Law of Prescription

Prescription
Prescription Ordinance No. 22 of 1871
amended by
Ordinance No. 2 of 1889
Ajithaa Edirimane, LLB MLB
Attorney-at-Law & Notary Public
COPYRIGHT Ajithaa Edirimane - No part of this slide
presentation shall be copied or extracted or used in
anyway without the publisher’s permission -
ajithaa2001@yahoo.com

 This ordinance supersedes the principles of
Roman Dutch Law which applies to immovable
property in Sri Lanka
- Terunnanse vs Manike (1829) 1 NLR 200 This
Ordinance contains the requirements to establish
ownership through prescription on immovable property
- Fernando vs Wijesooriya (1947) 48 NLR 320
It is not necessary to prove that the possessor had some
title to the property at the time of entry. The whole law of
prescription is found in the Ordinance No 22 of 1871

Sec. 3 of the Ordinance
Elements necessary to establish prescriptive rights
through an action of declaration of title:
1. Undisturbed and uninterrupted possession
2. By a title adverse to or independent of the
owner
3. For 10 years (previous to the bringing of an
action)

What is meant by ‘previous to the bringing of an action?’
Perera vs Perera (1903) 7 NLR 173 – 10 yrs possession
immediately before the filing of an action is not
necessary.
Sec. 4 – Possessory Action to be brought within one year.
 The Ordinance does not provide for the registration of
prescriptive title even though ownership acquired
through prescription is recognized.
 The current practice: Registration of a Deed of
Declaration (Important to get all relevant
background information)
Sec. 3 of the Ordinance

Undisturbed and uninterrupted
possession;
1. Actual physical possession necessary - Matilda Peiris vs Clara
Fernando (1961) 62 NLR 534
2. Derivative Possession acceptable ; through a person legally
occupying property as a tenant – Fernando vs Manika (1906) 3
Balasingham Reports 115
3. Possession by co-owners of an informal but definite partition of a
land where each party enters into possession of his share, then it
is adequate to establish prescriptive rights. Kirimenika vs
Manikhamy (1921) 22 NLR 510 (In the Privy Council case of
Corea vs Iseris Appuhamy (1911) it was held that a co-owner’s
possession is in law the possession of other co-owners. However,
this changed in the Supreme Court full bench decision in 1918
Tillekeratne vs Bastian where it was held ‘possession originally of
a co-owner has become adverse’.
4. An unsuccessful action against a person in possession does not
interrupt the running of prescription. Tamel vs Anohamy (1917)

Adverse Possession
 An occupation which began in a dependant or
subordinate capacity can be converted to “adverse
possession “
E.g. Silva vs Letchiman Chetty (1922) 23 NLR 372
- A agreed to sell B his 1/12th share
- and the 1/12th share of his 2 minor children
- Deed indicated that A had given possession and
received consideration
- Minors attained the age of majority 15 years before the
action but did not make any claim of ownership
- Court held that B acquired prescriptive rights of the
shares of land held by the minors.

Persons against whom Prescriptive rights
cannot be claimed – Sec. 13
Prescriptive rights cannot be claimed against a
person who is an:
1. Infant ( minor ) – Ref. Silva vs Letchiman
Chetty
2. Idiot
3. Of unsound mind
4. Lunatic
5. Absent beyond the seas – This does not apply
to party who has appointed an Attorney to act
on his behalf in the island

Persons against whom Prescriptive rights
cannot be claimed – Sec. 13 (cont)
In such a situation Prescriptive rights shall begin to
run :
1. From the date of death of the party against
whom the rights are claimed or
2. From the date of termination of the disabilities
which ever occurs first

Property against which Prescription does not
apply – Sec. 15
 State Property : AG vs Punchirala (1915)
18 NLR 152 - In the case of chena lands
in the Kandyan Provinces, title by
prescription cannot be claimed as these
are deemed belonging to the Crown.

Conclusive proof of title
 Sec. 13 (proviso)
1. Adverse and uninterrupted possession
2. By a person or party claiming under him
3. For 30 years
AG vs Kirimudiyanse (1947) 35 CLW 43
Held that the period of prescriptive possession
against the Crown appears to be 30 years.

Law of Prescription

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