No issues were framed at the trial. The plaintiff put in evidencethe mortgage bond by the respondent and his wife, the' plaintin the mortgage action and the conveyance No. 100 of November8, 1921, the plaint answer and decree in D. C. Colombo, 18,227,also the agreement No. 400 of February 3, 1923, used in theD. C. Colombo, 18,155, together with the proceedings in that case.
This evidence wus sufficient to prove that' the respondent’stitle to the four blocks of Muruthagaspitiya had passed to theplaintiff, and with it the right to the possession of tiiese blocksagainst the respondent.
( 455 )
The plaintiff then closed his case, reserving the right ta leadevidence in rebuttal;
I omit at this stage reference to the unlettered block of 20 acres3 roods and 20 perches, the position regarding this being different.
The respondent read in evidence the deposition of the plaintiffin case No. 18,277, and relied upon certain cases, to which I shallrefer later, in support of his contention that the only questionin the case was one of possession. /
If the question before the Court was .the conflicting claims ofthe plaintiff and the respondent to the right to possess these blocksthe plaintiff was entitled to succeed, fed* the respondent showedno reason why the right to possession did not pass to the plaintiffwith the title to the land.
The learned District Judge held that the question before the,Court was one not of ownership but ctf possession only, and thatas it was .proved that the respondent was in possession and hold-ing the property against the plaintiff he was entitled to succeed.He regarded the ruling in Fernando v, Fernando (supra) as anauthoritative decision that the question in this case was one ofpossession only, and not a question of conflicting rights to possessionto be decided by the test of title.
He dismissed the action of the plaintiff, with costs, and theplaintiff has appealed.
In my opinion the learned District Judge has not correctlyunderstood this judgment. The point for decision in that casewas this:The plaintiff under a decree of a Court of Bequests
seized land which was over Bs. 300 in value. There was resistanceto the writ of possession, and an action under section 327 followed;objection to the jurisdiction of the Court to hear this action wasraised, it being contended on the authority of the case of Tama* jiv. Baghu 1 that the investigation under section 327 was merely acontinuation of the action in which a writ issued and should beregarded as a step in execution of the decree; it Was held that thiswas not so, and that for the purpose of jurisdiction an investigationunder section 327 should be regarded as a fresh suit.
The view of the learned District Judge and the argument in
appeal based on f the following passage in the judgment of .
Schneider J.: —
“The decree sought to be executed is a decree only for possessionof immovable property. Accordingly .the claim for itsexecution should rightly be confined to the limits of thequestion of possession.’*
That the question is one of possession is correct, in the sensethat the Court makes no declaration of title in plaintiff or claimant,but merely passes an order for executing or staving execution of
1 (1870) 4 Bom. 123,
the decree, that is to say, it orders the ejectment of the claimant orallows him to remain in possession; but it reaches the objectiveby deciding whether the claimant has the right to retain possessionor whether he has no right to retain possession against the plaintiff.
Schneider J. has pointed out the change in the law in India bywhich the scope of this action has widened from one of the natureof a possessory suit to an investigation in whjch “any questionof title arising between the contesting parties in connection withtheir right of possession may now be finally determined in suchinvestigation as in an ordinary action for ejectment*’—these wordsare from the judgment of Birdwood J. in Mould* Khan v. GoriKhan,1 and in the same case Jardine J. referring to section331 of the Act of 1882, which is the same as sections 327 and329 of our Code, said: “In these words I can see no indicationthat the Legislature intended to confine .the plaintiff to any parti-cular pleading or proof or to restrict him from showing any rightsuperior to that of the defendant which he might wish to allege.It is apparently vexatious to require two suits to be broughtbetween the same parties when the real question at issue betweenthem might be determinable at one trial.*’
This has been followed among other cases in Babojirao andanother v. Fatesing Shahaji Bhosle,2 Mancharam v. Fahirchand*and Mahip Rai v. D(warka RaiA
The same view of the scope of the investigation under section327 has been adopted in the local cases. See in particular thecase of Abubalcer Lebbe v. Ismail Lebbe and another ' and alsoFcrera v. Brampy,6 Domingu v. SandavasehnraJ Lebbe v. AponsuA
Mr. H. V. Perera sought to support this contention by twocases, in which it was held that in the case of the investigationunder section 328 the only question is* .the “right to possession,"or, as Withers J. expressed it, the right to immediate possession;these cases are Rosanahamy* v. Diago 9 and Ratnaike v, Rodrigo,10where it was held that the question was whether the claimantis entitled to be restored to possession and that the question oftitle should not bo gone into.
It is not necessary for the purpose of this appeal to considerthese decisions, but I may state that- the right of .the claimant inan investigation under section 327 to retain possession and the“right of a claimant in an investigation under section 328 to berestored to possession may well be determined on differentgrounds; in the former case the claimant is'given an opportunity,of showing why he should not be dispossessed by process'of law—,
(1890) L L. R. 14 Bom. 627.»(im) I. L. B. 22 Bom, 967.
(1901) /. L. B. 26 Bom. 478.« (1906) 1. L. B. 27 AU. 46::.
(1908) 11 N. L. B. 309.
9(1896) 2N:Lt R, 121..
7 (1892) 2 0. L. B. 108.
(1909) 1 Cur. L. R+197.
(1898) 3 N. L. R. 203.
10 (1913) 1 Bal. A O. 68.
( 467 )
and in the latter case he seeks to be restored to a possession ofwhich he had been deprived by process of law not directed againsthim; in a possessory action a person ejected otherwise than bydue process of law is entitled in certain circuxQstances to berestored to possession as against the rightful ojwner who hasousted him. I am, therefore, of opinion that as regards the lotsA, B, C, and D the plaintiff has proved his right to possessionagainst the respondent, and it only remains to* consider whetherhe is barred from proving his right in this action by the decree inD. C. Colombo, 18,155.
This action was brought by the plaintiff. and^Mr. A. C. Abey-wardena, a proctor, against the defendant on an agreement No. 400of February 22, 1923. By this agreement the plaintiff after hispurchase of the mortgage properties gave possession of them toMr. Abeywardena, who agreed to buy them within five years, makingpayment by instalments during that period. This was no doubta.. plan to enable the respondent to buy back the properties,and Mr. Abeywardena placed the respondent in possession on theunderstanding that he should be accountable tot him for the income.
The respondent failed to account to Mr. Abeywardena for theincome, and .the instalments of price payable under the agree-ment were consequently not paid by Mr. Abeywardena to theplaintiff.
The plaintiff and Mr. Abeywardena then filed action No. 13,155against the respondent; Mr. Abeywardena pleaded that plaintiffhad rightly terminated the agreement owing to his default inpayment, but that he was unable to give him possession as therespondent unlawfully retained possession. Thg cause of actionalleged was Mr. Abeywardena’s right to have the respondent ejected.
Judgment was entered for the plaintiff, and the present plaintiffultimately got possession of the land claimed. For some reasonhowever no port of Muruthagaspitiya estate was claimed in thataction, though it is said that possession of it was given under theagreement No. 400.
The respondent claims that as the plaintiff in suing for what therespondent say? was a breach of the agreement No. 400 omittedto claim relief in respect of Muruthagaspitiya estate, he is nowbarred by the provisions of section 34 of the Civil Procedure Codefrom maintaining .this action for the estate.
It is a sufficient .answer to this objecticin that the action No. 13,155'was not brought1 so far as the respondent was. concerned on theagreement No. 4001 He was treated as a trespasser, who preventedMr. Abeywardena from carrying out his obligations under theagreement. The agreement may have been made for his benefit,but he was no party to it, and it cannot be said that this* action is:one arising out of the breach of agreement.
V* '
( «8 )
The plaintiff is therefore entitled to the possession of the blocksA, B, C, and D, and the plaintiff is entitled to execute his decreeagainst the respondent for them.
The position of the plaintiff as regards the block of 26 acres
and 8 roods is different. The .title to this block has not passed
to the plaintiff. The plaintiff claims that this lot was mortgaged
to him, that in fact it was sold, and that at one time he had
possession of it, and that he is entitled to have the conveyance
rectified bv its inclusion.
*• .
I set aside the order of the learned District Judge, and orderthat the decree for possession be executed against the respondentfor the lots A, B, C, and P in the plan No. 1,157 market PI.
The plaintiff is allowed, after obtaining a rectification of theconveyance, to have the question of his right to.possession of the26 acres 2 roods and 80 perches lot decided in this action, and forthis purpose the petitioner is allowed leave to amend his petitionand the respondent to amend his answer if so advised.
The appellant is entitled to the costs of the trial and of thi<appeal..
liVALL Grant J.—I agree.
Appeal allowed.