069-NLR-NLR-V-39-MENCHINA-HAMINE-v.-JAMES-APPU.pdf
SOERTSZ J.—Menchina Hamine v. James Appn.
249
1937Present: Poyser S.P.J. and Soertsz J.
MENCHINA HAMINE v. JAMES APPU.
367—D. C. Colombo, 296.
Ex parte trial—Defendants present—No right to take part in proceedings—
Proper order—A decree nisi.
In an action for declaration of title to land, the defendants were presenton the returnable date of summons and were given time to file answer.
On that date the first defendant alone was present but no answer wasfiled. The case was then fixed for hearing. The plaintiff and all thedefendants were present on that day. The defendants, who were notrepresented by Counsel, were permitted to cross-examine the plaintiffand his witnesses, the first defendant alone availing himself of thisopportunity.
Held, that the defendants were not entitled to take part in the pro-ceedings.
Held further, that the proper decree that should be entered after such,a trial was a decree nisi.
Brampy v. Peris 13 N. L. R. 34) followed.
^ PPEAL. from an order of the District Judge of Colombo.
A. Rajapakse (with him J. R. Jay aw ar dene), for plaintiff, appellant.February 19, 1937. Soertsz J.—
The plaintiff-appellant has clearly made out his title to the land inquestion in this case and he is entitled to a decree.
His case was that this land belonged to one Samel Appu, who by a deedof sale, dated August 6, 1910, conveyed it to the third defendant. Thelatter mortgaged it with him and later sold it to him in payment of theamount due on the mortgage. The deed of sale in his favour was datedJanuary 28, 1933. The plaintiff averred that the first and second defend-ants, who are the nephew and niece of his vendor, the third defendant,were disputing his right to the land and he, therefore, brought this action.
‘ 3 N. L. R. 34.
250SOERTSZ J.—Menchina Hamine v. James Appu.
for declaration of title and ejectment. He made the third defendant aparty on his covenant to warrant and defend the title he had sold. On■the summons returnable date the three defendants were present. TheCourt fixed September 25, 1935, for their answer. No answer was filedon that date. The first defendant was present, but not the second and"third defendants. The Court fixed the case for trial, on November 13.
On that day the plaintiff and all defendants were present. The plaintiffappeared by Counsel and proctor. The defendants were unrepresented.The case went to trial and the proceedings show that the defendants weregiven an opportunity to cross-examine the plaintiff and his witnesses,and that the first defendant availed himself of that opportunity. At theclose of the case for 'the plaintiff the trial Judge delivered judgmentdismissing the plaintiff’s action on the ground that evidence called for theplaintiff showed that the defendants “ have been in possession of aportion of the land and have acquired a prescriptive title thereto ”.
Assuming this to be a correct finding on the evidence, there does notappear to be any justification'for a dismissal of the plaintiff’s action in itsentirety. On that finding, the plaintiff should have been declared entitledto the other portion of the land. In my opinion, however, the evidencein the,case does not support the District Judge’s finding. The identityof the land is beyond question. The deeds produced by the plaintiff showthat the title to this land must be in him unless it has been defeated by aprescriptive title acquired by the first and second, defendants. Now, allthat the evidence shows is that these defendants have resided on aportion of the land for many years. They are, however, the nephew andthe niece of the third defendant. The third defendant in the course ofhis evidence stated that he “ allowed the first and second defendants topossess a portion 3 roods 16 perches in extent ”. This makes it quiteclear that the possession of these two defendants was purely permissive.
The two deeds of lease given by the third defendant to one Edwin of theportion claimed by the defendants were produced. One lease is stillcurrent and the lessee has deposed to the fact that he possessed thisportion and took all the produce on it. The Police Headman gaveevidence and corroborated the lessee, but he added that “ these defendantslived on the land and plucked the nuts stealthily ”. As against all thisevidence on the side of the plaintiff, there was no evidence, tendered by thedefendants at all. The burden of proving a prescriptive title was unequi-vocally on them. They had filed no answer setting up a prescriptive titlenor did they offer to adduce any evidence in proof of such a title. Inthat state of things, I think there was no alternative but to enter adecree for the plaintiff.
The next question that arises is whether the decree to be entered for theplaintiff should, in the circumstances of this case, be a decree nisi or adecree absolute in the first instance. The answer to that question must,I think, depend on the answer to another question, namely, whether theproceedings of November 13, 1935, were “ex parte” or “inter partes”.Ostensibly, they were. “ inter partes ” proceedings. The defendantswere present and were allowed to cross-examine the plaintiff and hiswitnesses. In the case of Brampy v. Peris Lawrie A.C.J. said, “The
» 3 N .L. R. 34
Sumanatissa v. Guneratne.
251
defendant …. got time till August 16 to file answer. He failedto do so. On August 18, on plaintiff’s motion a day was fixed for the* ex parte ’ hearing of which notice was given by the Court to the defend-ant. Why this notice was given I do not know. Of course a defendantwho has not answered may, like all the rest of the world, attend a publicCourt, but he has no right to take part in an ‘ ex parte ’ hearing. If he iscited and takes part the hearing ceases to be ‘ ex parte ’ and becomes‘ inter partes ’ ”. Tested by this view expressed in the concludingsentence of the passage I have cited, the hearing in this case was an‘‘ inter partes ” hearing and the plaintiff was entitled to a decree absolute.
The plaintiff-appellant, however, has only asked for a decree nisi againstthe defendants, and, in the circumstances of this case, I think a decree nisiis the better course.
On August 21, 1935, the defendants were present and were given timeto file answer. The journal entry of September 25, 1935, which was theanswer due date, shows that the first defendant was present and thesecond and third defendants were absent. No answer was filed. There isnothing to show whether the plaintiff was present or absent on that date.If the plaintiff was absent the proper course was under section 84 of theCivil Procedure Code ; if he was present under section 85. The DistrictJudge, however, fixed the case for trial and in the context that means forex parte trial. The proper decree to be entered after such a trial is adecree nisi. In the words of Lawrie A.C.J., in the case I have referred to“ the defendant who had not answered …. had no right to takepart in the trial ”.
I would, therefore, set aside the decree entered in this case and send thecase back for a decree nisi to be entered in favour of the plaintiff, declaringhim . t.titled to the land as against the first and second defendants andejecting the first and second defendants therefrom. The plaintiff willhave costs here and below.
Poyser J.—I agree.
Appeal allowed.