NEW LAW REPORTS OF’CEYLONVOLUME LIV.
1952Present: Nagalingam A.C.J. and Gunasekara J.DAVID PEREEA, Appellant, and ENDIRIS SINGHO,Respondent.
S. C. 297—D. G. Kegalle, 6,273
Vendor and purchaser—“ Eviction by judicial process ”—Meaning of term—Dutyof purchaser to complete title by prescriptive possession.
In an action for damages for breach of covenant to warrant and defend titlein regard to a sale of certain premises—
Held, that eviction by judicial process in not confined only to cases where theCourt has ordered the ejectment of a party from the premises in question andexecuted that order by its officers by physical ejectment of the party inpossession. The term applies to a wider class and includes a case where aperson in possession is dispossessed without process of Court and his assertion oftitle in an action instituted by him to regain possession is dismissed, resultingin the person dispossessing continuing in possession.
Obiter : When a purchaser of property could have completed his title byprescriptive possession but has not done so and by reason thereof has sufferedeviction, he is not entitled thereafter to sue for recovery of the purchase priceand damages.
./^.PPEAI, from a judgment of the District Court, Kegalle.
H. V. Perera, Q.C., with S. B. LeTcamge and V. Ratnasabapathy, for thedefendant appellant.
N. E. Weerasooria, Q.C., with H. IV. Jayewardene, for the plaintiffrespondent.
Cur. adv. mdt.
April S, 1952. Xagaloigam A.C.J.—
The defendant appeals from a decree of the District Court of Kegallecondemning him to pay the plaintiff-respondent the purchase price thelatter had paid him in respect of a land sold to him and for damagesconsequent on a failure to warrant and defend the title conveyed.
By deed PI of 1936 the defendant admittedly conveyed to the plaintiffand two others a certain allotment of land described in it and placed theplaintiff and his co-vendees in possession thereof. In 1937 the Bank ofChettinad would appear to have entered into possession of the landfollowing upon an execution sale against one Boyagoda and at a timewhen an action instituted by Boyagoda against the plaintiff and hisco-vendees was yet pending—the action having been instituted in 1934.
2—j—J. N. B 18635-1,490 (7/52)
NAQAX.INGAM A.C.J.—David Perera v. End-iris Singho
In 1943 the plaintiff instituted an action bearing No. D. C. Kegalle,2,411 for partition of the land between himself and his co-vendees. TheBank of Chettinad intervened in that action, denying the title of theplaintiff and his co-purchasers and setting up title in itself. The plaintiffnoticed the defendant to warrant and defend the title conveyed by him.After trial the claim of the Bank was upheld on the ground inter alia, thatthe title pleaded by it was superior to that made out by the plaintiff,and in particular that the title deeds relied upon by the Bank appliedto the land in dispute while it was doubtful that the title deeds reliedupon by the plaintiff had reference to the land. It is important to notethat it was expressly held by the learned trial Judge in that case thatneither the Bank nor the plaintiff and his co-vendees had acquired atitle by prescription. The defendant himself admits that he failed in thepartition proceedings to warrant and defend the title conveyed by him.
The plaintiff’s claim is resisted by the defendant upon two grounds,firstly that the plaintiff had not suffered eviction by judicial process, andsecondly that the plaintiff had “ failed to complete his title by prescrip-tion
To deal with the first point, as observed earlier, the plaintiff lostpossession as a result of the Bank taking possession on its own, thatis to say, without having obtained an order of Court placing it in possessionand directing the plaintiff and his co-vendees to be ejected therefrom.But it will be incorrect to say that eviction by judicial process is confined-only to cases where the Court has ordered the ejectment of a party fromthe premises and executed that order by its officers by physical ejectmentof the party in possession. The term applies to a wider class and includesa case where a person in possession is dispossessed without processof Court and his assertion of title in an action 'instituted by him toregain possession is dismissed, resulting in the person dispossessingcontinuing in possession. Such a case would be also one where evictionof the person in possession lias been by due process of law because theeviction is confirmed by the decree of dismissal entered by Court.
It was contended that this principle is limited in its operation to actionsrei vindicatio and cannot be extended to a partition action institutedby a purchaser, for in a partition action a plaintiff would have to satisfythe Court not merely with regard to his title to the land but would haveto take upon himself the larger burden of estabhshing that his title isgood even as against the whole world. This argument may be entitledto weight if it could be shewn that a purchaser failed in the partitionaction instituted by him because the Court found that he had not madeout an absolute title good as against the whole world. But where, asin this case, definite issues were raised between the plaintiff and a thirdparty, the Bank in the present instance, as regards the superiority oftheir respective titles, it can hardly be said that such a contention shouldfind place.
In this case, as set out earlier, the title of the Bank was set up inopposition to that of the plaintiff and his co-vendees, and the Court hadto adjudicate whether the plaintiff and his co-vendees or the Bank had
XAGALINGAAI A.C.J.—David Per era v. Endiris Singho
the better title to the land ; the Court found that while the plaintiffand his co-vendees had no title, the Bank it was that^had the title. Inthese circumstances the consideration that in a partition action theplaintiff has to prove his title as against the whole world is of little value.In fact, Voet enunciates the proposition very broadly ; after referringto various kinds of action, he says :—
“ Whenever the result of an action of any kind is that the purchaseris not permitted ‘ habere rem ’ and he is cut off from all hope ofrecovering it, the vendor’s liability for warranty of title arises. ” 1
am therefore of opinion that any action, whatever its form may he,where tbp validity of the title conveyed comes up for determination anddecision against such title is given, a cause of action for breach of warrantywill arise, provided, of course, the vendor had been duly noticed to warrantand defend the title conveyed by him. The first point, therefore,fails.
The second question is whether the plaintiff failed to complete histitle by prescriptive possession. I think it is good law, supported as it isby the high authority of Voet2 that an action for recovery of the purchaseprice and damages would fail
“ when the purchaser could have acquired a title by usucaptionbut has not done so and by reason thereof the thing has been evictedfrom him. ”
The term “ usucaption ” is explained as meaning long possession orusucapio, ultimately superseded by prescriptio of the later law.
But the question here is not so much the law but as to what the facts are,for it is only if it be found that the plaintiff failed to occupy or possessthe land that the proposition of law would become applicable. Theplaintiff gave express evidence that soon after his purchase he had the landplanted in plantains and catch crops and two years later had itplanted in rubber, but that at the stage when the rubber trees came intobearing the Bank entered into occupation and started tapping adverselyto himself. This evidence was not contradicted by the defendant nor wasit challenged even in cross-examination, so that on the evidence beforehim the learned Judge could have come to no other finding than whathe did in fact arrive at, that the plaintiff did all he could to “ acquiretitle by usucapio ”. In view of this finding of the facts, it must followthat the second point of law taken on behalf of the appellant does notarise.
would therefore dismiss the appeal with costs.
Gcxasekaka J.—I agree.-
1Lib. XXI Tit. II § 1. Berwick's translation, Revised Edition, page 509,* Ibid. Lib, XXI Tit, II 30, pope 536.
DAVID PERERA,Appellant, and ENDRIS SINGHO,Respondent