Possessory Action

Possessory action serves the basic purpose of enabling a person who had
possession of property to recover possession which had been unlawfully interfered
with.
Silva v Dingiri Menika – To succeed in a possessory action all that is necessary
for the plaintiff to prove is that he was in possession, and that he was dispossessed
otherwise than by process of law. (Followed in Dingiriya v Payne)
Scholtz v Faifer – a person who applies for such relief must satisfy the court upon
two points –
 He was in possession of the property at the date of the alleged deprivation
 He was illegally ousted from such possession
Prescription Ordinance Section 4 – it shall be lawful for any person who shall
have been dispossessed of any immovable property otherwise than by process of
law, to institute proceedings against the person dispossessing him at any time
within one year of such dispossession.

Underlying Legal Principle

 “Spoliatus ante Omnia restituendus est”
 Courts will enquire into the ultimate rights of the parties subject to the act of
spoliation being restored irrespective of who is entitled in law to be in
possession.
 People who commit acts of spoliation take the law into their own hands so
they must not be disappointed if the courts take a serious view of their
conduct.
 The reason for this drastic and dramatic rule is that the maintenance of
general law and order is of greater importance than protecting individual
property rights.
The proviso to Section 4 of the Prescription Ordinance provides that nothing
therein contained shall be held to affect the other requirements of the law as
respects possessory cases. By virtue of this proviso, the major substantive elements
of the Roman Dutch common law pertaining to possessory remedies continues to
be applicable in Sri Lanka.
However, unlike in South Africa, where possessory relief is available for both
movable and immovable property, in Ponnabalam v Sinnathamby, it was held that
in Sri Lanka, a narrower approach is to be adopted and that such action should be
maintained only against immovable property. However, Professor G. L. Peiris
asserts that this decision should be re-examined on the basis that it is incompatible
with the salutary policy objectives laid out in Changrapillai v Chelliah.

The two essential elements for the possession which is protected against
spoliation are –
1). the Corpus of Possession
2). the Animus of Possession

1. Corpus of Possession –
1. The degree of control – will depend on the circumstances and cannot be
defined in the abstract
Scholtz v Faifer – appellant contractor began construction on respondent’s
property but was not paid for part construction and the respondent put in a new
contractor. Appellant alleged that he was unlawfully dispossessed. When
considering whether the appellant had sufficient physical control the court
observed that –
i. When a house had been completed up to the point where doors could be
locked, this would be equivalent to possession of the building
ii. This is difficult to establish for partially completed buildings
Mere temporary absence by the appellant would not destroy the physical element
necessary to constitute possession
1. Where work is suspended, the contractor should take some special step to
preserve possession e.g. placing a representative or a hoarding
2. If he chooses to leave the work derelict, the physical element is absent
2. Derivative or indirect possession
Scholtz v Faifer – physical possession could be held either personally or by a
representative
3. Quiet and peaceful possession
Abdul Aziz v Abdul Rahim – Roman Dutch law requires plaintiff to have “quiet
and undisturbed possession. Thus quiet and peaceful possession is an important
element for corpus of possession.”
4. Exclusive Possession
Abdul Aziz v Abdul Rahim – court observed that the essence of the physical
element was “the power to deal with the property as one pleases, to the exclusion
of every other person”
Nienabar v Stuckey – different rights may be vested in different people but all of
them are entitled to the protection of spoliation proceedings. There is no reason as
to why the relief should not be available merely because the person who has been
despoiled does not hold exclusive possession.

2. The Animus of Possession

Posession ut dominus – holding the property as if he had the sole control of it,
whether he is really the owner or not, to the exclusion of others. The case law
suggests that the Sri Lankan position is not strictly that the plaintiff should have
“animus domini” or the intention of holding as owner but rather that he was in
effective control and he had the deliberate intention of not parting with that
control.
Mascoreen v Geny – possessory action of a priest against a man who had turned
him out of possession of a church. Defendant ought to have had the authority of the
Bishop. The decision implies that the plaintiff need not have civilis posessio or
possession ut dominus in order to bring a possessory action. Precarious possession
by the plaintiff is sufficient
MacCarogher v Baker – plaintiff who was a manager and agent for the owner
was not entitled to maintain a possessory action as he lacked the “qua dominus”
Thissera v Costa – agent or caretaker of a church could not maintain possessory
action
Sadirisa v Attadasi Thero – What the plaintiff in a possessory action had to prove
was possessio civilis, or, in other words, possession “animo domini”. So that all
that the Roman Dutch law requires is such possession as the evidence would
indicate that the plaintiff regarded himself as the sole owner of the land he was so
possessing.
Perera v Sobana – a tenant for a term who has exclusive possession as against his
landlord and everyone else during the term can maintain a possessory action
Abdul Aziz v Abdul Rahim – A person appointed by the congregation of a
Muhammadan mosque as “trustee” for a term of years, whose duties and powers
are defined by the rules framed by the congregation, and who is controlled in the
exercise of his powers by an “assembly” elected by the congregation, is not
entitled to maintain a possessory action. The Roman-Dutch Law requires the
plaintiff in a possessory action to have had quiet and undisturbed possession for a
year and a day; and the requisites of possession are the power to deal with the
property as he pleases, to the exclusion of every other person, and the animus
domini, i. e., the intention of holding it as his own.