052-NLR-NLR-V-16-PINGYAR-v.-VALLASAMY.pdf
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Present: Wood Benton J.
PINGYAR v. VALLASAMY.
44&—C. R. Colombo, 28,459.
Action nnder s. 247, Cm2 Procedure Code, in respect of a com—No voucherproduced by plaintiff—Proof of possession by plaintiff at date ofseizure—Burden of proving that plaintiff was not owner lies on thedefendant.
In an action by an unsuccessful claimant tinder section 247,Civil Procedure Code, for a declaration of title to a cow, and for adeclaration that the cow was not liable to be seized and sold underdefendant's writ, the plaintiff proved that he was in possession ofthe cow at the date of the seizure, but he produced no voucher toprove his purchase.
Held, that the plaintiff was entitled to succeed, as the defendanthad not proved that the judgment-debtor had a superior title.
'J'HE facts appear from the judgment.
Dc Jong, for the defendant, appellant.—The plaintiff asksfor declaration of title to a cow and calf. He has no voucher forthe cow. He cannot therefore maintain^this action. Don Davit v.Podi Sinno,l Ramaiya v. Sinno.2 Plaintiff cannot succeed bymerely showing that defendant is not the owner, and that someoneelse has a voucher in his name for the cow. To enable plaintiff tosucceed in this action plaintiff must have himself had title at thedate of seizure. Silva v. Kingoris,3 Silva v. Nonahamine.4
H. A. Jayewardcne (with him Kandiah)r for the respondent.—Ifthe Court finds, as it has found in this case, that the plaintiff was inpossession of the cow, the burden of proof that he is not the owner isshifted on to defendant. See Abayaratna v. Suppramaniam Chetty *
Do Jong, in reply.—The case cited does not apply to the facts ofthis case. That was a* land case; and in the case of land possessionis a very important element. But in this case the absence of avoucher is fatal to the plaintiff’s case.
Cru. adp. vult.
January 27, 1913. Wood Renton J.—
There is no appeal in this case on the facts. It involves, however,the following point of law. The defendant-appellant, as judgment-creditor in C. R. Colombo, No. 26,969, issued a' writ against the
(1906) 3 BaZ. 39.3 (1903) 7 N. L. R. 195.
(1907) 3 Bal. 162.4 (1906) 10 N. L. R. 44.
*(1906) 2 Bel. 33.
1918.
m3.
WoodRboton J.
Pingyar 9.Vatlasamy
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judgment-debtors in that case, and seized in execution of his writtwo Bombay milch cows and two calves. The plaintiff-respondent'claimed the cows and calves. The claim has been disallowed inrespect of one cow and one calf, and the respondent brings thisaction under section 247 of the Civil Procedure Code, claiming adeclaration that they ore his property, and that they are not liableto be seized and sold under the appellant’s writ. The learnedCommissioner of Bequests, Mr. Balasingham, holds that at the dateof the seizure the cow and calf in question were in the possession ofa caretaker for the respondent, and, although the respondent hasproduced no voucher as proof of title, has given judgment in hisfavour on the ground that he was in possession at the date ofthe seizure, and that in that state of facts the burden of disprovinghis title rested upon, and had not been discharged by the appellant.The appellant contends that this decision is contrary to the rulings,of the Supreme Court in Don Davit v. Podi Sinno 1 and Bamaiya v.Sinno.2 I doi not think so. In both the cases just referred to theplaintiff was seeking to set up title against *a person in possession ofthe cattle, and it was held that he could not do this unless he wasin a position to prove his title by the production of a voucher, asrequired by the rules made under section 5 (1) of Ordinance No. 10of 1898. There is nothing in Don Davit v. Podi Sinno1 or in Bamaiyav. Sinno 2 to prevent a presumption arising from the'fact of possessionin favour of a claimant of cattle seized in execution, and the case ofAbayaratna v. Suppramaniam Chetty 3 is an authority in favour ofthe respondent on this point. The circumstance that the propertyseized in that case was immovable property is, in my opinion,immaterial. I agree, further, with the Commissioner of Requests,that the respondent is entitled to succeed by reason of the factthat he has proved that the cattle in question were in his possessionand not in that- of the judgment-debtors at the date of seizure.
The appeal is dismissed with costs.
Appeal dismissed.
(2907) 3 Bal. 162.
{1906) 3 Bal.39.
3(1905) 2 Bal. 33.