse "must, in its application to any particular case, be
interpreted in the light of three principles of law: -
(i.) Every co-owner having a right to possess and
enjoy the whole property and every part of it, the possession of
one co-owner in that capacity is in law the possession of all.
(ii.) Where the circumstances are such that a man's
possession may be referable either to an unlawful act or to a
lawful title, he is presumed to possess by virtue of the lawful
title.

(iii.) A person who has entered into possession of land
in one capacity is presumed to continue to possess it in the
same capacity.
19
It will be seen that the first of these principles is a principle of
substantive law; it is established by numerous authorities in
the law of England. See Ford v. Grey,1 Culley v. Doe.2 There
is also adequate, though not very extensive, authority for the
principle in our own reports. See the cases cited in the
argument in Corea v. Appuhamy before the Privy Council.3 The
principle is not peculiar to the law of England, and may be
found in Pothier. See Planiol, Droit Civil, vol. III., s. 2342.
The second and third of the above principles are presumptions,
i.e., they are principles of the law of evidence. It is the third of
these principles, namely, that a person who has entered into
the possession of land in one capacity is presumed to continue
to possess it in the same capacity, which has been the basis of
our local decisions on this subject, both as regards tenants in
common and as regards possession by licensees. Thus, it was
the foundation of the judgment of Lawrie J. in Jain Carim v.
Pakeer 4 where he said: " . . . . . the party claiming adversely
to the possessor must allege and prove that the possession
was not ut dominus. If he succeeds in proving that the
possession began otherwise than ut dominus, then the burden
of proof is shifted, for, to use the words of Rough C.J., which
have often been quoted with approval in this Court: ' It being
shown that the possession commenced by virtue of some other
title such as tenant or planter, the possessor is to be presumed
to have continued to hold on the same terms until he distinctly
proves that his title has changed.' "
It has been enunciated in a series of judgments of Wendt J.,
which are often quoted as authorities for the proposition, e.g.,
Orloof v. Grebe, 5 Joseph v. Annapillai,6 Perera v. Menchi
'Nona,7 and it was recognized by the decision of the Privy
Council in Naguda Marikar v. Mohammadu.8 The same principle
is embodied in the oft-quoted Roman law maxim: neminem sibi

ipsum causam possessionis muturce posse (Voet XLI., 3, 13).
It is also embodied in Art. 2240 of the Code Napoleon: " On ne
peut point se changer a soi-meme la cause et le principe de so
possession "; and in a further Article, viz., 2231: Quand on a
commence a posseder pour autrui, on est toujours presume
posseder au meme "titre, s'iln'y a preuve du contraire."
The effect of this principle is that, where any person's
possession was originally not adverse, and he claims that it has
become adverse, the onus is on him to prove it. And what must
he prove? He must prove not only 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. The
burden he must assume is, in
1 1 Salk . 285 2 (1840) 11 Ad. & E. 1008. 3 (1912) A. C. 230.
4 (1892) 1 S. C. R. 282. 5 (1907) 10 N. L. R. 83. 6 (1904) 5
Tomb. 20. 7 (1908) 3 A. C. R. 84. 8 (1903) 7 N. L. R. 91.
20
fact, both definite and heavy, and the authorities have been
accustomed to emphasize its severe nature. Thus, it is
sometimes said that he must prove an " overt unequivocal act "
(per Wendt J. in Perera v. Menchi Nona 1). I do not think that
this principle is put anywhere more forcibly than in the Indian
case of Jogendra Nath Rai v. Baladeo Das.2 The whole
judgment is one of great interest, but appears, perhaps to
allow somewhat undue emphasis to the American authorities
on the subject. I quote from page 969: -
" Much stronger evidence, however, is required to show an
adverse possession held by a tenant in common than by a
stranger; a co-tenant will not be permitted to claim the
protection of the Statute of Limitations unless it clearly appears
that he has repudiated the title of his co-tenant and is holding
adversely to him; it must further be established that the fact of
adverse holding was brought home to the co-owner, either by
information to that effect given by the tenant in common

asserting the adverse right, or there must be outward acts of
exclusive ownership of such a nature as to give notice to the
co-tenant that an adverse possession and disseisin are
intended to be asserted; in other words, in the language of
Chief Justice Marshall in MacClung v. Ross 3: A silent
possession, accompanied with no act which can amount to an
ouster or give notice to his co-tenant that his possession is
adverse, ought not to be construed into an adverse possession
'; mere possession, however exclusive or long-continued, if
silent, cannot give one co-tenant in possession title as against
the other co-tenant; see Clymer v. Dawkins, 4 in which it was
ruled that the entry and possession of one tenant in common is
ordinarily deemed to be the entry and possession of all the
tenants, and this presumption will prevail in favour of all, until
some notorious act of ouster or adverse possession by the
party so entering is brought home to the knowledge or notice
of the others; when this occurs, the possession is from that
period treated as adverse to the other tenants."
One cannot read this statement of the law without being
impressed with the artificial nature of the position which it
embodies, if its principle is accepted without qualification. The
presumptions of the law of evidence should be regarded as
guides to the reasoning faculty, and not as fetters upon its
exercise. Otherwise, by an argumentative process based upon
these presumptions, we may in any particular case be brought
to a conclusion which, though logically unimpeachable, is
contrary to common sense. It is the reverse of reasonable to
impute a character to a man's possession which his whole
behaviour has long repudiated. If it is found that one co-owner
and his predecessors in interest have been in possession of the
whole property for a period as far back as reasonable memory
reaches; that he and they have done nothing to
recognize the
1 (1908) 3 A. C. R. 84.
2 (1907) I. L. R. 35 Cal. 961.

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