044-NLR-NLR-V-43-GUNASEKERE-v.-KANNANGARA.pdf
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HOWARD C.J.—Gunasekere v. Kannangara.
1942Present: Howard C.J. and Hearne J.
GUNASEKERE v. KANNANGARA.f49—D. C. Galle, 37,216.
Action quia timet—Purchase by defendant at Fiscal’s sale of plaintiff’s property—No Fiscal’s transfer to defendant—Plaintiff not entitled to suedefendant.
The defendant at a Fiscal’s sale became the purchaser of a landpreviously transferred to the plaintiff. The plaintiff was in possessionand the defendant had not obtained a Fiscal’s transfer at the time whenthe present action was instituted by the plaintiff.
Held, that the plaintiff was not entitled to maintain an action quiatimet.
^^PPEAL from a judgment of the District Judge of Galle.
H, V. Perera, K.C. (with him E. B. Wikremanayake, U. A. Jayasunderaand A. C. Alles), for defendant appellants.
C. V. Ranawake (with him H. A. Koattegoda), for plaintiff respondent.
Cur. adv. vult.
January 28, 1942. Howard C.J.—
This is an appeal by the defendant from a judgment of the DistrictJudge of Galle in favour of the plaintiff with costs. The only point thatarises for our consideration is whether the learned Judge was right incoming to the conclusion that the action which was quia timet was main-tainable. The plaintiff in his plaint asked to be declared entitled to anundivided extent of one-fourth acre of the land described in the schedule,a plantation made by him and a tiled house. The plaintiff derived titleto this property from one Charles Perera Siriwardene. The defendant ata Fiscal’s sale on July 3, 1937, became the purchaser of the interestspreviously transferred to the plaintiff on January 5, 1937. The plaintiffwas in possession and the defendant had not at the time when the actionwas instituted by the plaintiff obtained a Fiscal’s transfer. In the Courtbelow it was contended that the defendant would obtain a Fiscal’s transferand try to eject the plaintiff from the land and the house. In coming tothe conclusion that a quia timet action would lie the learned Judge relied onthe case of the Ceylon Land and Produce Company, Limited v. Malcolmson1and De Silva v. Dheerananda Thero". In considering whether thedefendant, has committed an actionable wrong reference must be made tothe definition of “ cause of action ” in section 5 of the Civil Procedure Code.This definition is worded as follows : —
“ Cause of action is the wrong for the prevention or redress of which anaction may be brought, and includes the denial of a right, the refusal tofulfil an obligation, the neglect to perform a duty, and the infliction ofan affirmative injury ”.
In Ceylon Land and Produce Co., Ltd. v. Malcolmson (supra) the defen-dant took and registered a mortgage of a land belonging to anotherfrom a third party, put the mortgage in suit and obtained a decree thereon..
112N.L.B.JC.*28 y. L. R. 557.
HOWARD C.J.—Gunasekere v. Kamiangara.
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It was held that the true owner had a sufficient cause of action against suchperson to maintain an action quia timet. In his judgment Wood-Renton J.stated that the defendant by registering his mortgage and obtaining adecree for its sale on the footing that he was the owner placed on theplaintiff’s registered title a real blot which would gravely and immediatelyprejudice their power of dealing with the land. The act of the defendantwas both a “ denial ” of the plaintiffs’ rights and the “ infliction of anaffirmative injury ” upon them.
In De Silva v. Dheerananda There {supra) it was held that the trustee ofa Buddhist temple may maintain an action quia timet to set aside a deed bywhich a priest, claiming by virtue of pupillary succession, transferred landbelonging to the temple, even though the trustees enjoyment of the landhas not been interfered with. Lyall Grant J. in his judgment stated thatthe plaintiff had ample reason to fear that the deed of transfer might beused to his prejudice. The priest had a residence on the land, by theexecution of the deed he had made a definite claim that that residencewas independent of the plaintiff and if the plaintiff did not now assert hisrights, he might be taken in future as having acquiesced in the possession.
It appears to me that there is a wide divergence between the facts in thepresent case and those in the two cases I have cited and on which theDistrict Judge relied. In Ceylon Land and Produce Co., Ltd. v. Mal-colmson {supra) there was by the registration of a competing document adefinite blot' on the plaintiff’s title. This was one of the deciding factorsin that case. In De Silva v. Dheerananda Thero {supra) the defendantasserted a claim independently of the plaintiff. In the present case thedefendant has merely bought at a Fiscal’s sale the right and title of thejudgment-debtor. He has not obtained a Fiscal’s conveyance. He hasnot asserted title to the plaintiffs’ land. An attempt was made to contendthat the visit of the Surveyor to the land was an assertion of the defen-dant’s rights. I do not consider that such a contention is sound. Thesurvey was made by the Fiscal acting under the provisions of section 286of the Civil Procedure Code. He must be regarded as the agent of theFiscal and not of the defendant. I do not think the act of the defen-dant in buying at the Fiscal’s sale amounted either to a “ denial ” of theplaintiffs’ rights or the “ infliction of an affirmative injury ” on them.
Apart from the facts in the two cases cited by me being distinguishablefrom those in the present case I am fortified in the decision at which I havearrived by the perusal of other authorities. In Fernando v. Silva1Phear C.J., in his judgment, stated that suits quia timet ought always to bescrutinized most closely, because although there are no doubt many caseswhere it is right that a court of equity should enable a suitor, notwith-standing he has at the time no substantial ground of suit, to obtain apresent declaration of title in anticipation of some cause of action occurringin future in the shape of an invasion of property or infringement of title,on some occasion when he may have difficulty in establishing his right, yetsuits of this class are certainly not to be encouraged. In that case A, themortgagee, not in possession of certain property, obtained a decree againstB, his mortgagor, for realization of the security, and in execution of thisdecree caused the mortgaged property to be sold to a third person. C,
1 1 S. C. C. 27.
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Mohamed v. Mohamed Uvais.
claiming to be in possession as owner of the portion of the property so sold,brought a suit against A and B for declaration of title and asking to bequieted in possession, but failed to show that he had been in any degreemolested in the enjoyment of his property. It was held that he had nocause of action. If the purchaser of the plaintiffs’ property from thedefendants ever attempted on the footing of that purchase to disturb herin the enjoyment of it, she would be able on that future occasion, as shewas then, to establish her title to the property whatever it may be.
In Fernando v. Fernando' the second defendant who owned two-thirdsshare of a land mortgaged his first share to the first defendant whoobtained a decree for sale. It was held that the action of the plaintiff,who owned the remaining one-third share, in bringing an action to have itdeclared that he had a right to compensation was premature.
In the case of RaJct v. Cassie Lebbe" Wood Renton J. stated that it wasnot possible or desirable to attempt to lay down any general rules as to theclasses of cases in which quia timet actions are maintainable. East casemust be decided on its own merits and special facts.
I am satisfied that in the circumstances of this case there is no occasionto allow a quia timet action. The appeal is therefore allowed and the actiondismissed with costs in this Court and the Court below.
Hearne J.—I agree.
Appeal allowed.
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