November 26.
( 331 )
“ 3. The assembly shall give written authorities or directions to 1909.the trustee and the assistant trustee in the name of the congregation November 26.to transact all business connected with the mosque, and such writtenauthorities shall be signed by not less than five members of theassembly. The assistant shall be authorized to succeed the trusteeon his demise or dismissal, to assume all his powers, and to transactall business connected with the mosque as a lawful trustee for theremainder of the period for which the deceased or dismissed trusteewas appointed.
“ 4 It shall be the duty of the trustee—
“ (a) To take charge of the lands and houses and all movablesbelonging to the mosque, and to collect the income,rents, and issues thereof.
“ (b) To keep clean and in repair the mosque, and the houses,lands, and premises belonging to the mosque.
“ (c) To attend to and make the repairs o{ houses, movables,and immovable premises belonging to the mosque.
“ (d) To lease the houses, lands, and premises belonging to themosque, such lease not to extend beyond a periodof two years, and the conditions, terms, and pro-visions to be submitted to and approved by theassembly.
“ (e) To spend out of the income towards repairs and defrayingother incidental expenses.
“ (/) To appoint and pay the Mohideen.
“ (g) To inquire, into disputes and differences of the priestMohideen and members of the congregation in respectof the congregation, mosque, the worship carried ontherein, and other matters connected with the mosque.
“ 9. There shall be a stamp of the trustee, and it shall be incustody of the trustee.”
Rules for the Outdance of the Trustee and Assistant Trustee.
“1. All items of income and expenditure shall be entered by thetrustee in books set apart for the purpose, and such books shall beproduced by him for inspection whenever required by the assembly.
“ 2. The trustee shall furnish the assembly with a half-yearlybalance sheet, which shall be audited by two members appointedfor the purpose.
“ 3. All moneys shall be deposited in the Savings Bank till suchtime as there will be sufficient funds to open an account in theNational Bank of India or any other bank in Colombo.
“ 4. All such accounts shall be opened by the trustee in hiscapacity as trustee of the Maradana mosque. All cheques shall besigned by the trustee and the stamp thereto affixed. On the trusteeceasing to be trustee by reason of his death, dismissal, or any other
(332 )
1909. cause, the moneys in deposit in the Savings Bank or the NationalNovember 26. Bank of India or any other bank shall be transferred to the credit‘of the succeeding trustee.
“ 5. All documents shall be dated and bear the stamp of thetrustee of the Maradana mosque, which stamp shall be under lockand key and in the possession of the trustee only, and shall not beentrusted to any one else.
“ 6. All receipts issued by the trustee shall bear an impressionof the stamp as well as his signature.
“7. No receipt for house rent paid shall be considered validunless it bears the signature of the trustee as well as his stamp.
“8. No house or portion of the mosque premises shall be leasedby the trustee without the consent of the assembly aforesaid.
“ 9. The trustee shall personally inspect the mosque and premisesbelonging to the mosque which may require repairs.
“ 10. The trustee shall first take the approval of the assembly inwriting before starting any work of which the cost is above Rs. 250.In any case where money above this sum has been spent by thetrustee without the sanction in writing of the assembly, the trusteeshall himself pay such sum as exceeds the sum of Rs. 250.
“ 11. The trustee may give a power of attorney to his assistanttrustee to recover rents, attend to judicial matters connected withthe mosque, and the houses, lands, premises, and movables belongingto the mosque.
. “ 12. The assistant trustee, when holding the power of attorney,or at any other time, shall not spend any trust money whatever ofthe mosque without a written sanction of the trustee.
“13. In any case where money has been so spent by theassistant trustee without the written sanction of the trustee, theassistant trustee shall himself pay and make good such sum.
“ 14. All disputes concerning the Mohideen and the priests shall,in the first instance, be referred to the trustee, and if the trusteethink any matter grave enough to be submitted to the assembly, heshall call a meeting of the assembly to consider the matter, and theirdecision shall be final.
■“ 15. All charges against the lewai (priest) shall be decided by
the assembly, and such decision shall be final. The dismissal of.the priest shall in all cases be in the hands of the assembly, whoshall announce their selection of his successor at a meeting of thecongregation called for that purpose.
“ 16. The trustee shall be. allowed a personal allowance of Rs. 20per mensem.”
The defendants, inter alia, pleaded that the plaintiff’s appointmentas trustee ended on June 18, 1908, and that the first defendant wasduly appointed trustee by the congregation, and that the firstdefendant accordingly on June 18 assumed duty as trustee, andthat [paragraph 9 (a) of the answer] “ the plaintiff having been
( 333 )
himself a party to the ‘ rules,’ and the first defendant having been 1906.appointed to succeed him, also under the said rules, tho November 20.plaintiff was estopped from claiming any right to act as a trustee asagainst the first defendant after June 18, 1908, or to exercise anyright as such trustee in respect of the mosque and premises.”
At the trial the defendants suggested the following issue :—
Is the plaintiff estopped from claiming to act as trustee asagainst the first defendant for the reasons stated inparagraph 9 (a) of the first defendant’s answer ?
• The District Judge rejected the issue, as he thought that it(fourth issue) was irrelevant to a possessory action, inasmuch as itinvolves the question of plaintiff’s title to possession.
After trial judgment was entered for plaintiff.
The first defendant appealed.
Walter Pereira, K.C., 8.-6. (with him H. A. Jayeuxirdene), for thefirst defendant, appellant. —It is clear that under the Roman-DutchLaw it is only a person who possesses property ut dominus, or, inother words, who enjoys the possessio civilis, who is entitled to bringa possessory suit. The present plaintiff calls himself a trustee.
Qua trustee he cannot be said to have the possessio civilis, but if therules governing his appointment are looked at, it will appear that heis no more than a mere servant or agent.
Van der Linden, in his chapter on Possessory Actions, indicatesat the very outset the nature of the possession necessary to entitlea person to bring an action for the mandament van complainte, whichis the same as the interdict unde vi. He says {bk. I, ch. XIII., sec. 1)possession is the actual retention of a thing with the purpose ofkeeping it for oneself. Simple possession without this object isinsufficient, and he instances the case of lessees, attorneys, agents,and depositories as persons who cannot in a legal sense be said topossess, the thing they detain.
One of the earliest local cases is that of MacCarvgker v. Baker.1There the plaintiff had been placed in charge of a coffee estate. Hehad more than the powers of a mere superintendent. He was anagent with plenary powers, and De Wet C.J. and Clarence J. heldthat his possession, if it could be said that he had any possession atall, was not such as to entitle him to maintain a possessory suit.
Dias J. in dissenting relied entirely on certain passages in chapterXIH. of Van der Linden, but he apparently overlooked the defi-nition of “ possessor ” given by Van der Linden in the samechapter.
In Perera v. Fernando2 Withers J. clearly indicates that thepossession necessary to enable a person to maintain a possessorysuit is physical detention plus the animus rem sibi habendi, or, in
other words, the animus domini.
1 (1S83) Wendt 263.
(1S92 1 S. U. R. 329.
( 334 )
1809. Then, there is the case of Tissera v. Costa,1 in which it was heldNovember 36. that the possession necessary to entitle the possessor to the interdictunde vi should be possession ut dominus, and that hence a mwppuof a Roman Catholic Church had no right to maintain a claim forthat interdict.
The case of Alim Saibo v. Cadersa Lebbe 2 is still more in point.That was the case of a Muhammadan priest who had for many yearsnot only officiated in the mosque as priest, but had administered itsfunds and entered into contracts in connection with the affairs of themosque, and generally had charge of the mosque and its property.The Supreme Court held that even he had not possession ut dominus,and he could not hence maintain a possessory action.
As against all this authority the only case that might be cited onthe other side is that of Changara/piUai v. Chelliah.3 That caseis against the weight of the very authorities cited in it in supportof the decision. The case appears to have been decided more ongrounds of expediency. Bonser C.J. relied largely on AhamadoLebbe v. Semberem * but clearly that case was not a claim forthe interdict unde vi. Beyond the statement that the decisionof the Court below was affirmed, there is no judgment in the case,but from an observation made by Rowe C.J. in the course of theargument, it is clear that it was not- treated as a mere possessoryaction. The Chief Justice observed that the defendant might havejustified his action in ousting the-plaintiff by evidence of his rightto do so. Evidence of right and title is inadmissible in actions fortire interdict unde vi. Bonser C.J. further relies upon a passage inVoet (V'l., 1, ’29), where it is laid down that economi were allowedto bring an action rei vindicatio in respect of the churches in theircharge. That, however, is a very different thing from the interdictunde vi based on possession only. It was apparently a special ruleof convenience. The right of the ecoimni was dependent upon anexpress rule, or rather expre&s modification of an existing rule, and notbased upon any principle, and cannot therefore be extended to includealso the right to maintain a claim to the interdict unde vi. Wendt J.partly relied on the case of Mascoreen v. Genys.6 There the Court. held that precarious possession was sufficient to entitle the possessorto maintain an action against strangers as distinguished from thoseclaiming right under whom the plaintiff himself claims right. Thedecision rests on somewhat obscure authority, but it is not necessaryto pause to consider it, inasmuch as the defendant in the presentaction is not a stranger, but claims to derive his authority from thevery congregation to which the plaintiff claims to owe his.
Maasdorp in his Institutes (vol. II., p. 14) defines possessio civilis,and adds it is the physical detention of a corporeal thing 'by a person
1 (1889) 8 S. G. C. 193.a (1902) 5 N. L. R. 270.
8 (1889) 9 S. G. O. 4.‘ {1868) 3 Lor. 28.
s (1882) Ram. 195.
( 335 )
with or without any claim of right with the intention of holding it as 1909.his own, to which the law has given its sanction by interposing th^ November 26.legal remedies or interdicts for its protection.
The Supreme Court has held that a lessee might maintain apossessory suit against his lessor.1 This decision does not appearto have the support of original authority. A lessee has all hisremedies on the contract of lease; but it is not necessary to enterinto a discussion of the soundness of this decision, because it went onthe assumption that in Ceylon a lessee on a notarial lease was protank) owner. There is no principle there that would apply to thecase of a trustee or other agent or servant.
Counsel also cited 3 Burge, p. 4 ; Orotius, Introduction, 2, 2, 2;
Voet, Casie Chilly's tram., p. 183 ; Voet 5, 1, 87 ; Voet 14, 2, 1 ;
Van Leeuwen (Kobe's tram.), vol. I., p. 198.
Baum (with him Sampayo, K.C., and F. M. de Saram), for theplaintiff, respondent.—MacCarogher v. Baker2 proceeded on thefooting that the plaintiff had no possession ut dominus. Possessionof a co-owner was not then considered sufficiently exclusive. Dias J.thought in that case that plaintiff could maintain a possessory action.
That case is, besides, no authority, as it was not argued before theFull Court.
In Tissera v. Costa plaintiff had no possession at all according toClarence J.
Alim Saibo v. Cadersa Lebbe may have been rightly decided. Quapriest the plaintiff would not be entitled to a possessory decree. Atrustee has such possession as is defined by Van der Linden (p. 183).
Ahamado Lebbe v. Semberem 2 is a Full Court decision, and isbinding.
The reason why when, a servant is evicted he cannot bring apossessory action is because there is a master who has been dis-possessed by the dispossession of the servant; the master couldbring the possessory action. The same reason would not apply tothe representative of a large and indeterminate class of persons. Todeny here the possessory remedy to the trustee would be to denythe remedy altogether.
Changarapillai v. Chettiah3 and Sivapragasam v. SwaminathaAiyar 4 are in point; they decide that a person in the position of theplaintiff is entitled to a possessory decree.
Counsel also referred to SaravanamvMu v. Sinnappa Aiyar;5Canagasabai v. Sinnetamby;6 Casie Chitty’s Voet, p. 49; andVoet 43, 16, 3.
Walter Pereira, K.C., S.-G., in reply.
' Cur. adv. vult.
1 [1895) 1. N. L. R. 217; (1884 6 S. G. C. 61.* (1858) 3 Lor. 28.
5 (1902) 5 N. L. R; 270.
(1905) 2 Bat. 49.
8 (1906) 10 N. L. R. 52.
(1859) 3 Lor. 290.
No-ember 26.
( 336 )
November 26, 1909. Hutchinson C.J.—
The plaintiff states in his plaint that he was the trustee of amosque at Maradana and of the garden whereon it stands; that assuch trustee he had the control and management of the premises,and was in the quiet and undisturbed possession thereof in trustfor the said mosque for more than five years before June 21, 1908,on which date the defendants unlawfully and forcibly ousted him,and that they are now in possession; and he claims to recoverpossession and damages.
The first defendant answered that the plaintiff was trustee asstated in the plaint, but that his trusteeship ended on June 18,1908,and denied that as such trustee he had the control and managementof the premises, or was in quiet and undisturbed possession. Healso said that from time immemorial the mosque with the premisesattached to it was used for Muhammadan worship, and was inpossession of the members constituting the congregation who hayeworshipped there; that in October, 1902, at a general meeting ofthe congregation, at which the plaintiff was present as a member ofthe congregation, rules were unanimously passed for the purpose ofregulating the affairs of the mosque, and it was decided that thereshould be a committee of fourteen members elected every five yearsfor the purposes aforesaid, and that a trustee should be appointedfor those purposes ; that at that meeting tlve first defendant wasappointed trustee, and acted as such for a few months, and thenresigned on June 19, 1903, and the plaintiff was elected by thecongregation as his successor for five years ending on June 18, 1908, .and accepted the office for that term and subject to the said rules ;that on June 5, 1908. the congregation again met and appointedthe first defendant as trustee to succeed the plaintiff, and heaccordingly on June 18 assumed duty as trustee. He denied thathe ousted the plaintiff or took forcible possession. The otherdefendants made substantially the same defence.
We have in evidence a copy of the “ Rules and Regulations for theManagement of the Maradana Mosque, adopted by the Congregationof the Maradana Mosque at a Public Meeting on October 10, 1902.”They provide that all affairs appertaining to the mosque shall becontrolled by fourteen members of the congregation elected for thatpurpose every five years ; these fourteen are called “ the assembly.”The congregation is to appoint one of the assembly as the trusteeof the mosque, and one as assistant trustee, each for five years.The assembly is to give written directions, signed by five members,to the trustee to transact all business connected with the mosque ;and the assistant is to succeed the trustee “on his demise or dismissal.”The duties of the trustee include the following : To take charge ofthe lands and houses and movables belonging to the mosque, andto collect the rents and income; to keep the mosque and the landsand houses in repair ; to grant- leases for not more than two years, ■
( 337 )
“ the conditions and terms and provisions to be submitted to and 1909.
approved by the assembly.” At the end of the “ General Buies ” November 26.
come some “ Rules for the Guidance of the Trustee and Assistant Hutchinson
Trustee.” They provide for the event of “ the trustee ceasing to C.J.
be trustee by reason of his death, dismissal, or any other cause”:
that “ no house or portion of the mosque premises shall be leased
by the trustee without the consent of the assembly ” ; and (Buie 11)
that he may give a power of attorney to his assistant trustee to
recover rents and attend to judicial matters connected with the
mosque and its properly. These rules were signed by the plaintiff,
and he says that he intended to observe them.
The ouster of which he complains was on June 21. * His first termof five years expired on June 18 ; but he says in his evidence that hewas re-appointed before the expiration of that term, and that afterhis re-appointment he continued to be trustee under the same rules.
No details are given as to the authority by which he claims to havebeen re-appointed. He admitted that at a meeting of the con-gregation held on June 5 the first defendant was appointed thetrustee, but lie says that that meeting was held for a differentpurpose ; and the Judge did not allow the first defendant’s counselto go further into the question of the rival appointments. TheJudge thought that this was simply a possessory action, and thatthe only issues were whether the plaintiff had had possession for ayear and a day, and whether he was ousted ; and he thereforedisallowed questions as to the validity of the appointments.
The first defendant deposed that he was duly appointed trusteefrom June 19, 1908, in accordance with the rules at a meeting heldon June 5. Up to the date of the ouster the plaintiff claimed to beand was in fact in charge and occupation of the mosque and itsproperty as trustee under the rules. He claimed to be so underHis first appointment until June 18, and after that date under hisre-appointment. I have quoted those portions of the rules whichseem material, as showing the powers and duties of the trustee. Heis appointed by the congregation; his duties and powers are definedin the rules; and in the exercise of them he is in some respectpcontrolled by the assembly.
The question is whether on these facts the plaintiff had such“ possession ” as entitles him to maintain a possessory action, orwas the “possession” that of the congregation alone or of the,assembly alone. The District Court held that he had such possession.
The first defendant appeals.
The Roman-Dutch Law requires the plaintiff in a possessoryaction to have had quiet and undisturbed possession for a year anda day; and the requisites of “ possession ” are the power to dealwith the property as he pleases, to the exclusion of every otherperson, and the animus domini, i.e., the intention of holding it asIris own. Possession must he based both on intention and on
( 338 )
1909. physical occupation; but the occupation may be through an agent.
Maasdorp'a Qrotius 2, 2,2 ; Jwta's Van der Linden, p. 98; Maasdorp's
November 26.
Hutchinson Institutes of Cape Law (vol. II.), p. 12; Kotze’s Van Leeuwen,
bk. I., p. 198.
Mascoreen v. Oenys1 was a possessory action by a priest against aman who had turned him out of possession of a church. The Courtin a short judgment said that the defendant asserted and ought tohave proved that he turned the plaintiff out by order of the bishop,.and'that as he had not done so, and was a mere wrongdoer, theplaintiff could maintain the action against him. This does not seemto decide anything as to the plaintiff’s right to maintain a possessory 'action.
In MacCarogker v. Balcer 3 a plaintiff who had been in occupationof an estate as manager and agent for the owner was held not to beentitled to maintain a possessory action.
In Perera v. Sobana 3 it was held by Burnside C.J. and Dias J.that a lessee can maintain a possessory action against his lessor onbeing forcibly dispossessed by his lessor dining the continuance ofthe term. The Chief Justice, quoting from Voet, said that acolonus or an agent or slave by and through whom the ownerpossesses cannot have a possessory action, because he does not“ possess ” but only holds as agent of another, but that a tenantfor a term who has exclusive possession as against his landlord andevery one else during the term can maintain such an action.
In Tissera v. Costa 4 the plaintiff was a muppu appointed by thepriest, and as such he kept the key of the church, recited prayersin it, received offerings and the produce of the church grounds, andexpended the money for church purposes, and generally surpervisedthe affairs of the church under the direction of the priest when therewas one. Held, by Burnside C.J. and Clarence J., that his possessionwas essentially that of an agent or caretaker, and that he could notmaintain a possessory action.
AlimSaibo v. Codersa Lebbe 6 was a possessory action; the plaintiffhad been for thirty-five years the officiating high priest of a mosque,and as such had administered its revenues, appointed subordinateofficers, and executed contracts and leases for and on behalf of thecongregation; the defendants had forcibly dispossessed him, andthey pleaded that before the ouster the congregation had interdictedhim from officiating. Burnside C.J. and Dias J. held that theplaintiff’s possession of the mosque was not ut dominus but on behalfof the congregation, and that he could not maintain a possessoryaction.
. ChangarapiUai v. Chelliah * was a possessory action, in which theplaintiff was, as the District Judge found, the manager of a Hindu
1 (1662) Sam. 195,
* (1883) Wendt 253.
3(1884) 6 S. C. G. 61.
* (1889) 8 S. C. C. 193.s (1889) 9 S. G. C. 4.
6 (1902) 5 N. L. B. 270.
( 339 )
temple and its property. Bonser C.J. and Wendt J. were of opinion 1909.that if the plaintiff, who was called the manager, had the control November 26.of the fabric of the temple and of the property belonging to it, his hxjtohinsonpossession was such as to entitle him to maintain the action, and C.J.the case was sent back for evidence as to the exact nature of theplaintiff’s interest. Bonser C.J. thought that the remedy of apossessory aotion was a beneficial one, and that the Court shouldnot seek to narrow its operation, but rather to enlarge it, and hisjudgment would almost do away with the rule that in such actionsthe plaintiff’s possession must have been ut dominus. He referswith approval to Ahamado Lebbe v. Semberem,1 and thinks that theproposition that if the possession was not ut dominus the action isnot maintainable is inconsistent with the judgment in that case;but that case was merely an action by a Mohideen of a mosque againsta trespasser who had ejected him, and who offered no evidence indefence of his conduct, but merely denied the plaintiff’s title ; nota word was said about its being a possessory action or about thenature of the plaintiff’s possession. It may be that a person whosepossession is not ut dominus, but precario or without any title orpretence of title, can maintain an action to recover possession fromone who has ejected him; but in such an action the defendantmay prove that he lias a better title than the plaintiff, whereas in apossessory action no defence is allowed except that the plaintiff hasnot had possession for a year and a day, or that he was not oustedby the defendant.
In Sivapragasam v. SwrnninaAha Aiyar 2 the plaintiff was for severalyears in possession of a temple and of its property as manager ; itwas proved that the defendants dispossessed him otherwise than byprocess of law; and upon that, Pereira J., quoting apparently withapproval Changarapillai v. ChelHah, held that the plaintiff wasentitled to a possessory decree, and Wendt J. concurred.
These authorities are not all reconcilable. But we must take therule to be as it is stated above from Grotius and the other authoritieson Roman-Dutch Law. We may give, it a liberal or a narrowconstruction, but only the Legislature can “ enlarge ” it in the senseof extending it to cases which it does not cover. A lessee under avalid lease from the owner is dominus or owner for the term of luslease ; he is owner during that term as against all the world, including. his lessor. And I think that it is possible that a trustee may beowner for the term of his trusteeship ; he may have a good title topossession during that term as against all the world, including thosewho appointed him ; it is a question of fact whether he is in thatposition or not; it depends on the terms and conditions under whichhe holds as trustee.
Tire plaintiff deposed in his examination-in-chief that his appoint-ment. ended on June 18. If the defendants had refrained from
» (1858) 3 Lor. 28.
(1905) 2 But. 19.
( 346 )
1009. cross-examination, there would have been no evidence that he hadNovember 26. or thought that he had any title to possession at the date of theHutchinson ouster. But the cross-examination elicited his statement that heC J. was re-appointed before the end of his term. The Judge saysnothing about that. If we hold, as perhaps we ought to do, thatthis meagre statement is sufficient proof that he was re-appointed,we must then decide whether he had under his two appointmentssuch possession as is requisite for a possessory action.
The rules under which he held provide in two places for theevent of the dismissal of the trustee, without saying anything as tothe circumstances under which he may be dismissed. Perhaps theintention of the parties was that the trustee, if he duly performedall the duties of the office, should be entitled to hold it^during theterm for which he was appointed; just as a manager of '^businessappointed, by a merchant for a definite term may be entitled to holdthe appointment for the whole of the term if he performs His part ofthe bargain. But, even so, I think that his possession is only that ofthose who appointed lum, and who have, in some circumstances atany rate, the power to dismiss him; just as the possession of businesspremises by the manager of the business is that of his employer.His position was very like that of the plaintiff in Alim Saibo v.Cadersa Lebbe,1 the decision of which seems to me to be in accordancewith the Roman-Dutch Law; and if the decision in the last twooases above quoted is inconsistent with it, I prefer to follow theformer.
My opinion is therefore that the plaintiff was not the owner of themosque against all the world during the term of his trusteeship,but only the agent for certain purposes of the congregation who( had appointed him, and who might under some circumstances havedismissed him. He was not entitled to maintain a possessory action:but in an action by him to recover possession it would be open to thedefendant to set up any other defence, besides the two which areallowed in a possessory action. The decree of the District Courtshould be set aside; but I think that the case should go back fortrial of the fourth issue, which was suggested by the defendant’scounsel, but rejected by the Judge. The respondent should paythe costs of the trial up to date and of the appeal.
Middleton J.—
To arrive at a sound conclusion as to whether a person is entitledto maintain what is known as a possessory action under the Roman-Dutch Law, it is necessary to arrive at a decision as to what is theright of possession which will found such an action.
Van der Linden (Henry's translation, p. 183) defines possessionas the actual retention of a thing with the purpose of keeping it for
‘ (1869) 8 b. C. C. 4.
( 341 )
one’s self, and says that a lessee or an attorney or agent or depositary190s.
or person to whom anything is committed in charge cannot in a November 26.legal sense be said to possess the thing in question.Mimleton
Van Leeuwen (Kotze's translation, bk. I., p. 198) says: “ Possession J.is only a bare and naked apprehension and detention of a thingwith the intention of using it as one’s own. It consists in this, thata person having so possessed anything or right for a year and a day isentitled to retain the possession until somebody else who disputeshis possession has lawfully established his right of property.
Grotius (translated by Herbert, p. 69) defines possession as theactual tenure or holding of anything with intent to retain it toourselves in exclusion of any other.
Maasdorp (vol. II., pp. 13 and 14) says : “ In other words, it isthe physical detention of a corporeal thing by a person, whetherwith or without any claim of right, with the intention of holdingit as his own, to which the law has given its sanction by interposingcertain legal remedies or interdicts for its protection, in case of itsbeing interfered with by other persons. But it. is essential to the.existence of possession that there should at one time or anotherhave been both such detention or occupation and such intentionpresent together at one and the same time. The intention mustalso absolutely be to hold the thing for one’s self and not for another;for a lessee, a person who has a thing on loan, or a depositarycannot in strict law be said to possess, or, if he possesses at all, hepossesses not for himself, but in the name of the owner. It followsfrom the above definition of possession, and the fact that it canonly exist where there is a holding for one’s self, that only thosethings are capable of being possessed which are capable of beingowned, and that only those persons are competent to possess whoare competent to own property, as to which points we shall treatfurther on.”
The interdict unde vi does not lie to. tenants of houses, colonitenants of lands, or agents and other like persons (Voet 43, 16, 3;
Gasie Chitty, p. -183), except if the dominua is absent in exceptionalcases and is unable to sue. The interdict unde vi lies to personspossessing out vi aut dam aut precario, even against the dominuswhen they have been ejected by him by violence (Voet, vbi supra).
So much so that it lies to a person ejecting the dominus, if thedominus has ejected him after an interval, (vbi supra). It does notlie to a person who never possessed in intention or physically(Voet 43,16, 4 ; Casie Chitty, p. 185).
In MacCarogher v. Baker1 it was held by the majority of theCourt, Dias J. dissenting, that a person who was in possessionas agent of an owner was not entitled to maintain a possessoryaction upon ouster, but that the right to do so was in theowner.
> (1883) Wendt 263.
( 342 )
1909. In my opinion the test of the right to bring a possessory actionNovember ^, lies in the Court’s view of the animus domini with which the personMgddlston ejected holds the property. It is necessary that the animus shouldJ- be of an exclusive personal possession ut dominus, not for or onbehalf of another, but for one’s self.
In my opinion a trustee can never be said to be holding id dominusfor himself, but necessarily on behalf of those for whom he is trustee. .1 am not prepared to admit that in every case where the action rr.itnndicatio lies, the so-palled lesser right to a possessory action mustof necessity be included and implied. The right to bring a possessoryaction depends on proof of possession for the time limited, and. the animus of the person possessing, while the action rei vindicatioo depends on a proof of right and title to maintain the action. It isan action to assert dominium, while the other is to assert possessio.Voet, bk. VI., tit. 1, section 29, as translated by Casie Chitty, p. 272,says, in regard to things sacred, that a quasi dominium was allowedto persons in the position of economi stewards and other likepersons.
It is difficult from the report of Ahamado Lebbe v. Semberem1to gather if the action there was a purely, possessory action,or if it was not vindicatory as against alleged wrongdoers, inwhich case I see no reason to say that a plaintiff who proved hehad been appointed Mohideen of a mosque and had held the officefor twenty years by and with, the consent of the congregation wasnot entitled to succeed as against mere wrongdoers, though I doubthis right to succeed in a possessory action.
In Changarapillai v. C.helliah,8 in which Bonser C.J. approves ofthe case in 3 Lorenz, he speaks of the lesser remedy of a possessoryaction following a fortiori from a right to bring the vindicatoryaction, but, with great respect for that learned Judge, I gather thatthere may be a quasi dominium such as that he refers co, which,though it might enable a person to maintain a vindicatory action,would not confer on him such possession for himself as is primd facie, required for the maintenance of the possessory action.
In the present case the plaintiff’s right of possession ut dominusis traversed in the answer, and he is alleged to be a trustee holdingover possession after the expiration of his term of trusteeship. Theplea is in effect that he is not holding ut dominus for himself, butat the most in a representative capacity, though that is deniedby the averment of holding over, and the question whether theplaintiff’s possession is such as would entitle him to maintain thepresent action is definitely raised by the first issue.
In Alim Saibo v. Cadersa Lebbe,3 Burnside C.J. and Dias J. heldin the case of a Lebbe, who was also proved to have administeredthe lawful affairs of a mosque, that his possession was representative
1 (1858) 3 Lor. 28.* (1902) 5 N. L. H. 270.
» (1889) 9 S. C. C. 4.
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and not ut dominus. This case is not noticed in the judgment of 1909.Bonser C.J. and Wendt J. in ChangarapiUai v. CheUiah, vbi sv/pra, November 26.which appears to over-rule it in principle without the authority todo so, both being two Judge cases.J*
In Mascoreen v. Genys1 the Supreme Court held that a RomanCatholic incumbent turned out of possession by another personalleged to be appointed by the bishop to succeed him had a rightto a possessory decree as against a wrongdoer. In that case theplaintiff had clearly the intention of possessing for himself virtuteofficii, and had no representative capacity.
In the case of Tissera v. Costa 2 the Supreme Court, -Burnside C.J.and Clarence J., again held in the case of a Roman Catholic mupputhat to maintain a possessory action the possession relied on by theplaintiff must be a possession ut dominus and not a possession onbehalf of others.
In Canagasabai v. Sinnetamby 3 the manager of a madam washeld entitled to succeed in a vindicatory action as against otherclaimants.
In (1885) 7 S. C. C. 27 it was held that the officiating priests of atemple might maintain a possessory action, if they proved they hadsuch possession as in law would entitle them to maintain it.
In 10 N. L. B. 52 the manager of a Hindu temple was ina vindicatory action declared entitled to maintain an action tovindicate his rights as manager.
In 2 Balasingham 49 the action was by a person who claimed tovindicate his title as manager and proprietor of a Hindu temple, whowas held to fail in his claim thus laid, but allowed to succeed as. though in a purely possessory action. The facts may have disclosedthat he held animo domini for himself, but otherwise I do not thinkthe judgment can be supported ; but I think the case was decidedon the authority of ChangarapiUai v. CheUiah, which I, with greatdeference to the learned Chief Justice who delivered the principaljudgment, think cannot be supported by the Roman-Hutch Law,unless the temple manager there was in fact a proprietor, or heredi-tary descendant of the original proprietor, or a person who had someclaim to hold for himself and not representatively.
In 6 S. C. C. 61 a very important decision was given, declaring alessee presumably under a notarial lease to have the right to maintaina possessory action. There is ground for this, inasmuch as a tenantduring the term of his lease holds as a dominus for himself on thefooting of a pro tanto alienation. It seems to me, therefore, thatthe learned Solicitor-General was correct when he asserted that theonly case he had to meet as decided against his Contention wasChangarapiUai v. CheUiah, vbi sv/pra.
* (1889) 8 S. C. G. 193.
J (1859) 3 Lor. 290.
(1862) Bam. 195.
November 26.
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A strong argument also in his favour, I think, is that a claim inreoonvention appears not to lie upon the interdict unde vi, so thatif Mr. Bawa’s contention is correct, as the Solicitor-General argued,an agent of the dominus ejected might obtain a possessory decreeagainst the dominus.
But although Voet 43, 16, 5 (Casie Chitty, p. 187), says it doesnot matter whether the persons ejecting have any right or not, andthat the interdict unde vi is given even against the dominus whoejects forcibly, it is only so given, in my opinion, in favour of aperson who professes to have or has possessio for himself.
It would appear also (Voet 43, tit. 17, num. 2, Casie Chitty,p. 199) that the interdict uti possidetis 'would not be granted toagents themselves or coloni tenants and others having detention inthe name of another or being in possession for the sake of custody.
The Roman-Dutch Law seems to recognize a quasi dominium,which would support a vindicatory action (Voet, bk. VI., tit. 1, 19 ;Casie Chitty, pp. 34-35) but not a quasi possessio civilis, which wouldsupport the interdict unde, vi or uti possidetis so far as I can ascertain,as the possession must be for one’s self, not representatively.
In my opinion, therefore, the first issue must be answered in the.negative, and I hold the plaintiff in this case, who in the pleadingsappears to be a trustee, is not entitled to succeed in a possessoryaction. I would therefore set aside the judgment of the District-Court in so far as it orders the grant of a possessory decree in favourof the plaintiff, with costs up to date in both Courts. I should,however, be inclined to permit the action to proceed as a vindicatoryone, upon .the necessary amendment of the pleadings in thatdirection.
Wood Renton J.—
The question at issue in this case is whether the plaintiff-respondent, who claims to be trustee of the Muhammadan mosqueat Maradana, is entitled to bring a possessory action against thefirst defendant-appellant, who also claims to be the duly appointedtrustee of the mosque, and who, together with the second, third,and. fourth defendants, has ousted the respondent from thecontrol and management of the premises. The ouster was forcible.The respondent had had the control and management of the mosquefor more than a year and a day prior to the ouster of which he nowcomplains. The case comes, therefore, within the first part ofsection 4 of the Prescription Ordinance, No. 22 of 1871, and therespondent is entitled to the redress that he seeks, if, withirf themeaning of the proviso to that section, the facts satisfy “ the otherrequirements of the law as respects possessory cases.” The appel-lant contends that the respondent was at no time other than theagent or servant of the mosque; that at the date of the allegedouster his term of office had expired, the appellant having been duly
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appointed in his stead; and that, even if it had stOl been current 1909-at that date, he had not such a possession as would enable him in November 26>law to maintain the present action. The learned District Judge, g00'ofollowing certain decisions of the Supreme Court, to which I will Renton J.refer particularly hereafter, has held that, as the position of therespondent is that of a “ trustee ” who is vested with the legalestate, in so far as such vesting is consistent with res divini juris, intrust for the congregation, he can maintain a possessory action.
After careful consideration I have come to the conclusion, onthe facts that the respondent had the control and managementof the mosque during his term of office, solely as the agent orservant of the congregation, and, on the law, that under thesecircumstances he is not entitled, even if he has been duly re-appointed, and still less, of course, if there has been no suchre-appointment, to a possessory remedy.
The respondent was appointed under the rules and regulationsfor the management, of the Maradana mosque adopted by thecongregation at a public meeting held on October 10, 1902. It isto these rules then that we must look for the purpose of determininghis legal position. They begin by providing that all the affairsappertaining to the mosque shall be controlled and supervised byan assembly of fourteen members, elected for five years by thecongregation (Rule 1). The congregation is also to appoint oneof the assembly as trustee for a period of five years, and to givewritten authority and direction to the trustee to transact allbusiness connected with the mosque (Rules 2 and 3). The powers,and duties of the trustee are defined in Rule 4. He has “ (a) to takecharge of the lands and houses and all movables belonging to themosque, and to collect the rents and issues thereof; (b) to keep cleanand in repair the mosque and the houses, lands, and premises belong-ing to the- mosque : (c) to attend to and make the repairs of houses,movables, and immovable premises belonging to the mosque; (d)to lease the houses, lands, and premises belonging to the mosque,such lease not to extend beyond a period of two years, and the condi-tions, terms, and provisos to be submitted to and approved by theassembly ; (c) to spend out of the income toward repairs and defray-ing other incidental,expenses; (/) to appoint and pay the Mohideen ;
(g) to inquire into disputes and differences of the priests, Mohideen,and members of the congregation, in respect of the mosque, theworship carried on therein, and other matters connected with themosque.” Special rules for the guidance of the trustee require him toenter all items of income and expenditure in books set apart for thepurpose (Rule 1); to furnish the assembly with a half-yearly balancesheet (Rule 2), which is to be audited by two members appointed forthe purpose ; to lease no house or portion of the mosque premiseswithout the consent of the assembly (Rule 8); and to take the approvalof the assembly in writing before starting any work of which the26-
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1009. cost is above Rs. 250 (Rule 10). The trustee is enabled to give aNovember 26. power of attorney to an assistant trustee, for whose appointmentWooD the rules also provide, to recover rents, and attend to judicialRenton j. matters connected with the mosque and its property (Rule 11).
Disputes concerning the Mohideen and priests, although referred inthe first instance to the trustee, are, if considered by him sufficientlygrave, to be submitted to the assembly (Rule 14). Charges againstthe priests are to be finally decided by the assembly, and the dismissalof a priest is in all cases to be in the hands of that body (Rules 14and 15). It appears to me that, under these provisions, the trusteeis merely an agent or servant of the congregation. He is elected by •that body. He derives his authority, and receives his directions,from the assembly in its name. His powers of leasing are strictlylimited; he requires the approval in writing of the assembly beforeundertaking any considerable work; he is placed under a strict andperiodical liability to account. Even in the case of disputes, overwhich he has jurisdiction, he is expected to refer serious matters tothe assembly, and he has no power to deal with charges against apriest or to dismiss him. Whatever powers of control or manage-ment the trustee so appointed may have, he exercises them, in myopinion, alieno -nomine, within the meaning of Roman and Roman-Dutch law.
Under the Roman law the remedy applicable to a case of forcibledispossession was the interdict unde vi. Although it was not neces-sary for the purposes of that interdict that the plaintiff should havehad civilis -possessio, in the sense in which Savigny has interpretedthat term, as meaning a possession capable of being converted, underthe strict Civil Law, into full ownership by usucapion ; it wasessential that he should have had, at the time of ouster, juridicalpossession of the property in dispute, in the sense of an intentionto exclude every one else from its possession (Savigny on Possession,book IV., section 42; Sohm’s Institutes of Roman Law, pp. 232-233).If he held it alieno nomine, merely as the agent or servant of someone else, he had no claim to the remedy. In Roman-Dutch Lawthe nearest analogy to the interdict unde vi is to be found in themandement van spolie. It is clear that, for the purposes of thatremedy also, the possessor must have been holding possession in hisown right, and must not have merely had a bare detention of thething in the name of another. See Voet 43,16, 3, and Maasdorp, 2,p. 26, and there are numerous other authorities to the same effect.On the text of the pure Roman-Dutch law itself, I tliink that therespondent is not entitled to maintain this action.
I come now to examine the local decisions cited in the argumentin appeal. We may put aside at once the class of case of whichPerera v. Scibana1 may be taken as an example, in which ithas been held that the lessee has the right to bring a possessory1 (1884) 6 S. G. G. 61.
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suit against the lessor on being forcibly dispossessed by the 19OS.latter daring the term. It is true that Voet (bk. 43, 16, 3) classes November 20.the ccdonus with the agent or slave as being incapable of resorting woodto the interdict unde vi (and see Van der Linden, Henry's translation, Renton J.p. 183). But there is a wide difference between the modern lesseeand the Roman colonus, who, although personally free, was, in thelater empire, part and parcel of the estate to which he was attached.
It has been held in South Africa (see Maasdorp, vol. II., p. 26),in spice of the Roman-Dutch texts to wiiich I have just referred, that •a lessee is entitled to the mandament van spolie. I think that thedecisions to the same effect in Ceylon are sound, and there is nothingin our present judgment that can conflict with them. If there*hadbeen a long and unbroken series of authorities recognizing the rightof persons, in the position of the respondent, to bring such an actionas this, it might well be that we ought not now to interfere with it.
But the authorities are, in fact, conflicting. In Ahamado Lebbe v.
Semberem1 it was held that the Mohideen of the mosque couldmaintain an action of trespass against a wrongdoer. In the courseof the argument in that case, Bowe C.J. said that the Mohideen wasmore than a servant, and seemed to him to be more an officer or atrustee. This decision, as far as it goes, turns on the' fact of thedefendant having been a trespasser. The same observation appliesto the case of Mascoreen v. Genys,2 where the ratio decidendi was thatas the defendant had failed to prove that he had turned the plaintiff,a Roman Catholic minister, out of the management of a certainchurch by the orders, as lie alleged, of the Roman Catholic Bishopof Jaffna, lie was practically in the position of a mere wrongdoer.
Canagasabai v. Sinnetamby 3 was an action rei vindicatio, and theonly question before the Court was whether the plaintiff who claimedthe land in dispute as belonging to a madam had made out his title tothe property as against the defendant, who asserted an independenttitle to it. .The only authorities bearing directly upon the pointare the decisions of Bonser C.J., concurred in by Wendt J., inCkangarapillai v. Chelliah,* and of Wendt J. and Pereira A.J. inSivapragasam v. Swaminatha Aiyar.5 In both of those cases it washeld in effect that if the manager of a Hindu temple has the controlof the fabric of the property belonging to it, and the reasoning, ifgood, is of course applicable to the case of a Muhammadan temple—his possession is such as will enable liim to maintain a possessorysuit. On the other hand, there are authorities directly in point.
In MacCarogher v. Baker 6 the plaintiff was the agent for B, the ownerof an undivided half share of two estates, and the executor of M,the owner of the other. He came out from England at B’s requestto take charge of the estates, and continued with B’s consent in
1 {1858) 3 Tjot. 28.
3 (m2) Ham.. 195.3 {1859) 3 Jsor. 290.
‘ (1902) 5 N. L.RV270.• (1905) 2 Hal. 49.
“ (1883) Wendt 253.
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1909. the sole occupation and management of them, himself finding allNovember 25. necessary funds for their upkeep. Having been deprived of hisWood possession of the estates by the agent of the defendant, he broughtRenton J. a possessory action, seeking to be restored to the possession ofan undivided half share of them. Clarence J. and Dias J. havingdiffered as to whether this action was maintainable in respect of B’shalf share, the question was referred without further argument toDe Wet A.C.J., who adopted the view of Clarence J., that as theplaintiff’s occupation of that half share had been in the character ofagent for B, the right to maintain a possessory action in respect ofit was not the plaintiff’s, but B’s. In Tissera v. Costa1 the questionat issue was whether the plaintiff, as muppu of a certain RomanCatholic church, could recover possession of that church and itspremises from the Vicar-General, and a priest, who, he alleged, hadforcibly ousted him therefrom. Burnside C.J. and Clarence J. heldthat the action was not maintainable. In Changarapillai v. CheUiakBonser C.J. distinguished that case as follows : “ The mwppu, whoappears to be a kind of beadle, has no control over the fabric ofthe church, and was only a caretaker entrusted with the custodyof certain movables, a very subordinate servant, whose duty it wasto keep the church clean, but who had no sort or kind of possessioneither on behalf of himself or anybody else.” I think that thispassage rather understates the position of the muppu as defined inthe evidence, but in any event the ratio decidendi was that themuppu’s possession was alieno nomine. In Alim Saibo v. CadersaLcbbe* Burnside C.J. and Dias J. held that the plaintiff, who hadfor many years officiated as priest of a Muhammadan mosque, hadreceived the contributions of the faithful, had administered the fundsof the mosque, had entered into Contracts on behalf of the con-gregation, and generally had had the charge of the affairs of themosque as its religious head, could not maintain a possessory actionin respect of the mosque property.- Here, again, the ratio decidendiwas that the plaintiff’s possession of the mosque was only a posses-sion on behalf of the congregation. Bonser C.J. in Changarapillaiv. Chdliah 3 disapproved of this decision, and stated his view of thelaw thus : “ It seems to me that if the plaintiff, who is called themanager of the temple, has the control of the fabric of the templeand of the property belonging to it, he has such possession as wouldentitle him to maintain an action, even though he makes no pretenceof claiming the beneficial interest of the temple or its property, butis only a trustee for the congregation who worship there.” What-ever may be the rights of the precarious owner as against strangers,I am unable to assent to the view expressed by Bonser C.J. in thepassage just cited in such cases as Changarapillai v. Chdliah 3 andthe present.
1 {1889) 8 S. C. C. 194.8 {1889) 9 S. G. G. 4.
3 {1902) 5 N. L. B. 270.
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I should myself have been disposed to hold that the respondent’saction should be dismissed simpliciter, with all costs here and in theDistrict Court. But I will not dissent from the view of the rest ofthe Court that an opportunity should be given to the respondent tovindicate his rights, if any, as the alleged manager of the temple asagainst the present appellant. I express no opinion as to whetheror not such an action is maintainable under the ciroumstances ofthis case. The appellant should, I think, have all costs up to date.
November 26.
WoodBenson 3.
Appeal allowed ; case remitted.