047-NLR-NLR-V-28-DE-SILVA-v.-DHEERANANDA-THERO.pdf
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Present: Lvall Grant J. and Maartensz A.J.
1926,
DE SILVA v. DHEERANANDA THERO.
388—D. G. Galle, 21,331-
Quia timet action—Right of a trustee—Buddhist Temporalities—Prescription—Transfer by incumbent.
The trustee of a Buddhist temple may maintain an actionquia timet to set aside a deed by which a priest, claiming by virtueof pupillary succession, transferred land belonging co the temple,even though the trustee’s enjoyment of the land has not beeninterfered with.
PPEAL from a judgment of the District Judge of Galle.
The plaintiff, as trustee of a temple called Dhammayuttika-ramaya, sought to set aside a deed which the 1st defendant hadexecuted in favour of the 2nd defendant for certain lands allegedto be part of temple property. The 1st defendant claimed theland by pupillary succession from a previous incumbent. He alsohad a residence on the land. The learned District Judge gavejudgment for the plaintiff.
H. V. Perera (with D. B. Jayatilleke), for defendants, appellants.
J. S. Jayewardene, for plaintiff, respondent.
September 8, 1926. Lyall Grant J,—
In this action the plaintiff, as the trustee of the temple called'Dhammayuttikaramaya, sought to set aside a deed which the1st defendant had executed in favour of the 2nd defendant forcertain lands alleged by the plaintiff to be part of the templeproperty.
The learned District Judge has entered judgment in favour ofthe plaintiff, with costs. It is common ground that there has beenno formal dedication of these lands to the temple, but the learnedDistrict Judge has held that the trustee has acquired by prescriptionthe right now to regard the land as temple property.
This finding by the District Judge answers the 1st, 2nd, and5th issues in the case. He has not dealt specifically with the 3rdand 4th issues, but he has impliedly answered them in the affirma-tive as he has entered judgment for the plaintiff.
The 3rd issue is: Under the circumstancesi is a quia timet actionappropriate? And the 4th issue is: Is the plaintiff entitled tohave deed No. 878 of 1922 set aside and cancelled?
A
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1926. On appeal it was not seriously disputed that the plaintiff had.t vat.t.acquired a prescriptive right to the lands, but it was argued that
Grant J. this did not give him a right to get the deed set aside.
De Silva Counsel for the appellant relied mainly upon two arguments: —Dheerananda (1) Assuming the plaintiff has full title to the lands, he is notThero entitled to maintain a quia timet action inasmuch as his enjoymentof the lands has not been interfered with, and (2) even though a fullowner could maintain such an action, a person relying merely ona prescriptive right has not full title to the land and thereforecannot do so.
On the former of these points we were referred to a number ofcases, the effect of which is to define the circumstances under whicha quia timet action can be maintained.
In Medanhara Terunanse v. Charles Dias 1 it was decided byBurnside C.J. and Clarence J. that a person entitled to the rightof possession under a Crown grant could maintain an action ofejectment and have his own title declared although no ousterhad been proved. In that case the possession was apparentlyby the defendant. Clarence J. indicated that the Court will not-investigate a question of title merely because somebody disputesthe title without going the length of disturbing the plaintiff’senjoyment. The learned Judge, however, adds the words:
“ excepting, of course, in cases which fall under the definition ofactions quia timet/’
In De Silva v Ondaatjee,2 Burnside C.J. said that the mere saleby one man ox the lands or goods of another, without doing anyact to 'disturb the physical possession or title cf the owner givesthe latter no cause of action. Dias and Lawrie JJ. do notappear to have agreed with this dictum. Lawrie -J. said thatwhere it was admitted that a defendant claimed to be the soleowner of land to which he was entitled jointly with the plaintiff,and that he executed a notarial deed of sale purporting to sell thewhole land and delivered the instrument to the vendee, who regis-tered it, there was a sufficient cause for action against him by theplaintiff for a declaration of the plaintiff’s title and damages.
In Atchy Kannu v. Nagamma* Middleton J. and WoodRenton J. held that where a person, who is entitled to the lifeinterest of a property only, executes a deed conveying the corpus,those in whom the dominium is vested are entitled to maintain anaction to have such conveyance set aside to the extent of theirinterests.
In The Ceylon Land and. Produce Co., Ltd,' v. Malcolmsont4*Hutchinson C.J. and Wood Renton J. held that where a persontakes a mortgage of a land belonging to another from a third party 1
1 {1886) 7 S. C. C. 145.
* {1890) 1 S. G. Rep. 19.
{1906) 9 N. L. R. 282.
{1908) 12 N. L. R. 16.
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and puts such mortgage in suit and obtains decree thereon, thetrue owner has a sufficient cause of action against such person tomaintain an action quia timet. In this case Wood Renton J.reviewed the previous cases at some length, and stated that thenecessary ingredients in an action quia timet are (a) actual orimminent injury and (6) prospective damage of a substantial butnot irreparable kind.
In that particular case the deciding factor which contained boththese ingredients was the registration of the competing document.
In the present case the 1st defendant claims to have acquiredthe land by pupillary succession from a previous incumbent, andon one of the lands there is a residence for a priest.
It appears to us that there is ample reason for the plaintiff tofear that the deed in question may be used to his prejudice. The1st defendant has a residence on the yland; by the execution of thisdeed he has made a definite claim that that residence is independentof the plaintiff, and if the plaintifi does not now assert his rights,he may be taken in future as having acquiesced in the possession.
It was, however, also argued that as the plaintiff himself couldnot; show title to the land, but relied merely upon prescriptivepossession, he was not entitled to maintain this action. I am unableto follow this argument. Section 3 of the Prescription Ordinanceallows the plaintiff, who has possessed land for ten years, to bringan action for the purpose of being quieted in that possession orto prevent encroachment or usurpation thereof or to establish hisclaim in any other manner.
We were referred to the case of Terutmanse v. Menike.1 Thefacts, however, in that case are materially different. There theplaintiff endeavoured to set up a third person’s title, and what waslaid down was that the actual possessor must be a party to thesuit.
The plaintiff in the present action appears to ris to fall entirelywithin the scope of section 8 of the Prescription Ordinance.
For these reasons we dismiss the appeal, with costs.
Maaktensz A.J.—I agree.
Appeal dismissed.
1926.
T.vat.t,Grant J.
De Silvav.
Dheerananda
Thero
1 (189S) 1 N. L. R. WO.