• The respondent was in unlawful and forcible occupation in the land

By Lakmal Sooriyagoda   

The Supreme Court in a land dispute case held, that a person’s mere long possession and cultivation of someone else’s property has no legal validity upon claiming prescriptive rights and does not establish a true possession.   

The appellant Jayasinghe Pathman of Elpitiya contested that the respondent was in unlawful and forcible occupation. The respondent Korale Kandanamge Somapala has been residing in the premises as a close relative of the appellant.  

The Supreme Court three-judge-bench comprising Justice Buvaneka Aluwihare, Justice L.T.B. Dehideniya and Justice S. Thurairaja observed that the respondent living in his ancestral home as a descendent of the family, with the consent of his sister for over 70 years does not make him the true owner of the property, but a ‘Permissive Possessor.’  

Mere occupation of another’s property is not by itself construed as “possession” in the eyes of law. The Supreme Court further observed that there is a significant absence in clear and specific evidence on such acts of possession as would entitle the respondent to a decree in favour in terms of Section 3 of the Prescription Ordinance.  
The District Court of Elpitiya delivered the judgement in 2004 in favour of the appellant holding that respondent’s mere long possession and cultivation of appellant’s property has no legal validity upon claiming prescriptive rights.  

President’s Counsel Lakshman Perera with counsel Anjali Amarasinghe appeared for the appellant.  
President’s Counsel Rohan Sahabandu with counsel Hasitha Amarasinghe appeared for the respondent.