012-NLR-NLR-V-22-BULNER-v.-SHOCKMAN.pdf
( 60 )
1920.
Present: Bertram C.J. and Shaw J.
BTJLNER v. SHOCKMAN.
405—D. 0. Colombo, 53,649.
Falsa demonstratio non nocet—Sale under the Ciml Procedure Code—Inaccuracies in notice as to extent, boundaries, and ward number.
' Certain premises were advertised for sale, and sold in pursuanceof the Civil Procedure Code as being the property of the. plaintiff.They were described with reference to their boundaries, theirextent, and their ward numbers, but none of these descriptionswas quite accurate.
Held, as no one could make a mistake as to what property wasintended to be referred to in the notice, the inaccuracies in regardto orientation, extent, and ward number were not fatal to thevalidity of the notice.
T
HE facts appear from the judgment of the District Judge(P. E. Pieris, Esq.):—
On two Fiscal’s transfers of July, 1914, the plaintiff purchasedtwo adjoining blocks of land at Galkapanawatta. The first block isdescribed in the transfer P 4 as “ that part of low ground now usedas a ferry, bearing Municipal assessment No. 50.” Its extent is given,with reference to the old plan P 5, as of 1 rood 12 J square perches. Theboundary is given as being on the north-east the road leading to Uru-godawatta. As a matter of fact, that road, though on P 5, it mightbe mistaken for the north-east, and in reality is the northern boundary,is not the north-east. As a town plan (P 2) shows, there has been adeviation of the road since P 5 was prepared in 1869. The secondtransfer P 6 describes the land as formerly bearing assessment No. 54,now 51, and gives the area as 3 roods 39 96/100 perches. It refersto a plan(P 7) of 1839, and, onceagain, misdescribes thedirections of the-boundaries.
It seems a pity that these modem transfers are not supported by morerecent surveys. The total acreage as shown in. the old surveys isjust about 5 roods and 12 perches. The price paid by the plaintiffwas only Rs. 140, and the two blocks were subject to a mortgage ofRs. 10,000. In 1918 the present defendant, who held a judgmentagainst the plaintiff, issued writ and caused these premises to be seized.Admittedly, the notices of seizure were posted on those premises. Theplaintiff has no other land at Galkapanawatta. Certain boundariesappear in the notice, a copy of which is marked P 1. Reading thesewith the plan D 2, it will be seen that these boundaries err in the samemanner as those given in P 4 and P 6. The explanation is quite simple.The boundaries do not run in the direction of the cardinal points.What runs from north-west to south-east is described as the easternboundary. Then must follow the southern boundary, arid so a boundary. is named as being Oh the south, when, as a mattes of fact, it is theeastern boundary. This is a common error, but the four .boundaries,are correct in the description, though not in the direction. The noticefurther described the land as being in extent about 3 roods. Thatis, and is meant to be, merely approximate.
( 51. )
Further, the notice said that the premises bore the assessmentNo. 1110/53. The first of these numbers represents what is calledthe ward number. These ward numbers were introduced in 1908,and appear not to have been changed since. The second number isthe street'number, which is subject to revision from , time‘to time.There can hardly be a doubt in view of the evidenoe of the inspector,Mr. de Soyza, that the numbers shown in the notice are correctlyapplicable, not to the premises seized, but to a small lot two doors off.The premises seized should correctly bear two sets of numbers, namely,1112/50 and 1113/51. It may even be that four years ago therewere 'such numbers -actually fixed on the premises seized, but theinspector has no knowledge in respect of the last four years.
The Fiscal's clerk who conducted the sale says that he verified thenumber at the sale, and that it was as it appeared in the notice. I donot know why he should have troubled to verify the number, as at thetime there-was no question regarding the number. He says the numberwas fixed on a doorpost.
The Fiscal’s officer who carried out the seizure was familiar with thepremises, for it was he who had seized them on the previous writ, whenthe plaintiff became the purchaser, he says the number was given tohim by the Fiscal, and he found it on the doorpost. The defendantit was who had given instructions in regard to the seizure. He say she visited the premises,, noted the number to be 1110/53, and so wroteto his proctor. The number, he says, was on the door, frame, and wasthere at the time of the sale.-
On the other hand, the* plaintiff swears that the numbers on hispremises were actually 50 and 51. He admits that one of the numberswas fixed to a door frame, and says the other was on a coconut tree.He .can point to the mark on the door frame, for the number itselfdisappeared some time ago. The coconut tree, he says, died threemonths ago. It was No. 50 which was on the coconut tree, and thatthe tree was fifty yards from the house where the number was. Theooconut tree died, he says, after the sale, but before the purchaser, wasput in possession. It withered from the top, and the plaintiff had itcut down. At the same time he had the number plate removed and-struck up on the cattle shed. The No. 51, he says, was oh one ofi the tenements, but there was no number at the store which he had onthe land..
C'ooray says he was occupying the premises on a verbal lease fromthe plaintiff. He declares that the number 50 was on the buildingwhich he occupied, whereas No. 51 was on the door frame.of the store.Nicholas may be regarded as a joint employ^ pf plaintiff and of Cooray.He says No. 50 was on the door frame of the house which he occupied,and that for two years No. 51 was affixed to a post at the ferry. It ispossible that a skilled mathematician might find a still further permuta-tion of these numbers and posts. The evidence placed before me by theplaintiff in regard to. these numbers cannot be accepted. One point isbeyond dispute. There was a number on a doorpost. The writholder,''the Fiscal’s clerk, and peon, were not going to gain anything by insertinga false number. The notices were affixed on the land itself, I thinkit is very possible that the number appearing on the notice actuallywas on the premises seized, though according to the Municipal numberingit refers to certain other premises. The land was sold to the plaintifffor Rs. 400 subject to a mortgage of Rs. 8,000. It cannot be said thatit fetched less than should be expected in the case of a – forcedsale.
1980.
B'idnerv.
Shockman
( 52 )
E it be assumed that the number 53/1110 was not affixed to his
-land, I am not prepared to hold that the sale is therefore void. The
Bulner v. action is brought on the footing that the transfer in favour of theShoekman defendant (D1), conveyed no title to the premises. It may be that oncertain proceedings the sale could have been cancelled. No actionwas taken to have this done. I am not prepared to hold that thenotice was wrong when it described the land as bearing “ assessmentNo. 1110/53.” On the evidence it is not possible to say that sucha number was not on the land. The question whether the Municipalityintended that number for another set of premises will make no difference.The balance of evidence seems to me to favour the probability thatthat number actually was affixed to the land.
Plaintiff says that the defendant, holding this transfer which gavehim no title, had his goods ejected from the plaintiff’s store on the land.In doing this plaintiff says the defendant was a trespasser. I holdthat the defendant was not a trespasser, and that in removing outsidethe land the property of the plaintiff which defendant had notpurchased the defendant acted correctly and legally. If it is heldthat the defendant’s act was illegal, then arises the question of thequantum of damages.
SL V. Jayawardene, for plaintiff, appellant.
W. Jayawardene (with him W. H. Perera), for defendant,respondent.
July 7, 1920. Bertram O.J.—
This is an action for damages based upon an alleged illegal execu-tion. The judgment-debtor comes before this Court and says :“ The judgment-creditor, who bought the land which purported tobe sold in execution, has not succeeded in buying my land. He hasho title to it, he has turned me out, and is responsible in damages.’*It appears that certain premises were a’dvertisedf or sale, in pursuanceof the Civil Procedure Code, as being the property of the plaintiffin the present action. They were described with reference to theirboundaries, their extent, and their ward numbers. None of thesedescriptions was quite accurate. The evidence as to the wardnumber is not very specific. But there seems to be little doubtthat a mistake was made, and that the premises which belongedto the present plaintiff bear ward Nos. 50/1112 and 51/1113,whereas the ward number stated both in the notice under section237 and the advertisement under section 256 appears to have been53/1110. This same number still appears in the plan attached tothe Fiscal’s transfer and the description. So much for the wardnumber. The . extent, top, is inadequately described. As to theboundaries, they are not properly orientated. What is describedas<c east ” ought more accurately to have been described as “ north.”What is-described as “ west ” ought more accurately to have beendescribed as <c north-west;” Nevertheless, any person looking at
( 53 )
the boundaries, and either acquainted with this spot or examiningthe spot, would realize that these boundaries could only refer tothe particular land from whioh the plaintiff was ejected.
Damages are claimed in this case on the ground that theproperty whioh belonged to the plaintiff was numbered 50 and51, whereas the property sold was described as bearing thenumber 53. What we really have to decide is what was theproperty whioh was proclaimed for sale under section 237 andadvertised under section 256. There seems no question that thatis the basis of any subsequent transaction. That is settled by theIndian case Balvant v. Hirachand.1 Batty J. lays down the law asfollows
A sale is a transaction, and consists, as all transactions do, of anoffer and acceptance. The offer is made by the Court exercising, in -the place of the judgment-debtor and on behalf of his creditor, thedisposing power which the judgment-debtor had for the property. Thisoffer is advertised or published by means of the proclamation of sale,which section 287 requires to specify the property intended to be sold.An advertisement of this nature is an offer to such persons as shall fulfilthe required conditions as to the highest bid by depositing 25 per cent,of purchase money and punctual payment at the prescribed date andother prescribed conditions; and so far as concerns the identificationof the property to be offered for sale, it is the only declarations whichis authorized or required.
Accepting that position, then we have to ask ourselves what wasthe property referred to in the notice and in the advertisement.
I think that this is a case to which the maxim falsa demonstrationon nocet applies. Mr. E. W. Jayawardene has referred us to oneof the latest cases in which that maxim is discussed: Eastwoodv. Ashton? I take the following statement of the principle, asexplained by Romer J. in another case, from the judgment of LordSumner in that case :—
In construing a deed purporting to assure a property, if there be adescription of the property sufficient to render certain what is intended,the addition of a wrong name or an erroneous statement as to quantity,occupancy, locality, or an erroneous enumeration of particulars willhave no effect.
In this case it seems that the corpus was sufficiently identifiedby the enumeration of the boundaries. It is quite true that theseboundaries require re-orientation in order to be absolutely correct.But persons who are identifying,property by boundaries only havea very vague idea of the points of the compass, unless there issomething very definite in the local circumstances to inform themof the correct situation of these various points.- No one, I think,could make a mistake as to what property was intended to bereferred to in the notice, and therefore, I think, the inaccuracies in
1930.
Bebzbau
C.J.
Bulnerv.
Shockman
J (1003) 27 Bom. 334.
– (1915) Appeal Oases 900,
( 54 )
1920.
Bsnmuat
C.J.
Btdn&r t.Shookman
regard to the orientation, in regard to the extent, and in regard tothe ward number are not fatal to the validity of the notice. I donot think it is necessary to discuss the various questions of incidentalfact that are referred to in the evidence and in the judgment. Innxy opinion the appeal must be dismissed, with costs.
ShAw J.—I agree.
Appeal dismissed.