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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.PEDRO COSTA v. FERNANDO et al.
C. R., Negomb'o, 9,090.
Action ■unders. 947,CivilProcedureCode—Prescriptive titleof
judgment-debtor—Adding judgment-debtor as a party.
The execution-creditor may, in an action under section 247 oftheCivilProcedureCode,prove theprescriptive right ofthe
execution-debtorto thepropertyi;and forthat purpose the
execution-debtormay beadded asapartyplaintiff or party
defendant, as the case may be.
PPEAL from a judgment of the Commissioner of Requests.The facts and arguments appear in the judgment.
C. M. Fernando, C.G., for the plaintiff, appellant.
A. Drieberg, for the defendants, respondents.
Cur. adv. vvlt.
July 14, 1908. Hutchinson C.J.—
The appellant, plaintiff in this action, obtained judgment againstthe first defendant, and under a writ of execution caused certain landto be seized. The second and third defendants put in a claim to it,and their claim was upheld, they being in possession. The plaintiffthen brought this action against the debtor, and the claimants,alleging that the debtor is the owner and had a prescriptive titleto it, and that the claimants had no right or title to it, and prayingfor a declaration that the debtor is entitled to it, and that it isexecutable in satisfaction of the plaintiff’s judgment.
The action was at first dismissed on the ground that the plaintiffhad consented to the allowance of the claim of the claimants. Thatwas obviously wrong, and on appeal the judgment was set aside andthe case sent for trial.
At the trial the following issue was agreed upon: Was thefirst defendant (the debtor) or the other defendants owner of theland at the time of the seizure ?
After taking evidence the Commissioner said: “ I do not find thatthe first defendant, Christogu, was owner of the land.” But hisreason for so finding was that, even supposing that Christogu hadbeen in possession for ten years, such a possession did nob give hima title'to the land; it did not vest the ownership in him. And hethought that the decision in Terunnanse v. Menika 1 was againstthe plaintiff. The evidence of the plaintiff was directed to showingthat Christgou had had ten years’ possession; and the evidence for
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the respondents to showing that they had had possession for severalyears immediately before the issue of the plaintiff’s writ of execution.The Commissioner expressed no opinion on the result of the evidence.
On the appeal, reference was also made to De Silva v. Gunesekere 1and Hamianis v. H.2 I can see no reason why the judgment-debtor should not join as plaintiff in an action under section 247; noreason why we should insist on two actions, one by the judgment-debtor against the person in possession, and then, after he hasobtained a decree under section 3 of Ordinance No. 22 of 1871, anotheraction by the plaintiff under section 247. And if he can be joinedas plaintiS I do not see why he cannot be joined as defendant. Andif he is thus a party to the action, an action “ claiming to have theproperty declared liable to be sold in execution of the decree,” thenproof of such possession as is mentioned in section 8 of OrdinanceNo. 22 of 1871 by the plaintiff or by the debtor under whom heclaims will entitle the plaintiff to a decree in hjs favour. That is myopinion. But it would perhaps be well to have the point settled bythe Full Court.
In the present case, having read through the evidence carefully,I do not think that it proves such possession, as the Ordinancerequires, by Christogu. Santiago deposed that he had taken a tenyears’ lease of the land from Christogu in 1879, and a six years’extension of it in 1890, and that he gave up possession to Christogu;that there was no house on the land when he had it; that a housewas built on it five years ago, and that for the last five years the thirddefendant’s daughter has lived on the land. S. P. Jayawardanadeposed that Christogu was in possession before 1901, not saying howlong before; that the third defendant and her sister, the seconddefendant, possessed five or six years ago; and that Usavi Perera hasbeen for eight or nine years in possession. The seizure under theplaintiff’s writ was in 1901; the second and third defendants werethen in possession. The third defendant deposed that she and herhusband had lived on the land for the last thirty years, and that hehad planted it; and two witnesses corroborated this. S. P. jaya-wardana produced a lease of the land dated May 29, 1900, from thesecond and third defendants to him for 8£ years, and said that thelessors were in possession, that he was in possession when the landwas seized, and that the third defendant and her husband lived onthe land for fifteen or twenty years to his knowledge, that her husbandplanted it, and that he died there.
I do not think it worth while to send the case back for theCommissioner to give his opinion on the evidence. I think it wasinsufficient to prove a prescriptive title in Christogu.
I dismiss the appeal with costs.
i 3 App. C. R. 29.* 10 N. L. R. 332.
PEDRO COSTA v. FERNANDO et al