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Sept,30,1910Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice
and Mr. Justice Wood Renton.
MUTTU CARUPPEN et al. v. RANKIRA et al.
D. 0., Nuwara Eliya, 117.
Prescription—Possession by judgment-debtor after Fieeal’s sale for tenyears—Adversepossession—CivilProcedure Code, . ss. 289 and
There is nothing in sections 289 and 291 of the Civil ProcedureCode which debars a judgment-debtor who has been in possessionof the land sold for ten years after Fiscal’s sale, and before theexecution of the Fiscal's transfer, from claiming title to the landsold by prescription.
fjpHE facts are set out in the judgment.
A. St, V. Jayewardene, for the first defendant, appellant.—Thejudgment-debtor continued .to be in possession of the land sold fora period exceeding ten years after the sale by the Fiscal and itsconfirmation by the Court.. The purchaser at a Fiscal’s sale, whenthe sale is confirmed by Court after the lapse of thirty days, mustprocure his conveyance forthwith. After the sale, and until theconfirmation of the sale and the execution of the Fiscal’s conveyance,the judgment-debtor may use and enjoy the property sold in themanner laid down in section 291 of the Civil Procedure Code, butthe judgment-debtor is not entitled to the crops and produce of theland. (section 291, sub-section (3), Civil Procedure Code). But if thejudgment-debtor not only uses and enjoys the property in themanner limited by section 291, but appropriates the crops and produceand otherwise possesses the property ut dominus, he is entitled afterthe expiry of ten years to claim a title by prescription (vide theremarks of Withers J. in Silva v. Hendrick Appu1).
Bawa, for the plaintiffs, respondents.—The effect of the provisionsof sections 289 and 291 of .the Civil Procedure Code is to constitutethe judgment-debtor a trustee for the purchaser. The purchasercannot turn the judgment-debtor out till he gets a conveyance, andsection 291 gives the judgment-debtor a statutory right to remainin possession of the land till the execution of the conveyance.Where, for instance, a purchaser gets a conveyance within ten yearsof the sale, he is always at liberty to plead the judgment-debtor’spossession as his own as against third parties, who set up titleon the ground of prescription. [Wood Renton J.—Sections 289
1 (1895) 1 N. L. R. 13.
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and 291, Civil Procedure Code, cannot over-ride the Prescription Sept. 30J910Ordinance. The sections merely define .the position of .the judgment- Mvmdebtor after sale.] The Prescription Ordinance only comes in Caruppenwhen. the possession is adverse. The possession is not adverse in Rtmktratins case, because the law makes the judgment-debtor only a licensee;the judgment-debtor should not be permitted to say that possession,which tiie law says is on behalf of some one else, is as a matterof fact on his own behalf. [Hutchinson C.J.—But section 29,sub-section (3), says he cannot appropriate the crops and produce,but if he does so, does not his possession become adverse?] No;the execution-purchaser cannot take possession ns he has notobtained a Fiscal's conveyance, which alone divests the judgment debtorof his rights.
September 30, 1910. Hutchinson C.J.—
The plaintiff's claim is for a declaration of title to certain lands,which the firsji plaintiff bought at a Fiscal's sale, in executionagainst the first defendant, on May 11, 1894. The sale was con-firmed in October, 1895. The Fiscal's transfer was not obtainedtill September 26, 1906. The first defendant, who is the appellant,asserts that, notwithstanding the sale, and ever since the sale in1894, he has had undisturbed and uninterrupted possession by a.title adverse to that of tile plaintiffs, and so has acquired a rightunder Ordinance No. 22 of 1871. There were issues settled as towhether the first defendant has been in possession since 1894, andwhether he or the first plaintiff had acquired a title by prescription,'lie District Judge, however, said that, under sections 289 and 291of the Civil Procedure Code, the defendants are debarred fromclaiming title by prescription, upon which ground alone their claimis based, and he therefore gave judgment for the plaintiffs. It isa very common thing, in my experience in Ceylon, for a judgment-debtor, whose land has bedn sold in execution of a decree againsthim, to remain in possession after the sale for a long time, andafterwards set up a title by prescription under that possession.But it is said on behalf of the respondents, and I suppose that iswhat tiie District Judge thought, that the purchaser of the land cau,after the judgment-debtor has been in possession for ten years andupwards after the sale, prevent him from setting up a title by pre-scription by taking his Fiscal’s transfer; and it is said that the effectoi sections 289 and 291 is to make the possession of the judgment-debtor, during all the period, however long, between the sale andthe Fiscal’s transfer, the possession of the purchaser; that, in fact,it is impossible for him to have adverse possession. Section 291empowers the person in possession to continue in possession forcertain purposes between the date of the sale and the date of theFisc&l’s conveyance. He may continue to use the property as
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Sfipt. 30,1910 before and jjo cultivate .the land, but he is not entitled to theHotohwson produce of it. The effect of that is that the possession of the judg-C.J.ment-debtor in such a case is not necessarily an adverse possession,
jfafftiWhat the appellant wishes to prove is that his possession was not
vliaMra a possession as is authorized by section 291, but that it was anadverse possession, as defined by Ordinance No. 22 of 1871. If hecan prove that, he is entitled to succeed. I think, therefore, that thedecree dismissing the action should be set aside, and the case goback for trial of the other issues which were settled. I think thatthe costs of this appeal should be paid by the respondents inany event, and the costs in the District Court will be costs inthe cause.
Wood. Benton J.—'
I am of the same opinion, and as we are differing from the learnedDistrict Judge, and the point raised in appeal is an interesting one.I will add a few words. It appears to me that sections 289 and 29iof the Civil Procedure Code, only define the ordinary relationsbetween the execution-creditor and his judgment-debtor for theperiod between the Fiscal's sale and the execution of .the Fiscal'sconveyance, and that they cannot be held to over-ride the power ofproving prescriptive ,titl$ created by section 3 of Ordinance No! 22of 1871. I desire to add that in my opinion, the word “ deemed ”in section 289 of the Civil Procedure Code should not be interpretedin the sense which it sometimes bears in Acts of Parliament as“ taken conclusively to be, ” and that it merely creates a presump-tion which is capable of being rebutted by evidence. I agree thatthe appeal should be allowed with costs.
MUTTU CARUPPEN et al. v. RANKIRA et al