The Application of Prescriptive Title in Sri Lankan Property Law: Defense, Establishment of Title, and the Impact of Registration

I. Introduction to Prescriptive Title in Sri Lanka

Prescriptive title, within the framework of Sri Lankan property law, represents a fundamental legal doctrine that facilitates the acquisition of ownership over land or other immovable property through prolonged, continuous, and uninterrupted possession. This doctrine also serves to extinguish pre-existing claims over time.¹ The legal foundation for prescription in Sri Lanka is primarily established by the Prescription Ordinance No. 22 of 1871, which came into effect on January 1, 1872. This Ordinance marked a pivotal shift in the legal landscape, moving away from Roman Dutch law principles on prescription and adopting concepts closely aligned with English adverse possession.² Over the years, the Ordinance has been subject to legislative amendments, including the Prescription (Special Provisions) Act, No. 5 of 2016, and the Prescription (Amendment) Act, No. 26 of 2014, which have refined its application, particularly concerning the rights of disadvantaged persons and the State.¹

Core Elements of Acquisitive Prescription

For a claim of ownership through prescription to succeed in Sri Lanka, several core elements must be rigorously established:

• Duration: Section 3 of the Prescription Ordinance No. 22 of 1871 specifies that a period of ten years of uninterrupted and undisturbed possession is required for the successful prescription of land or immovable property.³

• Nature of Possession (Adverse/Independent Title): The possession must be "by a title adverse to or independent of that of the claimant or plaintiff".⁵ This implies that the possession must be "unaccompanied by payment of rent or produce" and of a character "incompatible with the title of the owner," demonstrating a clear hostility to the true owner's rights.⁶

• Ut Dominus (As Owner): The possessor must prove possession ut dominus, meaning "as owner." This does not necessarily require an honest belief in ownership but rather an intention to hold and deal with the property as one's own, to the exclusion of others. It signifies effective control and a deliberate intent not to relinquish that control.⁸

• Exclusivity: The possession must be quiet, peaceful, and exclusive, meaning the possessor holds the property to the exclusion of all others.⁹

• Disabilities: The prescriptive period does not run against individuals under certain legal disabilities, such as minors, those of unsound mind, or lunatics, as long as the disability persists. However, adverse and undisturbed possession for thirty years can serve as conclusive proof of title against any adverse claimant's disability, irrespective of such limitations.⁴

• State Property: Prescriptive rights cannot be claimed against State property, as explicitly stated in Section 15 of the Prescription Ordinance.²

Distinction between Prescription and Adverse Possession

In Sri Lankan law, acquisitive prescription is largely analogous to the concept of adverse possession found in English law. It is understood not merely as a defensive mechanism to protect existing possession but as a distinct mode of acquiring property.³ The authoritative decision in

Perera v. Perera (1903) solidified this interpretation, establishing that a possessor who successfully acquires prescriptive title gains a full legal title that can only be divested through other recognized legal means. Once this title is acquired, the physical possession of the holder becomes as legally robust as if the title were obtained by a formal deed.³ This fundamental understanding is crucial because it elevates prescriptive title from a procedural shield to a substantive right in property disputes. A person who successfully establishes prescription effectively becomes the new legal owner, endowed with all the rights and powers associated with

dominium, including the ability to alienate or defend the property. This substantive transformation of the possessor's interest sets the stage for its offensive application, a key aspect of this analysis.

The underlying policy objectives of prescriptive title are also significant. It serves to prevent the unjust enrichment of those who neglect their land while others productively utilize it.³ This doctrine provides the judiciary with the necessary flexibility to deliver justice in individual cases by allowing consideration of complex social, economic, cultural, and personal factors that influence how people interact with their property. Furthermore, it incentivizes title holders to maintain and protect their land, thereby promoting its utilization, aligning with Lockean theories of property. The commentary also raises questions about the moral justification of private ownership if there is no minimal reciprocity between formal title and actual possession.³ This highlights that prescriptive title is not just a technical legal concept but a mechanism serving important policy objectives, reflecting a societal value that discourages land neglect and rewards productive use, even if it means overriding formal paper title. This inherent tension between strict legal ownership and the practical realities of land use and social justice will become particularly relevant when considering the impact of title registration later in this report, as the new system appears to prioritize certainty over these traditional justifications for prescription.

Table 1: Essential Elements of Acquisitive Prescription in Sri Lanka

Element	Requirement	Statutory Basis/Case Law Reference
Duration	Uninterrupted and undisturbed possession for 10 years	Prescription Ordinance No. 22 of 1871, Section 3 5
Nature of Possession	Adverse to or independent of the claimant's/plaintiff's title; incompatible with owner's title	Prescription Ordinance No. 22 of 1871, Section 3; Corea v. Iseris Appuhamy (1911) 6
Animus Possidendi (Ut Dominus)	Intention to hold and deal with the property as one's own, excluding others; effective control	Edirisuriya v. Edirisuriya (1986); Fernando et al. v. Fernando 8
Exclusivity	Quiet, peaceful, and exclusive possession	Ponnambalam v. Sinnathamby; Abdul Aziz v. Abdul Rahim 9
Against Whom It Runs	Generally, against private individuals; exceptions for disabilities and the State	Prescription Ordinance No. 22 of 1871, Sections 13 & 15 2
Interruption	Possession must be uninterrupted; can be by legal action or physical ouster	Prescription Ordinance No. 22 of 1871, Section 3 5

II. Understanding Rei Vindicatio and Declaration of Title Actions

Nature and Purpose of Rei Vindicatio Actions

A rei vindicatio action is fundamentally a legal proceeding for the assertion of ownership (dominium) over immovable property.¹⁰ Its primary objective is to enable the rightful owner to recover possession of their property from an individual who is unlawfully occupying it, often coupled with a prayer for ejectment.¹¹ The entire cause of action in such a suit is predicated solely on the violation of the plaintiff's right of ownership.¹¹

Plaintiff's Burden of Proof in Rei Vindicatio

In a rei vindicatio action, a substantial and paramount burden rests upon the plaintiff to prove their dominium (ownership) of the land in dispute.¹⁰ Beyond merely asserting ownership, the plaintiff must also precisely establish the specific and definite boundaries of the land, demonstrating that the property is clearly identifiable. A failure to adequately identify the land will result in the dismissal of the action.¹⁰ To establish a presumption of title, the plaintiff must present compelling evidence of their title. Even when deeds are presented, the claim may be dismissed if the plaintiff fails to establish full ownership of the entire land or a complete chain of title.¹²

It is a well-settled principle in Sri Lankan law that the execution and delivery of a conveyance of land, if in conformity with the Ordinance of Frauds, transfers title to the purchaser even without physical possession. Consequently, a purchaser holding only "paper title" (nuda proprietas) who has never had actual possession can still maintain an action for a declaration of title against a third party in possession without title or under a weaker title.¹¹ This highlights that

dominium, while paramount, is not automatically indefeasible merely by the existence of a deed. This vulnerability of paper title is precisely where prescriptive title finds its strategic entry point. A defendant, or even a plaintiff, can exploit the gaps or weaknesses in a documentary title by asserting a superior claim based on long-term adverse possession. This sets up the core conflict that this report addresses: the clash between formal, documented ownership and ownership acquired through the passage of time and factual possession.

The Relationship between Rei Vindicatio and Declaration of Title Actions

Landmark judicial decisions in Sri Lanka and South Africa suggest a close affinity between rei vindicatio and actions for declaration of title, often treating them as essentially synonymous, both being actions for the assertion of ownership, with any noted differences often being without real distinction.¹⁰ However, the Supreme Court has provided important clarification: the inclusion of a prayer for a declaration of title in an ejectment action does not automatically transform it into a

rei vindicatio action requiring strict proof of ownership, especially if the underlying relationship between the parties is contractual, such as that of a licensor-licensee. The Court emphasizes that the true legal nature of the action is determined by the substance of the pleadings and the evidence, rather than merely the label or the specific prayer for relief.¹³ This implies that legal strategy in property disputes is highly nuanced. For a defendant relying on prescription, it is not enough to simply challenge the plaintiff's title; they must affirmatively plead and prove their own prescriptive title. Conversely, a plaintiff seeking to establish title through prescription must frame their action precisely, demonstrating the elements of adverse possession. This underscores the importance of meticulous legal drafting and a deep understanding of the evidentiary requirements for each type of action, as courts will look beyond superficial claims to the factual and legal basis.

III. Prescriptive Title as a Defense in Property Actions

Prescriptive title serves as a potent defense against a plaintiff's rei vindicatio or declaration of title action. When a defendant can prove undisturbed and uninterrupted possession of lands or immovable property for 10 years, under a title adverse to or independent of the claimant or plaintiff, they will be entitled to a favorable decree with costs.⁵ The essence of this defense lies in demonstrating that the original owner's

dominium has been extinguished by the adverse possession of the defendant for the statutory period, thereby preventing the original owner from vindicating their property.¹⁰

The possession asserted by the defendant must be genuinely "adverse" and "hostile" to the true owner, unequivocally signifying a denial of their title. Permissive possession, such as a son holding property with the mother's permission, is not considered adverse and cannot mature into prescriptive title.⁷ The burden of proof rests heavily on the party claiming adverse possession to provide "clear and unequivocal evidence" of the hostile nature of their possession and any change in its character.⁷

Statutory Basis for Defensive Use

Section 3 of the Prescription Ordinance No. 22 of 1871 is the primary statutory provision enabling this defense. It explicitly states that such proof of possession by a defendant "will entitle the defendant to a decree in his favour with costs".³ This section is framed to apply to both defendants and plaintiffs, highlighting that the legal standard for establishing prescriptive title (10 years, adverse, undisturbed, uninterrupted possession) is consistent, regardless of whether it is used as a shield or a sword. This unified standard simplifies the legal analysis of prescriptive claims. While the outcome (defeating a claim versus establishing a new one) differs based on the party asserting it, the evidentiary burden and the elements to be proven remain the same. This implies that a successful defensive claim implicitly means the defendant has acquired a new title, even if the decree formally dismisses the plaintiff's action.

Illustrative Principles on Defensive Application

While specific cases are not always explicitly labeled as "defensive" in the provided material, the principles established in cases like Corea v. Iseris Appuhamy (1911) are crucial for assessing the validity of a defensive prescriptive claim, particularly in co-ownership disputes. This case established that the possession of one co-owner is, in law, the possession of others, and for a co-owner to initiate prescriptive title against others, there must be "ouster" or clear, overt acts communicated to the other co-owners, demonstrating a hostile intent.⁷ This contrasts with the position of a stranger. Similarly, the emphasis in various judicial pronouncements on the need for possession to be "in denial of the title of the true owner" and "irreconcilable with the rights of the true owner" forms the bedrock for evaluating any defensive claim based on prescription.⁷

The repeated emphasis on the need for possession to be "adverse to or independent of that of the claimant or plaintiff," "incompatible with the title of the owner," and "hostile to the real owner" ⁷ points to a significant practical challenge in litigation. It explicitly states that "permissive possession is not in denial of the title" and that the burden is on the claimant to show "clear and unequivocal evidence of the change in the character of the possession".⁷ This means that merely occupying land for 10 years is insufficient; the

character of that possession is paramount. Proving the "adverse" nature of possession, especially in cases where initial entry might have been permissive (e.g., family members), requires more than just demonstrating a lapse of time. It necessitates evidence of overt acts, a clear intention to exclude the true owner, and communication (express or implied) of that hostile intent. This often leads to complex factual inquiries in court, making the success of a prescriptive defense highly dependent on robust evidentiary support.

IV. Prescriptive Title as a Basis for a Plaintiff's Claim (Offensive Use)

Acquisitive prescription in Sri Lankan law functions as a distinct mode of acquiring property, meaning a plaintiff can actively use it to establish a new title to land, rather than merely using it as a defense.³ Section 3 of the Prescription Ordinance explicitly supports this offensive use by stating that a plaintiff or intervenient can use proof of undisturbed and uninterrupted possession "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".⁵

Judicial Interpretation of Acquisitive Prescription as a Mode of Acquisition

The cornerstone for this offensive application is the interpretation derived from Perera v. Perera (1903), which posits that a possessor, upon acquiring prescriptive title, gains a full "title of which he can only be divested in one of the modes recognized by law." This title, once acquired, is considered as robust as one obtained by deed, rendering the possessor's continued physical possession immaterial.³ The repeated reference to

Perera v. Perera and its assertion that a possessor acquires a "title of which he can only be divested in one of the modes recognized by law" is paramount. This, coupled with Section 3's provision allowing a plaintiff to "establish his claim in any other manner" ⁵, clearly indicates that prescriptive title, once acquired, is equivalent to an original grant or a title by deed. It is not merely a defense but a mechanism to create a new, legally recognized ownership. This means that a plaintiff can proactively seek a court declaration that they are the legal owner of a property based solely on their proven prescriptive possession, even if another party holds a paper title. This provides a vital avenue for formalizing de facto ownership, particularly in situations where original documentation is lost, unclear, or never existed, or where the original owner has neglected their property for an extended period.

Key Case Law Demonstrating Offensive Application

Several landmark cases illustrate the offensive application of prescriptive title in Sri Lankan law:

• Carim v. Dholl (1892): This case exemplifies the offensive application. Despite the original deed being held by another party, the court recognized prescriptive title in favor of Saibo Umma's successors based on her 30 years of possession ut dominus. This demonstrates the judiciary's willingness to establish a new, legally recognized title based on long-term adverse possession.³

• Alwis v. Perera (1919): In this instance, a family successfully prescribed a house they had occupied for over sixty years, even against the patriarch's attempts to transfer it. This further underscores the judiciary's recognition of a new title based on prolonged factual possession.³

• Tillekeratne v. Bastian (1918): This landmark decision established that even a co-owner can acquire prescriptive title against other co-owners if their possession has been undisturbed and uninterrupted for a sufficient period, and the other co-owners have not asserted their rights. This is particularly relevant in familial or rural contexts where formal divisions may be absent.³

• Marshall Appuhamy v. Punchi Banda ¹⁴:

  This case clarifies that a stranger who enters into possession of the entirety of co-owned property, believing themselves to be the sole owner, does not need to prove "ouster" (a specific act of exclusion) but only 10 years of adverse possession to acquire prescriptive title against the co-owners. Mere execution of deeds by other co-owners does not interrupt such a stranger's prescriptive possession. This highlights a comparatively lower evidentiary bar for strangers compared to co-owners.¹⁴

• Corea v. Iseris Appuhamy (1911): This Privy Council decision established crucial principles for co-ownership. It held that the possession of one co-owner is, in law, the possession of all. For a co-owner to initiate prescriptive title against others, there must be "ouster" or clear, overt acts communicated to the other co-owners, demonstrating a hostile intent. This contrasts with the position of a stranger.⁷

The interplay between Tillekeratne v. Bastian, Marshall Appuhamy v. Punchi Banda, and Corea v. Iseris Appuhamy reveals a crucial distinction in the application of prescriptive title. While co-owners can prescribe against others, Corea and Marshall Appuhamy clarify that this generally requires "ouster" or clear, communicated acts of adverse possession, reflecting the presumption that a co-owner's possession is for the benefit of all. However, Marshall Appuhamy explicitly states that a stranger entering co-owned land under a claim of sole ownership does not need to prove ouster, only 10 years of adverse possession. This highlights the legal system's attempt to balance the protection of co-ownership rights with the practical reality of long-term possession. It acknowledges the unique relationship among co-owners, requiring a higher threshold (ouster) to break the presumption of shared possession. Conversely, for external parties, the focus remains purely on the adverse nature of their possession, making it comparatively easier for a stranger to acquire prescriptive title against co-owners who have not asserted their rights. This nuance is critical for legal practitioners assessing the strength of a prescriptive claim in co-ownership scenarios.

Table 2: Defensive vs. Offensive Application of Prescriptive Title

Aspect	Defensive Application	Offensive Application
Primary Purpose	To defeat a plaintiff's claim of ownership (e.g., in rei vindicatio or declaration of title)	To establish a new legal title for the possessor and obtain a declaration of ownership
Role of Possessor	Defendant asserting a superior right to retain possession	Plaintiff initiating action to formalize possession into ownership
Legal Outcome	Dismissal of plaintiff's action; defendant's right to possession/ownership affirmed	Court decree declaring plaintiff as the legal owner; may include ejectment of others
Burden of Proof	Defendant must prove elements of prescription to counter plaintiff's claim	Plaintiff must prove elements of prescription to establish new title
Key Statutory Basis	Prescription Ordinance No. 22 of 1871, Section 3 (defendant's entitlement to decree) 5	Prescription Ordinance No. 22 of 1871, Section 3 (plaintiff's entitlement to establish claim) 5
Illustrative Case Law	Principles from Corea v. Iseris Appuhamy (1911) on adverse possession requirements 7	Perera v. Perera (1903), Carim v. Dholl (1892), Alwis v. Perera (1919), Tillekeratne v. Bastian (1918) 3

Table 3: Landmark Cases on Prescriptive Title in Sri Lanka

Case Name	Year	Key Legal Principle Established	Relevance to Offensive/Defensive Application
Perera v. Perera	1903	Acquisitive prescription confers a full legal title, not merely a defensive right to possession.	Establishes the offensive power of prescription as a mode of acquisition. 3
Carim v. Dholl	1892	Long-term adverse possession (ut dominus) can lead to the acquisition of prescriptive title, even against a deed holder.	Demonstrates the offensive application of prescription to establish new title. 3
Alwis v. Perera	1919	Prolonged factual possession by a family can result in prescriptive title, formalizing de facto ownership.	Further illustrates the offensive use of prescription to acquire title. 3
Tillekeratne v. Bastian	1918	A co-owner can acquire prescriptive title against other co-owners under specific conditions (e.g., long undisturbed possession without assertion of rights by others).	Relevant for both offensive and defensive claims in co-ownership contexts. 3
Corea v. Iseris Appuhamy	1911	Possession of one co-owner is presumed to be for all; "ouster" or clear adverse acts are required for a co-owner to prescribe against others.	Crucial for assessing the validity of prescriptive claims by co-owners (both offensive and defensive). 7
Marshall Appuhamy v. Punchi Banda	1986	A stranger possessing co-owned property under claim of sole ownership needs only 10 years adverse possession (no ouster required) to prescribe against co-owners.	Clarifies a differentiated standard for offensive claims by strangers vs. co-owners. 14

V. Prescriptive Title Against a Registered Owner

The landscape of property rights in Sri Lanka has undergone a significant transformation with the introduction of the Registration of Title Act No. 21 of 1998 and its implementation through the "Bim Saviya" program. Historically, Sri Lanka operated under a "registration of documents" system, where the Registrar of Lands merely recorded deeds without guaranteeing the underlying title.¹⁵ The new system, however, shifts to a "title registration" model, aiming to establish certainty and clarity in land ownership by, among other objectives, protecting title from prescription.³

In areas declared under the Act, title registration becomes compulsory. This involves a comprehensive process of surveying (creating cadastral maps), investigating title, and making a definitive decision that leads to the registration of the title holder(s).¹⁵ A critical aspect of this system is that it confers "indefeasible title," meaning that entries in the Register are deemed "conclusive evidence of the ownership that is registered and cannot be questioned in any Court, except under the provisions of this Act".¹⁵ The implementation of this system can, however, trigger disputes, as individuals not in actual enjoyment or possession may be prompted to protect their legal rights during the title investigation process.¹⁵

Section 57: Preclusion of Prescription for Registered Land

Crucially, Section 57 of the Registration of Title Act No. 21 of 1998 explicitly precludes the acquisition of title by prescription for land registered under the Act.³ This provision represents a direct statutory bar to acquiring ownership through adverse possession once the property is formally registered under the new system.

Implications for Establishing Title Against a Registered Owner

The implication of Section 57 is profound: once a property is registered under the Registration of Title Act, the traditional mechanism of acquisitive prescription (requiring 10 years of adverse possession) ceases to apply.³ This means that registered title holders "will remain unchallenged ad infinitum, even if they neglect the land entirely".³ This directly contradicts the long-standing rationale behind prescription, which aimed to prevent unjust enrichment and encourage land utilization by penalizing neglectful owners who failed to assert their rights.³

This legislative change marks a significant departure from principles that have been central to the Sri Lankan legal system for over a century, and indeed, from principles that have existed since the inception of private property law.³ This creates a bifurcated legal landscape for property rights in Sri Lanka. For land not yet registered under the Act, prescriptive title remains a powerful tool. However, for land that

has been registered, the very concept of acquiring title through adverse possession is extinguished. This means the answer to the user's question about establishing title against a registered owner is a definitive "no" under the new regime, marking a profound change in the hierarchy of property rights.

Conclusiveness of Registered Title vs. Acquisitive Prescription

The new title registration system prioritizes the conclusiveness and indefeasibility of registered title over claims based on long-term factual possession.¹⁵ While the new system's objective is "certainty and clarity in ownership" and protecting title from prescription ³, commentary suggests that abolishing acquisitive prescription

in toto is "damaging to the natural rights foundation of property law" and could lead to injustice in specific cases.³ This is because it allows "title holders [to] remain unchallenged ad infinitum, even if they neglect the land entirely" ³, potentially undermining the traditional justifications of preventing "unjust enrichment" and promoting land utilization.³ The historical context of land acquisition through possession is invoked to question the moral justification of ownership without a link to possession.³ This highlights a significant policy and philosophical debate within Sri Lankan property law. The move towards indefeasible registered title prioritizes legal certainty, marketability, and ease of transactions, which are crucial for economic development. However, it potentially sacrifices the flexibility and perceived fairness that prescription offered in addressing situations of long-term neglect by owners and productive use by possessors. This tension suggests that while the legal framework has shifted, the underlying social and ethical implications of this change may continue to be debated and potentially lead to calls for future legislative adjustments or specific carve-outs, especially for pre-existing prescriptive claims not yet formalized.

Table 4: Impact of Title Registration on Prescription in Sri Lanka

Aspect	Before Registration of Title Act (for unregistered land)	After Registration of Title Act (for Registered Land)	Key References
Legal Framework	Registration of Documents system; deeds recorded, but title not guaranteed.	Registration of Title system (Bim Saviya); title guaranteed and indefeasible.	3
Status of Prescription	Acquisitive prescription (10 years adverse possession) is a recognized mode of acquiring title and a valid defense.	Precluded by law. Prescription cannot be claimed for land registered under the Act.	3
Conclusiveness of Title	Title derived from deeds could be challenged by superior prescriptive claims.	Registered title is conclusive evidence of ownership and cannot be questioned in court (except under specific Act provisions).	15
Implications for Neglectful Owners	Risk of losing title through adverse possession if land is neglected for 10 years.	Registered title holders remain unchallenged indefinitely, even if they neglect the land.	3
Policy Priority	Balance between formal title, social utility, and preventing unjust enrichment.	Prioritizes legal certainty, marketability, and ease of transactions.	3

VI. Conclusion

Prescriptive title in Sri Lankan property law, primarily governed by the Prescription Ordinance No. 22 of 1871, is a well-established legal mechanism. It is characterized by core elements including a 10-year period of uninterrupted and undisturbed possession, the requirement for such possession to be adverse and ut dominus (as owner), and specific exceptions for legal disabilities and State-owned land. Crucially, Sri Lankan jurisprudence, particularly as articulated in Perera v. Perera (1903), interprets acquisitive prescription as a substantive mode of acquiring ownership, rather than merely a defense against a claim.

This dual nature of prescriptive title is evident in its application for unregistered land. It serves as a powerful defense in rei vindicatio and declaration of title actions, allowing a defendant to defeat a plaintiff's claim by demonstrating their own prescriptive acquisition. Simultaneously, it functions offensively, enabling a plaintiff to establish a new, legally recognized title, even against a party holding a paper title. This offensive capability is underscored by landmark cases such as Carim v. Dholl (1892) and Alwis v. Perera (1919), which illustrate how prolonged factual possession can formalize de facto ownership. Nuances exist in its application, particularly concerning co-ownership, where a higher threshold of "ouster" is generally required for a co-owner to prescribe against others, distinguishing them from strangers who claim sole ownership of co-owned property.

However, the evolving landscape of property rights in Sri Lanka, marked by the enactment of the Registration of Title Act No. 21 of 1998 and the ongoing "Bim Saviya" program, has fundamentally altered the application of prescriptive title, particularly against registered owners. Section 57 of this Act explicitly precludes the acquisition of title by prescription for land registered under the new system. This legislative change represents a significant shift, prioritizing the conclusiveness and indefeasibility of registered title over traditional claims based on long-term factual possession. While this aims to enhance legal certainty and marketability of land, it also introduces a tension with the historical role of prescription in achieving social justice and promoting land utilization by addressing instances of neglect by formal owners. Consequently, for land that has been duly registered under the new Act, prescriptive title can no longer be used by a plaintiff to establish title against the registered owner.