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NEVETHIHAMY v. DON ANDRIS.C. B., Madeira, 5,194.
Ordinance No. 11 of 1878—Certificate of sale issued under section 22—Evidencein support.
To entitle a plaintiff to succeed in an action rei vindiccUio foundedupon a certificate of sale granted under the Ordinance No. 11 of 1868,it is incumbent on him to prove that the grain duty was in arrear, thata seizure was duly made, that the sale took place twenty days afterthe seizure, and that the certificate of sale is in order.
LAINTIFF prayed for restoration to quiet possession of a
field which she claimed under her late husband. Defendant,admitting plaintiff's original title, pleaded that the field inquestion was sold by public auction at the instance of theAssistant Government Agent, Matara, on the 14th July, 1885. fordefault of payment of grain tax, when he became the purchaser.He produced the certificate of sale granted to him under theOrdinance No. 11 of 1878 in support of his title.
The Commissioner held that, though the certificate of sale wasin order, it was not obtained with due notice to plaintiff, nor hadhe been permitted to take the produce of the field, and that hisfirst attempt to exercise rights under the certificate was in 1898,immediately previous to plaintiff’s action.
The Commissioner entered judgment for plaintiff.
Elliott, for appellant.
Schneider, for respondent.
25th September, 1898. Browne, A.J.—
It has been held by Bonser, C.J. (374, D.C., Ratnapura, S. G. M.26th Sept., 1896; and 100, C. R-, Galle, S. G. M. 9th March, 1898),that the mere production of a certificate of sale issued undersection 22 of Ordinance No. 11 of 1878 does not dispense withproof that the duty was in arrear, and that a sale took place inaccordance with the Ordinance. For what the Ordinance, section22, says is, “ If immovable property be sold for non-payment, &c.,“ the certificate shall vest the property sold in the purchaser free“ from all encumbrances.”
It is essential under section 18 for a sale under the Ordinancethat the property should be seized, and when sold should be soldat a time not less than twenty days from the time of such seizure.
Therefore it is necessary always to prove that the seizure wasmade, and that the sale was not held until twenty days thereafter
Cur. adv. vvlt.
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had expired. No such proof was here adduced, and proof of titlethereby fails, even allowing that the other defect in the first lineof certificate was cured by the oral testimony.
Then, has defendant proved title by prescriptive possession?He is brother of plaintiff’s deceased husband, and has to give clearproof that he has created by possession adverse to her a titlesuperseding that which originally belonged to her husband. Inview of the evidence adduced by the plaintiff, I cannot say thathe, as defendant, has apparently been careful to swear distinctly,in addition to his evidence “ I possessed ” (which of course inone sense he, as a male, would do, and she would not), that heretained the whole benefit of the cultivation for himself forover ten years.
I do not assume or suspect aught against him. I say only hehas failed in his proof to show plaintiff has been divested ofwhatever title she originally had.
I affirm with costs.