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Present: Wood Benton J.ELIATAMBY v. APPUKUTTY.207—C. it. Batticaloa, 15,448.
Sale for default of Local Board lax—-certificate of sale—Presumption as toregularity—Ordinance No. 19 of 1905.
The Court is not bound to draw the statutory presumption infavour of a person holding a certificate of sale granted underOrdinance No. 19 of 190& in respect of property sold for non-payment of liocal Board tax, if there is anything which arouses, itssuspicion, or suggests the probability that there was a departure- from the regular and proper course of badness in any particularcase.
facts are set out in the judgment.Bawa (with him Baldsinghain)J for appellant.—The Court shouldnot have* dismissed plaintiff’s action unless it was prepared t6 holdi (1895) 1 Q. B. 208.a (1910) 1 Chancery, 701.
* (1838) Morgan's Digest 231.
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1911. that the plaintiff is not the owner of lot 59a. The certificate ofBUatamhy sale produced by the plaintiff proves plaintiff’s title until defendantv. Appukutty leads evidence to disprove the title. Ooonesekera v. Teberis.1
Allan Drieberg (with him Fernando), for the defendant, respond-'ent.—The Court is not bound to hold that the plaintiff is theowner of lot 59a from the mere production of th<3 certificate of sale.See the judgment of Wendt J. in Ooonesekera v. Teberis.1
Cur. adv. vult.
July 20, 1911. Wood Renton J.—
The plaintiff-appellant in this action, alleging • himself to be theowner of a garden bearing Local Board assessment No. 59a, situatedat Amirtagally, in the District of Batticaloa, claims a right of way,either by prescription or as of necessity, by a path leading from thegarden through the property of the defendant-respondent to apublic lane. The respondent alleges that he is himself owner of alot of land bearing assessment No. 59, and that the piece of landdescribed in the plaint as bearing assessment No. 59a forms a partof it. The appellant sets up title to the garden 59a by right ofpurchase upon a certificate under Ordinance No. 19 of 1905 datedOctober 15, 1907. The respondent alleges that the plaintiff, knowingthat lot No. 59a formed part of lot No. 59, fraudulently caused theassessor appointed by the Local Board of Batticaloa to assess for. the year 1905 the lot in question as a separate land, stating thatit belonged to his mother and one Vichchar Mariamuttu. Theappellant’s mother and Vichchar Mariamuttu made default inpayment of the tax on the land, and the appellant thereupon, saysthe respondent, with the intention of fraudulently, depriving therespondent of it, caused the land to be sold for non-payment of tax,and purchased it himself, but never entered into possession of it.
' It is obvious that the appellant’s claim to a right of way is dependenton his success in making ouFEis title to lot No. 59a. For this purposehe naturally relies on his certificate of sale, and the decision of theSupreme Court in Ooonesekera v. Teberis1 shows that his possessionof such a certificate creates in his favour a presumption that the salewas duly made under the Ordinance; that the tax for non-payment«if which the sale purported to be held was, in fact, due; and thatdefault was made in payment of it. The Court is not bound,however, to draw this presumption, and is entitled to call for proofif there is anything which arouses its suspicion, or suggests theprobability that there was a departure from the regular and propercourse of business in any case in which reliance is placed on a certi-ficate of sale. In. the present case the learned Commissioner ofRequests has declined to draw the statutory presumption on that
* (1908) 10 N. L. R. 18.
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ground, and has dismissed the appellant's action with costs, reserving 1911.to him, however, the right- to establish his title to iot No. 59a in a Wooo .proper action.After careful consideration I have come to the RentonJ.
conclusion that the decision of the Commissioner on this point is Eliatambyright. The circumstances to which Mr. Allan Drieberg called my v. Appukuttyattention in his argument on behalf of the respondent, namely, therespondent’s possession of lots Nos. 59 and 59a from 1891 onwardsas a separate garden; the insignificant amount of the tax, 82 cents,for default in payment of which the land was sold;* the fact that thisdefault was apparently made in payment of the very first tax thatwas due; and also tke absence of any line of demarcation betweenthe two lands, are, in my opinion, sufficient to displace the statutorypresumption, and to throw the appellant back on the ordinaryremedy of an action to establish his title. The appellant’s counselcontended that the respondent, as he had neither a paper title nortitle by prescription, had no locus standi for the purpose of attackingthe appellant's title under his certificate of sale. • The respondentdoes, however, allege himself to be the owner of the land, and heclaims to have now been in possession of it for a period of twenty-two years. I think that these circumstances are sufficient toconfer upon him whatever locus standi is necessary. I dismiss theappeal with costs. The judgment will, of course, not prejudice theappellant's right to claim a right of way, either by prescriptionor as of necessity, if he succeeds in establishing his title to thedominant land.
ELIATAMBY v. APPUKUTTY