125-NLR-NLR-V-14-RAKI-et-al-v.-CASIE-LEBBE-et-al.pdf
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Present: Middleton J. and Wood Renton J..lny. 4, tun
RAKI ct al. v. CASIE LEBBE et a/.
225—D. C. Kandy, .20,358.
Fiscal's sale—Action Jar declaration of title by owner ayainst purchaserand debtor—Plaintiff has a cause of action even thouyh his physicalpossession teas not disturbed.
The first defendant on a writ against the second defendant causedthe Fiscal to seize anti sell the land iti dispute as a land belonging tothe second defendant, and bought it himself. Theplaiutiff claimingthe land as his, brought the present action for declaration of titleagainst the two defendants.
Held, that plaintiff had a cause of action against the defendantseven though his physical possession was not disturbed, and thoughthe first defendant had not obtained a Fiscal’s transfer.
fJ5HE facts appear from the judgment.
Bawa, for appellants.
Allan Drieberg, for respondents.
Cur. adv. vult.
August 4,1911. Middleton J.—
In this case the first defendant, as judgment-creditor of the seconddefendant, seized and sold in execution certain lands as the propertyof the second defendant, which the plaintiffs now seek to vindicatein this action. The sale was not confirmed, nor the Fiscal’sconveyance issued to the first defendant who was the purchaser.
The first issue settled was whether the plaint disclosed a cause ofaction, and. upon that issue, and on the ground that the plaintiffshad no present cause of action, the District Judge dismissed theplaintiffs’ action, holding on the authority of Fernando v. Silva et al.1that the plaintiffs had misconceived their action, and should haveproceeded under section 247 of the Civil Procedure Code.
The plaintiffs appealed, and for them it was argued that the plaintdisclosed there was a seizure and sale of their property by the firstdefendant, which amounted to a denial of their right, and gavethem a cause of action under section 5 of the Civil Procedure Code.
Ismail Lebbe r. Omer Lebbe- decided that a seizure by the Fiscalamounted in law to dispossession. Further, that the .plaint showedthat there was a real ground for apprehension of prospective injuryby estoppel, and that the action would lie quia timet.
* (1878) 1S. C. C. 27.* (1899) 3 N. L. R. 303.
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Avy. 4, lull
Miduluton
J.
JRaki it.Cynic Lcbbc
It was urged for the respondent that there was a strong probabilitythat the second defendant might pay his debt, when the sale wouldfall through ; and that the action was against the first defendant asa purchaser who had no formal dealing with the property, and couldnot in fact oppose his title to that of the plaintiff, as no title hadpassed to him. The plaint avers that the plaintiffs are and havebeen in possession ; but the answer traverses this averment, andalleges that the plaintiffs’ predecessor in title was a servant of, andworked on the land under, the second defendant’s predecessor in title.
There is no question that actions quia timet are maintainable inCeylon, per Wood Renton J. in The Ceylon Land and Produce Co. v.Malcolmson,1 Soysa v. Sanmugam? I think, however, it is notnecessary here to hold that this is a quia tiniet action which lies, andmay be prosecuted, although I think much is to be said in favour ofthat proposition.
In my opinion there is a substantive cause of action disclosed inthe plaint under section 5 of the Civil Procedure Code in the denialof the plaintiffs’ right by the seizure of the Fiscal at the suit, andinstigation of the first defendant, who is much more likely to obtainhis Fiscal’s transfer than not to do so, owing to the payment of hisdebt by the second defendant. I cannot see that the procedurecontemplated under sections 241 to 247 of the Civil Procedure Codeis exclusive, and prevents a suitor vindicating his rights by anordinary action if he chooses to do so,, and this, I think, has alwaysbeen held by this Court. I would allow the appeal, with costs hereand of the argument in the District Court on the first issue, and sendthe case back for trial on the other issue agreed on. All other coststo be costs in the cause-.
Wood Renton J.—
The appellants in this action sued the respondents in the DistrictCourt of Kandy for a declaration of title to the lands described in theplaint under these circumstances. Under writ in case No. 20,124—District Court, Kandy, in which the first defendant-respondent wasthe plaintiff and the second was the defendant, the lands in suitwere seized by the Fiscal as the property of the second defendant-respondent and bought by the first, his judgment-creditor. Thesale was effected on or about December 20, 1909, but no Fiscal’stransfer has yet been obtained by the first defendant-respondent,and the appellants are still in possession of the property, which theyclaim by gift and by inheritance from one Suppen Kankani, thehusband of the first- plaintiff-appellant and the father of the otherplaintiffs-appellants, and by prescription. The respondents in theiranswer pleaded that the plaint disclosed no cause of action ; deniedthat Suppen Kankani was the owner of the property, and that the
1 [im) 12 X. L. R. 10 ; 4 Bat. 33.2 {VJ07) 10 X. L. R. 356,
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appellants have any right to it by gift or inheritance or prescrip-tion ; and alleged that the real owner was one Meeyapulle, father ofthe second defendant-respondent, to whom the lands devolved onMeeyapulle’s death over thirty years ago, and who has since acquireda title thereto by prescription.
On those pleadings various issues were framed at the trial, but sofar only the first of these, namely, “ does the plaint disclose a causeof action against the defendants/’ has been decided. On this issuethe respondents contend that as they have not yet taken out aFiscal’s transfer, as no title to the lands has therefore passed tothem, and as the appellants have not been disturbed in their posses-sion, the latter have no cause of action against them at present.The learned District Judge has upheld this contention, and hasdismissed the appellants’ action with costs, without prejudice, ofcourse, to their right to set up their title, if any, to the lands indispute in any future proceedings in which it may be really chal-lenged. The grounds of his decision are, in effect, (i.) that theappellants have not availed themselves of the remedy which theCivil Procedure Code has given them namely, to prefer their claimbefore the Fiscal; and if the claim was dismissed, to institute anaction under section 247 to have their rights declared ; and (ii.) thatin the present action the circumstances under which an action quiatimet has been held to be maintainable, namely, actual and imminent.injury to the plaintiff with prospective damage of a substantial kind,are not present. I do not think it is necessary for us to deal withthis latter point. I entirely agree with the forcible remarks of theDistrict Judge as to the need for caution on the part of courts of law,in seeing that the conditions which can alone render an action quiatimet competent to suitors exist before such actions are entertained.Nor do I think that it is possible, or desirable to attempt, to laydown any general rules as to the classes of cases in which such actionsare maintainable. Each case must be decided on its own merits andspecial facts. It appears to me, however, that the appellants havea “cause of action “ here within the meaning of the definition of thatterm in section 5 of the Civil Procedure Code. It was helckby theSupreme Court in the case of Ismail Lebbe v. Omer Lebbe1 that theseizure of land by the Fiscal amounts to dispossession in law. Itfollows, therefore, that although the appellants are still in physicaloccupation of the land in suit, they have been legally dispossessed ofit. The property has passed into the custody of the law. Irres-pective altogether of the facts that the first defendant-respondent hasas yet obtained no Fiscal’s transfer, and that no title has passed tohim under the sale, and of the possibility that he may never take out aFiscal's transfer, or that the sale may not be confirmed, I think thatthe seizure of the lands by the fiscal as the property of the seconddefendant-respondent at the instance of the first is a denial of the
Aug. 4, 1911
WoodRenton J.
Raki v.Casie Lebbe
1 (1899) $ A L. R. 303.
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Avy. it 1911
WoodRenton J.
Haki r.Canie Lrbbe
legal right alleged by the appellants in their plaint, and confers uponthem an immediate cause of action against both respondents. Theappellants expressly pleaded that the seizure and sale of the landstook place without their knowledge. If that fact is proved, theywere not in a position to exercise their right of claiming the properlyunder section 241 of the Civil Procedure Code. Having preferred noclaim to the property, they could not bring an action under section247 of the Code; 1 know of no authority that obliges us to hold that,under such circumstances, they are precluded by the claim sectionsin the Civil Procedure Code from bringing such an action as thepresent, if the circumstances disclose a cause of action within themeaning of the law of the Colony. On these grounds I think thatthe appeal should be allowed, with the costs of the appeal and of theargument on the first issue in the District Court, and should be sentback to the District Court for trial on the other issues. All costs,except those to which I have just expressly referred, should be costsin the cause.
Appeal allowed.
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