119-NLR-NLR-V-55-A.-G.-SELVAM-Appellant-and-N-KUDDIPILLAI-et-al.-Respondents.pdf
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Selvain, v. Kuddipillai
Present: Gratiaen J. and Gunasekara J.A. G. SELVAM, Appellant, and N. TCTTT>T)TPTT,T.AT,et al., Respondents4
S.C. 310—D. G. Jaffna, 5,405
'Quia timet—Action for declaratory decree—Scope of such action—“ Cause of action”—Civil Procedure Code, s. 5.
An owner of immovable property is entitled to enjoy it without disturbanceand without fear of unjustifiable interference from outsiders. If his enjoymentis disturbed by forcible ouster, the remedies of a rei vindicatio action or (inappropriate cases) of a possessory action are available to him ; if it is seriouslythreatened, he may demand in quia timet proceedings a declaration of hisrights so as to prevent in anticipation the apprehended invasion of his rightsof ownership.
Plaintiff, who claimed to be owner of certain immovable property, allegedthat the defendants, disputing his claim to be the sole owner, wanted him topay them the value of their share of the property. He instituted the presentaction claiming a declaration that he was the sole owner of the property. Headmitted that, notwithstanding the dispute as to title, he had continued topossess the property and enjoy its produce exclusively. The trial Judgedismissed the action on the ground that it was premature.„
Held, that the plaintiff had a “cause of action” within the meaning of section5 of the Civil Procedure Code and was, therefore, entitled to maintain theaction.
Appeal from a judgment of the District Court, Jaffna.
'
H. W: Tambiah, for the plaintiff appellant.
No appearance for the defendants respondents.
Cur. adv. vult.
ftRATTA F,N J.—Selvam v. KuddipUlai
427
January 20, 1954. Gratiaen J.—
The plaintiff' appellant instituted this action against the 1st, 2nd and3rd defendants on 20th April, 1949, claiming, by virtue of a conveyanceP2 of 1941 and of prescriptive user, a declaration that he was the soleowner of the property described in the schedule to the plaint. Hecomplained that since 1947 the respondents had falsely asserted titleto the property in dispute and “ were disturbing his possession thereofto his damage of Rs. 100 per annum. ”.
In a joint answer filed on 20th September, 1949, the respondents concededthat the appellant was entitled to an undivided £ share of the property,but they disputed his claim to be sole owner. They asserted that theyowned the outstanding shares in accordance with the chain of title setout in their pleadings, and asked “ that the plaintiff’s action in respectof a f share of the said land be dismissed with costs ”.
Fourteen issues clarifying the dispute as to title were framed at the•commencement of the trial, and the plaintiff then gave evidence. Hestated that he had been in exclusive enjoyment of the property from1941 (i.e., since the date of his purchase under P2) until 1947, but thatthe respondents then “ disturbed ” his possession in the sense that theyasserted their disputed claim to the property and “ asked (him) to paymoney for their share ”, He instituted proceedings against them in theVillage Tribunal in 1947, but the dispute was referred to a higher Court.
After that ”, he explained, “ the defendants met me and wanted meto pay the value of their share of the land and therefore I came and filedthis action He admitted that, notwithstanding this dispute as totitle, he had continued to possess the property and enjoy its produce•exclusively.
After the plaintiff had concluded his evidence, but before his casehad been closed, the respondent’s counsel raised an additional issuein the following form :
fi 15. Has the evidence of the plaintiff ‘ disclosed a cause of actionagainst the defendants inasmuch as in his evidence he hasstated that he is in undisturbed possession of the land since1948 ’ ? ”
The learned judge answered this issue in the negative and, without tryingthe rest of the issues, dismissed the plaintiff’s action with costs.
In my opinion the learned judge has taken too narrow a view of themeaning of the expression “ cause of action ” as defined in section 5of the Civil Procedure Code. The expression “ includes the denial of aright ”, and, without questioning the correctness in their context of•certain dicta of Pereira J. and de Sampayo J. in Lowe v. Fernando1,
I am satisfied that the respondents’ conduct complained of in theseproceedings goes far beyond what those distinguished Judges characterisedas *f a mere verbal denial ” which by itself is insufficient to constitute a“ cause of action ”. In the present case, the plaintiff’s evidence (whichj1 {1913) 16 N. L. it."
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GRATIAJEN J.—-Selvam v. Kuddipillai
the learned trial Judge has assumed to be true on this point) makes itclear that the respondents had not merely denied his title byt had positivelyasserted theirs ; and, on the basis of that allegedly false assertion, theyhad, both before and after the institution of the Village Tribunal proceed-ings in 1947, made demands upon him for a recognition of their claims.In their pleadings, and in the issues framed at the commencement ofthe trial, the continuation of the outstanding dispute as to title wasfurther emphasised. In such a state of things, it is idle to suggest thatthe appellant’s claim to obtain a final adjudication of the dispute iapremature.'
An owner of immovable property is entitled to enjoy it withoutdisturbance and without fear of unjustifiable interference from outsiders -If his enjoyment is disturbed by forcible ouster, the remedies of arei vindicatio action or (in appropriate cases) of a possessory actionare available to him ; if it is seriously threatened (as the appellant claimsit has) he may demand in quia timet proceedings a declaration of hisrights so as to prevent in anticipation the apprehended invasion of his-rights of ownership.
The Civil Procedure Code, even in its present form; does not deny tolitigants the benefit of declaratory decrees in certain circumstances forthe purpose of settling concrete disputes which have arisen between them.—Heioavitarane v. Chandrawathie1 and Naganathar v. Velauthan et al2.Where an owner of property complains only of a “ bare verbal denialof his rights ”, a Court may very properly refuse to entertain a declaratoryaction if no concrete dispute relating to the conflicting interests of theparties can be said to have actually arisen. In the present ease, however,the plaintiff’s evidence does disclose a cause of action within the strictmeaning of section 5 of the Code. The law does not compel an ownerto postpone his claim to relief until the dispute as to title has led tophysical dispossession (perhaps by violence). With great respect, Ithink that this is a more accurate explanation of the appellant’sQight tomaintain his action than that suggested in Ratwatte v. Gumarihamy3.
In my opinion, the dismissal of the plaintiff’s action was premature.His evidence as to the nature of the “ disturbance ” complained ofcertainly destroys his claim to damages or -to an order for ejectment.On the other hand, he is entitled to proceed with that part of his actionwhich relates to a bare declaration of his rights of ownership to theproperty in dispute. 1 would set aside the order under appeal, and sendthe record back for a re-trial on all the issues relevant to the disputebetween the parties as to title. The appellant is entitled to the costsof this appeal and his costs of the abortive trial in the lower Court. Allother costs will be costs in the cause.
Gttkasekaua J.—I agree.
Order set aside.
(1951) 53 N. L. R. 169.2 (195 3) 55 N. L. R. 319 ; 50 C. L. W. 13.
3 (1917) 4 C. W. R. 5.7.6