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Present: Grenier J.
PQNNAMPALAM v. SINNATAMBY et ol.
273— C. R. Jaffna, 8,673.
Possessory action dties not He in respect of movablesA possessory action does not lie under the Roman Dutch law in respect,of movables.
fJjHE facts are fully set out in the judgment.
Balasingham, for the appellant.—The. order dismissing the action-is wrong. Even if the application to convert the action into arpossessory action was not allowed, the action should have proceeded.'The plaintiff could have proved possession of the bulls and thus1shifted the burden of proof on to the defendant?. The absence of a-cattle voucher is not necessarily fatal to the action even as it stands.See Abeyaratna v. Subramaniam Chetty.1
Possessory actions may be maintained in respect of movablesCounsel cited 219^-D. C. Jaffna, 5,877;2 Casie Chetty Voet 336.
Tissaveeraeinghe, for the respondents, not called upon.
Cur. adv. vult.
* (2905) 2 Bal 38.2 S. C. Min., April 22, 1910.
September 13, 1911. Grenier J.—
This was an action under section 247 of the Civil Procedure Codein respect of a pair of bulls. The plaintiff claimed them as his inthe claim proceedings, but he was unsuccessful. He now seeks tohave .them declared his property in .the present action.
The first defendant denied that the bulls belonged to the plaintiff,and alleged they were the property of the second defendant, andwere rightly seized under the mandate of sequestration in caseNo. 8,557 a.
At the trial the only issue framed was as to the ownership of thebulls. It transpired from .the evidence of the plaintiff that he hadno cattle vouohers for the animals. Another issue was accordinglyframed as to the right of the plaintiff to maintain his action inthe absence of a cattle voucher. Plaintiff’s counsel then moved-to be allowed to withdraw the action, paying costs, with liberty tobring another action when he had obtained a voucher. Plaintiff’scounsel also moved, apparently as a precautionary measure, toamend the plaint by alleging that plaintiff was .the agent of Sinnappu,from whom the plaintiff had bought the bulls. I found it difficult.to understand how the plaintiff could allege a sale to him bySinnappu and then say he was Sinnappu’s agent because he hadno cattle voucher. The Commissioner very properly .disallowedthe application for amendment. But the ingenuity of plaintiff’scounsel was not exhausted. He next moved to amend the plaintby converting the action into a possessory one. The Commissionerwas of opinion that a possessory action was inappropriate, anddid not lie under the Eoman-Dutch law in respect of movables.No direct authorities have been cited to me in support of theaffirmative proposition, except the judgment of this Court in219—D. C. Jaffna, 5,877 (unreported). But that case hardlyapplies, and I cannot find in it any positive dictum or ruling thata possessory action may be brought in respect of movables. Ihave looked as far as I was able into the Boman-D.utch law textbooks, but I have been unable to discover anything whiteh wouldhelp me .to hold that possessory actions were allowed in respect ofmovables. The action is peculiarly one which applies to immovable. property. There was no interdict utrubi which applied' to movablesbut it applied in the same way as the interdict uti possiditis appliedjo immovables. The claimant in the interdict utrubi was not topossess as against his adversary, vi, clam vel precano, but in allother respects the procedure was the same as in the case of theinterdict uti possiditis. It would appear that the interdict utrubiwas assimilated to the interdict uti possiditis under the later Bomaulaw, although the procedure in respect of both the remedies wasslightly modified in Boman-Dutch law. The interdict uti possiditiswas one brought to ensure retention of possession and . to guardagainst its loss, and at the same time to prohibit others from
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forcible interference with such possession. The interdict wasessentially one for retaining, and not recovering, possession, and hadreference only to disputes about the right of possession* its objectbeing to prevent future disturbance by the persons who have hithertocaused disturbance.
I am at a loss to see how the interdict utrubi can be made applicableto the case before me, bearing in mind the features common toboth the interdicts I have mentioned. The question involved herewas as to the ownership of the bulls, and I do not see how theplaintiff can ask to be allowed by amendment of the plaint orotherwise the benefit of the interdict utrubi in an action undersection 247 of the Civil Procedure Code. I. do not know of anycase where such a complete transformation has been sought to beeffected of the original form of action in view of the peculiar factspresent here.
The appeal must be dismissed with costs.
PONNAMPALAM v. SINNATAMBY et al