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Present ; Porter and Schneider JJ.
MUDAL.IHAMY v. BANDA et at
225—D. C. Kegalla, 5,790
Registration-—Wrong folio—Side entry referring to wrong folio.
The deed relied on by plaintiff dated May 11, 1905, was registeredon October 27, 1920, in A/45', folio 236, which was connected by areference to A/2, folio 358, which was the right folio. The deedrelied' on by defendant dated November '3, 1919, was registered onNovember 21, 1919, in A/96, folio 100. There was an entry inred ink at the top of the folio "for a similar land, see A/45/236,and in A/45/236 there was an entry for a similar land, see A/96/10Q."
Held, that defendants’ deed was duly registered.
“ These references establish a .connection between the volumesand folios in which the two competing deeds are registered sufficientto facilitate reference to all existing alienations affecting the land."
HE plaintiff in this case sued the defendant for declaration oftitle to six lahas of a held called Kathtotewela Galahitiyawe.
The plaintiff based his claim on deed No. 52 (P 1) executed byDingiri Menika, who was, admittedly, the original owner of the heldin dispute.
The fourth defendant claimed the land in dispute, also on a deedexecuted from the same Dingiri Menika.
Plaintiff's deed P 1 was registered on October 27, 1920,. in folioA 45/236. The folio A 45/236. was connected with A 11/358, which. was, admittedly, the folio. in which the earliest transaction . wasregistered.
Defendants' deed D 2 was registered on November 21, 1919; infolio A 96/100. In folio A 96/100 there -is an entry “for a similarland, see-A 45/236, ’■ and in folio A 45/236 there is a correspondingentry “ for a similar land, see A 96/100. ’’ In these circumstancesthe appellants argued that there was sufficient connection betweenthe folios A 96/100 and A 45/236, and the folio A 45/236 beingadmittedly connected with A 11/358, and D 2 having been registeredbefore plaintiff's deed, the defendants’ title was superior by reasonof prior and due registration.
The learned District Judge (V. P. Redlich, Esq.) delivered thefollowing judgment in plaintiff’s favour ;—
In this case the title to a land is in dispute on account of the. two deeds.One was deed No. 1,509 of November 3,, 1919 (D 2) registered onNovember 21, 1919, in folio A 96/100, and the other deed No. 52 ofMay 14, 1905, registered on October 27, . 1920, P 1. The issue agreedon then was: "Does deed No. 1,509 • prevail over deed No. 52 byreason of prior registration ? "
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It was admitted that the earliest registration in respect oi this landwas in folio A 11358; there is from that folio a regular succession ofregistrations leading up to de«lP1, soIbat P 1 is dulyconnected
with the earliest registration.
In regard to D 2 it is registered in folio A 96/100, which is not a folioin the regular succession above referred to; it is also to be notedthat this folio A 96/100 was opened on November 21, 1919, beforethe space in the folio. A 45/236, P 3, a folio in the regular succession,was exhausted. The defendant, however, depended on a side entry infolio A 45/236 “ for a similar land, see A 96/100, ” and a correspondingaide entry in 96/100 " for a similar land, see A'46/236,” and Mr. Molamurefor him ■ argued that by means of these side entries his deed was dulyconnected- up with the regular ^succession leading .back to the earliestRegistration. Mr. Gurus amy, , forplaintiff, argued contra.In the
absence of any authority.on the point, I am not prepared to hold thatsuch a side entry has the value attached to it, which – Mr. Molamure -Sought to give it. It seems tomethat,if accepted as such,it would
open the door to much fraud.Inthesecircumstances I answer the
issue in plaintiff's favour.
Enter judgment for plaintiff as prayed for, with costs, and damages,Us. 10, as agreed on.
H. J. C. Pereira, K.C. (with him R. C. Fonseka), for defendants,appellants.
No appearance for the plaintiff, respondent.
October 27, 1922. Porter J.—
The judgment in this case depends entirely upon the priority oftwo deeds. One was deed No. 1,509 of November 5, 1919 (D 2),registered on November 21, 1919, in folio A 96/100, and the otherdeed No. 52 of June 14, 1905, and registered on October 27, 1920
The sole issue is : Does deed No. 1,509 prevail over deed No. 52by reason of prior registration ?
It is admitted that the earliest registration of a deed in respectof this land was in folio A 11/358, and there is a regular successionof registrations in that folio leading up to the deed P 1.
The deed D 2 is registered in folio A 96/100, which was openedon November 2l, 1919, before the space in folio A 45/236 (P 3),a folio in the regular succession, was filled up.
' The defendant relies on a side entry in red ink in folio A 45/236 tothe following effect : “ For a similar land, see A 96/100 ” and a corres-ponding 'side entry, in 96/100, “ for a similar land, see A 45/236.From this he maintains that by means of those side entries his deedwas duly connected' up with the regular succession leading back tothe earliest, registration, . .
Wood Renton G.J. in Gofnelis v. Abeyainhe 1 makes the followinginteresting, observations :“ Section 17 of the Land Registration
1 5 Bal, N. C. 30.
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Ordinance, 1891, confers a privilege upon the grantees of deedsaffecting land. It is quite reasonable that they should be requiredto see that theiii deeds are registered in accordance with the require-ments of the law, so ‘ as to facilitate reference * in the language ofsection 15 (1) of the Ordinance itself ‘ to all existing alienations orencumbrances affecting ' the same lands. It may be well to add,however, that the decisions in question have turned on the presenceof negligence of some kind or other on the part of the applicantfor registration. The Supreme Court has not yet, I think, held thatan applicant for registration would be deprived of his priority bythe sole and gratuitous fault or mistake of the registering officer. ”
The side entries in folio 45/236 and folio 96/100 would, on a proper-search, have disclosed to the plaintiff the prior registration of D 2.
It may be that the writing of the. side entries by the registeringofficer was not a usual method of registering, but, at most, it wouldbe a sole and gratuitous fault or mistake of the registering officer.But as I am of the. opinion that the. two side entries provide asufficient connecting link between the volumes and folios in whichthe two competing deeds are registered “ to facilitate reference toall existing alienations or encumbrances affecting ” the laud inclaim within sections 15 and 16 of the Band Registration Ordinance •of 1891.
I would allow the appeal with costs, and set aside the decree ofthe District Court, and dismiss plaintiff’s action, with costs.
This appeal which appeared at first to raise an important, questionregarding the law of the registration of deeds, eventually resolveditself into a simple question of fact.
The deed relied on by the plaintiff is marked P 1, is dated May 14,3905, and was registered on October 27, 1920, in Division A, volume45, and folio 236. This folio is connected by a reference withDivision A, volume II., and folio 358. There is no question thatthe deed has been registered in the right book.
The deed relied on by the defendants is marked D! 2, is datedNovember 3, 1919, and was registered oh November 21, 1919.This deed is registered in Division A, volume 96, folio 100. The
column “ Brought forward from vol. , folio , ” is blank,
but there is 'a prominent entry in red ink at the top of the folio“ for a similar land, 6ee A 45/236. " There is no evidence when thisentry was made, but it may fairly be presumed• that it was done. in the ordinary course of business when the defendants’ deed wasregistered on November 21, 1919. Then at A 45/236 there is theconnecting reference " for a similar land, see A 96/100.*
These references, in my opinion, establish a connection betweenthe volumes and folios in which the two competing deeds are
registered sufficient ‘‘ to facilitate reference to all existing alienationsor encumbrances affecting *’ the land in claim within the meaningof sections 15 and 16 of “ The Land Registration Ordinance, 1891/’I aim unable to understand why the Registrar had not registeredthe defendants- deed in the same volume and folio in which he hadregistered the plaintiff’s deed. The name of the land, the boundaries,and other particulars are identical. '
As the defendants’ deed has been “ duly registered ’’ and is priorin date of registration, it prevails against the plaintiff’s deed.
I allow the appeal with costs, set aside the decree of the DistrictCourt, and dismissed the plaintiff’s action, with costs.
MUDALIHAMY v. BANDA et al