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Present : Lascelles C.J.
TDOBI BANDA u. LOKU BANDA etal.
295—C. R. Kandy, 5,183.
Fiscal1 s sale—Subsequent sale by judgment-debtor—Prior registration ofsubsequent deed—Priority.
The land m dispute originally belonged to one Ban Menika,whose interest was sold at a Fiscal’s sale to the plaintiff in 1691,but no Fiscal’s transfer was obtained until 1910. By a deed of1908, which was registered in 1908, Ban Menika sold the land todefendant.
Held, plaintiff's title was superior.
f^lHE facts appear in the judgment.
• Bartholomeusz t for the plaintiff, appellant, relied on Aserappa v.Weeratunga et al.1
H. A. Jayewardene, for the defendant, respondent.—The plaintiffis estopped by his conduct from disputing defendant’s title. Jaye-wardens v. Nikulas
Bartholomeusz, in reply.
Cur. adv. vult.
September 5, 1911.—Lascelles C.J.
This is a type of case with which the Courts of Ceylon are only toofamiliar. A landowner’s property is sold in execution at a Fiscal’s
i (1911) 14 N. L. R. 417.* (1894) $ N. L. R. 341.
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‘Tikiri Bandav. LohuBanda
sale; he then proceeds to sell the land as if nothing had happened,and ultimately, years after the- Fiscal’s sale, a dispute between thepurchaser at the Fiscal’s sale and the purchaser at the private sale,or between their respective successors in title, brings the partiesinto Court.
In the present case the one-third share which is now in disputeoriginally belonged to Ban Menika, whose interest was sold at aFiscal's sale to the plaintiff in 1891, but no Fiscal’s transfer wasobtained until 1910. Meanwhile, Ban Menika, by deed datedFebruary 24, 1908, registered October 12, 1908, had sold to thedefendant.
The case is thus on all fours with the case of Aserappa v. Weera-tunga et al.1 On the defendant’s side we have a deed which isprior, both as regards date of execution and date of registration,to the plaintiff’s Fiscal’s transfer, but the plaintiff, by virtue ofsection 289 of the Civil Procedure Code, is deemed to be vestedwith the legal estate from the date of sale, which is anterior to thedate of the defendant’s deed.
At the argument it was conceded that the present case wasconcluded by the ruling of the Full Court in Aserappa v. Weera-tunga et al.;1 and that the decision of the Commissioner of Bequests .that the paper title was in the defendant cannot be supported.But it was contended by the respondent’s counsel, relying onJayewardene v. Nikulasthat the plaintiff is estopped fromdisputing the defendant’s title by acting in such a manner as toinduce in the minds of all that he claimed no rights under theFiscal’s sale, and I was invited to hold on the evidence in the recordthat the plaintiff was so estopped. Mr. Bartholomeusz, however,contended—and I think with good ground—that the question ofestoppel was not in issue at the trial, and that it would be inequit-able to decide the case adversely to the plaintiff on a plea of whichhe had no notice and consequently no opportunity of meeting.
Having regard to the circumstance that some nineteen yearsintervened between the Fiscal’s sale and the issue of a Fiscal’stransfer, I think that it would, not be proper to decide the case infavour of the plaintiff on the strength of his superior paper title, andwithout giving the defendant an opportunity of proving that theplaintiff had so acted as to induce the defendant to believe that hedid not.claim any right to the land under the Fiscal’s sale.
I set aside the judgment of the Court below, and remit the case fortrial of an issue whether the plaintiff is estopped by conduct from-disputing the defendant’s title, either party being at liberty to.,adduce further evidence. The appellant is entitled to the costs ofthe appeal, and the costs in the Court below will abide the result ofthe action.
• (1911) 14 N. L. R. 417.2 (1894) 3 N. L. R. 341
TIKIRI BANDA v. LOKU BANDA et al