045-NLR-NLR-V-22-CALDERA-v.-SANTIAGOPILLAI.pdf
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Present: Bertram C.J. and Schneider A.J.
CALDERA v. SANTIAGOPILLAI.
82—D. C. Kurunegala, 6,389.
Partition-Ordinance—Unsuccessful attempt to serve summons on defendant—Order to affix summons to land—Watcher in charge of defendant'sinterests—Application to set aside decree after final decree.
After several unsuccessful attempts to serve summons ondefendant in a partition action, theCourt, on the application of theplaintiff, made an order for substituted service of summons by theaffixing of the summon? to the land. There was on the land atthe time a watcher who was in charge of the defendant’s interests.After final decree was entered up the defendant came to know of .the decree, and applied to the District Court to set the decree aside.The Court granted the application, holding that there had been noeffective service of summons.
Held, that the service of summons was not in order, and that theCourt had jurisdiction to make the order it .made. Under section 3of the Partition Ordinance, if the defendant cannot be found,summons will have to be served upon the person in physical occu-pation of the property, and it is only when no such person can befound that the Court can prescribe other modes of service.
** The order was made ex parte behind the back of the defendant.And a person seeking to set aside such an order must first applyto the Court which made it, which is always competent to set asidean ex parte order of this description.”
1920,
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1920.
Caldera v.Santiago-piUai
September 16, 1920. Bertram C.J.—
This case raises an important question with regard to the serviceof summons in an action under the Partition Ordinance. The land_ in question was in the Kurunegala District, and was some 3 acresin extent. The plaintiff was a local Vidane Arachchi; the defendantwas a clerk employed in the office of Messrs. Jas. Finlay & Co.,living .between Bambalapitiya arid Wellawatta. His address forservice was given, apparently with sufficient correctness, as 42,St. Francis street, Bambalapitiya. Thirty attempts are said to havebeen made to serve the summons. Finally, on February 26, 1919,the Court made an order for substituted service by the affixing ofthe summons to the land. This was done ; the case was heardand a survey was made. The surveyor posted a letter—not byregistered post—to the defendant’s address, 42, St. Francis street,Bambalapitiya.* When the survey was made the defendant’s watcher- was on the land, and he took it that the defendant must have receivedhis letter. . Final decree was entered on September 25, 1919, halfthe land being assigned to plaintiff and half to defendant; the costswere taxed, and, apparently, it was only after this that news of theaction reached the defendant. On January 27, 1920, he applied toset the decree aside. The Court granted his application, holdingthat there has been no effective service, and it is against this orderthat the. plaintiff now appeals.
The question we have to determine in the first instance is whetherthe affixing of the summons to the land under the order of Courtwas effective service under section 3. The words of the section are :“ Such summons shall be served upon the defendants or such ofthem as can be found, or, if they cannot be found, upon the personor persons in the actual possession of such property ; or, if there beno person in possession, in such manner as the Court shall direct.”It appears that there was on or about this land a watcher employedby the defendant who was in charge of his interests. The'evidenceas to. his appointment is not as definite as it might be. Thedefendant says : “ The watcher was on the land for about two years ;I cannot say definitely when he was there ; he was not under mydirect control.” The surveyor, however, definitely says he was onthe land when the survey was made. The circumstance of a manbeing employed under the defendant on the land is mentioned in a.petition to the Government Agent, and I think it is sufficientlyproved that there was a watcher on the spot in charge of the
rpHE facts appear from the judgment.
A. St. 7. Jayawardene, for appellant.
E. W. Jayawardene (with him Croos^Dabrera), for respondent.
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defendant’s interests. Hie question therefore is, whether thiswatcher was in the “ actual possession ” of his property within themeaning of section 3 of the Partition Ordinance.
■ The section is, unfortunately, drawn with considerable inexacti-tude. The terms “possession” and “actual possession” areexpressions with definite legal significance. “ Possession ” iff definedin Walter Pereira’s Laws of Ceylon, at page 640, as : “ Possessionis the actual retention or physical occupation of a thing with theintention of beeping it for oneself and not for another.”
The meaning of “ actual possession ” is explained in a well-knowndictum of Maule J. in Jones v. Chapman1:—
1920.
Bebtbam
O.J.
Oalderav
SanHagt
piUai
“ It seems to me that, as soon as a person is entitled to posses-sion, and enters in the assertion of that possession, or,which is exactly the same thing, any other person entersby command of that lawful*owner so entitled to possession,the law immediately vests the actual possession in theperson who has so entered. If there are two persons in-a field, each asserting that the field is his, and each doingsome act in the assertion of the right of possession, and ifthe question is, which of those two is in actual possession,I answer, the person who has the title is in actualpossession, and the other person is a trespasser.”
If the words “ person in the actual possession ” are to be construedaccording to their legal meaning, they must be taken to refer to anactual owner of the land, but-this cannot be the meaning. A parti-tion action is brought by one owner against the other owners. Thedefendants are therefore the other owners. According to the strictlegal meaning, therefore, the interpretation of the passage would be :“ Such summons shall be served upon the defendants (that is, theother owners), or such of them as can be found, or, if they (thatis, the other owners) cannot be found, upon the person or personsin the actual possession of such property (that is/upon the otherowner or owners who are in actual physical occupancy of theproperty),” that is to say, if no owner can be found, the summonsmust be served upon the owners who are found upon the property,which is nonsense. The words clearly cannot be interpreted intheir legal sense ; they must, therefore, be interpreted in a popularsense. “ Actual possession ” must be construed as though it read“ physical occupancy.” Quite apart from this particular expression“actual possession,” these sentences are all very loosely drawn.The words “ or if they cannot be found ” must mean “ and if anysuch defendant cannot be found:” The words “ upon the personor persons in the actual possession, of such property ’.’ even if weconstrued “ actual possession ” as meaning “ physical occupancy,”
1 3 Ex. 803, at page 831.
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1820.
Bertram
C.J.
Caldera v.Santiago-piUai
cannot mean what they say. Ex hypothesi the land belongs toseveral owners. The words, therefore, cannot refer to a person whois in charge of the interests of some other owner; still less can theyrefer to a person in the occupancy of the land adversely to theabsent owner, or representing interests adverse to him. The wholepassage therefore, “ if they cannot he found, upon the person orpersons in actual possession of such property, ” must be construedas though it read “ if any such defendant cannot he found, uponthe person or persons in the physical occupancy of such property inthe interests of such defendants.” Similarly, in,the next clausethe words “ no person ” must be construed as though they read“ no such person.”
In my opinion, in view of the serious consequences of a partitiondecree, the Court ought to exercise very great care with referenceto the alternatives prescribed by this section. Where personalservice is found impossible, the plaintiff, if he wishes to servesummons upon some agent of the defendant who is said to be inactual occupancy of the property in the interests of the defendant,should apply to the Court for leave to serve the summons upon thisagent. If there is no such agent in occupation of the property, the ^only remedy in that event is to apply to the Court for some otherform of substituted, service ; and, in my opinion, the Court oughtnot to order any other form of substituted service, unless it is firstsatisfied both that' the defendant cannot be found and that thereis no person in charge of his interests in the actual occupancy ofthe property.
Mr. A. St. V. Jayawardene, who appears for the appellant, hasraised a further point. He says that the order for substituted servicebeing one made by the Court must be taken to be good unless it isset aside, and that neither the Judge who made the order nor hissuccessor is competent to set aside the order of the Court, whichorder, he contends, can only be set aside by this Court either inappeal or in revision. I do not agree with this contention, Theapplication of the defendant to set aside the decree involves initself an application to set aside the application-for substitutedservice. The order was made ex parte behind the back of thedefendant, and in accordance with the authorities cited in a veryrecent case (see S. C. No. 58, D. C- (Inty). Badulla, No. 3,35s1).A person seeking to set aside such an order must first apply to theCourt which made it, which is always competent to set aside anex parte order of this description.
I would therefore dismiss the appeal, with costs.
The failure to effect service in this case seems to require expla-nation. The address appears to have been a correct one. Theanswer of the Government Agent to a petition of the defendant
1 S. C. Mins., Sept. 1, 1920.
directed to this address reached him. He is a person of education,daily attending an office in the Fort, and his -whereabouts couldhave been ascertained by inquiry from the numerous persons ofsimilar position in his neighbourhood. The Registrar will referthe matter to the Fiscal for inquiry.
Schneider A.J.—I agree.
1920.
Bertram
GJ.
Caldera v.Santiago*piltai