039-SLLR-SLLR-2005-V-2-PODI-MENIKA-V-GUNASEKERA.pdf
CA
Podi Menika Vs Gunasekera
207
PODI MENIKAVSGUNASEKERACOURT OF APPEALWIJEYARATNEJ,
C. A. 696/2003,
DC. WELIMADA No. LV486,
(FORMALLY DC. BANDARAWELA)
JULY 5, 2004.
Civil Procedure Code – Section 328 – Resistance – Is the claimant obliged toprove her title? – in Sec. 328 inquiry what is required to be proved?
HELD
(1)An application under Section 328 requires only the proof of possession
and not title. All that had to be established is that the possession ofthe disputed /and was bona fide on his own account or on.account ofsome person other than the Judgment Debtor and that he was not aparty to the action in which the decree was passed.
Per Wijayaratne J,
"In this application made under Section 328 there is a legal obligation toprove title only to establish that she was in bona fide possession of the same"
APPLICATION in Revision from an Order.of the District Court of Welimada.Cases referred to :
Pathirana vs. Aahangama 1982 1 Sri LR 392
Abdul Cadar vs. Nagaratnam 1985 2 Sri LR 1
A riff vs. Kandasamy Pille 1982 2 Sri LR 741
F. C. Perera for Applicant Petitioner.
Parakrama Agalawatte for Defendant Respondent.
Cur. Adv. Vult.
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Sri Lanka Law Reports
(2005) 2 Sri L R.
July, 5th 2005WIJEYARATNE, J
This is an application to revise the order of the learned District Judgedated 03.04.2003 made after an inquiry under Section 328 of the CivilProcedure Code. The inquiry commenced on the application of the presentPetitioner to this application H. M. Premalatha Podimenika who was thePetitioner-Claimant in that application caliming that the fiscal of the DistrictCourt of Bandarawela on 12.09.98 attempted to eject her and members ofthe her family from the land they are in occupation and where they haveconstructed the house, on the pretext of execution of the decree enteredin favour of the defendant in case No. L7486 of that Court.
The Defendant has prayed for the issue of writ of possession and thePetitioner-Claimant has claimed that she had improved the land she hadput up the house, and she along with her mentally affected husband andchildren are living in that house on the land in suit.
The application was resisted by the Defendant on the strength of thedecree entered in the District Court of Bandarawela, action No. L7486.
A perusal of the decree disclosed that the defendant, D. M. Gunasekerawas declared entitled to lot 02 in Plan No. 274 dated 27.2.1945 drawn byW. B. W. Welgolla Licensed Surveyor, and that was by way of settlementbetween the Plaintiff and the Defendant whereby the Plaintiff was declaredentitled to lot 1 in the said plan.
The learned District Judge having inquired into this application hasrecorded the evidence of the Intervenient claimant P. Podimenika andSurveyor who has prepared the plan No. 208 which was marked X in theproceedings.
The learned District Judge having heard the evidence rejected thePetitioner-claimant's claim on the grounds that he did not believe theevidence of surveyor Nandasena because of discrepancies of his evidenceand the Claimant Podimenika did not establish the prescriptive title to theland which was described as State land.
In his order the learned District Judge has clearly stated that the decreehad been entered on the strength of Plan No. 208 marked X which isfactually wrong. A perusal of the decree shows that it is on the strength of
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Podi Menika l/s Gunasekera (Wijeyaratne, J)
209
Plan No. 274 drawn by the Surveyor W. B. W. Welgolla in the year 1945only.
The learned District Judge has clearly mistaken that he is entitled toissue writ of execution of decree in respect of land described in a plan anddepicting the lot bearing same number but on a plan bearing differentnumber from the number referred to in the decree.
Secondly the learned District Judge has erred in law when he looked forthe proof of claimant's title to the land, she was in possession and fromwhere she was to be ejected from. He has categorically stated that "asclaimed by the petitioner claimant, she is obliged to prove that she hastitle to the same."
This is a clear misdirection of himself with regard to the relevant provisionsof law. The application under Section 328 requires only the proof ofpossession and not title.
In Pathirana Vs Ah an gamit was held in an action under Section 328
of the Civil Procedure Code only question that arises is that of possessionand not title.
Again in Abdul Cadar vs Nagaratnam{2) it was held that "under Section328 of the CPC all that had to be established was that the possession ofthe disputed land was bona fide on his own account or account of someperson other than the Judgment debtor and that he was not a party to theaction in which the decree was passed.
According to the evidence of Claimant the plot of land which she herselfclaimed and put up the house of 03 bed rooms, Hall and kitchen. It wasspecifically mentioned that after the illness of her husband with a headinjury her husband Ganethirala could not do any work and it was theclaimant who has cleared this land developed it and put up the house andthere is nothing to suggest that she did so under any parties to this actionLV846. It is also in evidence according to her own statement, the report ofSurveyor, and the report of fiscal and the very application of the Defendant-Respondent that the claimant Podimenika was in possession of this landas at the date the writ of execution was issued.
However, according to the fiscal report her husband is said to haveundertaken to remove the house within 02 weeks ; whether that is done is
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not known but the Court has issued this writ of execution of decree afterrejecting the claimant's claim on the basis that she had not proved title interms of the above decisions that the Claimant Podimenika is not obligedin law to prove. In this application made under Section 328 of the CPCthere is legal obligation to prove her title but only to establish that she wasin bona fide possession of the same, which she has done. Even the LearnedDistrict Judge who rejected her application accepted the evidence to theeffect that she has put up the house, she is resident there by being inpossession of the same.
However, by reason of execution of the decree entered between the twoparties under any one of whom the claimant was not claiming possession,the decree was executed by ejecting the Claimant.
In Ariff vs. Kandasamy Pille {3) it was held that the "
the Court is obliged to restore him to possession of which he was deprivedby the fiscal in the execution of decree which did not authorize hisdispossession”.
In the instant case, the Defendant-Respondent who obtained writ ofexecution did not establish that the Claimant was one claiming under theother party to the decree. On the contrary the evidence of the Claimantwas that she was in independent bona fide possession of the land whichis not identified as lot 2 in Plan No. 274 which the Defendant-Respondentwas declared entitled to.
Following the said decisions in Ariff vs. Kandasamy Pillai (Supra), thisCourt is obliged to restore the Claimant to possession after setting asidethe order of the Learned District Judge who refused the application anddismiss the claim of the Claimant who had already been dispossessed.
The application for revision is allowed with costs fixed at Rs. 5,000/-
The Claimant is free to seek legal remedy by way of compensation ifadvised.
Application allowed.