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I.L.M. Cadija Umma And Another v. S. Don Manis Appu
Structured Summary of the Opinion
Factual and Procedural Background
On 16 and 25 April 1930 the appellants instituted two actions in the District Court of Colombo to recover possession of two contiguous plots (aggregating about 2 acres and 38 perches) known as Maha Ettambagaha Kumbura. In the first suit four defendants were impleaded, S. Don Manis Appu being defendant 1; in the second suit defendant 1 was the sole defendant. The District Judge dismissed both actions on 23 March 1933, finding against the appellants both on title and on the question whether defendant 1 had acquired a prescriptive title under Section 3 of Ordinance 22 of 1871. The Supreme Court, on 22 January 1936, affirmed the District Judge's decrees, proceeding solely upon the ground of prescription under the Ordinance. The defendants did not appear at the hearing before the Privy Council (their Lordships), and the appeal to the Board followed.
Legal Issues Presented
- Whether the defendants (particularly defendant 1 and his mother) had been in adverse, undisturbed and uninterrupted possession of the disputed land for ten years prior to the bringing of the actions so as to acquire a prescriptive title under Section 3 of Ordinance 22 of 1871.
- Whether the acts relied on (cutting and selling wild grass over several years; erection of houses; occupation and collection of ground rent) constituted possession "by a title adverse to or independent of that of the claimant" as required by the section.
- Whether Section 3 of Ordinance 22 of 1871 should be construed as incorporating the Roman-law requirement of justus titulus or justa causa (i.e., that the possessory period must rest upon some imperfect but existing title) or whether no such requirement is introduced by the enactment.
- How the parenthetical explanatory clause in Section 3 should be interpreted (whether it is merely illustrative, a full definition, or an explanation of "undisturbed and uninterrupted possession") and the effect of that interpretation on claims of prescription, including situations of agency or co-ownership.
Arguments of the Parties
Appellants' Arguments (as presented in the opinion)
- The evidence of possession by the defendants for the ten-year period was insufficient: buildings relied upon to show possession were not shown to exist before 1922–1923 and therefore do not cover the full ten-year period before the 1930 actions.
- The taking of wild grass by the defendants (and their mother) was an ambiguous act: an owner of swampy land might not resist such cutting, and grass could only be taken part of the year (six to eight months), so this conduct alone is an inadequate foundation for a finding of adverse possession.
- The appellants pointed to indicia of continuing ownership: they had paid municipal rates on the disputed land as part of their holding until 1929 and in 1912 had obtained a consent decree in ejectment against a third party in relation to occupation of the disputed land.
- Counsel (Mr. De Silva) contended that Section 3 should be construed to require justa causa/justus titulus (possession founded on some title) and that the section should not be read as giving effect to pure possession without any title basis.
Respondents / Defendants (case as presented in evidence)
- The defendants did not appear at the hearing before the Board, but the courts below accepted evidence from witnesses supporting the defendants' case of possession:
- Witness "podi Singho" stated that from 1911 he had grass cut from the disputed land and paid defendant 1's mother (Getho Hamy) for it at a set rate; this continued for five or six years until Getho Hamy was taken to a leper asylum, and thereafter payments were made to defendant 1 until about 1930.
- Defendant 2 (Abraham) stated that from about 1922–1923 he had been living on the land with Getho Hamy's permission, had put up a house there paying ground rent initially to her and later to defendant 1, and that there existed several houses on the land (three put up by Abraham about 1925 at the mother's request and three by defendant 1 about 1929–30).
- The District Judge expressly accepted these accounts as true; the Supreme Court and their Lordships treated these factual findings as a basis for concluding adverse possession over the relevant period.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Corea v. Appuhamy, (1914) 1 AIR PC 243 = (1912) AC 230 = 81 LJ PC 151 = 105 LT 836 | Authority suggesting that the parenthetical clause in Section 3 is intended as an explanation of "undisturbed and uninterrupted possession" rather than as a definition that imports an independent justificatory title requirement. | The Board relied on Lord Macnaghten's language in this case to interpret the parenthetical clause as explanatory of the character of possession that will result in prescription; the case is cited to show historical interpretative approaches to the section. |
| Tillekeratne v. Bastian, (1918) 21 Ceylon New Law Rep 12 | Held (Bertram C.J.) that the parenthetical clause has no bearing on the meaning of 'adverse title' and may be disregarded in discussion. | The Board expressly rejected this dictum of Bertram C.J., finding it unsatisfactory and holding that the parenthetical clause does bear upon the character of possession; the Board therefore would not follow the view that the clause can be left out of account. |
Court's Reasoning and Analysis
The Board's analysis proceeded in several stages, adhering closely to the findings of fact made by the two Ceylon courts and to the statutory language of Section 3 of Ordinance 22 of 1871.
1. Acceptance of factual findings by local courts: Both the District Court and the Supreme Court accepted testimony that from 1911 onward the defendants (through Getho Hamy and later defendant 1) had been cutting and selling grass from the land and that from about 1922–23 there was continued habitation and construction of houses on the land, with ground rent paid to Getho Hamy and later to defendant 1. Their Lordships regarded the concurrent findings of the local courts on these facts as entitled to significant weight and not to be lightly disturbed.
2. Assessment of the sufficiency of acts constituting possession: The Board considered the contention that grass-cutting was too sporadic or permissive to constitute adverse possession. They concluded that the evidence was not merely of occasional permissive cutting but showed a continuing right to take and to sell the grass (including sales to the overseer of a cattle segregation camp) over a number of years, and that the grass represented the principal benefit derived from the land for a material period. The later erection of houses (post-1923) was a strong indicium of possession and also illuminated the meaning of earlier acts with respect to grass-cutting. Considering the evidence "fairly and as a whole," their Lordships found no reason to hold that the local courts had misinterpreted it.
3. Statutory interpretation — whether Section 3 imports justa causa: Mr. De Silva's submission that Section 3 should be read to require justus titulus (possession resting upon some title) was considered and rejected. Their Lordships noted that the law of Ceylon at the time of the Ordinance did not recognize such a doctrine and found it impossible to read the Section as introducing that requirement.
4. Interpretation of the parenthetical clause: The Board examined the parenthetical explanatory clause in Section 3 and concluded that it was intended to explain the character of the possession (i.e., undisturbed and uninterrupted possession unaccompanied by acts implying acknowledgment of another's right) that would give rise to prescription. They rejected an interpretation that would allow the clause to be treated as irrelevant, and they also recognized limits in the clause's drafting: a definition must itself be interpreted in light of the statutory purpose. For example, where possession is that of an agent or a co-owner on behalf of another, the definition cannot be applied so as to defeat the rights of the principal or co-owner — "a man's possession by his agent is not dispossession by his agent." Their Lordships therefore read the clause as explanatory but to be applied sensibly so as not to defeat legitimate relationships of agency or co-ownership.
5. Conclusion applying law to facts: Taking the evidence and the statutory construction together, the Board concluded that the defendants' possession was adverse and satisfied the ten-year requirement of Section 3, and therefore the appellants' actions for possession must fail.
Holding and Implications
Holding: Appeal dismissed. Their Lordships advised His Majesty that the consolidated appeal fails and should be dismissed.
Implications and practical consequences:
- Direct effect on the parties: The appellants' suits to recover possession of Maha Ettambagaha Kumbura fail because the defendants were held to have acquired a prescriptive title under Section 3 of Ordinance 22 of 1871.
- Costs: Because the respondents did not appear before the Board, there was to be no order as to costs.
- Interpretive consequences recorded in the opinion: The Board rejected the contention that Section 3 imports a requirement of justus titulus or justa causa, and it rejected the dictum in Tillekeratne v. Bastian that the parenthetical clause may be disregarded; instead the Board construed the parenthetical clause as an explanatory definition of the kind of possession that will give rise to prescription, while noting that the clause must be interpreted sensibly (e.g., it cannot be used to defeat the rights of principals where possession is by an agent or co-owner).
- No broader pronouncement that a new rule of law was being created beyond the Court's interpretation of Section 3 is expressed in the opinion; the decision rests on the application of that interpretation to the particular facts and the concurrent findings of the local courts.
Sir George Rankin:-
The appellants on 16th and 25th April 1930 brought in the District Court of Colombo two actions to recover possession of two contiguous plots of land measuring in the aggregate 2 acres and 38 perches and forming a triangular area to the north of land which is admittedly theirs. The disputed land is known as Maha Ettambagaha Kumbura. In the first suit they impleaded four defendants as being in wrongful possession, S. Don Manis Appu being defendant 1. In the second suit he was the sole defendant. The District Judge dismissed both actions on 23rd March 1933, finding against the appellants on the issue as to title and also on the question whether defendant 1 had acquired a prescriptive title under Ordinance 22 of 1871. The Supreme Court on 22nd January 1936 affirmed the decree's of the District Judge. Without pronouncing upon the issue as to the appellants' title the learned Judges of the Supreme Court proceeded solely upon the ground of prescription under the Ordinance. The defendants have not appeared at the hearing of this appeal by the Board.
The two acres (or thereabouts) now in dispute are said by the District Judge to be to a great extent swamp on which lotus grows; he states that on the portion which is not swampy there is a little wild grass, and buildings which have been put up from time to time. Akbar J. (with whose judgment Poysor J. agreed) says that the fact appears to be that the portion in dispute was at one time liable to be flooded and waterlogged, but that now, owing to a bund built by the Government, the floods do not seem to affect the portion in dispute. S. 3 of Ordinance 22 of 1871, so far as applicable to this case, is in the following terms :
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) for ten years previous to the bringing of such action, shall entitle the defendant to a decree in his favour with costs. And in like manner, when any plaintiff shall bring his action, or any third party shall intervene in any action for the purpose of being quieted in his possession of lands or other immovable property or to prevent encroachment or usurpation thereof or to establish his claim in any other manner to such land or other property, proof of such undisturbed and uninterrupted possession as hereinbefore explained, by such plaintiff or intervenient or by those under whom he claims, shall entitle such plaintiff or intervenient to a decree in his favour with costs. Provided that the said period of ten years' shall only begin to run against parties claiming estates in remainder or reversion from the time when the parties so claiming acquired a right of possession to the property in dispute.
Both Courts are in agreement on certain important facts affecting the applicability of this Section. In particular both accept the evidence of a witness called podi Singho who deposed that from 1911 he had grass from the disputed land cut by his own servants and paid defendant 1's mother (Getho Hamy) for it at the rate of ten cents for a bag of grass. This, according to his statements, continued for five or six years from 1911 until Getho Hamy was taken to the leper asylum; and thereafter he paid the money to defendant 1 until 1930 or thereabouts when the land began to be more occupied and there was no grass to be cut. Both Courts have likewise accepted as true the evidence of defendant 2 Abraham that for the last ten or eleven years (that is from 1922-23) he had been living on the disputed land with the permission of Getho Hamy and put up a house for himself thereon at a ground rent paid to her and afterwards to defendant 1. This witness further stated that besides his own there are eight houses on the land in suit of which three were put up by himself at Getho Hamy's request about 1925 and three by defendant 1 about 1929-30. The District Judge has expressly accepted these statements as true. On these facts the Supreme Court considered that it was impossible to say that the District Judge had come to a wrong conclusion in holding that defendant 1 and his mother had been in adverse possession for the period required by law. It has been argued before their Lordships that as the buildings are not shown to have come into existence before 1922 or 1923 the ten years before action are not covered by this part of the evidence, which to satisfy the Ordinance would require to extend so far back as 1920. Also that the mere taking of wild grass being conduct which an owner of swampy land would not necessarily be minded to resist is an insufficient foundation for a finding of possession in the earlier years, especially as grass cannot be cut all the year round but only (as defendant 2 stated) for six or eight months according to the weather. Mr. de Silva for the appellants has sought very reasonably to lay stress upon the facts that his clients appear to have paid, municipal rates upon the disputed land as part of their total holding until 1929, and that in 1912 they exercised their right of occupation in the disputed land by obtaining a consent decree against a third party in ejectment.
While recognizing that the sufficiency of the defendants' evidence of possession for the first two or three years after 1920 is debatable, their Lordships are not of opinion that in this case the concurrent findings of the Courts below should be departed from. The evidence as to the cutting of grass is not merely that defendant 1 and his mother were allowed to take some grass, but that they were allowed to sell it to the overseer in charge of the cattle segregation camp; and that this was continued over a number of years and at a time when the grass was the only, or at least the main advantage, accruing from the land. The evidence as to buildings put upon the land after 1923 is, if believed, very strong to show possession and is not without a bearing upon the earlier years as interpreting the acts of defendant 1 and his mother with respect to the grass, even if these might otherwise be thought to be ambiguous. Taking the evidence fairly and as a whole, their Lordships see no reason to think that the Courts in Ceylon have misinterpreted it: indeed the question of the value of the taking of the grass as evidence of possession is one on which the opinion of the local Courts is entitled to some special weight owing to their familiarity with the conditions of life and the habits and ideas of the people. It cannot be held that the Courts in Ceylon were obliged to regard the evidence as establishing no more, in respect of the earlier years, than a permissive taking of grass by or on behalf of defendant 1 and his mother. The finding of possession for ten years before suit must therefore be upheld. It follows, in their Lordships' opinion, that the appellants' suit must fail, since the character of the possession held by defendant 1 and his mother was clearly adverse to the appellants and satisfies Section 3 of the Ordinance.
Mr. De Silva contended however that the Section should be construed as introducing the requirement known to the Roman law as justus titulus or justa causa-the words "by a title adverse to or independent of that of the claimant or plaintiff"being construed as requiring the defendant to prove that his possession was on the footing of some title, however imperfect, and not wholly without right. Learned counsel had however to admit that the law of Ceylon recognized no such doctrine at the date of the passing of the Ordinance, and their Lordships find it impossible to interpret the Section as introducing it.
This opinion does not rest solely upon the words enclosed in brackets by way of explanation or definition-"(that is to say, a possession ... inferred),"but is supported also by the absence of any words calculated to define or assert the special doctrine of justa causa. There is a passage in the judgment of the Board delivered by Lord Macnaghten in Corea v. Appuhamy, (1914) 1 AIR PC 243= (1912) AC 230=81 LJ PC 151=105 LT 836, which supports (without discussion of the matter) the opinion that the parenthetical clause above mentioned is intended as an explanation of the words "undisturbed and uninterrupted possession"and not as a statement of what is meant by the full phrase previously employed "possession .... by a title adverse to or independent of that of the claimant or plaintiff."It appears that the late Walter Pereira J. in his work on the "Laws of Ceylon"suggested as a possible view that the words in parenthesis were "intended to be explanatory of the expression 'possession' only"; but that his own opinion was that they do not contain an illustration but are by themselves a full and self-contained definition of the expression 'possession by a title adverse to and independent of that of others': 2nd Edn., pp. 388, 390.
Departing widely from this learned author's opinion, Bertram C. J. in Tillekeratne v. Bastian, (1918) 21 Ceylon New Law Rep 12 at page 17, relying on Lord Macnaghten's language in Corea v. Appuhamy, (1914) 1 AIR PC 243= (1912) AC 230=81 LJ PC 151=105 LT 836, held that the parenthesis has no bearing on the meaning of the words 'adverse title': it may henceforth be left out of account in the discussion of the question.
Their Lordships cannot accept this dictum of the learned Chief Justice. The Section in its second half discloses the standpoint of the draughtsman by a phrase to which Lord Macnaghten's words may perhaps be attributed-proof of such undisturbed and uninterrupted possession as hereinbefore explained by such plaintiff .... shall entitle such plaintiff .... to a decree in his favour with costs.
The explanation thus pointed to includes not merely the requirement of adverse or independent title but also the period of ten years. The words "undisturbed and uninterrupted"are however repeated : indeed the parenthetical clause does not seem to contain any direct reference to acts other than acts of the possessor having a bearing upon the question of an acknowledgment by him. Their Lordships are unable to doubt that the purpose-perhaps the somewhat ambitious purpose-of the parenthetical clause is to explain the character of the possession which, if held without disturbance or interruption for ten years, will result in prescription. While however the clause is no mere illustration, it is not so completely successful an attempt to achieve the "full and self-contained definition"as might be wished. A phrase having been introduced and then defined, the definition prima facie must entirely determine the application of the phrase; but the definition must itself be interpreted before it is applied, and interpreted, in case of doubt, in a sense appropriate to the phrase defined and to the general purpose of the enactment. Thus, in a case where A's possession has been on behalf of B or has been the possession of B (whether by reason of agency or co-ownership) it seems impossible to apply this definition clause as between B and A so as to defeat the rights of B. It cannot be applied to defeat the rights of a person in possession. Under what conditions an agent or co-owner can be heard to say that his possession has been an ouster of his principal or co-sharer is a matter which need not here be examined. Ouster apart, a man's possession by his agent is not dispossession by his agent. The like is true between co-owners in Ceylon, and is the ground of decision in (1912) AC 230.1 Their Lordships will humbly advise His Majesty that this consolidated appeal fails and should be dismissed. The respondents not having appeared, there will be no order as to costs.
Appeal dismissed.
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