Law of Property

Law of Property BY: Balasubramaniyam Abirami DEFINITION AND CLASSIFICATION OF PROPERTY 1 Introduction ➢ The concept of property occupies an important place in human life because it is practically impossible to live without the use of material objects which constitute the subject matter of property. ➢ The term "property" is derived from the Latin term of proprietary. This means a thing owned. ➢ Voet cited that, "Property" means, it is an object or a right which is appropriated or susceptible of appropriation by man, with the capacity to satisfy human needs and wants. ➢ The Sri Lanka Constitution doesn't recognize the right to own land as an expressed fundamental right. 2 Property rights under international guarantees. United Nations International Covenant on Civil and political rights Article 17 of the Universal declaration of human rights declares that; & • Everyone has the right to own property alone as well as in association with others. International Covenant on Economic, Social and Cultural rights; • No one shall be deprived of his property. • Dropped out in guaranteeing the property rights. 3 Property rights under regional conventions. Article 23 of the American Declaration of the rights and duties of man declared that; Everyone has the right to own private property as it meets the essential needs of decent living and helps to maintain the dignity of individuals and of home. Article 21(1) of the American Convention on Human Rights declared that; The law may subordinate such use and enjoyment to the interest of society. Everyone has the right to use and enjoy the property. Article 21(2) of the American Convention on Human Rights declared that; No one can deprive his property unless the payment of just compensation, or the interest of society or the public utility or the structure with regards to law. 4 Article 14 of the African charter; Guaranteed the property rights. Article 17 of the ASEAN human rights declaration declared that; Everyone has the right to use their own property alone as well as in association with others. No one shall be deprived of his property. European Convention on Human Rights ; Failed to uphold the property rights. However Protocol 1 to European Convention on Human Rights guarantees the rights to peaceful enjoyment of property. 5 Classification of property. Properties can be classified into several methods within the framework of the Roman-Dutch system. Res Fungibiles Res Intra Commercium VS VS Res NonFungibles Res Extra Commercium. Owned Res Divini Iuris VS VS Unowned things Res Humani Iuris ResCoporeales Fructus Naturales VS VS Res-Non coporeales Fructus Industriales. 6 Res Intra Commercium VS Res Extra Commercium Res Intra Commercium Res Extra Commercium This type of property is capable of being owned or possessed by a private person. This type of property includes all things in respect of which private commercial transactions are legally responsible. This type of property is not capable of being owned or possessed by a private person. Res Extra Commercium can be divisible into several parts. Namely; 1. Res Sacrae 2.Res Sanctae 3. Res Religiosae 4.Res Communes 5.Res Publicae 7 TYPES OF RES EXTRA COMMERCIUM Res Sacrae • According to the Voet, this type of property belongs to no one. But falling under the divine law. • First place which was duly concerned to the God by a higher priest or the emperor. • This type of property transferred to the public for the profane or pious use. • Example; Votive offerings, robs, vessels, sacred buildings and other sacred objects Res Sanctae • This type of property is an inviolable thing which is forfeited against the wrongs of mankind. • Example; City walls and Gates. Res Religiosae • This type of property possesses both the sacred and hallowed quality. • Example; Burial Grounds. 8 Res Communes This type of property is owned by nobody. But possessed to the public. Example; Air, Sea and running water. Res Publicae This type of property is owned and possessed by the public. Public as a community they can use and enjoy these properties. Example; public road, harbour and perennial rivers. 9 DIFFERENCE BETWEEN TYPES OF RES EXTRA COMMERCIUM Res Sanctae, Res Sacrae and Res Religiosae are peculiar to Roman Law and Roman Dutch Law and are not useful for the modern Law. But Res Publicae and Res Communes are found a place in the Sri Lankan Law. Namely; The sea, The Sea-Shore, Lakes and Public Rivers 10 The Sea ▪ Courts of Sri Lanka recognized that every member of the public has the right to fish in the sea. ▪ Hale in his English Common law observes that, " Though the King is the owner of this great waste, he has a proprietary right. This proprietary right is a primary right of fishing in the sea, creeks and arms. ▪ At the same time common people of England have liberty to fishing in the sea without injuries to the rights of others. ▪ This approach has been adopted in our own county. • Fernando VS Fernando • Madapulli VS Patrick 11 FERNANDO VS FERNANDO Fact of the case is Plaintiff is a residents of Aluthwatta in chilo town. But the defendant argued that they had acquired the sea by way of long contiued possession. He asked the right to fishing in the sea which is located in the particular area. This means by of prescription or by way of custom. At the same time common people of Sri Lanka have liberty to fishing in the sea without injuries to the rights of others. But the court held that Though the King is the owner of this great waste, he has a proprietary rights. This proprietary right is a primary right of fishing in the sea, creeks and arms. Right over the sea cannot acquire by way of prescription or by way of custom. Therefore plaintiff has the right to fish in the high sea. 12 Madappuli VS Patrick ▪ There is no monopoly exist. Since common people of Sri Lanka have liberty to fishing in the sea without injuries to the rights of others. Right of fishing in the sea may be curtailed, regulated or even abrogated by statute. The Whaling Ordinance No.2 of 1936 Provides protection for certain species of whales. Provision is also made by this Ordinance for the grant of whaling licenses. The Pearl Fisheries Ordinance No. 2 of 1925 Provision requires the licence in order to fish the pearl. 13 The chank fishery Act, No.08 of 1953. This ordinance requires the diving licence in order to fishing the chanks. The Sea-shore ▪ The Sea shore falls under the category of ‘res communes. Definition for sea shore through case laws. Pharo VS Stephan Under the Roman-Dutch law, the boundary of the Sea-shore is the furthest line reached by the sea during the ordinary winster storms, excluding an exceptional or abnormal flood. Fernando VS Kalutara Police Pharo VS Stephan decision was followed by South Africa case in Surveyor VS Estate de villiers. The South Africa decision have been adopted by our own courts. But there is only one different . In our country there is no season called "winster." But there is a season called "South-west monsoon". Therfore Under the SriLanka law, the boundary of the Seashore is the furthest line reached by the sea during the ordinary South-west monsoon, excluding an exceptional or abnormal flood. 14 Definition for “Foreshore” through crown lands ordinance. ▪ “The shore of the island of Ceylon between high-water mark and Low-water mark.” Courts of Sri Lanka recognised that every member of the public has the right to Sea-shore. ▪ In Attorney General VS Pitche: The Sea-shore is the public property as like public highway or any other public property. The crown has the interest to protect those property. Right of Sea-shore has been curtailed, regulated or even abrogated by statute. 1) Part VIII of the Crown Lands Ordinance No.13 of 1949 deals with the Fore-Shore. It cited that “The administration, custody, control and management of the fore-shore are vested in the crown.” 2) The President of the Republic of Sri Lanka statutorily authorized to lease any part of the Fore-Shore. But this can be done after the satisfaction that granting lease will not be prejudice to the rights of public. 15 3) A competent authority has the power to permits any person in the Sea-shore for the temporary occupation. 4) The minister has the authority to declare any part of the Sea-shore is the area in which no sand, stone or coral may be removed. 5) The Tourist Development Act provides that, “The administration, custody, control and management of the fore-shore are vested in the board instead to the crown.” 6) Rowel Mudaliyar VS Pieris: In this case it was held that competent authority has the power to grant license to fisherman in order to spread their nets on the Sea-shore. This quotes clearly reflects that without the consent of the competent authority fisherman cannot spread their nets in the Sea-Shore. 16 Lakes ▪ The Crown Lands Ordinance defines a “lake” as including, “a lagoon swamp or other collection of still water, whether permanent or temporary not being water contained in an artificial lake”. ▪ The right to the use and flow of the water in any public lake or public stream shall subject to restrictions. ▪ Such restrictions can be enforceable by crown in order to beneficial use of water and its protection from pollution. ▪ However, this right of the crown is also subject to the Right of the crown is also subject to the restrictions. restrictions. If any person, company, corporation board or local authority lawfully excersice the lakes by virtue of written law or of any licence granted by the crown. Crown's this right subject to the occupier of a land. Crown's this right subject to the rights of the holders under this part. 17 Public Rivers ▪ The Crown Lands Ordinance cited that the public stream is the property of the crown. The term "Stream" include, "any river, creek or ela, whether perennial or intermittent, following in a natural channel, and any affluent or conluent in which the stream flows." A 'Private stream' means; "any stream the source and entire course of which is within private land." A 'Public stream' means; "any stream other than a private stream." 18 OWNED & UNOWNED THINGS RES DIVINI IURIS & RES HUMANI IURIS Res Divini Iuris and Res Humani Iuris Owned and Unowned Things Owned things means which are capable of Ownership. Res Sacrae, Res Sanctae and Res Religiosae are Res Divini Iuris In other words these things are ‘actually’ subject to ownership. Res Communes and Res Publicae are Res Humani Iuris Unowned things means which are not subject to the Ownership. These things are called as res nullius. Wild animals, abandoned property. 19 RES CORPORALES & RES INCORPORALES Buckland cited that Res Corporeals is a "Physical Object" and Res Incorporeals is an "abstract conceptions or notional things." Res Corporales can be touched. Res Incorporeals cannot be touched and which consist of rights. Res Corporales & Res Incorporales Such as ; servitudes, inheritances and depts. 20 RES FUNGIBILIES & RES NON FUNGIBILES Res Fungibilies & Res Fungibilies is a movable goods which may be estimated and replaced according to weight, measure and number. Res Non Fungibiles Res Non Fungibilies are deals with bodies and masses rather than quantities. 21 RES MOBILES These are movables and immovable things. & RES IMMOBILES. Therefore a fourfold classification should be considered under this head. The Roman Dutch Law applies the distinction between movables and immovable not only within the area of corporeal property but also within incorporeal property. Corporeal Movables. Corporeal Immovables. Incorporeal movables . Incorporeal Immovable. Movable Property (Corporeal Movables). It means property of every description not permanently attached to the earth. Eg. clothes, furniture, vehicles, currency, severed fruit, animals. Immovable Property (Corporeal Immovable). Immovable property denotes land and whatever is adherent there to. It includes lands, incorporeal tenements & things attached to the earth . Growing trees, standing crops, hanging fruits, Minerals still forming a part of the earth are also immovable property. But as soon as they are detached from the ground, or cut down, they become movable properties. 22 FRUCTUS NATURALES & FRUCTUS INDUSTRIALES Fructus Industriales Fructus Naturalis is the products of nature and falls under the ambit of immovables. There are two difference exit between these concept. The benefit of crops treated as movables may go to the possessor while crops which are held to be immovable are the property of the owner of the soil. 23 brought into being by human endeavour and industry and falls under the ambit of movables. Growing crops if Fructus naturals are governed in Sri Lanka by section 2 of the prevention of Fructus ordinance. Growing crops if fructus Industrials are governed by the Sale of Goods Ordinance. In Perera VS Ponnatchi the court was held that standing crop of tobacco as fructus industrials. In Gunatilake Appu VS Mudiyanse, it was held that corn, paddy, chilies chena crops and standing crops of tobacco are Fructus Industrials. Case Laws respect to the Fructus Naturales In Lee Hedges & co. VS James Seville & Fructus Industriales It was held that grass, timber, apples, coffee, standing crops of cinchona are part of the soil thus fructus naturalis. Fruits produced by manual labour in sowing planting, reaping and gathering are fructus Industriales. Examples of Fructus Industrials are corn, paddy, chilies chena crops and standing crops of tobacco. 24 25 Fixtures In certain time or certain level, the property takes movable character. At the certain time or certain level same property will turn into the character of immovable. There is a problem arises with regard to the classification of property. Since there are certain properties which cannot exactly classified into movables or immovables. There is certain property initially took the character of immovable then those properties will turn into the movable. Example- Trees and Fruits. [1] Objective of learning fixture ▪ In order to determine who is having an ownership or dominium or legal title over the Article. ▪ Articles can be divided into two parts. Namely: Movable and Immovable Article. ▪ Immovable articles are termed as a ‘Fixture’. Since immovable articles forms part of the house. ▪ Example: “Abi” is going to sell her house to “Varu”. In order to determine who should get the ownership of article attached to the earth, we should understand what articles comes under the part of Fixture. ▪ If “Abi” sells the house to “Varu”, “Varu” will be the owner of the house and fixtures. ▪ Therefore, Varu can claim ownership as to the house and fixtures. [2] What is fixture? General definition to Fixture. Movables, affixed to land or building acquire the quality of immovables, by reason, not alone of their being affixed but of their being affixed with the intention of permanently remaining. Authors definition to Fixture. ❖ Voet sets out the principle that movables may become immovables by virtue of some special provision of the legislator or an account of design or act of the owner. ❖ Voet further observes that, “As for the act of the owner, when things which before were movable, whether beams or columns or movable, have been attached to a house with the object not of temporary but of permanent use they forthwith belong to the house and are thus immovable”. ❖ The same theory must apply if they have been removed with the intention of putting them back again. [3] ❖ According to Voet everything which is inserted and included in the building and intended for the purpose of the use of the house, as if it were a part of it are regarded as a fixture. For example: painting on the plasters, marble facings, hooks and keys although not attached to the soil are permanent fixtures. Case Laws definition to Fixture. Broadie VS AG Abeysundara VS Hinnihamy Fixtures are articles. The term “Fixture” has no precise legal meaning and that a great deal depends on the circumstances of each case. [4] Movables, affixed to land or building acquire the quality of immovables, by reason, not alone of their being affixed but of their being affixed with the intention of permanently remaining. The essential elements of fixture ❖ It is difficult to determine whether an article originally movable has become immovable through annexation by human agency. ❖ However, the essential elements of fixtures were laid down in the case of Olivier VS Haarhof. Olivier VS Haarhof. The nature of the particular article The degree and manner of its annexation [5] The intention of the person annexing it. The nature of the particular article First requirement is that the thing must be in its nature capable of acceding to realty. This requirment was explained in the case of Abeysundera VS Hinnihamy. Issue • Whether a certain wooden screen found in a house sold by the defendant’s husband to the plaintiff was to be regarded as a movable chattel or a fixture. • It was a large wooden screen. • It was fixed with a hall by a person with the intention Nature of to permanently partition the centre hall of the house the into two rooms. Article • District court judgement was correct. • Such wooden screen was a fixture since it fixed with the wall in order to permantly partition the central hall into two rooms. Decision • Thus there is a permant intention and such article is capaple of being fixed to realty. [6] The manner and nature of its annexation The second element was the manner and nature of its annexation. This was laid down in Gault VS Behrman. In this case it was held that there must besome effective attachment, whether by mere weight or by physical connection. [7] The intention of the person annexing it. ❖ This element is crucial and constituting the determine factors in most cases. ❖ Burge cited that the intention of the person annexing it should be permanent. ❖ If a person fixed any movable property in the reality with the permanent intention than such property fall under the immovable and thus falls under fixture. ❖ In this regard several cases need to be considered. Victoria falls power Co. Ltd VS Colonial Treasurer ▪ Certain electric pole lines were erected for the purpose of concession. ▪ A person annexed it with the temporary intention. ▪ Court held that such electric pole lines were movables and cannot be treated as a fixture. [8] Mc Donald VS Radin ▪ In this case article is certain machineries. ▪ Such machineries were not physically incorporated in the reality. ▪ And such machineries can operatable from the building. ▪ Court held that machineries could not be treated as a part of building unless a person annexing it with the permanent intention. ▪ Dominium or Ownership only can acquire if the person fixed it with the permanent intention. [9] A private railway line was built on land which had been leased for a period of twenty-one years with the right of renewable. Lessee entitled to remove the structure from the lease land before the expiry of the lease agreement. Lessee and Lesser both have the right to terminated the lease agreement with the prior notice and according to the stipulation of a lease agreement. Newcastle In this case lessee constructed a railway line with the ballasted. VS Borough of New castle The rails were fixed with the slippers together couple with fish-plate and nuts. Slippers of rail were constructed with the stone and cement. Excavation was carried down for the depth of six feet or more than that. Court held that private railway line was an immovable property and thus become fixture. “Act of the lessee, indicates that railway line has been attached to a reality with the object not of temporary but of permanent use they forthwith belong to the land and are thus immovable”. [10] Van Wezel VS Van Wezels Trustee W leased three stands from the D company for one-month period with the right to renewable. One of the lease clauses declares that before the expiry of the lease agreement lessee should remove the structure otherwise such structure become the property of company without any compensation. However, W built a house, a windmill and a tank. Such windmill was made with a iron rails and which is attached with the earth. After W, his son use such properties for business purposes. Appellant claimed for the structures which is affected by his father. After some time the estate of Appleant (W"s Son) was sequestrated and respondent appointed trustee. Court held that Act of the W, indicates that whole structures has been attached to a reality with the object not of temporary but of permanent use they forthwith belong to the land and are thus immovable”. [11] Gault VS Behrman In this case appellant is the owner of a house for eleven years. She installes coal stove in her house in order to heat the water. After that she sold the house for respondent through the deed of sale. The agreement is silent regarding the coal stove. Appellant sued the defendant for the delivery of a house. The respondent argued that the stove was an immovable property and formed part of the house. Court held that according the Broadie VS AG case : counters, cooking range , water tanks, electic bells, batteries and indicators, baths and lavatory were fixtures in the absence of a special agreement, and formed the part of a reality. Therefore court held that coal stove is the fixtures and the property of respondent. [12] Tissera VS Tissera {Sri Lanka Case} A fibre mill was constucted on the 1st defendants land with the financial contribution of several plaintiffs. Such fibre milll was included machinery and a building. Machinery's engine fixed with the door of the building through the concreate foundation. Afterwards lease agreement was made and such fibre mill was transferred to the first respondent. The first defendant by way of bill of exchange sold such mill to the second defendant. The second defendant argues that various structure in the mill became the property of him. The court held that Acts of the brothers, indicates that whole structures has been attached to a reality with the object not of temporary but of permanent use they forthwith belong to the land and are thus immovable”. [13] Petterson VS Sorvaag Nature of the house Issue The house was fabricated one. Whether a house which had been destroyed by fire, was a movable or an immovable? a pre- Norwegian bought this house who belived that this house was a movable. House was very heavy and probably incapable of being moved as a unit. But such house could be taken to pieces and can put together in another site. Such house is double-stored house and included fourteen rooms. Court held that house was a movable and not a fixture. Because Acts of the Owner, indicates that whole structures has been attached to a reality with the object temporary use. Thus the house is movable due to the temporary intention of the annexer. [14] THE CONCEPT OF POSSESSION [1] The concept of The concept of property occupies an important place in human life because it is practically impossible to live without the use of material objects which constitute the subject matter of property. The concept of Possession plays a crucial role in property law. Under the concept of Possession following things need to be considered. ● What is possession? ● Definition of possession. ● Elements of possession. ● Kinds of possession. ● Types of possession based on mental elements. ● Modes of Acquisition of possession. [2] What is Possession? ➢ Literal meaning of Possession is "to occupy" or "to have control". ➢ It refers to physical control over or occupation of a thing. ➢ The Possessor has better title to the respective property against the whole world except the true owner. ➢ This is called right in rem. ➢ Possession is nine points in law. ➢ The concept of possession is different from the concept of ownership. Since if you possess the property it doesn’t necessarily means you also owned to that thing. [3] Definition of Possession. • The term Possession is very difficult to define. But most of the scholars provide the definition of Possession. FREDERICK POLLOCK SAVIGNY Intention coupled with the physical power to exclude others from the use of material objects. In common speech a man is said to be possessed or to be in Possession of anything if he has the apparent control of an object or apparent power to exclude others from the use of material objects then such person has the Possession over the respective property. [4] Elements of possession Wille cited that, Physical control by a person of a corporeal thing with the intention of keeping the control of it for his own benefit. This quote involves two elements. Namely; Corpus possidendi/ Physical element/ Detentio. Animus domini / Mental element. [5] Physical element. ➢ The Literal meaning of Corpus Possidendi is possession of the body. ➢ This is the objective or physical element of Possession. ➢ Under the physical element six points need to be considered. [6] If a person has a control, custody or occupation over the object then such person has a possession over the respective property. R VS Betelezi. The occupier of a building has detentio of the things contained in the building. Detentio does not necessarily require immediate physical connection. Smith VS Martin's executor. Multer VS Prince The occupier of a house has detentio of the building itself and has detentio of the land in which it stands. Mere temporary absence by a person for a short period doesn't destroy the Detentio. Sympolic delivery is sufficient to establish detentio. Heydentrich VS Saber Possession of a key equivalent to the possession of a house. Constructive detentio has been recognized by law. Constructive detentio means if a person possessed a part of the land the law deems that such person has possessed the entirety of the land. [7] Detentio can be either direct or derivative. De Jager VS Harris In this case it was held that a tenant who was occupied in the property for nominal rent saves the interest of the landlord. Derivative possession. Mental element. ➢ Literal meaning of "Animus domini" is the intention to possess the property. ➢ This means if a person has the intention to possess the property for his benefit then he has the mental element to possess the property. ➢ In other words, if a possessor excluded others from interfering his right to possession, he has fulfilled the Animus domini. Loss of possession. ➢A possessor should fulfil two substantive requirements in order to constitute him as a possessor. ➢ If either of them or both of them are missing, such a person cannot become a possessor or there is no possession. This was illustrated in the case of Raki VS Lebbe. [8] RAKI VS LEBBE. When considering the facts and circumstances of these cases it was very clear that European planter was not a possessor. European planters planted the coffee trees in that area. After some time, he had abandoned it and went abroad with the intention to not to return. Since he has failed to prove substantive requirements. Namely; Physical and Mental element. Afterwards such land was covered by Patna trees, shrubs, trees and grass. However, detention does not require immediate physical connection with the property. But in this case European planter failed to prove an adequate degree of physical control of the property. And European planter has no more animus domini since he has gone abroad with the intention to not return. Thus, any person can commence the possession over the respective property. This case declared the importance of substantive requirements in claiming the possession. [9] Kinds of possession. Possession in fact & Possession in law. Corporeal & Incorporeal possession. There are several kinds of possession. Mediate & Immediate possession. Concurrent possession. [10] Corporeal and Incorporeal possession. Salmond cited that corporeal possession is the possession of an object and he further states that Incorporeal possession is the possession of a right. INCORPOREAL POSSESSION CORPOREAL POSSESSION Corporeal possession is the possession of tangible or material things which can be seen or felt with senses. This type of property has a direct relationship with the possessor. For example: Possession of the land, possession of the house or possession of the car, etc…. [11] Incorporeal possession is the possession of intangible things which cannot be seen or felt with senses. Therefore, several scholars stated Incorporeal possession as a quasipossession. This type of property is not eligible for actual possession but this is something that you can own. For an example: Goodwill, Shares in Company, copyright and trademark. POSSESSION IN FACT AND POSSESSION IN LAW. Possession In Fact • Possession in fact also called as a de facto possession. • Under this court will consider who is the possessor or who has the right to possession according to the fact. Possession In Law • Possession in law also called as a de jure possession. • Under this court will consider who is the possessor or who has the right to possession according to the law. [12] EXAMPLE FOR POSSESSION IN FACT AND POSSESSION IN LAW. ABI is the lessor and BABI is the lessee. Both of them are entered into the lease agreement for 10 years. In this instance BABI as a lessee, he is a de facto possessor. Since he has the right to possession for 10 years according to the facts. At the same time ABI {lessor} is the dejure possessor. Since he has the legal title over the property. He has the actual rights of possession over the respective property. She deliberate his right to possession to BABI for 10 years. Once the 10 years period was completed ABI automatically regained her possession. [13] MEDIATE AND IMMEDIATE POSSESSION. ➢ Mediate possession is the possession of the things which is held by another on his behalf. Either by Servant, Tenant, Mortgagee, Lessee or friend etc…. ➢ ABI drives a car of VARU. ABI is in immediate possession, while VARU has mediate possession being owner. [14] CONCURRENT POSSESSION. ➢ Concurrent possession means two persons having possession of the same object. ➢ In civil law there is a maxim that two persons cannot hold the same objects. ➢ In other words, there cannot be two adverse claims at the same time. ➢ However, if the possession is not adverse and destructive then Concurrent possession is possible. Thus, Concurrent possession is possible under these ways. 1) Mediate and Immediate possession can co-exist. 2) One possesses a land having corporeal possession, while another can have right of way over the land having incorporeal possession. [15] Types of possession based on mental elements. Ut dominus possession Exclusive possession Bona fide possession Possessio civilis Possessio naturalis Adverse possession Mala fide possession [16] Ut dominus possession Exclusive possession Bona Fide possession • Ut dominus possession is one of the requirements for possessory action. • A person claiming for the possessory relief should hold the property with the honest belief that he is the owner of property. • Exclusive possession is relative to the lease agreement. • During the particular period the possessor has the right to exclude everyone else from the possession, including the owner. • Moreover during that period he will be the absolute owner of the property. • Bona Fide possession is one of the requirements for Accession. • Person should have the honest belief that he is the actual owner. • Civilis possessio is one of the requirement for Accession. • A possessor should prove that he has the belief that he is the sole owner of the property. Civilis possessio [17] • Mere possession of the land without any intention. Possessio Naturalis. Adverse Possession Mala fide possession • Adverse possession is one of the requirements for claiming the prescription. • A person can acquire a title to land by taking possession adverse to the true owner for a period of time. • It permits the possessor to lawfully steal the land. Objective behind this rule is if one person sleeps on his right his rights also sleep away from him. • A person who controls or possesses property acting as a rightful owner but knowing that he or she is not the rightful owner. [18] Adverse possession and Mala fide possessions are different from each other. In adverse possession you entered into the land by an Mala fide possession you agreement. are doing something to get And you possess the said land ownership of the property adverse to the true owner for a with the knowledge that period that is more than ten the title vested in another years. person. At the same time you proved the undisturbed and uninterrupted possession, thus you can acquire a prescriptive title. Since you have no mala fide intention. Only your possession become adverse. You genuinely believe that once you complete a ten years period, you can become the owner of property by the decree of the court. [19] Modes of Acquisition of possession. Salmond and Paton cited that there are two modes of acquisition of possession. Namely ● Taking & ● Delivery. Taking Delivery • Acquisition of possession without the consent of the previous possessor is termed as Taking. • It is not necessary that the thing that is taken must have been in possession of another. • It is also not necessary that the taking be rightful or wrongful. • Only acquiring possession is necessary. • Delivery is the acquisition of possession with the consent and Co-operation of the previous possessor. • Delivery is either actual, Symbolic or Constructive. [20] [21] ACCESSION 1 Modes of Acquisition of property Generally, there are four modes of acquisition of property. Occupatio Accession Prescription Delivery and Transfer accession Walter Pereira cited that; • This is the process by which one thing accedes or becomes added to or incorporated with another in such a way that it is regarded as forming part and parcel of the latter, and becomes by such process the property of the owner of the same. 2 Balasingham states that accession comprises the following modes of acquisition; Increment by birth of young animals. Alluvion Accession of part of neighbour’s land when detached from by the force of a river. Island rising in a river. Change of river bed. Specification . Industrial attachments. Confusion of liquids. Planting. Sowing. Perception and Seperation of fruits. 3 The mode of acquisition of property may be treated under two heads. NATURAL ACCESSION Which is due to the action of natural causes. Increment by birth of young animals, Alluvion, Accession of a part of neighbor’s land when detached by the force of river, ARTIFICIAL OR INDUSTRIAL ACCESSION Which is due to the labour of man. Specification, Industrial Attachment, Confusion of liquids, Planting, Island rising in a river, Sowing, Change of river bed Perception and Separation of fruits. 2 General Rule as to the Accession Roman-Dutch law rule is that Whatever is built or cultivated on land becomes part of the land. This rule applied equally to a situation where a person building on his land with the materials of another and To that of a person building on another’s land with his own materials. According to the equitable principle no one should be enriched unjustly to the detriment of another. Under the Dutch law owner of property was entitled to claim the improvement if he had improved the property in the belief that it was his own. 3 improvements NECESSARY IMPROVEMENTS. Improvements made to Immovable properties can be divisible into three classes. USEFUL IMPROVEMENTS ORNAMENTAL IMPROVEMENTS. 4 Improvements made to Immovable properties can be divisible into three classes. IMPROVMENTS Necessary Improvement. Necessary Improvements means expenses that is necessary to be incurred so as to preserve the property, or to save it from being lost to the owner, or wrecked or ruined. Useful Improvements Ornamental Improvements. Useful Improvements means that as result of useful expenses incurred to the property the value of such property is increased. These are improvements which merely contribute to the adornment of property but do not increase profits or permanently enhance its value. 5 Substantive requirements of the action for compensation The factum of possession. The required animus. 6 THE FACTUM OF POSSESSION ▪ The Factum of possession is an uncomplicated requirement. Sri Lanka Juristiction Appuhamy VS Doloswela Tea & Rubber Co. It is necessary that there should have been either direct or derivative possession by the improver. Appuhamy VS Doloswela Tea & Rubber Co. Under the factum of possession necessary element is that improvers intention should be accompanied by an immediate physical connection with the property improved, in the form of occupation on the basis of the purported rights. South Africa Juristiction Acton VS Motan It is necessary that there should have been either direct or derivative possession by the improver. 7 THE REQUIRED ANIMUS. This contains two important elements that forms the animus in the improver. Bona Fide Civillis Possession Willoughby's Consolidated VS Capthall stores Ltd. “Our law compels the owner of land to compensate a bona fide possessor who has improved it under the belief that the land was his own”. Wijeysekera VS Meegama It must be considered whether the improver had civilis possession and next whether such possession was bona fide or mala fide. 8 Applicability of the concept of Civilis possessio. ▪ Civilis possessio denotes the belief that the property is one’s own. ▪ According to the traditional view the requirement of civilis possessio is fundamental and provides the foundation of the equitable claim. In Mudiyanse VS Sellandyar • In this case it was held that: Civilis possessio is fundamental and provides the foundation for awarding compensation for useful improvements. In Mohideen VS Soysa and Brundsons Estate VS Brundsons Estate A lessee’s claim for compensation has been rejected for he is not a bona fide possessor and lacks civilis possessio as he knows that the property is in his lessor. It was held in the latter case that an usufructuary locks civilis possessio “as he knows that he is dealing with the property of another”. Bandirala Vidane VS Kiribanda ; Defined a ‘bona fide possessor’ as one who holds under the belief that the seller was and that now he is the true owner. 9 Oosthuizen VS Oosthuizen In this case the improver had paid regularly a proportion of the crops to his father. The court defined “a possessor” for the purpose of the law of compensation as “one who occupies as an owner and exercises on his own behalf rights of ownership.” It was held that the son was not entitled to compensation since he did not claim to be owner himself. This can be regarded as an instance where compensation has been disallowed for lack of civilis possession. Whipplinger VS Wax This case defined a ‘bona fide possessor’ as one who holds under the belief that the seller was and that now he is the true owner. Meyer’s Trustee VS Malan It was said in this case that a bona fide possessor must have the intention of holding as owner. 10 Exceptions to the Application of Civils Possessio The position is now clear in both South Africa and Ceylon that Compensation may be allowed for useful improvements to categories of improvers to whom civilis possessio is not attributable. Where the improver with the knowledge that the property is yet in another acts in expectation of formal title which be believes is certain to be conferred on him subsequently has been allowed compensation. Compensation has allowed in cases where a person, who improves land under an inoperative planting agreement with the owner, is sought to be evicted later by the owner or by a subsequent transferee. Compensation is also allowed where the improver occupies the land with the leave and license of the owner. Compensation has allowed in cases where a person, who improves land under an inoperative planting agreement with the owner, is sought to be evicted later by the owner or by a subsequent transferee. Where “A” mistakenly believing that he is erecting a building on a land which he had leased from “B” in fact improves the property of “C”, “A” is entitled to recover compensation from “C”. In circumstances where the plaintiff having effected improvements of the land which he believed he had leased from the owner is evicted before the expiry of the contemplated period has been allowed to recover compensation. A person who had paid a sum of money to have land released from seizure for non- payment of estate duty by an executor, is entitled to recover the money from compensation payable in respect of the land under statutes governing acquisition of land. 11 Where the improver with the knowledge that the property is yet in another acts in expectation of formal title which be believes is certain to be conferred on him subsequently has been allowed compensation. Sri Lanka Juristiction Government Agent,Central province VS Letchiman Chetty Marthelis Appu VS Jayawardene Mutttiah VS Clements 12 MARTHELIS APPU VS JAYAWARDENE • In this case improvements were effected on the faith of a verbal unenforceable promise by the owner to execute a conveyance of the land in favour of the improver. • Compensation was allowed. GOVERNMENT AGENT,CENTRA L PROVINCE VS LETCHIMAN CHETTY • This case refused the principle of "Conscientia rei alienate". A goverment agent caused structured to be erected on land which he intentended to acquire shortly according to prescribed Statutory procedure. Therefore compensation was allowed. MUTTTIAH VS CLEMENTS • In this case plaintiff, was induced to improve the land by the owner’s informal undertaking to grant a lease. • Compensation was allowed . 13 South Africa Juristiction Martin VS Estate Estate Laas VS Laas Salzer VS Salzer Ras VS Vermulan Harrison VS Merchant Auret VS Kernick Lind VS Calitz Improvers to whom the owner had made promise to donate a land by will succeeded in their action for compensation. • Martin VS Estate • Estate Laas VS Laas • Salzer VS Salzer • Ras VS Vermulan A buyer who had defaulted in paying installment of the purchase price punctually, was held entitled to be compensate for improvements which had been made during his occupancy. • Harrison VS Merchant • Auret VS Kernick • Lind VS Calitz 14 Compensation is also allowed where the improver occupies the land with the leave and license of the owner. Silva VS Attadassi & Nugapitiya VS Joseph • The owner by an invalid agreement had purported to grant the improver an allotment of land for the purpose of erecting a building which he was to occupy indefinitely on payment of a nominal rent. • In this case the improver was awarded compensation on his ejectment although the acknowledged the title of another. The improver was held not to be a bona fide possessor, for his possession, cannot possibly be said to be ‘detention animo domini’. Fernando VS Cooray • This is a Sri Lanka Case. Compensation was allowed in this decision where the plaintiff’s father had allowed the managers of a school to build a structure of his land. Mohamadu VS Babun • This is a Sri Lanka Case. The equitable claim was successful in this case where the defendant in an action for declaration of title and ejectment, pleaded that he had built a house and cultivated crops with the express permission of the Owner. 15 Compensation has allowed in cases where a person, who improves land under an inoperative planting agreement with the owner, is sought to be evicted later by the owner or by a subsequent transferee. WIJEYSEKERA VS MEEGAMA & MUDIYANSE VS SELLANDYAR • Compensation has allowed in cases where a person, who improves land under an inoperative planting agreement with the owner, is sought to be evicted later by the owner or by a subsequent transferee. SAIBO VS BABA • De Sampayo J held that a person occupies in the land on the footing of a ‘planter’s share’ “has a sufficient interest in the land to constitute him a bona fide possessor in respect of improvements outside the actual planting’. • This interest cannot derive from animus domini. But derived from the agreemrnt. 16 Where “A” mistakenly believing that he is erecting a building on a land which he had leased from “B” in fact improves the property of “C”, “A” is entitled to recover compensation from “C”. SOUTH AFRICA JURISTICTION • Fletcher & Fletcher VS Bulawayo water works Co. In this case plaintiff has secured a lease of land, sank wells and constructed a plant by which water was to be pumped beyond the boundaries of the leased land. • The court awarded compensation although the improver did not purport to possess the land pro domino. • Bellingham VS Blommetje • In this case a plaintiff had been erected dam and buildings outside the limits of the land in respect of which he had obtained a lease. • The court awarded compensation although the improver did not purport to possess the land pro domino. 17 In circumstances where the plaintiff having affected improvements of the land which he believed he had leased from the owner is evicted before the expiry of the contemplated period has been allowed to recover compensation. SOUTH AFRICA POSITION Rubin VS Botha In this case the owner exploited the informal character of the lease to evict after a period of three years an improver who had put up a building which he was declared entitled by the invalid agreement to occupy free of rent for 10 years. Compensation was allowed to the improver. Parking VS Lippert The lease was terminated by operation of law on the insolvency of the lessee who was thus deprived of the right of possession of structures which he had expected to enjoy for the duration of the lease. Compensation was allowed to the lessee. 18 SRI LANKA POSITION Mohideen VS Mustapa & Dharmaretna VS Perera • Temporary interest in the land was claimed by the improvers who anticibated that the building they had erected would ultimately become the property of the owner of the land. • Therefore compensation was allowed. 19 A person who had paid a sum of money to have land released from seizure for non- payment of estate duty by an executor, is entitled to recover the money from compensation payable in respect of the land under statutes governing acquisition of land. SRI LANKA POSITION o Daluwatte VS Senanayake. In these situations, it is immaterial to look whether improver is bona fide possessor or not? 20 THE RATIONALE OR THE GENERAL BASIS OF AWARDING COMPENSATION FOR USEFUL IMPROVEMENTS TO PERSONS WHO COULD NOT HAVE CLAIMED CIVILIS POSSESSIO IN EXCEPTIONAL SITUATIONS. GOVERNMENT AGENT VS LETCHIMAN CHETTY Betram CJ emphasized that the determining tests under the Roman Law cannot be justly applicable as determining tests in the various combinations of fact which present themselves in modern life. “We are I think, entitled to develop the legal principles handed down to us in connection with new situations which arise in our own civilizations”. Bertram CJ in the case of Appuhamy VS Doleswela and in the case of Davith Appu VS Bahar declares that since the principle involved was originally on equitable principle it is more in accordance with the spirit of that principle that we should administer it equitably rather than upon strictly rigorous lines. Thus, a liberal judicial attitude was recommended in determining the limits within which improvers lacking civilis possessio maybe allowed compensation. 21 But this should be done within an adequate theoretical frame work. 22 NUGAPITIYA VS JOSEPH [ SRI LANKA JURISTICTION CASE] In this case it was held that, where an owner who agrees in making of improvements is estopped from disputing the right of the improver to be compensated on the same footing as a bona fide possessor. It is settled principle that, when a mala fide possessor effects improvement with the knowledge of the owner, he will be considered as a bona fide possessor. Thus, he is entitled to get all the privileges as like a bona fide possessor. [ SOUTH AFRICA JURISTICTION CASES] De Beer’s Consolidated VS London & Phillips VS Adams It is settled principle that, when a mala fide possessor effects improvement with the knowledge of the owner, he will be considered as a bona fide possessor. Thus, he is 23 entitled to get all the privileges as like a bona fide possessor. 24 HASSANALLY VS CASSIM The Privy Council dealt with the right of a putative lessee to compensation in this case. The true owner is not entitled to take advantage, without making compensation, of the improvements effected by one who makes them in good faith believing himself to be entitled to enjoy them whether for a term or in perpetuity. Accordingly, a person who occupies land Bona Fide and improves it in the mistaken belief that he has a lease of the property has the same right to compensation as a bond fide possessor. 25 HASSANALLY VS CASSIM FACT OF THE CASE: ❖ R.U. held certain land subject to a fidei commissum created in 1871 in favour of her descendants. ❖ She died in 1921 leaving as he heirs two daughters U.S. and Z.U., each of whom became entitled to a half share of the property subject to the fidei commissum. ❖ U.S. died in March, 1938 leaving as heirs her four children, one of whom was the plaintiff in the present action. ❖ On the 11th December 1945, Z.U. who was entitled to 4/8th shares of the property, granted to the fifth defendant a lease of the property for thirty years. ❖ One of the conditions of the lease was that, apart from paying the yearly rent, the 5th defendant should erect on the land at his own expense. ❖ In the expiration of the lease it become the property of the lessor without payment of any king whatever. ❖ Z.U., held herself out as the sole owner of the land and the 5th defendant constructed the buildings in the Bona fide belief that Z.U. was in fact the sole owner. 26 ACTION BY THE PLAINTIFF ❖ The plaintiff brought the present action under the provisions of the Partition Act No.16 of 1951 claiming a declaration of title to the property and a sale under the Act. ❖ He made defendants not only the persons (including Z.U.) who were interest with him under the fidei commissum but also the fifth defendant. ❖ It was not disputed that the fifth defendant’s interest was such that he was a proper and necessary party to the suit. DECISION OF THE PRIVY COUNCIL Upon the sale of the property in terms of the partition Act the fifth defendant was entitled to be paid out of the proceeds of sale and in priority to the beneficial interests of other parties, compensation for the buildings erected and other improvements effected by him. Soysa Vs Mohideen partly overruled. 27 Necessary Qualifications to the right to recover compensation LYDENBURG PROPERTIES LTD. V MINISTER OF COMMUNITY DEVELOPMENT The Court held that, “even if this mistake is genuine it is nevertheless based on a mistake of law” and disallowed compensation. It is an established limitation on the remedy that a mistake of law operated to prevent recovery of compensation. Thus, where the improver believed that writing and notarial execution are not required for transfer of ownership in land, no compensation is available. On the other hand, if the improver was aware that these requirements were imposed by law but believed that the owner would accept a moral obligation to execute a valid transfer, the mistake is one of fact, and compensation may be claimed. 28 LEVY VS MARESKY ❖ The purchaser of a house believed that he had also bought a shed on an adjoining site. ❖ He believed he was the owner of the shed, and this is a case of mistake of fact. LEVY VS MARESKY & LYDENBURG PROPERTIES LTD. VS MINISTER OF COMMUNITY DEVELOPMENT It is not sufficient that the improver believed in good faith that he was or would be, entitled to enjoyment of the property since it is a requirement that the improver’s belief should be based on reasonable grounds. 29 NUGAPITYA VS JOSEPH & MOHAMADU VS BABUN The minimum requirement in regard to the animus of the improver in the modern law is genuine belief that his occupation of the land, although not supported by any legal right, would not in fact be disturbed by the owner. 30 31 Remedies under property law. The concept of property occupies an important place in human life because it is practically impossible to live without the use of material objects which constitute the subject matter of property. In the present era, one of the determining factors of the prosperity of a country is the respect and protection it affords to the property rights of its citizens. It is the responsibility of the state to protect property rights of its citizens. In this regard Possessory Action and Rei Vindicatio Action should be noted. Rei vindicatio Action is available to the owner of property in order to recover his possession of property. Whereas Possessory action is a legal remedy which is available to a possessor who has dispossessed either by owner or third party by way of unlawful means. 1 POSSESSORY REMEDIES The possessory action serves the basic purpose of enabling a person who had possession of property to recover possession which had been unlawfully interfered with. 2 The requisites of a Possessory Action/ Facta probanda. IN SILVA VS DINGIRI IN SCHOLTZ VS FAIFER & BURNHAM VS NEUMEYER MENIKA & DINGIRIYA VS PAYNE It was held with regard to the It was held with regard to elements possessory the elements of possessory action that what the plaintiff is action that what the plaintiff required to prove is that he is required to prove is that he was in the possession of the was in the possession of the property at the date of property at the date of alleged deprivation. alleged deprivation. & & He was illegally or forcibly He was illegally ousted from or such possession. ousted of against his consent from such possession. 3 The Underlying Legal Policy of the Possessory Action. Sri Lanka position Changrapillai VS Chelliah Edirisuriya VS Edirisuriya Sameen VS Depp South African position Greyling Wilsnach VS VS Estate Pretorius Vander Westhuizen Nino Bonino VS De Lange 4 GREYLING VS ESTATE PRETORIUS ❖ In this case the Principle of “Spoliatus ante Omina restituendus est'' was recognized. ❖ This means that before the court will allow any inquiry into the ultimate rights of the parties. ❖ The property which is subject of the act of spoliation, must be restored to the person from whom it was taken irrespective of the question as to who is in law entitled to be in possession of such property. ❖ This verdict illustrated the rationale that when people commit acts of spoliation by taking the law into their own hands, they must not be disappointed if they find that courts of law take a serious view of their conduct. ❖ Spoliatus ante Omnia restituendus est rule is plain and obvious. ❖ Maintenance of law and order is of greater importance than mere rights of particular individuals to recover possession of their property. 5 WILSNACH VS VANDER WESTHUIZEN The foundation of the rule for the restoration of property took a place under these aspects; 1. To prevent a spoliator from taking the law into his own hands. And 2. When a person takes the law into his own hands, they must restore the property from whom they were taken. 3. If they want to establish their rights, they can establish in a peaceful manner in a court of law. NINO BONINO VS DE LANGE In this case it was held that, ★ No man is allowed to take the law into his own hands. ★ No one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property whether movable or immovable. ★ If he does so the court will restore the property from whom the property was taken. 6 CHANGRAPILLAI VS CHELLIAH ❖ This remedy is the most beneficial one. ❖ The objective of this remedy is to provide speedy relief. ❖ Aim of the possessory action is to discourage people taking the law into their hands by forcibly dispossessing those in possession and then claiming title to the property. SAMEEN VS DEPP & EDIRISURIYA VS EDIRUSIRYA The foundation of the rule for the restoration of property took a place under these aspects; 1. To prevent a spoliator from taking the law into his own hands. And 2. When a person takes the law into his own hands, they must restore the property from whom they were taken. 3. If they want to establish their rights, they can establish in a peaceful manner in a court of law. 7 For what type of property we can claim possessory relief ? ▪ Modern position is clear that South Africa and Sri Lanka jurisdictions have different approaches in this regard. SOUTH AFRICA HAS ADOPTED BROADER VIEW IN THIS ASPECT. In South Africa possessory relief is available to both movable and Immovable properties. This principle was illustrated in the South Africa case of Nino Bonino Lange. VS De BUT SRI LANKA JURISTICTION HAS ADOPTED NARROWER VIEW IN THIS ASPECT. In the case Ponnambalam VS Sinnatamby it was held that in Sri Lanka possessory relief is only available to the Immovable properties. However the decision of Ponnambalam VS Sinnatamby has criticised by G. L.Peries. He stated that this decision should be re-examined . Since this decision was incompitable with the salutary policy laid down in the Changarapillaai VS Chelliah case. 8 Statutory framework The law governing possessor remedies in Sri Lanka is contained in the Prescription Ordinance No.22 of 1871. ➢ SECTION 4 OF THE PRESCRIPTION ORDINANCE States that, “Any person who has been dispossessed of any immovable property otherwise than by process of law is entitled to institute proceedings against the person dispossessing him, at any time within one year of such dispossession under this Act. ➢ On proof of such dispossession within one year before the action is brought the plaintiff will be entitled to a decree against the defendant for the restoration of such possession without proof of title.” ➢ The proviso to Section 4 reads that, “Nothing herein contained shall be held to affect the other requirements of the law as respects possessory cases”. According to the proviso it is clear that the major substantive elements of the Roman Dutch common law pertaining to possessory remedies continue to the applicable in Sri Lanka. 9 What are the Substantive elements that should be fulfilled in Possessory Remedies? SUBSTANTIVE REQUIREMENTS. The Corpus of Possession The Animus of Possession 10 THE CORPUS OF POSSESSION ➢ The Literal meaning of Corpus Possidendi is possession of the body. ➢ This is the objective or physical element of Possession. ➢ Under the “Corpus of possession” several features need to be considered. The degree of control. Derivative Or Indirect possession. THE CORPUS OF POSSESSION. Quiet and Peaceful possession Exclusive possession 11 THE DEGREE OF CONTROL ❖ The person seeking possessory relief should prove that he had sufficient control over the property prior to the alleged spoliation. ❖ The degree of control depends on the fact and circumstances. ❖ It cannot be defined in the abstract. 12 SOUTH AFRICA POSITITION. SCHOLTZ VS FAIFER After Some days Appellant alleged that he had partly erected building. And the respondent has unlawfully deprived his possession and placed another in that place. In this case appellant was a contractor. He made a contract between the respondent to erect certain building on the conditition that respondent should provide the material and salary for every two week. Issue in this case was Whether the appellant has sufficient physical control over the partly erected building? Court held that When a house was fully compled then no problem. Since the doors are placed and doors will be locked. At such circumstances possession of the key would be equivalent to possession of the building. But here the house partly erected. Detentio doesnt necessarily require immediate phycial connection. This means mere temporary absence by the possessor for a short time does not destroy the detentio. For an example; Where a builder goes away every night; he still has the detentio over the property where he works. But where work is suspended for a considerable time, and if the builder desires to preserve his possession he must take some special step, such as placing a representative in charge of the work, or want to do something to enforce his right to its physical control. If he fails to do any of these things then no matter what his intention maybe, the the physical element is absent. Therefore in this case appellant lacks the detentio over the partly constructed building. 13 DERIVATIVE OR INDIRECT POSSESSION SOUTH AFRICA POSITITION SCHOLTZ V FAIFER For the purpose of possessory relief physical possession of the property could be held either personally or by a representative. 14 QUIT & PEACEFUL POSSESSION. QUIT & PEACEFUL POSSESSION SRI LANKA POSITION Abdul Aziz VS Abdul Rahim For the purpose of possessory relief physical possession should be support with quit and peaceful possession. Thus quiet and peaceful possession is an important element for corpus possession. SOUTH AFRICA POSITITION Hall VS Pitsoane & Sebestian VS Malelane Irrigation Board. For the purpose of possessory relief physical possession should be support with quit and peaceful possession. Thus quiet and peaceful possession is an important element for corpus possession. 15 EXCLUSIVE POSSESSION. SOUTH AFRICA POSITITION SRI LANKA POSITION Nienabar VS Stuckey & Abdul Aziz VS Abdul Rahim. Scholtz VS Faifer. In this case it was held that there may be different rights vested in different persons in respect of the some piece of land. All of them are entitled to the protection of spoliation proceedings. Thus the element of 'Exclusive possession' is not cardinal. This case provides the definition to 'Exclusive possession'. 'Exclusive possession' means, “the power to deal with the property as one please, to the exclusion of every other person”. Therefore according to the Sri lanka view the element of 'Exclusive possession' is cardinal. 16 THE ANIMUS OF POSSESSION ➢ Literal meaning of "Animus domini" is the intention to possess the property. ➢ This means if a person has the intention to possess the property for his benefit then he has the mental element to possess the property. ➢ In other words, if a possessor excluded others from interfering his right to possession, he has fulfilled the Animus domini. ➢ Most judicial decisions emphasize that the mental element required in a possessory remedy is ‘Possession Ut dominus’. ➢ Various interpretations have been given in respect of the meaning of the term ‘Ut dominus’. ➢ Traditional definition and Modern law definitions are different as respect to the ‘Ut dominus possession.’ 17