Jayasundera v. Dantanarayana
v.DANTANARAYANA AND ANOTHER
SAMERAWICKRAME. J.. ISMAIL. J.. AND WANASUNDERA, J.
S. C. No. 33/79—C.A. (S.C.) No. 26/77 (l)-D. C. KANDY MR/11766/A.OCTOBER 28.1980.
Civil Procedure Code, section 328—Claim by person dispossessed of property inexecution of decree—Objection under sub-section (3)— Transfer of property afterInstitution of action—Meaning of expression—Does it include transfer ofpossession—Claimant restored to possession.
D. the petitioner-respondent, who was lessee for a long period, of certain premises, on anotarial lease, had himself let them on a monthly tenancy to E, the 2nd respondent.The latter on 28th March, 1974 surrendered possession to him and D then placed one Nthereon as his tenant and agent. The appellant J had filed action against E for the breachof two agreements entered into with him on which E had undertaken to transfer to Jthe business owned and carried on by E at these premises and to hand over possession.On a decree and writ of possession issued in this action O and N were ejected, despitetheir protests, on 29th October, 1974. Thereafter O instituted these proceedings statingthat he was not a party to that action and not bound by that dccicc. He prayed Uwl hebe placed in possession of the premises.
In answer to this J took up the position, inter alia, that by virtue of section 328 (3)of the Civii Procedure Code u could not succeed in his application as E who wss thejudgment-debtor in the action filed by J has transferred the property to O after theinstitution of the action, within the meaning of that sub-section. AUer trial, the learnedDistrict Judge directed that D be restored to possession holding that he was in possessionon his own account on the relevent date and also—despite such a plea by J—that therewas no proof of collusion between D end E. He also held that the relevant provisions ofthe law applicable were those of the Administration of Justice Law. On an appeal by J,the Court of Appeal held that the Civil Procedure Code applied as its provisions had beenre-enacted with retrospective effect. It held however that there had been no transfer ofproperty within the meaning of section 328 (3) and dismissed the appeal. J appealed tothe Supreme Court.
A landlord and tenant may both be considered to be in possession of the leased propertyand, subject to the tenancy, the landlord has the full and complete right to possession.If the tenancy is terminated by surrender of possession by the tenant and acceptancethereof by the landlord, then the landlord's possession is enlarged to full and completepossession. Although the words "transferred the property" in section 328 (3) of theCivil Procedure Code have been correctly interpreted to include transfer of possessionof property, such a surrender of possession by a tenant does not amount to a transferwithin the meaning of this section unless in a particular case there are facts orcircumstances tending to show the contrary. Accordingly, D the petitioner-respondentwas not disentitled to the remedy he sought under section 328 by reason of theoperation of the provisions of Sub-section 3 of that Section.
Sri Lanka Law Reports
Cases referred to
Kanagasabhai Father v. Poornathammal, A.I.R. (1947) Madras 458.
Umahirayo v. Ramsaran, A.I.R. (1954) Madhya B. 46.
APPEAL from a judgment of the Court of Appeal.
H. L. de Silva, with 5. Sivarasa, tor the appellant.
Nimai Senanayake, with L. A. T. Williams, K. Gunaratne, Miss S. M. Senaratne andMrs. A. B. Dissamyake, for the respondent.
Cur. adv. vult.
March 6, 1981.
Dantanarayana, the petitioner-respondent, alleged that he hadbeen lessee of the premises on notarial leases for a period of over40 years. At the time relevant to the proceedings, Eliyas, the 2ndrespondent, had been his monthly tenant. On 28.3.74 the 2ndrespondent surrendered possession of the premises to him andhe had placed one Nadesapillai in possession as his tenant andagent. On 2Sth October, 1974, the petitioner and Nadesapillai,despite their protests, were ejected from the premises on a writ ofpossession issued in an action filed by Jayasundera, the 1strespondent-appellant, against Eliyas, the 2nd respondent. Thepetitioner-respondent stated that he was not a party to that actionand was not bound by the decree. He prayed that he be placed inpossession of the premises. The 1st respondent-appellant inanswer stated that persons uniawfuiiy in occupation were lawfullyejected by the Fiscal. He alleged collusion between Eliyas, the 2ndrespondent, and Dantanarayana, the petitioner-respondent. Healso submitted that the application was badly constituted,misconceived and not tenable in law. He relied on section 328 (3)of the Civil Procedure Code alleging that the 2nd respondentEliyas who was the judgment debtor had transferred the propertyafter the institution of the action to the petitioner-respondent,Dantanarayana.
Learned Counsel who appeared in that action for the petitioner-respondent raised the following issues:
"(1) Was the plaintiff in possession of premises No. 94, D. S.Senanayake Veediya, Kandy, through one Nadesapillai,who was a tenant and agent on 29.10.1974.7(it is admitted that the plaintiff was not a party to ActionNo. D. C. Kandy MR 11766).
Jayasundera v. Oantanarayana fSamerawickrame, J.)
Was the plaintiff and the said Nadesapillai dispossessedupon a writ issued in the District Court of Kandy in caseNo. MR 11766 on 29.10.1974?
Was the plaintiff bound by the Decree entered in D. C.Kandy Case No. MR 11766?
If issues 1, 2 and 3 are answered in the affirmative, is theplaintiff entitled to an Order restoring him to possessionof the aforesaid premises?
(The plaintiff and the 2nd defendant admit that theplaintiff had rented out the said premises in suit to the 2nddefendant Eliyas and the 2nd defendant surrenderedpossession of the said premises to the plaintiff on28.3.1974).
Learned Counsel who appeared in that action for the 1st respondentraised the following issue:
"(5) Is the plaint of the plaintiff badly constituted misconceivedand not maintainable in law in view of sub-section (iii) ofsection 328 of the Civil Procedure Code?"
The learned District Judge accepted the evidence of thepetitioner respondent and a witness called by him to the effectthat the petitioner-respondent was in possession on his ownaccount at the relevant date. He held that there was no proof ofcollusion between the petitioner-respondent and the 2ndrespondent and held that the provisions of law which wereapplicable were the relevant provisions of the Administration ofJustice Law which had no provision corresponding to section328 (3) of the Civil Procedure Code. He directed the petitioner-respondent to be restored to possession.
On an appeal filed by Jayasundera, the 1st respondent-appellant,the Court of Appeal held that as section 328 (3) of the CivilProcedure Code had been re-enactcd with retrospective effect,the matter had to be decided upon that provision. The Court ofAppeal further held that the tenant Eliyas was in immediatepossession and the landlord Dantanarayana in mediate possession,of the premises, and that the surrender of possession by Eliyasto Dantanarayana was not a transfer of the property within themeaning of section 328 (3) of the Civil Procedure Code. The
Sri Lanka Law Reports
Court of Appeal accordingly dismissed the appeal. The respondent-appellant has filed an appeal to this Court with leave granted bythe Court of Appeal.
It must be noted that at the commencement of proceedings inthe action filed by the 1st respondent-appellant against Eliyas,the 2nd respondent, an admission was recorded that Eliyas was theowner of the premises and that the action proceeded without anyadmission by the 1st respondent-appellant of any right inDantanarayana and the claim made by the 1st respondent-appellant in the action appeared to be adverse to Dantanarayana.
Section 328 (3) of the Civil Procedure Code reads:
" Nothing in this section or section 327 applies to a person towhom the judgment-debtor has transferred the property afterthe institution of the action in which the decree is made."
It has been held on an interpretation of the corresponding provisionin the Indian Code of Civil Procedure that 'transfer of property'referred to in the provision would include transfer of possessioncf property. Vide Kanagasabhai Pather v. Poomathamma! (1) andUmahirayo v. Ramsaran (2). Learned Counsel for 1st respondent-appellant challenged the finding of the Court of Appeal that therewas np transfer of property within the meaning of the provisionbecause the transfer was by a person in immediate possession ofthe premises to one who had mediate possession of it. Learnedcounsel for the 1st respondent-appellant stressed that a tenant forthe period of his tenancy has the sole right to occupy the premisesand that he may exclude even his landlord. He further pointed outthat Salmond alone of the text writers referred to a landlordhaving mediate possession and a tenant immediate possession andstated that even that writer was dealing only with a case of anoccupation or holding by a tenant at will. He pointed out thatKeeton has taken the view that a bailor, pledgor and a landlordwhom Salmond regarded as having mediate possession had nopossession at all, but a right to recover possession at a futuredate.
It would appear that the English Law places greater stress onthe aspect of the custody of property rather than the mentalelement The Roman Dutch Law appears to be different. Morice,"English and Roman Dutch Law", p.70, states:
Jayasundera v. Oantanarayana (Samerawickrame, J.)
"Although in English Law possession is said to consist oftwo elements—physical contact and intention to possess—thelatter element does not assume the same prominence as in theshape of the animus domini (intention of an owner) it hasassumed in Roman and Roman Dutch Law. In English Law theintention to possess is implied from the act which evidencesphysical control; and even in circumstances where the intentionto possess does not in fact exist, as in the case of concealedtreasure, legal possession is still acquired. In general, it may besaid in English Law physical control gives legal possession,unless the apparent possessor holds only as agent or servant ofanother."
In Roman Dutch Law much more importance is given to themental element Voet XU-2-3 states:
"Possession is divided according to the ruling given by meabove into natural and civil; and this in a twofold manner. Inthe first place indeed that form of it is called "natural" which iscomposed of art act, as when a person possesses with hisbody….
But that form is called "civil" which is made up of -aw, aswhen a person possesses with his mind, and thus is feigned bylaw to possess what in actual fact he does not hold. In this way,both an owner and a possessor in good or in bad faith, and evena thief and a robber arc understood to hold possession throughthe body of a tenant, lodger, borrower for use, repository andthe like…
He further states that there are dicta that more persons than onecannot at the same time possess the same thing in whole but statesthat this referes to "such possession as is held with the body"
e., physical control. It would appear that two persons can beconsidered to be in possession of the same thing in whole at thesame time for different purposes and with different legal effects,vide Voet 41-2-5.
Even assuming that in modem law a tenant is regarded as havingpossession, there is no reason why a landlord and tenant may notbe regarded as both possessing though with different rights andwith different effects. In a short terse dictum in a judgment whichwas not approved by the Privy Council on another point, Lawrie, J.
Sri Lanka Law Reports
has set out the facts which render a person who lets out premisesa possessor. He said:
"he leased it and took the rents; he repaired it and paid thetaxes."
Further, a person who lets premises may in certain circumstancesbe enrtitled to claim compensation for improvements effected byhis lessee or tenant on the basis that he is in bona fide possessionof the premises. The fact that a person who lets property isentitled to rent shows that he has in a sense enjoyment orpossession of property. This is not so clear when the rent is paidin the form pf money but where it takes the form of part of theproduce of the property it is more apparent. Dealing with aprovision in the Indian Code of Civil Procedure, corresponding tosection 328, Venkatarama Iyer, J. said:
"The decisions in which the landlord was held entitled tofile an application under Order 21 Rule 100 when the personactually dispossessed is the tenant did not form an exceptionto this rule. There the receipt of rent by the landlord istantamount to actual possession by him. The position might bethus stated: when lands are leased, both the landlord and tenanttogether share the produce in such proportion as they agreerbothof them are thus equally in possession and both of them areentitled to take action under Order 21 Rule 100"—Vide A.I.R.1954 Madhya B. 46 at 48.
I am, therefore, of the view that both the landlord and tenant maybe considered to be in possession of property.
Where a tenant hands over possession of the premises to a thirdparty, possession passes from one who has it to one who does nothave it, and there is a transfer of possession. This appears to havebeen the position in the case of Kanagasabhai Pathar v.Poornathammal(1). The judgment-debtor who was sued in thatcase appears to have handed over possession not to the landlordfrom whom he held the property on payment of rent but to athird party. In the present case, Dantanarayana the petitioner-respondent was the landlord and was in possession through histenant Eliyas. He was a notarial lessee and had the rights of ownerfor the period of his lease. Subject to the tenancy he had given toEliyas he had full and complete right of possession, if the tenancy
Jayasundera v. Oantanarayana (Samerawickrame, J.)
was terminated full possession of the premises accrued to him.One mode of termination of tenancy was the surrender ofpossession by the tenant and acceptance of such surrenderof possession by the landlord in which event the tenant could befree of liability for payment of rent and the landlord's possessionwould be enlarged to full and complete possession. In respect ofsuch surrender of possession by a tenant, it appears to me that allthat the tenant requires to do, and does, is no more than torelinquish possession: whereupon full possession accrues to thelandlord. Section 328(3) refers to transfer of the property andthough these words have correctly been interpreted to includetransfer of possession of property, nevertheless it is important tobear in mind that what the section actually refers to is transfer ofthe property. It appears to me that surrender of possession by thetenant does not amount to transfer of property within themeaning of section 328 (3) unless in a particular case there arefacts or circumstances tending to show the contrary. A surrenderof possession by the tenant may in certain circumstances cloak or,amount to, transfer of property. In the instant case, the learnedtrial Judge gave his mind to the question whether there had beencollusion between the tenant and the landlord but he held thatno collusion had been proved.
Jayasundera, the 1st respondent-appellant, filed the actionagainst Eliyas the 2nd respondent in which the writ of possessionultimately issued for breach of two agreements by which Eliyasundertook to transfer to him the business owned and carried onby him at the premises and to hand over possession of thepremises. In the prayer to the plaint, he asked that the defendantbe ordered to hand over possession of the business carried on byhim in the premises and the said premises to the plaintiff or in thealternative, for the return of the sum of Rs. 11,000 and fordamages in a sum of Rs. 40,000. These were the reliefs that wereclaimed in the action even on the 28th March, 1974, when Eliyassurrendered possession to Oantanarayana.
In August 1974, there were proceedings in the action. Beforethe framing of issues, an admission was recorded that* Eliyas wasthe owner of the premises. Thereafter Jayasundera gave evidenceand his counsel applied for a date before the conclusion of hisevidence on an objection being taken to a document beingproduced on the ground that it was not listed. On the 16thSeptember, 1974, the plaint was amended and a prayer was added
Sri Lanka Law Reports
asking that the defendant, his sub-tenants, agents, servants andthose who are claiming through or under him be ejected from thepremises and the plaintiff be quieted in possession thereof.Thereafter, on a consent motion filed without any furtherproceedings, decree was entered on the 13th October, 1974,under which writ of possession was issued.
Jayasundera's position was that Eliyas had told him that thelandlord was the owner of the premises, viz., one Emil Perera.Jayasundera said in evidence that he contacted Emil Perera andattempted to purchase the premises from him but that before.the matter was finalised, Emil Perera died. He also said that hehad purchased the undivided share of Carl Perera, who was the sonof Emil Perera. In cross-examination, he admitted thatDantanarayana came to the premises and obtained the rent fromEliyas but that Eliyas told him that Dantanarayana wastaking the rent to be handed over to the owner, Emil Perera.Dantanarayana, however, had a notarial lease of the premises fromEmil Perera, which has been produced, in these proceedings, weare not concerned with the respective rights of the parties but onlywith such matters as are relevant to the applicability of theremedy under section 328 of the Civil Procedure Code. The mereentry upon the premises under writ of possession of a person whodoes not acknowledge any rights in him and whose claim isapparently adverse to him derogates from the possession of theowner who has let the premises as it precludes such owner frompossessing the premises through a tenant and obtaining rent inrespect of his occupation; but the displacement of a person placedin occupation by the owner amounts, in my view, to dispossessionof the owner.
The learned District Judge held that the petitioner-respondentwas in possession of the premises on his own account and was notbound by decree in the action in which writ of possession issued.He accordingly made order for the restoration of the petitioner-respondent in possession. Upon appeal, the only matter thatappears to have been raised was the question whether thepetitioner-respondent was disentitled to the remedy under section328 in view of the provision in section 328(3). The Court ofAppeal held that he was not disentitled on toe ground thatsurrender of possession by the tenant in the circumstances of thiscase did not amount to a transfer of the property.
Jayasundera v. Dantanarayana (Samerawickrame, J.)
For the reasons given above, I am in agreement with the view ofthe Court of Appeal. The appeal is, accordingly, dismissed withcosts.
ISMAIL, J.-l agree.
WANASUNOERA, J.-l agree.Appeal dismissed.
JAYASUNDERA v. DANTANARAYANA AND ANOTHER