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TERUNNANSE v. MENIKE.D. O., Badulla, 746.
Civil Procedure Code, s. 247—Action by execution-creditor—Hie incompetencyto prove prescription—Title of execution-debtor—Ordinance Ho. 22 of1871, s. 3—Meaning of “possession ” therein—Roman-Dutch Law as toprescription.
It is not competent for an execution-creditor, who in an actionunder section 247 of the Civil Procedure Code was seeking to have itdeclared that certain immovable property, which had been released byorder of Court from seizure under a writ of execution of a judgmentheld by him, was available for levy as his judgment-debtor’s property,to lay a foundation of title in his debtor to the property sought tobe so levied, by proving ten years’ adverse and uninterrupted possessionby his debtor of the property, immediately previous to the seizure inexecution, in accordance with the requirements of the Ordinance No. 22of 1871.
The “possession ” contemplated in section 3 of Ordinance No. 22 of1871 is that of q party to a suit, or of his predecessor in title, but notthat of a third party.
The- effect of the Ordinances 22 of 1871 and 8 of 1834 is to sweepaway all the Roman-Dutch Law relating to the acquisition of immovableproperty by prescription, except as regards the property of the Crown.
F~nHE facts of the case are stated in the judgment of theirLordships.
Bawa and Van Langenberg, for appellant.
Sampayo, for respondent.
17th September, 1895. B0N8ER, CJ.—
In this case the plaintiff brought an action under section 247 ofthe Civil Procedure Code claiming, (1) to have an order made bythe District Court on a claim inquiry set aside ; (2) that oneJohannis Fernando might be declared the owner of a certain field,and that such field might be liable to be seized and sold under awrit of execution issued by the plaintiff against the said Fernando;(3) that the defendants might be ejected from the field and the
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plaintiff pat into quiet possession thereof; and (4) Rs. 50 damages. 1896.For the third claim there was obviously no foundation.Bohb«*,C.J.
It appears by the evidence that the plaintiff purchased “ oneainunam” of this field on the 26th of June, *1871, when it wassold by the Grain Tax Commissioners for default by the thenowner, the husband (now deceased) of the first defendant, inpayment of the tax.
No conveyance, however, was ever made to the plaintiff, nor acertificate of sale under Ordinance No. 5 of 1866 given to him, sothat the plaintiff did not obtain a legal title to the land.
It further appears that by a deed of the 16th July, 1890, theplaintiff conveyed the land to the said Johannis Fernando for a- sum of Rs. 150, which was not paid, but for which the saidJohannis Fernando the same day mortgaged the land to the plain-tiff. The plaintiff alleges that Johannis Fernando went intopossession, but never paid the purchase money or any part thereof.
The defendants, who are the widow and daughter of the lateowner of the land, seem to have been continuously asserting theirright to this land ever since his death.
It is a significant fact that they were admittedly in possessionof and cultivating this land on one occasion after the purchase bythe plaintiff for a whole year. The plaintiff explains this bysaying that they went in as his tenants. Considering that thesepeople had been all along asserting a right to this land, thisexplanation is in the highest degree improbable, and I am by nomeans satisfied that the plaintiff has ever had possession of thisland for such a period or of such a character as satisfies therequirements of Ordinance No. 22 of 1871.
But, assuming that the plaintiff has shown that he hadpossession of this land for ten years uninterruptedly before hissale to Fernando, I do not think that this can avail him in thepresent action.
What he has to prove in this case is that the land is Fernando’s,but apart from Ordinance No. 22 of 1871, Fernando had no title.
Can the plaintiff set up prescriptiou to prove Fernando’s title ?
In my opinion he cannot.
It was held in the case of Punchirala v. Andris Appuhami(3 S. G. R.149) that it is not competent for a plaintiff or defendantto set up a third person’s title under section 3 of Ordinance 22of 1871, but that the possession to be proved must be that of aparty to the suit or of his predecessor in title, and that the judg-ment to be given under that section must be declaratory of theright of a party to the action, not of a stranger. I agree withthat decision.
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1896. The Ordinance was passed, as I venture to think, to protectWithbm, i. actual possessors only, and was intended to be need as a shieldonly, and not as a weapon of offence.
If the person in possession were sued by the true owner, heeonld plead the Ordinance, or he might take the initiative if hispossession was disturbed or threatened, and apply for a decreeestablishing his title and quieting him in possession. The Ordi-nance differs essentially from the English Statute of Limitations,which at the expiration of the statutory period transfers theownership to the possessor, and extinguishes the title of theoriginal owner.
The plaintiff's action therefore fails, and should be dismissedwith costs.
Withers, J. —
The only point discussed before us was whether an execution-creditor, who in 8n action under the 247th section of the CivilProcedure Code was seeking to have it declared that certainimmovable property, which had been released by order of Courtfrom seizure under a writ of execution of a judgment held by him,was available for levy, as his judgment-debtor’s property couldlay a foundation of title in his debtor to the property soughtto be so levied, by proving ten years’ adverse and uninterruptedpossession by his debtor of the property immediately previousto the seizure in execution, in accordance with the require-ments of Ordinance No. 22 of 1871.
It has been laid down and constantly acted upon by this Courtthat the governing Ordinance No. 22 of 1871, and the previousOrdinance No. 8 of 1834, kept alive the repeal by regulationNo. 13 of 1822 of “ all laws heretofore enacted or customs existing“ with respect to the acquiring of rights and the barring of civil“ actions by prescription,” and that the consequence of thatregulation and those Ordinances was to sweep away all theRoman-Dutch Law relating to the acquisition of title in immov-able property (including positive and negative servitudes) byprescription, except as regards the property of the Crown.
Hence the only law relating to the acquisition of privateimmovable property by prescription is to be found in the 3rdsection of the Ordinance No. 22 of 1871.
That section determines the mode of acquisition of a prescrip-tive title.
It has been held over and over again by this Court that a decreeof title to such immovable property can be granted under thecircumstances set forth in that section.
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The immovable property, however, it is clear, most be the 1896.subject of litigation between contesting parties, a plaintiff and a bbowx*, aj.defendant.
If a plaintiff solicits the decree provided for by that section, hemost prove that he has had adverse and uninterrupted possessionof the immovable property for ten years previous to the bringingof the action ; and if a defendant solicits such a decree, he mustprove that he has had a similar possession of the immovableproperty.
The judgment-debtor not being either a party plaintiff or aparty defendant to the present action, it is clear that the execution-creditor cannot put forward proof of the statutory possession inhis judgment-debtor for the purpose of supporting his presentclaim.
This very point was determined in the case of Punchirala v.
Andris Appuhamy reported in 8 S. C. R. 149, and we wereinvited to re-consider that decision.
In my opinion that was a good decision, and so far as this pointis concerned I would give judgment against the plaintiff.
In this action the case for the plaintiff is that he on the 26thJune, 1871, purchased one amunam of a field at a sale held underthe provisions of the Ordinance No. 5 of 1866; that he held posses-sion thereof till the 16th July, 1890, when he sold it to JohannisFernando for Rs. 150 to be paid in three instalments, and hispurchaser gave him on the same date a mortgage bond to securesuch payment; that on the 19th January, 1893, plaintiff put thisbond in suit in the action No. 532, and on the 14th March, 1893,obtained ex parte a decree nisi, which was made absolute on the9th May; that in the interval between these last two dates, viz.,in April, 1893, defendants entered into and took possession of thefield, and thereafter, when in July plaintiff issued writ of executionand seized the field, defendants laid claim thereto, which claimwas upheld on the 19th September; and that plaintiff thereafter,under the provisions of section 247, Civil Procedure Code,instituted this action on the 27th September, and in the 8thparagraph of his plaint specially averred that the defendants haveentered into and held possession for five months before theinstitution of his action.
Now plaintiff admits he did not get from the Government Agentthe certificate which section 9 of Ordinance No. 5 of 1866 madesufficient to vest the property in him, nor a transfer of the land.The title of his execution-debtor thereto—the seizable interest
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1896. therein [which by a mistake in paragraph 4 of the plaint, that?
Baownc AJ. finds repetition throughout the proceedings, is termed a seizableinterest of the plaintiff instead of belonging to the plaintiff’sexecution-debtor]—can therefore be one resting only on the quietand undisturbed possession of plaintiff and his -vendee by adversetitle for over ten years previous to the institution of any actionwhich puts in question the sufficiency of fact of such an allegedstatutable possession. The learned Acting District Judge has heldthat such possession has been satisfactorily established. I thinkit is open to question whether it has been so, for though I believethe fact of the original auction sale, and though the defendantthereafter, on some date not given by her deed No. 4,965, gave asthe northern boundary of her other two amunams this one anddescribed it as the property of the plaintiff, it is in evidence thatfthere have at different times, the dates of which are not clearlygiven, been disputes actually culminating in Gansab&wa litigationrespecting plaintiff’s rights to the rents and revenues of the field.We have not the records of those litigations before us to say howfar they disputed plaintiff’s title to the land, or only raised somequestion as to fact or amount of rent or share due to him; andit is for plaintiff under section 3 of Ordinance No. 22 of 1871(assuming at present he has right here to do so) to give fullproof that his possession was undisturbed and uninterrupted;and next it must be observed that from plaintiff’s evidence thathe would not have put his mortgage bond in suit had not defendantstaken possession of the land, and the fact that he paid no tax for1893, it can only be concluded they had so taken possession priorto the 19th January, 1893, when he instituted his suit No. 535,and hence that the defendants had been in possession for at leasteight months before he instituted this suit. Now, assuming asbefore that plaintiff would have right to sue to establish hismortgagor’s title by prescriptive possession, and that under thedecisions in Ramandthan, 1860-1879, and II. C. L. R. P. 45, hewould, despite the decision in 8 S. G. C. 31, not be debarred by hiswaiting for those eight months from bringing hiB action, yet it isclear he could in January, 1893, have instituted either a separateactio hypothecaria against the defendant as those then in possessionof the mortgage, or else have joined them as co-defendants in hisaction against her mortgagee instead of waiting for the impro-bability that on his issuing writ they would not dispute his rightto make the mortgage exigible.
Then arises the question which I have hitherto assumed inplaintiff’s favour—whether under section 3 of Ordinance No. 22of 1871, and his right thereby to bring his action “ for the purpose
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“ of being quieted in hia possession of lands, or to establish
“ her claim in any other manner to anch land,” he can sne hereto have established his mortgagor’s title thereto by prescriptivepossession of the mortgagor and his predecessors in title, whichin this instance “ includes plaintiff himself." The question mustbe asked as of any writ holder who had to sue under section 247,Civil Procedure Code, and after hearing the further argumentaddressed to us I consider such writ holder has no such right.The words are limited to his claim and prtmd fade relating tohis own personal claim in and for his own personal rights haveno wordB added thereto, which would give them this larger effectof establishing a claim for another, although in its other parts thesection is so suggestive of and helpful to establish a claim throughanother. It was urged on us this would baffle many a creditorand help many a slippery debtor by debarring the former fromcontesting in a section 247 action a false claim preferred boplausibly as to be upheld by the Court, but it will be rememberedthat a creditor can by an examination of a debtor under section 219,before isBue of writ, ascertain what prescriptive rights he has,so as to forestall any collusive claim, and that success in such anexpedient may only result in an arrest and insolvency of thedebtor.
But all these considerations indicate to me that plaintiff’sentire procedure has been erroneous, and that under the objectionstaken in the answer and pressed at the trial the plaintiff is notentitled to sustain this action against the defendants.
He should have instituted the hypothecary action againBtdefendant in the first instance as part of, or concurrent with, hisaction against his mortgagor ; and if he elected to proceed withthe latter alone under the circumstances that (as he both allegesand admits) his mortgagor’s residence was unknown to him, heshould have followed the procedure specially directed for such 8contingency by section 645 et seq. of the Civil Procedure Code,for section 648 makes special provisions for such a contingencyas has here occurred, simplifying procedure and securing litigationmore prompt and less costly than that which has been here adoptedof action against mortgagor, claim, and this quasi hypothecaryaction under section 647.
Not having conformed to the sequestration procedure againstthe absent mortgagor, I cannot regard the plaintiff to haveestablished as against these defendants that he ever obtained anymortgaged decree. Moreover, the formal decree both fixes asthe date for payment one anterior to the date of decree absolute,viz., a date between those of decree nisi and decree absolute, but
Blown k, AJ.
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1896. also does not at all conform to the requirements of section 201.
Bbownk AJ. ^ does not show ex facie that the property decreed to be sold wasmortgaged by the defendant to the plaintiff by his bond dated16th July, 1890, and it gives no directions whatever for sale. Itnever empowered the Fiscal to seize the lands. The authority tohim to be valid shonld have been given in the decree itself, andnot in any writ or subsequent order. If it can be held that thedecree obtained in his abortive or irregular mortgage action isgood for aught as a money decree, and we could regard this as anordinary case of a section 247 action by creditor against claimant,I can only say that I regard the proof of ten years’ uninterruptedand undisturbed title as insufficient, and hold plaintiff is notentitled to succeed herein. But I am not disposed to allow theresult of an action to be good for a purpose other than that towhich it was originally directed. It would be plainly unjust tothe defendants that we should do so, and thereby give plaintiff ageneral writ against all his property in the first instance insteadof allowing to the debtor the shield of the value of the mortgageso far as it Bhould prove effectual.
I would dismiss plaintiff’s action with costs.
TERUNNANSE v. MENIKE