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Judgment:

2 Coram: Judith Prakash JC

3 GROUNDS OF DECISION

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12 In the early stages, the first defendant occupied only the

outhouse. Gradually (no dates were given), he started to occupy

the main house as well and shared the same with Isabel Athisayam.

This state of affairs continued until the latter died on 4

January 1988. According to the first defendant: ` < t >

hereafter, I occupied the whole of the premises on the Property'.

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14 In October 1991, the first defendant lodged a caveat at the

Registry of Deeds to protect his interest in the property. In

this caveat, he claimed `an interest as Occupier by adverse

possession By virtue of having been in undisturbed possession of

< the property > for a period exceeding 12 years to the

exclusion of the proprietor of that land and premises and of all

persons claiming through him.'

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17 (a) possession of the property;

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19 (c) an order that the first defendant remove the caveat;

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21 (e) costs.

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23 For the purposes of the O 14 proceedings, the plaintiffs

conceded that the first defendant is presently in adverse

possession of the property. They asserted, however, that he had

not been in such possession long enough to extinguish their own

rights. The first defendant's contention was that he had been in

adverse possession of the property since October 1988 and

therefore the right of the paper title holder (at that time Mrs

Wohlers) to recover possession of the property had been

extinguished in October 1990. He claimed a declaration that he

was entitled to adverse possession of the whole of the property

and to an estate in perpetuity of it free from encumbrances since

the plaintiffs who derived their title to the property from Mrs

Wohlers could be in no better position than she was. The

plaintiffs' response was that the first defendant did not become

an adverse possessor until the death of Isabel Athisayam on 4

January 1988. On that basis, since 12 years had not elapsed from

the effective date of adverse possession, the plaintiffs were not

precluded from commencing this action. Citing Banque de Paris v

de Naray < 1984 > 1 LLR 21, they contended that the facts

relied on by the defendants themselves showed that there was no

fair or reasonable probability of the defendants having a real or

bona fide defence to the action and thus the judgment awarded

below should be upheld.

24 The main case on which the plaintiffs relied was Powell v

McFarlane & anor < 1979 > 38 P&CR 452, a decision

of Slade J (as he then was). Although the facts of that case are

quite different from the facts which were before me, it contains

a useful summary of the principles which have to be applied by a

court considering a claim of adverse possession. At p 470-472 of

the report Slade J states:

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