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Present: Lord MacNaghten, Lord Atkinson, and Lord Shaw.
ABDUL AZEEZ v. ABDUL RAHIMAN.
D. C. Colombo, 26,976.
Muhammadan mosque—Trustee may maintain possessory action.
A person appointed by the congregation of a Muhammadanmosque as “ trustee ” for a term of years is entitled to maintaina possessory action.
“ The passage from Voet, founded upon 43,16, 3, indicates thatVoet was alive to the consideration that to give to the expressionut dominus as applied to possession too narrow a constructionmight prove inequitable and unworkable, and it shows clearlythat the remedy was not denied to a oolonus or a procurator if thedominus was absent.”
• “ If A enters on land possessed by B, and neither A nor B assertsthat the land belongs to him by any investitive fact, there isnothing unreasonable in saying that B should be protected in his
possession against A In a controversy between them, it is
immaterial that B does not claim to have any right of propertyfounded on any investitive fact, for A is in the same position.”
^^PPEAL from a judgment of the Supreme Court of Ceylon.
The Right Hon. Sir R. Finlay, K.C. (with him Dorn hors t, K.C.,and F. H. M. Corbet), for appellant.
Lawrence, K.C. (with him E. G. Mears), for respondeat,July 21,1911
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July 27,1911 juiy 27, 1911. Delivered by Lord Shaw :—
Abdul Azeez This is an appeal by the plaintiff against a judgment of theBaiinwu Supreme Court of the Island of Ceylon, dated November 26, 1909,reversing a judgment of the District Court of Colombo in theplaintiff’s favour, dated December 9, 1908.
The action is a possessory one under Ordinance No. 22 of theyear 1871. It was brought by the plaintiff who held the position,by appointment of the congregation, of trustee of the Maradanamosque in Colombo, he having been for more than the requisiteyear and day in possession of the mosque, and having been forciblyejected by the respondent and three other defendants. It isadmitted that had the plaintiff been owner of the mosque, thepossessory action would have been suitable and convenient ; butit is maintained that as he did not hold the property except astrustee or manager, the possessory remedy was incompetent. Thisis the only question in the case.
On June 19, 1903, the plaintiff was appointed trustee of themosque for a period of five years. On June 21, 1908, it is allegedby the plaintiff that the defendants “ unlawfully entered into andupon the,said mosque and premises and ousted the plaintiff there-from, and took forcible possession thereof, and unlwfully andforcibly deprived the plaintiff of the management, control, andpossession thereof”. This is denied by the defendants.
The learned District Judge, Mr. Schneider, holds that the ousterhas been amply proved, and that “ as to the events of June 21,1908,there is no room for any doubt that the two defendants who havegiven evidence and the two witnesses called for the first defendanthave all been speaking what is not true
The plaintiff denies that he had surrendered his office as trustee,and asserts that he was re-appointed before the expiration of histerm. The defendants, on the other hand (the defendant abovenamed being the only one who is respondent in this appeal), allegedthat on June 5, 1908, the defendant named was, at a meeting ofthe united assembly of the congregation, appointed as a trustee tosucceed the appellant on the expiry of his term as such, namely,on June 19. The regularity of this meeting is denied by theappellant. Two days before the meeting, viz., on June 3, theappellant had publicly called attention, by the letter printed in theappendix, to the responsibilities attending the ” grave irregularity ”which, as he alleged was “ involved in summoning such a meetingwithout due authority ”, &c. Out of this conflict two facts areclear, namely, first, that each of the parties, the appellant and thecompearing respondent, maintains that he is lawfully in possessionas trustee or manager for the congregation ; and secondly, thatinstead of the question of who is in the right being settled by agree-ment or by law, and the appellant having been possessor of thepremises in feet, the defendants ejected him from such possession
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by force. The learned District Judge was of opinion that this casewasone for which the possessory remedy of interdict was suitable andcompetent. In their Lordships’ opinion this conclusion was right.
In the judgments of the learned Judges of the Supreme Courtthere is considerable citation of authority from the ordinary textbooks of the Roman-Dutch law, and also from various decisionspronounced in the Courts of Ceylon. Most of the authorities—notonly the text books, but also the decisions—appear to have beencited in the case of Changarapitta v. Chelliah, decided on February 13,1902, in the Supreme Court of Ceylon. In their Lordships’ viewthat decision was sound in principle, and is applicable to the circum-stances of the present case. It was " an action brought by a person,who is described as the manager of the Hindu temple, complainingthat he has been forcibly dispossessed of the property, and asking
to be restored to possession in a possessory suit It was urged
that whatever his duties and rights were, and whatever his powerswere, he did not claim to be*the owner of the property ut dominus,and that, therefore, he could not maintain this action.'* Havingthus described the suit, Bonser C.J. adds : “ It seems to me thatif the plaintiff, who is called the manager of the temple, has thecontrol of the fabric of the temple and of the property belongingto it, he has such possession as would entitle him to maintain anaction, even though he makes no pretence of claiming the beneficialinterest of the temple or its property, but is only a trustee for thecongregation who worship there.” Having considered the rulesand regulations for the management of the mosque, containing astatement of the rights and duties of the trustee, their Lordshipsthink that the present case is entirely within the principle of thatdecision.
This case was followed by the Ceylon Courts in Sivapragasam v.Ayar9l and Changarapilla's case was in express terms founded uponand followed. Now, these cases were decided—one in 1902 andthe other in 1906. And the alleged conflict of authority is a conflictbetween previous cases in the Ceylon Courts, a conflict which, intheir Lordships' opinion, arising as it did upon a point of practice,might have been well held to be conclusively settled. They entertainsome surprise that these later cases of Changarapilla and Sivapra-gasam were not accepted as settling any uncertainty of authoritywhich had previously existed, and as definitely binding on this pointof procedure.
It is accordingly unnecessary to deal with the institutionalauthorities quoted, but in their Lordships’ opinion, these are notin conflict with the Ceylon practice as now fixed, and they wererightly interpreted in Changarapilla's case. The passage from Voet,founded upon 43, 16, 3, indicates that he was alive to the con-sideration that to give to the expression ut dominus as applied to
'(1905) 2 Bal. 49,
Abdul Aseezv. AbdulRahiman
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July 27, mi
Abdul Azeezv. AbdulBahiwan
possession too narrow a construction might prove, inequitable andunworkable, and it shows clearly that the remedy was not deniedto a colonus or a procurator if the dominus was absent. And othercases, such as property which is in the possession of a wife, andwhich she had received by a donation intervirum et uxorem (althoughsuch a legal title was null), are treated as suitable for protection bypossessory remedies. The question of possession by agency wasbut slightly developed, and accordingly slightly dealt with at thetime and in the works of some of these learned authors. It maybe added that an instructive passage in the notable chapter on“ Possession,” which occurs in the exposition of Roman law by thatvery learned author Mr. Hunter, does not appear to have beencited in the Courts below. It seems almost precisely, however,to touch the present case (page 363) :—
If A enters on land possessed by B, and neither A nor B asserts thatthe land belongs to him by any investitive fact, there is nothing un-reasonable in saying that B should be protected in his possession againstA. To use the expression of Paul, as between A and B, B has thebetter right to the possession. (DAS,17,2.) In a controversy betweenthem, it is immaterial that B does not claim to have any right ofproperty founded on any investitive fact, for A is in the same position.
Their Lordships will humbly advise His Majesty that this appealshould be allowed, and the decree of the Supreme Court set aside,and that of the District Court restored, with costs to the appellanthere and in the Courts below.
ABDUL AZEEZ v. ABDUL RAHIMAN