081-NLR-NLR-V-40-RAYMOND-v.-WIJEYWARDENE.pdf
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ABRAHAMS C.J.—Raymond v. Wijeywardene.
Present: Abrahams C.J. and Fernando J.
RAYMOND v. WIJEYWARDENE.
20—D. C. Kurunegala, 18,365.
Possessory action—Possession for a year and a day—Predecessor’s possession—Dispossession by predecessor—Prescription Ordinance, No. 22 of 1871,s. 4.
In a possessory action the plaintiff is entitled, in calculating theessential period of a year and a day to take advantage of the possessionof his predecessor in title, even though the person dispossessing himhappens to bfe his predecessor in title.
^^PPEAL from* a judgment of the District Judge of Kurunegala.
H. V. Perera, K.C. (with him F. A. Tisseverasingam), for plaintiff,appellant.
F. A. Hay ley, K.C. (with him Barr Kumarakulasingam), for defendants,respondents.
Cur. adv. vult.
November 24, 1937. Abrahams C.J.—
The plaintiff-appellant instituted this,-action for the recovery of posses-sion of a coconut estate of about a hundred acres in extent -which wasmortgaged to him by the defendants-respondents who all joined in themortgage bond. What their various titles and interests were in the saidestate did not emerge during the action, since the case was fought outentirely upon documents, but that point does not appear to be material.The plaintiff eventually obtained a mortgage decree in 1934,' and three ofthe defendants made an .application |o set .aside the mortgage decree but
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ABRAHAMS C.J.—Raymond v. Wijeywardene.
this was unsuccessful. An arrangement was come to on August 20, 1934,which was recorded by the learned District Judge, to the effect that if thedefendants paid the full amount of the claim and costs within one yearthe sale under the decree should be set aside and in the meantime theplaintiff should remain in possession of the property purchased by himunder the decree and take the rents and profits arising, keeping properbooks of account in order to credit the defendants as against the decretalamount. It was further agreed that if at the end of the year the defend-ants did not gay to the plaintiff the amount remaining and due to himthe sale Was to be confirmed.
Later thef'e 'appeared to be a dispute between the plaintiff and one ormore of thh' defendants as to the identity of the land covered by themortgage debrae, and it was agreed that the sale should be confirmed andthat the pldihtiff Should take such action as he might be advised to takein order to obtain possession of the property sold. This confirmationwas effected on March 1, 1935, and seven days later the plaintiff obtaineda Fiscal’s conveyance.
On December 2, 1935, the Fiscal purported to put the plaintiff intopossession of the whole of the land, and when this operation was performedit was found that some of the defendants were actually in possession of aportion of the land described in these proceedings as lot B, and he toldthem to quit hnd they quitted. On the following day, however, thesedefendants with others returned and took possession of the whole of theland in the absence of the plaintiff. It was to regain possession of thewhole of the land that the plaintiff then brought an action.
The learned District Judge held that by the agreement of August 20,1934, the plaintiff was placed in charge of the property and was to collectthe rents and profits on behalf of the defendants. He held that hispossession from August, 1934, till December 2, 1935 (the date that theFiscal put him into possession) was not of such a nature as to be taken iconsideration in calculating the period of a year and a day during which,according to the law of Ceylon, the plaintiff in a possessory action mustprove that he, was in possession in order to recover the land from hisdispossessor. it would appear from this judgment that the learnedDistrict Judge regarded the plaintiff as being disqualified from calculatingthe period frOm August 20, 1934, to March 1, 1935, the date on whichhe obtained cdhfirmation of the sale. He dismissed the plaintiff’s actionwith costs.
This appeal Js not pressed in respect of the claim to lot B, but as regardsthe remainder of the estate it is submitted that the judgment is wrong.The ground of-appeal stated in the petition of appeal was that the plaintiffhad conclusively established that his possession of the estate from August20, 1934, up to •December 3, 1935, the date of dispossession, was ut dominusand not hbld 6$ behalf of any other person.
During the' argument a point was raised for the appellant which did notfigure in the petition of appeal, namely, that the learned District Judgehad not takeSt into consideration the fact that according to the law ofCeylon the pfein'tiff in a possessory action was permitted, in calculatingthe essential period of a year and a day, to count in making up thatperiod any time during which his predecessor in title has been in possession.
ABRAHAMS CJ:—Raymond o. Wijeywardene. .
309
The limitation upon the right o£ a person to bring "a possessory action iscontained in section 4 of the Prescription Ordinance, No. 22 of 1871, andreads as follows :—
“It shall be lawful for any person who shall have been dispossessedof any immovable property otherwise than by process of law, to instituteproceedings against the person dispossessing him at any time withinone year of such dispossession. And on proof of such dispossessionwithin one year before action brought, the plaintiff in such action shallbe entitled to a decree against the defendant for the restoration of suchpossession without proof of title. Provided that nothing hereincontained shall be held to affect the other requirements of the law asrespects possessory cases”.
It was held in Silva v. Appuhamyby a Court consisting of.Lascelles C.J. and Wood Renton J. that the common law of Ceylonrequired proof of possession for a year and a day prior to ouster, and thatthat requirement was not effected by the proviso to the section, and thesame Court also held that in a possessory action a plaintiff might takeadvantage of the. possession of his predecessor in title and that it isunnecessary that he himself should have had a year and a day’s possession.
It is not disputed on behalf of the respondents that a plaintiff may availhimself of his predecessor’s possession. It is however contended that thispoint was not taken in the lower Court. It is perfectly true that thelearned District Judge does not mention it in his judgment, end it doesnot seem probable that so important a matter would have been completelyignored. On the other hand, the record of the case shows that Silva v.Appuhamy (supra) was cited by the plaintiff’s Counsel. I do not think,however, that we can hold that the appellant is precluded from makingthis submission now, since it does not involve the consideration of factswhich were not before the Court. There is a further argument for therespondents which is, however, of a more formidable nature. Mr. Hayleycontends that the plaintiff cannot take advantage of the prior possessionof anybody when he himself had dispossessed, presumably by the Fiscal’sconveyance. It does, at the first glance, certainly seem peculiar that theplaintiff should be able to pray in aid the period of possession of somebodywhom he first dispossesses and who then dispossesses him. Put inanother way, the defendants say to the plaintiff, “ we have turned you out,it is true, but you were not in possession for a year and a day as the law"requires ”. The plaintiff retorts, “ It is true that I was in possession fornine months only, but you yourselves were in possession immediatelyprior to my possession for more than the required period ”. But despite .the novelty of the situation, I see no warrant for excluding from theordinary meaning of the term “ predecessor ” the dispossessor himself.It could certainly create hardship for which no foundation in law or reasoncan be found to place the dispossessed person in a worse situation inrespect of one kind of dispossessor than another, because that dispossessorwas his predecessor instead of being someone else. Mr. Perera for theplaintiff-appellant reinforces his logic with a telling illustration. He saysthat if the respondents’ submission on this point, were to prevail a man
1 IS N. L. R. 297. ,
310
Zain v. Sheriff.
might sell a plot of land to someone else, and then might after the pur-chaser had been in possession for a few days, dispossess him and contendthat the unfortunate purchaser had no right to bring a possessory actionbut must bring an action for declaration of title which he, the vendor,might then frustrate by claiming that there was no valid title that couldbe transferred.
It was admitted by the appellant that he was not in possession utdominus until the Fiscal’s conveyance on March 8, 1935. But it wascontended that he was in possession on behalf of the defendants accordingto the arrangement of August 20, 1934, until that date when his occupationwas replaced automatically by possession ut dominus, and that thereforeit was uninterrupted possession of which he could have availed himself,namely, the possession of the defendants through him their agent fromAugust 20, 1934, to March 8, 1935, and possession on his own accountfrom that date to December 3, 1935, making up the required period. Iam of the opinion that this contention must prevail.
It was also argued for the respondents that when the sale was confirmedwhat the appellant retained was not the estate of the ^defendants but theright, title, and interest, which was not the same thing as it does notamount to a transfer of the land itself. In my opinion a Fiscal’s conveyanceto a purchaser after confirmation of the sale by the Court is a conveyanceof the property which is the subject of the decree. A perusal of the termsof the conveyance in this case shows as much. The operative part of theconveyance states that the Fiscal had sold and assigned the said propertyand premises to the said G. H. Raymond, his heirs, &c., to have and tohold the same to him the said G. H. Raymond, his heirs, &c., for ever.
I am of the opinion that this appeal must be allowed in respect to theproperty claimed, excluding lot B, and that the appellant is entitled alsoto the agreed damages, viz., Rs. 1,000 a year to the date when possessionwas given up. The appellarit will have the costs of the trial in the Courtbelow, and of this appeal. ■
Fernando J.—I agree.
Appeal allowed.