096-NLR-NLR-V-29-VANGADASALEM-v.-CHETTIYAR.pdf
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1988.
Present: Garvin and Dalton J.J.
VANGADASALEM v. CHETTIYAR.
28—*D, C. (Inty.) Chilaw, 7,176.
Writ of possession—Declaration of title to land—No prayer for ejectment—Civil Procedure Code, s. 217.
Where a person obtained a declaration of title to land without anorder for ejectment,—
' Held, that he was not entitled to a writ of delivery of possession.^^PPEAL from an order of the District Judge of Chilaw.
Croos Da Brerat for 5th defendant, appellant.
May 8, 1928. Garvin J.—
The point for decision upon this appeal is whether the DistrictJudge, was right in ordering a writ of possession on the applicationof the plaintiff/ who had obtained a decree declaring his title to certain
> (1897) 6 Tam. 91.•3 {1896) 23 Cal. 896.
*{1886) 6 Tam. 60.* (1914) 42 Cal. 708.
(2916) 42 D. L. 12.12Q-. {Can.), 15 Empire Dig. 709.
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allotments of ‘ land: The plaintiff, in whose absence and withoutwhose knowledge-a final decree for partition affecting the land ofwhich he claimed to be the owner was entered, brought this actionpraying—
That the decree in the partition action and certain deeds
executed thereafter and on the footing of that decree beset aside.
That the defendants be condemned to pay him a sum of
Rs, 1.000 as damages.
For costs .
Alternatively, if the decree could not be set aside, that the
1st, 2nd, 3rd, and 4th defendants be condemned to payhim a sum of Rs. 16,000 as damages, with legal interestthereon, and costs.
The plaintiff failed to get the relief he claimed in the Court below,but on appeal to this Court it was held that the decree of whichhe complained had not the conclusive effect of a decree for partitionduly entered under the provisions of Ordinance No. 10 of 1863,and in accordance with that decision decree was entered declaringhim entitled to the land he claimed; no damages were proved, andnone were awarded.
There was no prayer for ejectment,, and there is no expressdirection as to ejectment in the decree. It was successfullycontended in the Court below that a right to possession is impliedin a decree declaring a right to property. The decree entered inthis case was accordingly treated as a decree granting the plaintiffa declaration of title and ejectment, and a writ of possession wasallowed.
From this order the 5th defendant has appealed.
Since the decree does not in terms direct that the defendants beejected it only remains to examine the proposition that a decreedeclaring a right to property is impliedly a decree to yield uppossession as well.
The learned District Judge refers to the cases of Hadjiar v.Mohamadu 1 and Fernando v. Gathiravelu2 as establishing theproposition that a final decree for partition impliedly gives to eachof the parties to whom a share in severalty has been allotted aright to be placed in possession thereof, and thinks “ that in asimilar manner an ordinary vindicatory decree declaring a right toproperty implies a right to possession also.**
The case of Fernando v. Gathiravelu (supra) is not an authorityfor the first of these propositions, nor does it approve or uphold thejudgment in Hadjiar r. Mohamadu {supra). The latter case is theonly authority on the point. Without expressing any opinion as to1 4 G.W. B. 371.* 28 N. L. B. 492.
1988.
Gabvin
Vangado-ealem v.CheUiyar
1928.
Qabvin J.
Vangada-
saumv.
Chettiyar
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whether or not Hadjiar v. Mohamadu (supra) was rightly decided,it is a ruling which clearly cannot be extended to every decreedeclaring a right to property, and must be confined to final decreesfor partition, since the ruling is founded upon a consideration of theprovisions of the Ordinance and its objects and purposes.
In the classification contained in section 217 decrees which declarea right to property are treated as distinct from those which commandthe person against whom it operates to yield up possession ofimmovable property. It by no means follows that a declaration ofa right to property involves a declaration of a right to the immediatepossession of that property. For instance, an action may well beinstituted for a declaration of right to property, the right to thepossession and enjoyment of which for life or for a specified periodis admittedly in the defendant. There are several other casesin which a declaration of a right to property may be sought andgranted without any intention to affect the possession or enjoymentthereof.
In this case, whether it was intentional or accidental, the plaintiffdid not ask that the defendants be ordered to yield up possession ofthe property, and no such decree has been entered.
The decree which he holds is not a decree for possession undersection 217 (c), and cannot be executed as such.
The appeal must, I think, be allowed, with costs, both here andin the Court below.
Dalton J.—I agree.
Appeal allowed.