ABUBAKKER LEBBE v. ISMAIL LEBBE et al

084-NLR-NLR-V-11-ABUBAKKER-LEBBE-v.-ISMAIL-LEBBE-et-al.pdf


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Present- . Mr. Justice Wood Renton and Mr. Justice Wendt.ABUBAKKER LEBBE v. ISMAIL LEBBE et al.
1908.
September 22.
D. C., Kandy, 17,919.
Resistanceto execution ofdecree—Constructive possession—Onusofproof
—Interlocutory orders, appealsfrom—Righttoquestion interlocu-toryorders on finalappeal—Civil Procedure Code,ss.324,325.
and 327.
Theremedy by wayo t petition under section 325 oftheCivil
Procedure Codeisopen toajudgment-creditor, towhom the Fiscal
has only given constructive possession under section 324.
Ounaratna v. Dingiri Ban,da 3 referred to.
A suitor isnotboundtoappeal from everyinterlocutory order
by which hemaydeem himself to be aggrieved;he may question
the propriety of such orderonan appeal against the final judgment.
Maharajah Moheshur Singh v. Bengal Government,4 Sheonath v.Ramnath;* Forbes v. Ameeroonissa Begum, * followed.
Punchi Appuhamy v. Mudianse 7 explained.
Under section 327 ofthe Civil Procedure Code the onus lies on
the decree-holder of proving title to the property in ' dispute,as
against the party resisting the execution of the decree.
D. C., Chilaw, 1,101, 8 approved.
A
PPEAL from an order of the District Judge of Kandy (J. H.
Templer, Esq.) under section 327 of the Civil Procedure
Code. The facts which gave rise to the application sufficientlyappear in the following judgment of J. H- de Saram, Esq-, DistrictJudge. (July 23, 1906.)
1 (1895) 3 N. L. B. 128.
S. C. Min. August 24, 1908.
‘ (1898-99) 4 N. L. R. 252.
(1859) 7 Moo. Ind. App. 283, 302. 303.
24-
8 (1865) 10 Moo. Ind. App. 413.
• (1865) 10 Moo. Ind. App. 359-60.
(1907) 2 App. Court Rep. 159.
8. C. Min. Nov. 3, 1897.
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190S
September 22“ ^ understand that when the Fiscal proceeded to deliver posses-
■ _' sion of the property described in the writ issued in this section, he
found the second respondent in occupation.
“ The second respondent, claimed right to occupy the propertyunder the third respondent, who holds a lease thereof from the firstrespondent, the judgment-debtor. As the second respondent wasnot bound by the decree to relinquish his occupancy, the Fiscalgave formal delivery to the petitioner by affixing a copy of the writin some conspicuous place on the property, and proclaimed to theoccupant the substance of the decree in regard to the property. Asthe judgment-creditor was immediately hindered from takingcomplete and effectual possession, he complained of the obstructionunder the provisions of section 325 of the Code. I thereupon madean interlocutory order in accordance with the alternative (b) ofsection 377.
“ The first and second respondents, though served with a copyof the order and of the petition, have not appeared. The thirdrespondent appeared by his proctor, who was heard showingcause against the petitioner’s application. He read the thirdrespondent’s affidavit of the 13th instant, from which it appearsthat the third respondent claims right to occupy the premisesdescribed in the writ, under two leases, one dated February 4,1905, and the other dated April 13, 1906, both executed by thefirst respondent, qua administrator of the estate of Pattu MuttuNatchia, deceased. The first lease was executed before this actionwas' instituted, and the second during the pendency of the' action.The leases are not before me, but it is, at this stage, sufficient for' me to know that the third respondent claims in good faith tobe in possession on his own account under a lease from thej udgment- debtor.
“ I think I am right in holding that the third respondent claimsto be in possession on his own account, and not on that of thejudgment-debtor. Of course, the lease may be a fraud (just as asale might be), but that could only be properly determined inan action. Unless the lease is an obvious fraud, and the thirdrespondent therefore obviously acting in bad faith, of which thereis no evidence, I should hold in his favour, and deal with thepetition under section 327.
“It would be premature for me at this stage to express anyopinion on Mr. Vanderwall’s argument- that the third respondentcannot be in any better position than the first respondent, thelessee’s possession being that of the lessor. I find that the obstruc-tion was occasioned by the third respondent, claiming in good faithto be in possession of the property on his own account. I direct thepetition of complaint .to be numbered and registered as a plaint inan action between the decree-holder as plaintiff and the claimant asdefendant, and I fix the investigation of the claim for August, 15-
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When the claim has been investigated, I will pass such order as Ithink fit for executing or staying execution of the decree-"
The claim was subsequently inquired into, and judgment wasentered in favour of the decree-holder.
The claimants appealed.
H. Jayewardene, for them.
Van Lang enb erg (with him Bawa), for the decree-holder,respondent.
Cut. adv. vult.
September 22, 1908. Wood Benton J.—
I think that this appeal should be dismissed. The facts aresufficiently stated in the judgment of the learned District Judge;and I propose to allude to them again only where it is necessary todo so for the purpose of dealing with the arguments urged beforeus on appeal. The points taken by Mr. Hector Jayewardene, whorepresented both appellants, may be summarized as follows.
He argued that the remedy by way of petition under section325 of the Civil Procedure Code is not open to a judgment-creditorto whom the Fiscal has only been able to give constructive posses-sion under section 324. This point, I think, is clearly bad. Section325 applies itself in terms to the heading (c), to which section 324belongs. Its language shows that it contemplates just such acase as the present, where the judgment-creditor, having receivedsome sort of possession, is yet prevented from obtaining “ thecomplete and effectual possession ” to which his decree entitleshim. Moreover, it is clear that in Gunaratna v. Dingiri Banda,1 towhich Mr. Jayewardene referred us, Withers J., at least, wasprepared to hold that, if hindrance had been sufficiently established,the case, which involved an adverse claim of the character con-templated by section 324, was a proper one for a petition by thejudgment-creditor under section 325.
Mr. Jayewardene's next point was that, in the present case,there was no sufficient allegation or proof of hindrance to lay afoundation for proceedings under section 325. At this stage it maybe convenient to note a few of the salient facts. The respondent tothis appeal obtained a decree against the now added party appellant,Ahamadu Lebbe, on March 29, 1906, giving him possession ofcertain houses, Nos. 190, 191, and 192, in Colombo street, Kandy.Writ issued on April 11, 1906. When the Fiscal proceeded onApril 12, 1906, to execute the writ, he found one Salgado inoccupation. Salgado claimed the right to keep possession as tenantof the present defendant-appellant (Aponso), who is a lessee of thenow added party appellant, Ahamadu Lebbe. The Fiscal there-upon, in compliance with section 324 of the Civil Procedure Code,
1 {1898-99) 4 N. L. R. 252.
1908.
September 82-.
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1908. gave formal possession of the premises to the respondent by postingSeptember22. a copy of the writ on a conspicuous part of them, and by servingVoon a notice in writing of the substance of the decree on Salgado. TheRknton j. respondent then petitioned under section 325. To that petitionhe made the now added party appellant Ahamadu Lebbe first respon-dent, Salgado second respondent, and the now defendant-appellantAponso third respondent. He alleged in his petition (paragraphs7 and 8) that since the issue of the writ he had been hindered andprevented from taking complete and effectual possession of thepremises by the second (Salgado) and third (Aponso) respondents,at the instigation, as he believed, of the first (Ahamadu Lebbe).How were these allegations met by the present appellants? Thedefendant-appellant Aponso said in his affidavit of July 13, 1906,that Salgado was merely in occupation as his monthly tenant, andthat he himself possessed the premises in question as lessee ofAhamadu Lebbe. Ahamadu Lebbe, in an, affidavit of September6, 1906, averred that he had leased the premises in question toAponso, as administrator of his wife Pattu Muttu Natchia, to whomthe property really belonged; that he had not hindered any onefrom taking possession of it; and that to the best of his beliefSalgado was in possession of it as tenant of Aponso. We have heretherefore (1) a distinct allegation by the respondent that he hadbeen prevented from taking complete and effectual possession ofthe property adjudged to him by Salgado and Aponso at theinstigation of Ahamadu Lebbe; (2) an assertion by Aponso of anadverse claim to possession; and (3) an avowal by Ahamadu Lebbethat he had granted the lease on which that adverse claim wasbased. The facts above stated constitute, in my opinion, quitea sufficient allegation and proof of hindrance to satisfy section 325 of.the Code. This objection also fails.
Mr. Jayewardene next argued that, even assuming' thatthe respondent could properly have recourse to section 325 of theCode and that a satisfactory case of hindrance had been made out,the learned District Judge ought to have (1) framed issues, and (2)treated the case as a regular land action, in which the burden ofproof rested on the respondent, and the proof required was proof oftitle and not merely of possession. Although no appeal was takenagainst the order in which the then District Judge of Kandy set therespondent’s petition down under section 327 of the' Civil ProcedureCode for hearing as an action, I entertain no doubt—and thisobservation applies equally to the objections already dealt with(1 and 2)—as to the appellant’s right, in strict law, to challenge thepropriety of that order and of anything done under, still a suitor isnot bound to appeal from every interlocutory order by which hemay deem himself to be aggrieved (cf. Maharajah Moheshur Singh v.Bengal Government;,1 Sheonath v. Ramnath, * Forbes v. Ameeroonissa
> (1859) 1 Moo. Ind. App. 283 , 302. 303.2 (1865) 10 Moo. Ind. App. 413.
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Begum '), although, where an interlocutory order is made which goes 1903.to the very root of the proceedings, the fact that it is not appealed September'22.against at once may fairly be regarded by an Appellate Tribunal, woodbefore which it is challenged on a final appeal, as evidence of Ren*onacquiescence in it on the part of the appellant. It was on thislatter ground that Middleton J. and I held, and I venture to thinkrightly held, in Punehi Appuhamy v. Mudiame,2 that, now that theFull Court has recognized a right of appeal from an order refusingto frame an issue, the proper time for appealing from that order iswhen it is made. The decision in that case must not, however, beunderstood as in any way running counter to the clear right of everylitigant to invite the Appeal Court to consider on a final appeal anyinterlocutory decree, even if he did not directly challenge it at thetime when it was made.
In the present case I do not think that the points urged by Mr.Jayewardene against the proceedings in the Court below should ■prevail. (1) Section 827 of the Code provides that where the obstruc-tion of which a petitioner complains is found by the Court to havebeen occasioned by a bona fide claimant in possession, the petitionis to be numbered and registered as a plaint in an action betweenthe decree-holder as plaintiff and the claimant as defendant, andinvestigated by the Court “ in the same manner and with the likepowers ” as if it were an ordinary action between the parties. Itwas held in Domingu v. Sandarasekere 3 that no “ answer ” wasnecessary under this, section. It imposes on the Court, in terms,no duty of framing issues. The question therefore arises, whether,under the circumstances of the present case, the absence of issueshas so seriously prejudiced the appellants as. to require the wholeproceedings to be set aside. (2) The answer to this question depends-on the soundness of Mr. Jayewardene’s' second'objection, under thehead that I am dealing with, viz.,'t^at the District Judge haswrongly thrown upon his clients the .bprd^n of justifying theirposition, instead of requiring the respondeat to prove his title. Inthis connection I desire to associate myself* with the observations ofWendt J. in the course of the argument as to some of the languageused by Withers J. in Domingu v. Sandarasekere (ubi sup.). “ Sofar, ” he remarks, “ from anything being said in section 327 aboutthe- necessity of formal pleadings consequent upon complaint madeof resistance tp the execution of a proprietary decree, the Court isrequired at once to investigate the claim, just as if an action had beeninstituted against the claimant. The claimant being treated as a re-spondent to a petition, on which an interlocutory order has been madein accordance with alternative (6), section 377, should be required to'appear on a certain day to show cause why the mandate should notbe enforced. On that day he opens his case, stating his objections, 1
1 (1865) 10 Moo. Ind. App. 359, 360.a (1907) 3 App. Court Reports 159.
» (1892) 2 C. L. R. 108.
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1908. and supporting them by affidavit. In the end the Court, eitherSeptember 98. 8tay8 execution of the proprietary order or directs its enforcement.
Wood If this language is to be interpreted as meaning that, at theRhkton J. ultimate investigation directed by section 327 the burden of proofis on the claimant, I venture to dissent from the view which itexpresses- The alleged obstructor is brought before the Court byan order under section 377 (b) of the Civil Procedure Code. Beforeany investigation under section 327 is ordered, it is for him tosatisfy the Court that he is a bona fide claimant. But when oncethe obstructor has satisfied the Court on that point, the applicationof section 377 (6) has exhausted itself, and the initial and ultimateburden of proving title or possession, as the case may be, is onthe decree-holder. I find that in D. C., Chilaw, No. 1.101,1 thisview of the law was taken by Lawrie A.C.J., and Browne A.J., andthat, in giving his decision, Lawrie said that he had the authorityof Withers J. for saying that he now accepted it himself. In the.present case, however, I think that the respondent has made out,within the meaning of D. C., Chilaw, No. 1,101, a “ superior title ”as against both appellants. There is abundant evidence that therespondent, through his father Sinna Tamby Muhandiram andlatterly by himself, was in possession of all three houses till hisouster therefrom by Ahamedu Lebbe in October, 1904, as regardsNos. 190 and 191, and in February, 1905, as regards No. 192.He starts therefore with the primd facie evidence of title whichpossession affords in his favour. That primd facie evidence isstrengthened by the possessory decree in D. C., Kandy, No. 17,032.It is true that that decree was obtained against Ahamadu Lebbepersonally, and not in his capacity of administrator of his wife PattuMuttu Natchia, to whom he now alleges that the properties in disputebelonged, and also that Aponso was not made a party to it. But Ithink that Ahamadu Lebbe, having allowed judgment to go againsthim personally in the possessory action, is not entitled to be listened towith much favour when he now sets up his representative character;and his second lease of April 13, 1905, to Aponso was, at any rate,an attempt to alter the rights of parties pending action, for thepossessory suit had been instituted on February 17, and therefore,on the principle affirmed in Bellamy v. SabineApoDso, too, isaffected by the possessory decree. The respondent’s case on theground of possession derives further corroboration from its repeatedacknowledgment by Ahamadu Lebbe in previous judicial proceed-ings. In an action (D. C., Kandy, No. 13,212) brought by him in1899 against Sinna Tamby Muhandiram, the respondent’s father,to enforce the alleged rights of his wife under her marriage contract,he alleged in his plaint that Sinna Tamby had been in wrongfulpossession of it “ since the marriage, ” i.e., since 1896, and prayedfor his ejeotment. In a later case (D. C., Kandy, No. 15,122)
>S. C. Min. Nov. 3, 1897.
1 (1857) 1 Dt 6. and J. 560.
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against the present respondent for the same property, he says 1908.(Record, p. 143): “ For the last three years (i.e., from 1899-1902) the September 2Zdefendant has been taking the rents and profits.’’ So much for the Woodrespondent’s claims on the ground of possession. I come now to Rswton J.his paper title. In dealing with it, I think we must hold that thedifferent documents on which he relies mean what they say: thatthey were executed in his favour, and that his father, whatevermay have been his dishonest intermediary transactions with theproperties, did not claim them as his own. As regards houseNo. 190, the respondent’s title to it rests securely on the certificateof sale by the Municipality to his father in his name on July 22,
1886, for non-payment of taxes. This certificate was duly registeredon August 13, 1886. Under section 22 of Ordinance No. 11 of 1878it is presumptive evidence in the respondent’s favour that thetaxes were due, that there was default of payment, and that thesale was duly carried into effect (Qunasekere v. Teberis *). There canbe no question on the evidence and on the findings of the DistrictJudge thereupon as to the respondent’s right to No. 190. Thedeed of September 22, 1886, by which the appellants seek to impeachthat right, cannot avail for that purpose in the absence of anyproof of the title of the Chetties who purported to grant it. IfMr. Jayewardene’s contention is right, that all the three houses indispute—Nos. 190, 191, and 192—were dealt with under the onenumber (190) in the deed of September, 1886, in favour of PattuMuttu Natchia, Ahamadu Lebbe’s wife-, and if these propertiesreally constituted one house, cadit qutestioNos. 191 and 192 inthat case’ pass equally under the certificate of sale for non-paymentof taxes. On the other hand, if Nos. 191 and 192 do not comeunder No. 190, the respondent can show title to them under thedeed No. 3,216 of November 22, 1883*, registered in the followingDecember (December 4, 1883), while the appellants have nothingto rely upon except the deed of September 22, 1886, in favour ofPattu Muttu Natchia, a deed dealing in terms only with houseNo. 190, not registered till May 4, 1899, and found by the learnedDistrict Judge to be a “ bogus ” document, “ got up by SinnaXamby Muhandiram for some sinister purpose of his own, andnever intended to convey title to his daughter ”
I think that the respondent has sufficiently established thesuperiority of his title to that of the appellants .to give him a right,under section 325 of the Civil Procedure Code, to the complete andeffectual possession of the premises in question. I would dismissthe appeal with costs.
Wendt J.—
I entirely agree, both as to the construction of the Civil ProcedureCode and as to the facts of this particular case.
Appeal dismissed.
1 (1906 )10 N. L. R. 18.