GARVIN S.P.J.—Cader v. Fernando.
1932Present: Garvin S.P.J. and Drieberg J.
CADER v. FERNANDO.
76—D. C. Puttalam, 4,169.
Appeal—Power of Civil Court to send an offence for investigation to Police
Court—Order not subject to appeal—Civil Procedure Code, s. 835.
Where a Civil Court, in exercise of the powers vested in it undersection 835 of the Civil Procedure Code, sends for investigation by aPolice Court a charge of an offence disclosed in the course of proceedingsbefore such Court —
Held, that the order was not appealable to the Supreme Court.^^PPEAL from an order of the District Judge of Puttalam.
H. V. Perera, for defendant-appellant in No. 75.
Navaratnam, for intervenient-appellant in No. 76.
Croos Da Brera, for plaintiff-respondent.
November 14, 1932. Garvin S.P.J.—
Two appeals have been taken from the judgment of the District Judge.The first, numbered 75, is an appeal by the defendant; the second,numbered 76, is by the first added defendant, Simon Fernando. Theplaintiff sought in this action the partition of two contiguous landsdepicted in plan No. 541 made by S. M. Assen Kudhoos, LicensedSurveyor. The parties are agreed that lots A and B in that plan formone of these lands, and the lot C the other. The title and interests of allthe parties proceed from the same source, and the facts proved show thatthe title of those whom they are agreed were once the owners of theseallotments has passed to the plaintiff and the defendant. The plaintiffby his purchases has acquired the interests of those who once owned 1/8of the land consisting of lots A and B and 1/10 of the land C. The defend-ant is admitted by the plaintiff to be entitled to 7/8 of lots A and B and9/10 of lot C.
The position of the first added defendant was that he, the other addeddefendant Manuel and one Ugo planted the land upon a certain notarialagreement, that Ugo received certain payments by way of compensationand died before the expiry, of the term of the agreement, that he andManuel continued to carry on the work under the contract and receivedin lieu of the part of the money payable to them under the agreement•the lot B of which they claim to have had adverse possession for overten years.
GAR-VIN S.P.J.—Cader v. Fernando.
The defendant supported them in their claim to be the owners of lot Band claimed to have acquired a prescriptive title to lots A and C.
The defendant's claim to have prescribed for a defined portion of theland A and B and lot C fails, for his acquisition, in the year 1925, of theinterests of certain of the heirs of Marcellinu, through others of whomthe plaintiff claims, is fatal to his contention. He realized the impossi-bility of maintaining his contention, and, at the trial endeavoured toestablish a claim to be assigned the whole of lot C and a part of the restof the land as and for his share on the ground that he has been in exclusivepossession of that lot for a number of years and has improved it by themethods of cultivation employed by him during that period.
The appeal of the defendant is from the direction of the District Judgeto the Commissioner that the plaintiff’s share should be “ given adjacentto” the'lands east and south of the corpus consisting of lots A, B, and Cin which the plaintiff has interests.
The defendant has improved lot C by better cultivation, but the plaintiffis entitled to 1/10 of that lot and it is impossible to exclude him from ashare thereof.
Similarly the plaintiff is entitled to 1/8 of lots A and B and must beallotted a share of the land consisting of those two lots.
I would therefore direct that the plaintiff be allotted a portion of theland C equivalent to 1/10 of that lot and a portion of the land consistingof lots A and B equivalent to 1/8 of the total area of those lots and that inthe case of each of such lands the portion to be allotted to the plaintiffbe so separated and demarcated as to adjoin the lands to the south anc^east in which he has interests. The defendant is entitled to ask that incarving out the two portions to be allotted to the plaintiff care should betaken to secure that no part of such portions shall intervene between theremainder of lot C and lots A and B of which he is the owner.
There is nothing in the judgment under appeal which prevents effectbeing given to those directions and there really was no need for anyappeal.
The appeal of the first added defendant must fail. He had to abandonhis claim to a share of lot A. The difficulty of establishing his claim to ashare of that lot was enhanced by the defection of his fellow planterManuel, who, at the trial, supported the plaintiff. His main contentionis that he was entitled to retain possession of lot A till he wascompensated for the plantations made by him.
The District Judge preferred to accept the evidence of the witnesseswho say that the planters were fully compensated for the plantationsmade by them. He rejects the story of an adjustment by which lot Awas assigned to the planters as and for and in lieu of the balance of thecompensation due and payable to them under the agreement. There isevidence to support the Judge’s findings and I cannot undertake to saythat he was wrong in accepting that evidence. His judgment on thepoint must therefore be affirmed.
Both the defendant and the first added defendant complain that theJudge was wrong in causing them to be prosecuted—the latter on a chargeof causing false evidence to be fabricated and the former for aiding and
DRIEBERG J.—Dias v. Palaniappa Chettiar.
abetting him. He purported to take action under section 835 of theCivil Procedure Code—a section which is seldom resorted to by Judges.We have been invited to say that the District Judge should not havetaken the action he did.
The Criminal Procedure Code, section 147, prohibits a Police Court fromtaking cognizance of offences punishable under section 190 and certainother sections of the Penal Code except with the sanction of the Attorney-General or upon the complaint of a Court. Manifestly it is the policyof the Legislature that no person should be vexed and harassed byprosecution upon any such charges at the instance of any irresponsibleperson and the provision that such prosecutions should only be enter-tained when sanctioned by the Attorney-General or upon the complaintof a Court is intended to secure that no such prosecution is lightlyembarked upon.
Section 835 of the Civil Procedure Code vests in a Civil Court the powerto send for investigation by a Police Court a charge of any of the offencesspecified therein whenever in the case pending before it there appears tobe sufficient ground for doing so.
The Court has in fact initiated proceedings which are now pendingin the Police Court. It has done an act which the Legislature has saidit may do if it appears to it that there are sufficient grounds for so acting.But it has not in my judgment made an order which is appealable to thisCourt. There is therefore no order before us in respect of which we canexercise the powers vested in us as a Court of Appeal.
These appeals must therefore, subject to the directions given earlier as tothe manner in which this partition is to be carried out, be dismissedwith costs.
Drieberg J.—I agree.