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Present: Fisher C.J. and Garvin J.
GUNASEKERE i>. RODRIGO et al.
249—D. C. Colombo, 24,167.
Prescription—Right of way over two lots—Extinction of portion bypartition decree—Determination of right of way—Sale in executionin favour of Crown—The doctrine of relating back—Civil ProcedureCode, s. 289.
Plaintiff claimed a right of way by prescription over two lots ofland, C and B, belonging to the defendants. After adverse usefor over thirty years a partition decree was entered in 1909 inrespect of lot C without a reservation of the right of way. In 1918lot B was sold in execution and purchased by the Crown. TheFiscal’s conveyance was not issued in favour of the Crown till 1920.
Held, that the ent ire right of way was determined by the partitiondecree entered in respect of lot C, but that the plaintiff had, sincethe decree, re-acquired a right of way over C by prescription.
Held further, that the prescriptive title maturing in favour ofthe plaintiff since 1909 in respect of lot B was not extinguishedby the conveyance in favour of the Crown.
Per Garvin J.—The fiction that upon the confirmation of thesale and the execution of the Fiscal’s conveyance the title is deemedto vest from the date of sale has for its object the protection ofthe purchaser at a sale in execution against the consequences ofalienation of the property by the judgment-debtor in tho interval.It does not affect the rights .of persons claiming adversely to thejudgment-debtor nor interfere with the operation of the law ofprescription.
PPEAL from a judgment of the District Judge of Colombo.
The facts are summarized in the headnote and are fullystated in the judgment of Garvin J. .
H. V. Perera (with Rajapakse), for plaintiff, appellant.
Keuneman (with Kocy and Canakaratne), for first defendant,respondent.
February 22, 1929. Fisher C.J.—
I have had the advantage of reading the judgment of my brotherGarvin, with which I agree.
I think it very probable that had the learned Judge taken thedate of the decree in the partition action, namely, July 12,1909, asthe crucial date for consideration instead of the date of the certificate,March 24, 1910, he would have come to a decision in favour of the
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plaintiff. In view of the fact that the right of way claimed is basedon a grant and that it was in fact used for a period of somethingover forty years, and, to use the words of the learned Judge, “ thatthis path that iB claimed was used up till 1910 at the latest,” Ithink there should have been very definite and specific evidenoe toshow that the user was put an end to prior to July 12, 1919. In myppinion there was no such evidence, and I, therefore, agree thatjudgment should be entered as proposed by my brother Garvin.
This was a claim for a declaration'that the plaintiff was entitledto a right of way‘from his premises marked “A ” in the plan " X ”filed of record along the line shown on that plan over the lots markedC and B to the Alutmawata road.
■ The lots A, B, and C shown on the plan were originally held andpossessed by the common predecessor in title of those who nowclaim these three lots.
This person conveyed the lot A to a predecessor of the presentplaintiff reserving to the transferee a right of way over the rest ofhis premises to the Alutmawata road.
The learned District Judge has found, and there is ample materialto support his finding, that subject to slight deviations which weredoubtless made for the accommodation of the owners of lots B andC the owners for the time being of lot A have claimed and enjoyeda right of passage to the Alutmawata road for very many years.
It would seem that in the year 1909 there was a partition decreeentered in respect of the southern portion of the lot C. Decreefor sale was entered on July 12, 1909. There was no reservationof a right of way. It is, therefore, contended that the right ofway claimed by the owners of lot A to pass over the lots B and C toAlutmawata road—a right which I shall hereafter refer to as theright of way A, C, B—must be deemed to have been determined asat that date.
The learned District Judge took the view that the crucial date wasnot the date of the decree but the date of the issue of the certificateof sale, that is, the 24th March, 1910. In this I think the learnedDistrict Judge was wrong. What is final and conclusive is thedecree, and Counsel for the respondent did not dispute that thecrucial date was the date of the decree. For the rest it seemsto me that the learned District Judge was right in holding thatinasmuch as there was a determination of a right of way over C theentire right of way A, C, B was necessarily determined.
It remains, therefore, to consider whether the plaintiff and hispredecessors can claim to have acquired this right of way byadverse possession for the necessary period.
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Now the learned District Judge held that this long standing usercontinued uninterruptedly up to the year 1919. • He did nothowever, proceed to fix the particular point of time in that yearwhen the user ceased, if indeed it did cease. The reason for thisis evident. Having taken the view that the termination of the rightmust be deemed to have taken place on the date of the issue of thecertificate of sale, that is to say, from the 24th March, 1910, it wasa matter of no importance at what date in the year 1919 possessioncame to an end, so long as it did come to an end in that year. Butsince the learned District Judge was wrong in his view as to thecrucial date, and that this must be taken to be the 12th day of July,1909, it becomes necessary to inquire whether the user which conti-nued in fact uninterruptedly up to 1919 was terminated prior to the12th day of July of that year, if indeed it be the fact that it came toan end in that year. It seems fair to presume that the user of the.right of way A, C, B, the origin of which is/traceable to the grant of1860, and which continued uninterruptedly till some time in 1919,should be deemed to have continued as the plaintiff says unlessthere is clear evidence of some circumstance by which, this userwas determined.
It is evident that the learned District Judge was influenced inhis decision by the admitted fact of the purchase by the Crown at aFiscal’s sale held in the year 1918 and the evidence of the HeadOverseer, Wickremesinghe.
In point of fact the Crown did not obtain a Fiscal’s conveyancetill May, 1920, and there is nothing to fix the date upon which theCrown entered into possession of these premises except the some-what general statement of this witness that he visited it for the firsttime in the year 1919.
Inasmuch as the learned District Judge has accepted Wickreme-singhe’s evidence, there is no doubt material which justifies theconclusion that the Crown entered into possession in the year 1919, -but as a foundation for a finding that that entry took place prior toJuly, 1919. it is useless.
There is, therefore, no evidence on this record to rebut theevidence of the plaintiff’s witnesses that the possession in fact
continued thereafter, at least till the first defendant entered into
• > /
Possession by the Crown commencing on some date in 1919 is notnecessarily inconsistent with the claim of the plaintiff that the usercontinued thereafter.
It has been urged that the evidence of Wickremesinghe showsthat after the Crown had entered into possession the user of thisright of way became impossible. This witness admits that he onlyvisited this land about once a month, and then remained on it only
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for about ten minutes, and that his duties were limited only to thebuildings. He was compelled to admit that there were gaps in thefences, and though there are passages in his evidence which seem tosuggest that he did not think a user of the right of way claimedpossible the impression left on his mind, having regard to the verylimited opportunities for observation he possessed, is not, in myopinion, a sufficient basis for a decision that the user which continueduninterruptedly for so long was suddenly brought to a standstillby such repairs as he says were effected to the fence. It is certainlyno basis for the conclusion that even if repairs of such a characterwere effected they were effected prior to July, 1919.
The evidence of one of the plaintiff’s own witnesses, the witnessFerdinands, indicates very strongly that the wire fences which havenow rendered the user of the way A, C, B impossible were erectedafter this action was brought. While he did not himself obtainaccess to the house of the plaintiff over the lots B and C, he saysthere was nothing in the condition of those-lots to have preventedhis crossing them if he wished.
The evidence of the first defendant, even if it be accepted in itsentirety, does not prove any definite act by which the user wasbrought to a termination at any date prior to October, 1919.
Though a careful study of the evidence given both for the plaintiffand the defendant discloses ample grounds for entertaining a doubtas to the soundness of the Judge’s findings that the user of this rightof way terminated some time in the year 1919, it is unnecessary forme to express any dissent therefrom, or to consider the matter infurther detail, for the reason that the evidence certainly does notjustify the conclusion that if that user did terminate in the year1919, it terminated at any time prior to July 12,1919.
There is, therefore, in my judgment ample evidence to prove userby the plaintiff and his predecessors for a period of over ten yearsfrom the date of the decree in the partition action by which theirright was legally determined, though in point of fact its user andenjoyment continued without any interruption.
To this right of way of which he was deprived as an effect of adecree for sale in a partition action of the pendency of which he wasunaware, the plaintiff claims to have acquired a prescriptive title.It is sought, however, once again to deprive him of this right of whichhe and his predecessors had been in enjoyment for over half acentury by recourse to a legal fiction. Lot B once belonged to oneNicholas and was sold in execution against him in the year 1918.At that sale the Crown was the highest bidder, but no conveyancein fayour of the Crown , was issued till May 30, 1920. This con-veyance, it is urged, dates back to the date of the sale in 1918, andupon this is based the further Argument that the Crown havingacquired a title before the expiry of ten years from July 12, 1909,
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the plaintiff can only succeed by proof of (a) thirty-three years’adverse possession from 1909 or proof of ten years’ adverse possessionfrom December 7,1925, the date on which the Crown sold to Peter,the defendant’s predecessor. This is impossible, and the plaintiffmust fail if the defendant’s contention is to be admitted.
This argument rests on the following words in section 289 of theCivil Procedure Code :—
“ But if the sale is confirmed by the Court and the conveyanceis executed in pursuance of the sale the grantee in theconveyance is deemed to have been vested with the legalestate from the time of the sale.”
The opening paragraph of the same section states specificallythat “ The right and title of the judgment-debtor or of any personholding under him or deriving through him is not divested by thesale until1 the confirmation of the sale by the Court and the executionof the Fiscal’s conveyance.” This is in accordance with the generallaw. Nicholas the judgment-debtor, was not therefore divested oftitle to these premises by the sale and was the owner thereof up toJuly 12, 1919, when the plaintiff as a fact completed ten years’adverse and uninterrupted possession, which by reason of theprovisions of section 3 of Ordinance No. 22 of 1871 gave him a pre-scriptive title to the right of way A, C, B. The title thus acquiredis independent of and adverse to the judgment-debtor and thoseclaiming under or through him.
There is no indication in section 289, or of any of the series ofsections of which it is one, of any intention to affect the rights ofpersons other than the judgment-debtor and.those claiming underhim or deriving title through him. It is in relation to the rightand title of such persons, section 289, says that it is not divested bythe sale but that upon confirmation by Court and the execution ofthe Fiscal’s conveyance the grantee is deemed to be vested with theright and title of the judgment-debtor from the time of the sale. •This fiction that upon confirmation of sale and the execution of theFiscal’s conveyance the' title is deemed to vest from the date of thesale has for its object the protection of the purchaser at a sale inexecution against the consequences of alienation of the propertyby the judgment-debtor in the interval, even as a judgment-creditoris protected from the consequences of private alienations of propertyunder seizure, from the date of seizure till it is sold, by section 238.of the Code. It is inconceivable that it was intended or even .contemplated that the provisions of section 289 should or wouldaffect the operation of Ordinance No. 22 of 1871. Where thepurchaser at a Fiscal’s sale is any person other than the Crown, inno view of the section can the ordinary operation of Ordinance No. 22of 1871 be affected. It is urged however that when the Crown isthe purchaser it is a necessary though unintentional consequenceof this fiction of dating back the vesting of title that a prescriptive
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title which has matured in the interval is extinguished and allpersons concerned placed in the respective positions occupied bythem at the. date of the sale. But, as has already been observed,there is no indication of any intention to affect the rights of personsclaiming adversely to the j udgment-debtor or to interfere with theoperation of the law relating to prescription. In the absence oflanguage which compels me to do so, I am not prepared to give to afiction any wider operation or effect than that which was intended.The purpose in this case is manifest. The plaintiff is in my opinionentitled to the benefit of the prescriptive title he has acquired.
Finally, Counsel for the respondent pleaded that there had been amisjoinder. The plaintiff sued the first defendant, who is the ownerof lot B as well as the owner of lot C, as second defendant. There iscertainly no misjoinder disclosed in the plaint, inasmuch as the twodefendants are alleged to have acted jointly in obstructing theplaintiff’s enjoyment of the right of way claimed by him. Eachdefendant filed an answer denying the right of the plaintiff to theservitude claimed by him.
The second defendant at an early stage of the proceeding consentedto judgment, and the trial which followed was between the plaintiffand the first defendant. The plea is based on, the finding of theDistrict Judge that the plaintiff’s enjoyment of the right of wayterminated in 1919. This, as has been observed, is a conclusionarrived at in a proceeding between the plaintiff and the firstdefendant after the second defendant had admitted the plaintiff’sclaim and consented to judgment.
Under the circumstances, even assuming that' there was a mis-joinder at the stage of institution, it is not a plea which should bepermitted to defeat the action at this stage.
The claim of the right of way A, C, B, in so far as it related to B,depended upon the subsistence of the right in respect of C. Theright was one and indivisible. If it was successfully attacked inrespect of C, it was extinguished as a whole. Indeed, an importantpart of the defence set up by the first defendant, the owner of B, wasthat the right had been terminated in so far as it involved a passageover C and was consequently entirely extinguished. And yet it iscontended that the joinder of the owner of C is a misjoinder.
While reserving my opinion as to whether or not there has beena misjoinder, there can, I think, be no doubt that this is a case inwhich the presence of the second defendant was both desirable andnecessary “ to enable the Court to deal effectually and completely toadjudicate upon and settle all the questions involved in the action.”
For these reasons the judgment of the District Court must be setaside and judgment entered for plaintiff as against first defendantas prayed for, with costs in both Courts.