083-NLR-NLR-V-15-SIDAMBARAM-v.-PUNCHI-BANDA-et-al.pdf
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Present: De Sampayo A.J. and Pereira J.
SIDAMBARAM v. PUNCHI BANDA el al.
160—D. C. Kandy, 21,316.
Prescription—Possession by judgment-debtor after sole—Fiscal's salebefore the passing of the Code—Retrospective effect of Fiscal'sconveyance.
Where a purchaser in execution ' delays to obtain theneces-
sary Fiscals’s conveyance in respect of the property purchased,a transferee of the execution-debtor or the debtor himseif may,by possessing the property sold duringtheprescriptiveperiod
acquire a title thereto by prescription as against the purchaser.
Perbiba J.—Thereis no case here of a person “ seeking to
prescribe against himself"A person may have a good and
valid paper title to land, but may at the same time claim to set up.a title by prescriptive possession without exposing himself to thecharge of " seeking to prescribe against himself."
Even by the law in' force anterior to the Civil Procedure Code, aFiscals conveyance has the retrospectiveeffect given to it by
section 389 of the Code.
rjlHE facts are stated in the judgment of De Sampayo A.J.
H. A. Jayewardene, for the plaintiff, appellant.
De Jong, for the defendants; respondents.
Cur. adv. vult.
July 15, 1912. De Sampayo A.J.—
The land in claim was admittedly the property of one AppuhamyArachchi who died intestate about twenty-five years ago, leavinghis widow Ukku Menika and his daughter Ram Menika and grand-daughter Tikiri Menika as his heirs. For a debt of the deceasedAppuhamy Arachchi the land was seized in an action brought againsthis said heirs, and was sold by the Fiscal on Januray 21, 1889,when Medduma Banda became purchaser thereof. Before obtainingany Fiscal’s conveyance, Medduma Banda by deed dated May6, 1893, purported to sell the land to Muttu Carpie, through whomthe plaintiff claims title upon certain mesne conveyances. On March11, 1908, a Fiscal’s conveyance was issued in the name of MeddumaBanda, but no further conveyance was granted by Medduma Bandato the plaintiff. In the meantime, Ram Menika and Tikiri Menika bytwo deeds dated May 10, 1893, and January 29, 1900, sold the landto first and second defendants respectively. On this state of factathe questions which the District Judge had to decide were whetherthe plaintiff’s documentary title prevailed over that of the defend-ants, and whether the defendants had acquired a title by prescription-
18f*
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1912.
Di SampayoA.J.
Bidambaramv. PvnchiBanda
As regards the first question, it was contended on behalf of theplaintiff that when Medduma Banda obtained a Fiscal’s conveyancein 1903 his title related back to the date of sale and enured to thebenefit of the plaintiff. The District Judge repelled this contetionon the ground that as the Fiscal’s sale took place under the provisionsof the Fiscals Ordinance, No. 4 of 1867, the Fiscal’s conveyance hadno retrospective effect as it would have had if the sale had beengoverned by the Civil Procedure Code, which by section 289 gave,such effect to sales thereunder. Here, I think, the learned District.Judge was wrong- Section 289 of the Civil Procedure Code onlyreproduced in substance and effect the law as it prevailed even beforethe Code came into operation. Abubuker v. Kalu Etana,1 Weera-suriya v. Alles (ibid-); D- C- Galle, 10,577.2 Apart from authority,this must necessarily be so, because otherwise no sale in executionwould be safe against acts of alienation by the judgment-debtorpending the confirmation of the sale by the Court and the issue ofthe Fiscal’s conveyance. In my opinion, the plaintiff in this caseacquired the right of Earn Menika and Tikiri Menika to the land asat the date of the execution sale in 1889, and has therefore a betterdocumentary title than the defendants.
On the question of prescription,, however, I think the learnedDistrict Judge is right, He found on the evidence, and there isno reason to differ from his opinion, that the defendants havehud adverse and exclusive possession of the land ever since theirpurchases, and that Medduma Banda, the purchaser at the Fiscal’ssale, and those claiming under him, had no possession whatever.Accordingly he held that the defendants had a good prescriptivetitle against the plaintiff. It was argued in appeal, however, thatthe doctrine of relation back had the effect even of squeezing out theintermediate prescriptive possession of the defendants. I cannotagree that such a result is produced, especially in the case of a thirejparty. It may be granted that (to employ the words of section 289of the Code) the right and title .of any person holding under thejudgment-debtor, or deriving title through him, is divested on theconfirmation of the sale and the execution of the Fiscal’s conveyance,and consequently that in this case, as already observed, the defend-ants’ documentary title is defeated by the issue of the Fiscal’sconveyance to Medduma Banda.. But the prescriptive title of thedefendants was not one derived through the execution-debtors,but the title created by such possession is a new an independenttitle based on the statutory provision in that behalf. In my opinionthis new title is unaffected by the issue of the Fiscal's conveyanceto the execution-purchaser. In support of his argument, counsel forthe plaintiff-appellant relied on the cases already referred to, and alsoAaerappa v. Weeratunga3 and Tikiri Banda o. Loku Banda.* He(2889) 9 S. C. C. 32.3 (2922) 25 N. L. B. 63.
(S.C. Mins., April 2, 19X2.* {1911) 14 N. L. R. 411.
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admitted that none of these was a direct authority, but he argued1912.
that his proposition followed from them. I do not see that hesahpayo
receives any support from these decisions. On the other hand, I
think the observations of Lawrie A.C.J. in Jayewardene v. Nikulas 1 sidambaram
points to the contrary proposition: ** The doctrine or fiction of v-
relation back may be applied when it does no one any harm, but*
where interests have been created or have arisen in the interval from
the time to which relation back is desired these intrests cannot be
met by a legal fiction Moreover, Muttu Karupen v. Rankira 2 is
a direct authority for the proposition that even the judgment-debtor
may possess adversely, and so acquire a new title by prescription
against the execution-purchaser. I may add that both Jayewardene
v. Nikulas and Tikiri Banda, v. Loku Banda (supra) recognized an
estoppel working in favour of a private purchaser from circumstances
of delay to get a Fiscal's conveyance, and of neglect or failure to
{obtain possession on the part of the execution-purchaser. Such
circustances exist in this case, though in the absence of an express
issue between the parties on that point I am not disposed to rely
on ifffbr my judgment.
In my opinion the defendants were entitled to succeed on the pleaof prescription, and I would dismiss the plaintiff’s appeal with costs*
Pbrelra J.—
The first question to be decided in this case is whether, by the lawin force anterior to the enactment of the Civil Procedure Code, aFiscal's conveyance had the effect given to it by section 289 of theCode. I think it had* The cases of Abvbuker t;* Kalu Etana xand Weerasuriya v*. Alles 4 are in point. The next and moredifficult question is whether the execution-debtor, or rather atransferee of the execution-debtor, may, by possessing the propertysold during the prescriptive period, acquire a title thereto byprescription as against the purchaser at the Fiscal’s sale before heobtains his Fiscal’s conveyance. Section 291 of the Civil ProcedureCode gives the right to an execution-debtor to “ use and enjoy ”the property sold tin til the execution of the Fiscal’s conveyancein favour of the purchaser, subject to certain conditions, one of theconditions being that he is not to take for himself the crops andproduce of the land. This section has no application to the presentcase, because the Fiscal’s sale to the plaintiff’s predecessor in titletook place before the Code came into operation; but I may, in viewof the authorities to be presently discussed, observe that the mereuser and enjoyment permitted by this section can hardly be said tobe the same as the possession necessary for the acquisition of pre-scriptive rights. The possession that we have to deal with in thepresent case was clearly such a possession as is defined by section .3
i (1894) 3 17. L. R. 341.* (1889) 9 S. C. C. 32.
a (1310) 13 N. L. R. 326.4 Ibid—note.
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of Ordinance No. 22 of 1871; and in (he case of such a possessionPereira, j. ^ an execution-debtor of his property sold in execution, HutchinsonSidambaram C.J. was clearly of opinion that the possessor might acquire*Bandai prescriptive rights under the Ordinance. (See Muttu Karupen v.
Ranlcira *). But Mr. Jayewardene cited to us the later case ofCarolis v. Perera, and argued that, inasmuch as a person couldnot prescribed against himself, the execution-debtor could not acquiretitle by possession. In that case Grenier J., after observing thatit was clear that until the execution of a conveyance by the Fiscalthe judgment-debtor remained vested with the title, and by thedoctrine of relation back the execution-purchaser became vestedwith the title as from the date of seizure, held as follows:“ This
being so, the execution-debtor cannot set up a title by prescription,because then he would be seeking to prescribe against himself ”. Iwas impressed with this argument at the time, and I informedMr. Jayewardene that I thought that the reasoning would applyas well to the case of a transferee of the execution-debtor; but, onfuller consideration of the matter, I am inclined to think thatwhatever the facts of the case of Carolis v. Perera 2 may indicate,there is no case here of a person “ seeking to prescribe againsthimself ”. The execution-debtor has been (to use the words of theOrdinance) in the “ undisturbed and uninterrupted possession of theland by a title adverse to and independent of that of the plaintiff ” ;that is to say, he has possessed the land in his own right. A personmay have a good and valid paper title to land, but may, at the sametime, claim to set up a title by prescriptive possession withoutexposing himself to the charge of. “ seeking to prescribe againsthimself That happens in our Courts every day.
Mr. Jayewardene further argued that prescription could not runagainst his client, because he had no locus standi in, judic-io untilhe armed himself with the. Fiscal’s conveyance. The omission toobtain a Fiscal’s conveyance was his own fault, and he can claim tobe in no better position than one who having agreed to buy landhad paid for it, but delayed getting the necessary notarial transfer..I would dismiss the plaintiff’s appeal.
Appeal dismissed.
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1 (1910) 13 N. L. B. 326
* (1911) U N. L. B. 219.