063-NLR-NLR-V-14-CAROLIS-v.-PERERA-et-al.pdf
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Present: Wood Renton J. and Grenier J.2. 1911
CAROLIS v. PERERA et al.
61—D. C. Negombo, 8,184.
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Partition action—Share sold by Fiscal to a party to the action—No Fiscal'sconveyance to the purchaser at date of action—Purchaser mayestablish his claim in partition action—Acquisition of title by .prescription by execution-debtor after Fiscal’s sale.
A party to a partition action who claims a share through apurchaser at a Fiscal’s sale may establish his claim, even thoughthe Fiscal’s conveyance in favour of the purchaser at the Fiscal'ssale was executed after the institution of the action.
Even prior to . the Civil Procedure Code the execution of theFiscal’s conveyance was an essential ingredient of the sale of land,and until such execution the judgment-debtor remained vested withthe title.
’ The mere continuance in possession by a judgment-debtor ofproperty sold in execution against him for a period exceeding tenyears after the sale by the Fiscal, and before the issue of theFiscal’s conveyance, does not entitle him to set up a title byprescription ; a person cannot prescribe against himself.
rJ^HE facts are set out in the judgment of Grenier J.
A. St. V. Jayewardene, for defendants, appellants.—The findingof the learned District Judge on the question of prescription iswrong.
The sale was held under the Fiscal’s Ordinance, No. 4 of 1867,which regulated execution sales before the Civil Procedure Codecame into operation. Under Ordinance No. 4 of 1867 the judgment-debtor remained vested with the title until the Fiscal’s conveyancewas executed (see Silva v, Nona Hamine l). So that in this case,although the sale took place in 1886, the plaintiff and his co-judgment-debtor were not divested of their title till the Fiscal’s conveyancewas issued in 1910, and they were entitled to be in possession of theproperty sold. The possession of ajudgment-debtor of the propertysold was in no way limited or restricted under Ordinance No. 4 of1867 : he could exercise all the rights of an owner. It is differentunder the Civil Procedure Code. By section 291 the right topossess is strictly limited by the terms of that section, and thejudgment-debtor cannot exercise rights of ownership. So that afterthe Code, if the judgment-debtor exercises rights beyond those
1 (2004) 10 N. L. R. 44.
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June 1, 1911
Carolis v,Perera
given to him by section 291, he might acquire a title by prescription.Under the old law the judgment-debtor being allowed to possesstit dominus he could not acquire a title by prescription againsthimself.
Scmsoni) for plaintiff, respondent—The learned Judge's findingis .correct. He has held that the plaintiff continued in possessionnotwithstanding the sale by the Fiscal. (1) Where a judgment-debtor remains in possession of property sold, and in respect ofwhich no conveyance is issued for over ten years, he could clearly,acquire a title by prescription ; (2) in this instance the Fiscal’sconveyance was obtained after the institution of this action, andcannot be relied upon in this case (see Silva v. Hendrick1 andPonnama v. Weerasuriya2) ; (3) the question must be decidedaccording to the Civil Procedure Code, as the conveyance wasissued under the Code.
Jayewardene, in reply.—The principle laid down in Silva v. Hendrickand Ponnama v. Weerasuriya does not apply to the case of adefendant. Further, this is a partition suit, and persons who acquiretitle on a Fiscal’s conveyance subsequent to the institution of theaction can intervene in the action (Perera v. Perera3), otherwise their. rights would be lost for ever.
Subsequent to the argument Mr. Sansoni submitted the case ofMuttu Carpen et ai v. Ran Kira4 to their Lordships.
Cur. adv. vult.
June 1,1911. Grenier J.—
In this case the plaintiff sought a partition of a land called Amba-gahawatta, claiming one-fifth share in it, and allotting to thedefendants, who are the appellants, the remaining four-fifths. Itwas proved that plaintiff’s one-fifth share was sold in execution ona writ issued in case No. 42,302, C. R. Negombo, against his mother,Bastiaria, and himself, and purchased by one Carolis on September 8,1886. Carolis subsequently by deed dated August 30, 1909, soldthis one-fifth share, together with other shares, to the defendants.The Fiscal’s conveyance, however, in favour of Carolis was notexecuted till December 16, 1910, about four months after theinstitution of the present action, but before the date of trial. The.conveyance was produced and tendered in evidence, no objectionbeing taken to its reception. The plaintiff’s case is, that althoughhis interest in the land was sold in execution against him, he nevergave up possession, but has acquired a title by prescription to iheone-fifth share. There is conflicting evidence on the question of
1 {2895) 1 X. L. R. 25.* {1908) 4 A. C. R. 57.
*9N. L. 22. 217.
M1910) 23 N. L. R. 326.
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possession, but it is unnecessary to pronounce any opinion in regardto it, as there is nothing to show that plaintiff's possession, if he hadany, was adverse to and independent of the execution purchaser.Whether we apply the provisions of Ordinance No. 4 of 1867, orthose of the Civil Piocedure Code, as to the retrospective effect of aconveyance by the Fiscal, it is clear that until the execution of sucha conveyance the judgment-debtor remains vested with the title,and by the doctrine of relation back the execution-purchaserbecomes vested with the title as from the date of seizure. We arebound by the judgment of the Full Court on this point, reported in10 N. L. R. 44 et seq. This being so, the execution-debtor cannotset up a title by prescription, because then he would be seeking toprescribe against himself. I was referred by respondent’s counselto the case of Muttu Carpen et al. v. Ran Kira,1 where it was heldthat there was nothing in sections 289 and 291 of the Civil ProcedureCode which debars a judgment-debtor, who has been in possessionof the land for ten years after the Fiscal’s sale, and before theexecution of a Fiscal’s transfer, from claiming title to the land soldby prescription. There is no conflict between this judgment andthe Full Court judgment 1 have referred to, because a judgment-debtor may prove exceptional facts and circumstances, as indicatedin the judgment of Hutchinson C.J., to show that his possession wasnot such a possession as is authorized by section 291 of the CivilProceduie Code, but that it was an adverse- possession as definedby Ordinance No. 22 of 1871.
Another -point taken by respondent’s counsel was that asappellants had no Fiscal’s conveyance at the date of the institutionof the action, they were not entitled to make use of it at the trial.We were referred to the case of Silva v. Hendrick,2 where it washeld by a Full Court, one of the Judges dissenting, that when apurchaser in execution came into Court praying for declaration oftitle, without having a Fiscal’s conveyance in his favour at thetime of the institution of the action, he could not maintain theaction. This judgment was followed in the case of Ponnama v.Weerasuriya? But I would draw a distinction between an actionfor declaration of title to land and for ejectment, and an action forpartition where the Court has to inquire into the title of the partiesbefore decreeing a partition or sale. Before final decree is enteredin a partition action, it is open for any person who has any interestsin the land to come forward and establish his claim, and a fortiori,I think that a party who is already on the record, and who hasacquired interests after the institution of the action, is at libertyto advance and support them when the title of the parties andthe irrespective claims form the subject of inquiry and settlementas required by the Partition Ordinance. Besides, I find that no
1 (1910) U A L. R. ««.1 {1895) 1 N. L. R. 13.
3 (.1908) 4 4. C. R, S7.
June 1, 1911
(Jkemkh J.
Corolla v.Perera
20-
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June 1, 1911
Gkknieh 0.
Carolia v.Per era
objection was taken to the reception of the Fiscal’s transfer infavour of Carolis at the trial, and I am not disposed to entertainany objection to it on this appeal.
In my opinion the plaintiff has not established a title byprescription to the one-fifth share claimed by him, and I wouldtherefore set aside the judgment of the Court below and dismissplaintiff's action with costs in both Courts.
Wood Renton J.—I agree.
Appeal allowed.