DE KRETSEE J.—Siripina and Ekanaika.,
1944Present: So arts z and de Krefcser JJ.SIRIPINA, Appellant, and EKANAIKA; Respondent.
6—D. C. Kandy, 1,060.
Writ of possession—Decree for possession by lessor against lessee—Applicationfor writ of possession against sub-lessee-—Civil Procedure Code, 8. 325.
Where a lessor has obtained a decree for possession against a lesseehe is not entitled to invoke the provisions of sections 325 and 326 of theCivil Procedure Code against a sub-lessee holding with the consent of thelessor or his representative.
A PPEAL from a judgment of the District Judge of Kandy.
E. B. Wikremanayake (with him H. W. Jayawardene), for defendant,appellant.
N. E. Weerasooria, K.C. (with him 8. R. Wijayatilake), for plaintiff,respondent.
Cur. adv. vult.
August 9, 1944. de Kretser J.—
The plaintiff, claiming to be the duly appointed trustee of the Hudum-pola Vihare, sued Siripina alias Ceciliahamy alleging that she was theexecutrix de son tort of the estate of one Kira to whom a previous trusteehad leased certain premises upon Indenture No. 830 dated June 4, 1935,for a period of 10 years commencing from January 1, 1935. Neitherthe lease nor a copy of it was annexed to the plaint.The defendant
appeared and consented to the lease being cancelled, damages and costswere waived and writ of ejectment was to issue on October 31, 1942,*16 days after the consent to judgment. On February 24, 1943, theProc.tors for the plaintiff moved for a writ of ejectment and a writ ofpossession. The Fiscal reported that he could not deliver possessionas the doors of the goat shed standing on the land were closed and asone Veda Manikka Nadar claimed the shed as having been put up by him.
Section 325 of the Civil Procedure Code indicates the procedure to befollowed on such a return being made by the Fiscal. The plaintiff,however, did not present a petition in the manner described in that section,but he swore an affidavit making certain allegations, and his Proctorsfiled a motion with .the affidavit praying that the Fiscal be directed tobreak open the doors of the goat shed and deliver possession. The Courtdid not make an order under section 377 (b) as required by section 325,
DE KitETSEH J.—Stripina and Ekanaika.
but ordered notice on Veda Manikka Nadar. He appeared and fileda statement of objections, alleging that the plaintiff’s predecessor intitle had consented and acquiesced in the erection of certain buildingson the land by the party noticed and another, and that he was not aparty to the action In which the decree was entered. He also tookexception to the form of the application. When the matter came up forinquiry, the Judge does not seem to have had his attention directed eitherto section 325 or section 326 of the Civil Procedure Code. He heard,some evidence and made an order stating that he was not going to inquireeither into the question of the ownership of the goat shed or whether theparty noticed had the right of jus retentionis, because the party rfoticedhad only an informal lease from Kira and being a sub-lessee, was boundby the decree cancelling the lease. I have stated enough to show theplaintiff’s application must fail both because he has failed to complywith section 325 regarding the form of his application and section 326>regarding the matters which he had to prove at the inquiry.
Under section 326, before the Court can direct that the judgment-creditor be put in possession, it must be satisfied that the resistancecomplained of was occasioned by the judgment-debtor or by someperson at his instigation. Far from these facts being proved, theevidence shows that Kira and the incumbent of the temple gave a leasein 1926 on document XI for a period of 5 years to the party noticedempowering him to erect a house thereon (if he thinks necessary) andrequiring him to pay all taxes and rates. It also provided for a renewalof the lease. This document was not notarially executed but it was not,therefore, devoid of all value. It could at least operate as a tenancyat will or, rather, as a monthly tenancy. The buildings were erectedand the erection was expressly sanctioned. Besides, the lessor couldhardly have been ignorant of their existence. The party noticed was,therefore, not only a tenant, but he was a tenant let in with the consentof the lessor or his representative, and he had, besides his rights as atenant, the rights of an improver. The tenancy was extended and thereis at least another document (X 2 of 1937) which is called “ Lease DeedNo. 830 ” extending the tenancy. No. 830, it will be remembered, isthe number of the lease referred to in the plaint.
The only other document is a document marked Z 1 produced by theplaintiff showing that in 1932 Kira consented to the cancellation of thelease bearing No. 27,873 of June 18, 1931, also for a term of 10 years andalso commencing on January 1, 1935. If the plaint be correct in itsallegations, a fresh lease was entered into in 1935 from January 1, for a.period of 10 years. What happened between 1932 and 1935 has not beendisclosed.
Mr. Weerasooria argued that the appellant was a sub-lessee and as-such, was bound by .the decree against the lessee and he quoted extractsfrom Indian cases from commentaries (the full reports not being available)in support. These do not go beyond saying that a sub-lessee who has nota title independent of his lessee is bound by the decree. One can conceiveof a tenancy where the lessee of a house or of a set of rooms lets in someperson into one room—such a person would be more or less his dependant.The term “ sub-lessee ” must not mislead. It may mean that the lessee-
DE KRETSER J.—Siripina and Ekanaika.
assigns all hia rights on the lease. In that case the second lessee comesafter the first lessee and derives his title through him, but what he hasobtained is an assignment and his rights are independant of the lessee.If it is sought to bind him by a decree, then he ought to be made a partyto the action. The ruling principle is that no person is bound by a decreeunless he is a party to the action. Certain subordinates may be boundby the decree, but a tenant’s position is different. Ordinarily he wouldnot be bound by the decree unless he were a party to the case. Section324 seems to recognize such a situation for it says that if the Fiscal findsthe property “ in the occupancy of a tenant or other person entitledto oC^upy the same as against the judgment-debtor, and not bound bythe decree to relinquish such occupancy ”, he shall give possession in the-manner indicated, i.e., constructive possession.
Section 326 also recognizes this principle, as do sections 327 and 328.It seems clear beyond doubt, therefore, that the proper order the courtshould have made was to dismiss the plaintiff’s application with costs-,leaving him to take fresh proceedings if so desired.
In this connection the case of Ezra v. Gubbay 1 is interesting. In thatease an identical situation arose. Rankin J. said It is- not absolutelynecessary to join as defendants all persons in possession: in some circum-stances it may be wrong and oppressive to do so; Geen v. Herring 2. Therisk taken by omitting to join any such person is the risk that afterdecree he may set up a right in possession, and independently of the leasewhich has become forfeited, whether by equity against the lessor or byadverse title. This, however, is the extent of the risk and, apart from theCode, I should have no difficulty in enforcing this decree against Mrs.Wallace, her estate or interest having come to an end with the forfeitureof the lease (Minet v. Johnson 3) and there being no title of evidence beforeme as to the action having been collusive.
There is nothing, however, in the least paradoxical in the suggestion,that, in order to get an effective right to actual possession through theSheriff, a plaintiff must make all persons defendants who were in posses-sion at the date of his suit. This used to be the law in England, and theremay well be special reasons in favour of insisting on this rule in India.
I have to see what the Code provides.”
Rankin J. then proceeded to examine the provisions in the IndianCode corresponding with sections 325, &c., of our Code- and concludedthat the undertenant was not bound by the decree and said ‘‘ The resultis that in my view, an action for possession based upon forfeiture of aterm should, for practical reasons, be brought against all persons inpossession (including constructive possession, which seems to be coveredby R 99 (Mancharam -u. Fakirchand 4) at the date of the suit, not that thesuit is necessarily defective otherwise, but because, the decree will bedifficult to enforce under the Court.”
The order entered in this case is set aside and the plaintiff’s applicationdismissed with costs in the District Court. He -will also pay the costs-of this appeal.
Soertsz J.—I agree.
1 A. I. R. (1920) Cal. 706.3 (1891) 63 L. T. 507.
3 (1905) I. K. B. 152.4 (1901) 25 Bom. 478.
SIRIPINA, Appellant, and EKANAIKA , Respondent