Present : Ennis J.
IBRAHIM u. BAWA SAHIB et al2—C. B. Trincomalee, 8,129.
Claim to land rejected as claimant had no title at date of seizure—Subse-quent conveyance in favour of claimant—Action under section 247,Civil Procedure Code—Objection that action cannot succeed asplaintiff had no title at date of seizure—Application to add vendorto plaintiff as added plaintiff—Application refused—Appeal—Rightto bring action under section 247—Order that action be continuedas an action rei vindicatio—Technical objections in small cases—Res judicata.
A claim to a land was rejected as the conveyance in favour ofthe claimant was subsequent to the seizure. The claimant broughtan action under section 247 of the Civil Procedure Code. It wasobjected in this action that he had no title al the time of the seizure.
'He then applied to have his vendor added as plaintiff. The Court
refused the application. The claimant's proctor then withdrewfrom the case, and the case was dismissed.
Held, that as the claimant had no title at the date of seizure, theaction under section 247 could not succeed. The failure to bringan action under section 247 does not make the order at the claiminquiry conclusive as to the claimant's title in the circumstances.The Supreme Court allowed the claimant to proceed with theaction as an action for declaration of title.
H. V. Perera, for appellant.
J. S. Jayewardene, for. respondents.
March 5, 1924. Enxis J.—
This action purported to be brought under section 247 by anunsuccessful claimant. It appears, however, that the claimantlost his claim because he was unable to establish that he had an
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Ibrahim v.Saw* Sahib
interest in the property at the date of the seizure, which appears tobe a condition precedent to his becoming a claimant for the purposeof sections 1243-247 of the Civil Procedure Code. He obtained aconveyance after the seizure. Now, although this claim wasdisallowed, he brought his action under section 247. When it wasobjected that he had no title at the time of the seizure, he applied tohave his vendors added as plaintiffs. The application was notmade until the date of trial, and there was nothing to show that thevendors were willing to be plaintiffs. The learned Commissioneraccordingly refused the application, whereupon the proctor for theclaimant said he could not go on with tire case. The learned Com-missioner accordingly dismissed the claimants action. An appealis presented from this order.
Jt was suggested first that the case of Silva v. Nona Hamine1 isnot on all fours with the present case, and that the ruling that anunsuccessful claimant cannot maintain an action under section 247,If he had no right to the property at the date of the seizure, wouldnot hold good in the present case. It is true that case is not entirelyon all fours with the present one, because there the plaintiff had notitle at the time the action was.brought, but however, the ratiodeoidendi in that case is to the effect that under section 247 noaction can succeed, and in fact no claim could suceed, unless theclaimant were a person who had an interest in the property seized.Holding that to be the true meaning of this case one must gofurther and say that in a case where a person cannot be aclaimant because he had no interest in the property, he cannotbe bound by the last paragraph of section 247 which would makean order rejecting his claim res adjudicate against him. The crderrejecting the claim was based not on his vendor's title, but on thefact that the claimant had no title at the date of the seizure, and nomore. That being so, there would seem to have been some mis-understanding in the Court below when the plaintiff's proctordeclined to go on with the case.
I would allow an indulgence in this mater. I set aside the orderappealed from, and allow the claimant to proceed with this actionas an action for declaration of title,.and not as an action underseotion 247. As an action for a declaration of title, it is not necessaryto join his vendors as plaintiffs. There is no reason, and ho incon-venience in this small case, in allowing the action to be convertedfrom one form of action to another, and it saves costs, and bothparties should have been aware of this.
I would send the case back for further proceedings.
All costs to abide the event.
1 m 10 N. L. R. 44.
IBRAHIM v. BAWA SAHIB et al