T. S. FERNANDO. J.—Murugappen v. Canagasabey
1957Present: Gunasekara, J., and T. S. Fernando, J.S. MURUGAPPEN, Appellant, and- P. I. CANA GAS ABE Y, Respondent
S. G. 5—D. G. (Intiy.) Batticaloa, 686jL
Deed—Rectification sought in the course of an action rei vindicatio—Addition of partiesfor that purpose—.Permissibility.
Where, in an action for declaration of title to a land, the plaintiff claimedtitle to the land upon a deed executed by A and the defendant claimed titleupon a deed executed by B, and it was not shown that the plaintiff had anykind of connection or concern with the attempt by the defendant at rectifica-tion of his deed—
Held, that the defendant was not entitled to have B added as a party to thecase so as to enable him to claim a rectification of his deed in respect of the landconveyed to him by B.
^.PPEAL from a order of the District Court, Batticaloa.
G. JRangcmathcm, with P. Naguleswaran, for the defendant-appellant.
Walter Jayawardene, with L. Mututantri, for the plaintiff-respondent.
Gur. adv. melt.
March 21, 1957. T. S. Eebnastdo, J.—
This is the second appeal to the Supreme Court in this case and itwill be useful to set out a short history of the case before dealing with thepoints arising on the present appeal.
The plaintiff instituted this action on 21st June 1951 claiming a dec-laration of title as against the defendant to a piece of land described inthe plaint as a garden containing in extent from North to South 31fathoms and East to West 43 fathoms but according to survey 1 acreand 30 perches. It is common ground that the original owner of theland was one Marimuthu Sinnathamby. The plaintiff claimed thatthe land was seized and sold against Sinnathamby on 11th November1915 in execution of a writ issued in C. R. Kalmtmai Case No. 8,329and purchased by one Marimuthu Nagammai (the plaintiff in the Courtof Requests case and the sister of Sinnathamby), and that the latterhad sold the land to him (the plaintiff) by a deed of transfer executed on1st October 1950. It must be noted that at the time of this purchaseby the plaintiff no Fiscal’s conveyance had been executed in favour of
T. S. T?ER2TA3ffDO, J.—Mvrugappen v. Canagasabey
Nagammai. Such a conveyance was in fact executed only on 7th May1951, more than 35 years after the Fiscal’s sale and about six weeksprior to the institution of the present action.
The defendant contended in his answer that theorighaal owner Mari-muthu Sinnathamby died instest-ate leaving behind him a widow andthree children ; that the widow died some years ago and that two of thechildren also died leaving no issue; that the remaining child ofSinnathamby, one Vamakulasingham, thereupon became the sole ownerof the land ; and that Vamakulasingham by deed No. 5,310 of 1st October1950 sold the land to him (the defendant). He claimed that hia prede-cessor-in-title had acquired a title to the land by prescription long beforethe execution of the Fiscal’s conveyance in favour of Nagammai. Itmay be noted at this stage that the deed No. 5,210 purports to conveyto the defendant a land in extent only 1 rood and 31 perches.
The case proceeded to trial in the District Court substantially on theissue of the prescriptive rights of the parties, and the then District Judgedelivered judgment on 19th December 1952 answering the issue relatingto prescriptive rights in favour of the defendant and dismissing theplaintiff’s action with costs. The plaintiff appealed to the Supreme Courtagainst this judgment, and we were informed in the course of the argu-ment before us that the disparity in the extents of land conveyed by therespective deeds of transfer in favour of the plaintiff and the defendantwas discovered only at the stage of the appeal. The Supreme Courton 12th July 1954 set aside the judgment and remitted the case to theDistrict Court “ for the determination of the plaintiff’s paper title and,assuming that to be proved, for the consideration of the prescriptiverights of parties, having particular reference to the fact that it has beenbrought to our notice that the deed of transfer on which the defendantrelies as enabling him to step into the shoes of his transferor for thepurpose of prescription refers to a piece of land which is in extent veryconsiderably less than the land which is the subject of this action”.
When the record was returned to the District Court, the defendantsought to amend his answer by stating that “ the real extent of the landconveyed by Va.ma.knlairi-ngbfl.Tw is in extent 1 acre and 36 perches ofwhich he had been in prescriptive possession for a period of over tenyears ” and that it is necessary for him to make the transferor to him,Vamakulasingham, a party to the case “ in order that he might el aimthe prescriptive title ” of Vamakulasingham. As Vamakulasinghamhad died he sought to make the former’s heirs added-parties defendantto the case. The plaintiff objected to this amendment as being super-fluous and, after argument, the learned District Judge upheld theobjection and refused to permit the amendment of the answer. The pre-sent appeal is against this order of refusal. In upholding the plaintiff’sobjection to the amendment of the answer, the learned District Judgestates :—c< A party can always prove the prescription of his prede-cessors-in-title and only a party cannot prove the prescription of a partywho is not a party to the action.” The question however is whetherVamakulasingham is a predecessor-in-title of the defendant for anyextent in excess of the 1 rood and 31 uerch.es sneeified in. deed No. 5.210
referred to above.
T. S. FBB2TAMTDO, J.—Murugappen v. Ganagasabey
Learned counsel for the defendant-appellant has contended that it isnecessary to have the heirs of YamaJrulasmgham brought in as partiesto this case on two grounds :—
that it is necessary to obtain a rectification of deed No. 5,210 in
so far as the extent of land conveyed thereby is concerned :
that in respect of so much of the land as is in excess of 1 rood and
31 perches the defendant is entitled to prove that the plaintiffhas no title by proving that the title is in Yarnakulasingham’sheirs.
In support of the first of these two grounds, we were referred to thecase of Meerasaibu v. TheivanayagampiUai x. In that case the adminis-trator of a deceased person’s estate sold a certain land to the defendant,but by mistake did not include in the deed of transfer a block of 64acres which formed a recognised part of the land. Sometime later theadjoining land also belonging to the deceased person was sold by theadministrator to the plaintiffs, and the block of 64 acres was by mistakeincluded in the deed in favour of the plaintiffs. On the plaintiffs suingthe defendant for bis ejectment from the 64 acre block, the defendantprayed that the plaintiffs’ deed in so far as it purports to transfer to themthe block of 64 acres should be cancelled ; he also claimed a rectificationof his own deed and moved to add the administrator as a party. It washeld that the administrator should be added as a party.
This decision has in my opinion no application to the facts of the casebefore us. The decision itself has been distinguished in the later case ofQlagappa Ghettiar v. Reith 2. As Soertsz J. pointed out in the later case,in Meerasaibu’s case the defendant’s claim for rectification was reallyagainst the plaintiff because the rectification of the plaintiff’s deed wasinvolved in the rectification he sought of his own, and the party proposedto be added was necessary for the rectification of the two deeds, for hewas the vendor both to the plaintiffs and to the defendant. In QlagappaGhettiar’s case the plaintiff had no kind of connection or concern with theparties sought to be added. In the case before us too the plaintiff hasno kind of connection or concern with the attempt by the defendant atrectification of his deed. Moreover, the defendant did not at any stageof this case apply in the District Court for a rectification of his deed.Even the petition of appeal is devoid of any reference to a rectification ofhis title deed. The question of a rectification was raised for the first timein the argument of defendant’s counsel at the hearing of this appeal.If the defendant really desires to obtain a rectification of his deed it is forthe defendant to advise himself on the question whether he shouM—following the procedure that commended itself to the Supreme Court inOlagappa Cheitiar v. Reith (supra)—apply to the District Court to begranted an opportunity to have this case laid by to enable him to obtainsuch rectification.
In regard to the second ground of appeal, while it is good law thatit is always open to the defendant in an action rei vindicaiio to show thatthe ownership is not in the plaintiff but in a third party, the position
1 (1922) 24 N. L. It. 453.
a (1941) 43 N. L. R. 92.
T. S. FERNANDO* J.—-Mwwgajypen v. Gtmagasabey
ta’k.en up by the appellant even in the proposed amendment of the answerwets not that Vamakulasingham’s heirs axe entitled to that portion, of thel&ndin question in excess of the extent of 1 rood and 31 perches coveredby deed Ho. 5,210. His_caie' is and' always has "Been that he himselfis entitled to the whole land. In paragraph 7 of the amendment of theanswer referred to above the appellant relies on Vamakulasingham’spossession of the extent in excess of 1 rood and 31 perches (as well ashis own possession of this extent) as enuring to his own benefit and not asenuring to the benefit of Vamaknlasingham’s heirs. This position hemaintains even in his petition of appeal to this Court. In these circum-stances, even if the learned District Judge has misdirected himself whenhe appears to have assumed without qualification that the defendant is'-the successor-in-title of Vaxnakulasingham, I am unable to say thatin the state of the pleadings the refosal to permit the proposed-amendment of the answer was wrong.
I would therefore dismiss this appeal with costs.
Q-tj ifASlsKABA, J.—I agree.
S. MURUGAPPEN , Appellant, and P. I. CANAGASABEY , Respondent