140-NLR-NLR-V-60-H.-S.-DEWANDARA-Appellant-and-U.-L.-H.-FERNANDO-Respondent.pdf
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SINNETAMBY, J.—Dewandara v. Fernando
1959 Present: H. N. G. Fernando, J., and Sinnetamby, J.H. S. DEWANDARA, Appellant, and U. L. H. FERNANDO, Respondent
8. C. 162—D. C. Kandy, 2,289IL
Execution of proprietary decree—Resistance by bona fide claimant—Procedurethereafter—Burden of proof—Civil Procedure Code, ss. 79, 325, 327, 377 (6),384.
In proceedings arising out of resistance to the execution of a decree for thepossession of property, once the petition of the judgment-creditor is numberedas a plaint under section 327 of the Civil Procedure Code the onus of estab ■lishing possession or the right to possess the property is upon the judgment-creditor who, as against the claimant, has all the obligations which the lawcasts upon a plaintiff in a regular action.
Chinnathamby v. Somasundaram Iyer (1947) 48 N. L. R. 515, not followed .
Aboobucker v. Ismail (1908) II N. L. R. 309, followed.
A
XjlPPEAL from a judgment of the District Court, Kandy.
P. SomatilaJcam, with E. B. Vannitamby, for the 4th defendant-appellant.
T. B. Dissanayake, for the plaintiff-respondent.
Cur. adv. vuli.
February 5, 1959. Sinnetamby, J.-—
The plaintiff instituted this action in January, 1948, against one Jame.-Appuhamy and Ukku Banda for declaration of title to the land depictedin plan No. 755 of Cth May, 1949, filed of record marked “ X ”. Subse-quently James Appuhamy died and the present first and second defend-ants were substituted in his place. Ukku Banda was made the thirddefendant. The plaintiff was declared entitled to the land and decreewas entered against the defendants on 22nd October, 1951. The plaintifftook out writ of possession against the defendants on 14th September.1954. There was an appeal which was dismissed.
The appellant to the present appeal, H. S. Dewandara, was in occupationof the premises and the Fiscal reported on 24th September, 1954.that he was unable to deliver possession as Dewandara claimed the property-on Deed No. 1379 of 8th February, 1952, and Deed No. 220 of 19th July,1954. It is to be noted that these two deeds were executed after thedecree was entered in this case. The proctor for the plaintiff thereuponfiled a petition and affidavit and asked that the writ of possession bere-issued or in the alternative that the respondents be noticed to show
SINNETAMBY; J.—Deimndara v. Fernando
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cause why they should not be dealt with for obstructing the Fiscal. Therespondents to that application were the original defendants and theperson obstructing, namely, Dewandara. Presumably, this applicationwas made under section 325 of the Civil Procedure Code. The learnedJudge instead of proceeding in the manner provided for in section 325,namely in accordance with alternative (b) of section 377, made an orderdirecting notice to issue on 11th November. The respondents appearedand the first, second and third respondents who were the original defen-dants stated that they had already left the premises. The fourthdefendant’s proxy was filed in due course along with a petition andaffidavit.
It is to be noted that the procedure adopted was not in strict com-pliance with the summary procedure provided for in section 377 (b).According to these provisions a day should have been appointed for thedetermination of the matter and the respondents informed that theywould be heard in opposition on that date. Where both parties appearon the appointed date, the respondent is heard in opposition and permittedto read affidavits and documentary evidence. Thereafter the petitioneris entitled to be heard in reply or the Court may frame issues of factbetween the petitioner and the respondent. It will thus be seen thatbefore the Court makes an order under section 327 it must be satisfiedthat the respondent has made out a prima facie case. If no prima facie(•use has been made out the Court will enter a final order and endorse iton the interlocutory order itself. The essence of summary procedureis that the Court first satisfies itself upon the petition and affidavitfiled by the petitioner that an order in terms of section 377 should issue.Thereafter it is only if the respondent makes out a prima facie casein support of his defence that the Court sets the matter down for trial,if it thinks it necessary, on issues that may be framed.
That procedure was not followed in the present case but no objectionwas taken to it in the Court below. One may, therefore, assume that theaffidavit filed by the respondent with his petition was filed in terms ofsection 384 of the Civil Procedure Code. One may also assume that uponthe affidavit filed the Court was satisfied that the fourth respondentclaimed in good faith to be in possession of the property on his own accountand that it therefore proceeded to make an order in terms of section327 of the Code when it directed that the petition be numbered as aplaint. Curiously, however, although according to the journal entryunder date 17th December, 1954, the Court’s order was that the petitionwas to be numbered as a plaint, in the judgment delivered on 19thFebruary, 1956, the Court mistakenly stated that the fourth respondent’sclaim had been so numbered and registered.
It seems to me that all this confusion in the learned Judge’s mindarose as a result of the incorrect procedure he had adopted. He hadpermitted the fourth respondent to file a petition also in addition to anaffidavit. If on the judgment creditor’s petition and affidavit thelearned Judge had made an interlocutory order in terms of section377 (b) of the Civil Procedure Code and on the appearance of the
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respondent Ijeard him in person or by proctor and permitted the respon-dent only to file affidavits in support of his defence, he would, it seems tome, not have fallen into this error.
Section 327 itself makes no provision for any other pleadings after thejudgment creditor’s petition has been numbered as a plaint. If affidavitsare filed the Court no doubt could take their contents into consideration in“ investigating the claim ”. It must, however, be conceded that thesituation in which the Court would find itself would be most unsatis-factory. It is usual at this stage for the Court in actual practice to frameissues and this would be certainly most difficult without proper pleadings.Our Courts have held, if not directly at least by implication, that aninvestigation under this section, though it relates mainly to actualpossession, also includes an investigation into the right to possess andtherefore would include an investigation of title—vide Aboobucker v.Ismail1.It may be for this reason that the provisions in the old Indian Codewhich corresponded with section 327 of our Code have been replaced byOrder XXI r. 99 where the Court merely dismisses the application of thejudgment creditor if it is satisfied that the obstruction was occasionedby a person other than the judgment debtor claiming in good faith tobe in possession of the property on his own account and leaves it to thejudgment creditor to bring a regular suit if so advised.
Under the procedure laid down in section 327 once the claimant hasestablished a prima facie case entitling him to remain in possession thejudgment creditor’s petition is numbered as a plaint and subsequentproceedings follow ordinary regular procedure. In some Courts thepractice has developed for the Court tG order fuller and amended pleadingsby directing the judgment creditor to set out his title and by directingthe claimant to file an answer. This procedure which, it seems to me,is the only sensible way of proceeding further in the matter, is warrantedby the provisions of section 79 of the Code as by such means the Court isable to ascertain the real issues between the parties.
In the present case, however, there were no further pleadings but theCourt framed issues of fact. Except on the question of prescription theissues framed placed the burden on the defendant. It was urged inappeal that the learned Judge misdirected himself in placing that burdenon the defendant. I agree that in proceedings of this kind once thepetition is numbered as a plaint the burden is on the judgment creditor.The learned Judge in my opinion was clearly wrong in stating :
“ There is a decree in favour of the plaintiff and the onus is on the
claimant to support his claim as against the decree. ”
I am aware that a similar view was expressed by Windham, J. in Chinna-tamby v. Somasundaram Iyer 2. I find myself unable to agree with thisview. I prefer to follow the opinion of this Court expressed in Aboo-bucker v. Ismail (supra). Unfortunately that case does not appear tohave been cited in Chinnatamby v. Somasundaram Iyer (supra) and in thecourse of his judgment Windham, J. makes no reference to it.
, ‘ 1 {1908) 11 N. L. R. 309.
(1947) 48 N. L. R. 515.
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Ordinarily in a regular action the burden of establishing title is upon aplaintiff and if that rule were to be followed once the judgment creditor’spetition is numbered as a plaint the 'burden would fall on him. Whyshould he be placed in a more favourable position merely because he hasobtained a decree against a third person ? One could visualise imme-diately the abuses that the acceptance of such a proposition wouldpromote. All a speculative litigant has to do to place the onus ofproving title on a person in actual possession of property is to bring acollusive action in respect of that property against an obliging defendant,obtain judgment, take out writ against the person in possession who isbound to resist, and then institute proceedings under seotion 325. Bythis device he would place himself at an advantage and put the burdenof establishing title on the person in possession. With great respect Ido not agree that the expression “ investigate the claim ” has themeaning assigned to it by Windham, J. I am definitely of the view thatonce a petition has been numbered as a plaint the onus of establishingpossession or the right to possess is upon the judgment creditor who,as against the claimant, has all the obligations which the law casts upon aplaintiff in a regular action.
The only question that now remains to be considered is whether inmisdirecting himself in this way in regard to “ onus ” the learned Judgecame to a wrong conclusion on the issues that were framed. It seems tome that on the facts of this particular case he has not.
The claimant had leased the property from one Charles de Silva who inturn obtained a transfer 4D6 from one Anohamy who is the niece ofFrederick de Silva in whom admittedly title at one time vested. Bothdeeds were subsequent to the decree in this case. The learned Judge hascome to a strong finding against the claimant in regard to the genuinenessof these transactions but he has not considered the title of the plaintiff.On the question of prescription, however, he has held with the plaintiffand has accepted the’evidence that she and her parents had possessed theland exclusively since 1920. On this issue the burden was clearly on theplaintiff and there can be no complaint of misdirection with regard toit. Having regard to the learned Judge’s strong findings on this issue,which were not seriously canvassed at the hearing of the appeal, the factthat he took a wrong view of the law in regard to onus does not, it seemsto me, affect the ultimate result. On the facts of this particular caseI do not consider it necessary to send the case back for retrial. I cannot,however, stress too strongly on the Courts of first instance the importanceof following the correct procedure in eases of this kind.
In the circumstances I would dismiss the appeal with costs.
H. N. G. Fernando, J.—I agree.
Appeal dismissed.