Wilbert v Jayasiriwardena and others
CA (Amaratunga, J.)
JAYASIRIWARDENA AND OTHERSCOURT OF APPEALAMARATUNGA, J.
A.L.A 28/2001 (LG)
C.KANDY 10476/LOCTOBER 30, 2003
Civil Procedure Code – Sections 325, 325 (1) and 325(4) – Writ of Execution fordelivery of immovable property – Forms 62, 63 of the Code – Writ to contain adescription of property to be delivered under the Writ – Conflict of Claims – re-iden-tification of land – Who should begin?
The Trial court held that the petitioner who resisted the Fiscal should begin, in ansection 325 Inquiry.
To deliver possession the Fiscal has to go to the land described in theWrit. Recourse to section 325 is possible it and only if resistance isoffered to the Fiscal’s attempt to deliver property described in the Writ.
The identification of the property to which the Fiscal went to execute theWrit is the first thing to be considered in deciding who shall begin in anyinquiry under section 325 when there is a clear conflict between theclaims of the contending parties about the land to which the Fiscalwent.
It was the duty of the plaintiff to begin by calling the Fiscal to prove theidentity of the property to which he went to execute the Writes even ifthe Fiscal’s Report is accepted in toto, it does not contain sufficientmaterial to prima facie indicate that he went to the land described in theWrit.
Application for Leave to Appeal from an order of the District Court of Kandy withleave being granted.
Case referred to:
1. Thuraisingham v Kanagaratnam – 61 NLR 80
N.R.M. Daluwatte, P.C., with Gamini Silva for 3rd respondent-petitioner.
D.P.Mendis, PC., with Nandeera Gunawardena for plaintiff-respondent.
Other respondents absent and unrepresented.
Sri Lanka Law Reports
(2003] 3 Sri L.R
January 20, 2004
GAMIN1 AMARATUNGA, J.' This is an appeal with leave to appeal granted by this Court against 01the order of the learned Additional District Judge of Kandy with regardto the duty to begin in an inquiry under section 325 of the CivilProcedure Code. The facts relevant are briefly as follows.
The plaintiff filed action against the defendant claiming that thedefendant failed to deliver possession of the land he purchased fromher and praying for the delivery of possession of the relevant propertyto him. The description of the property given in the schedule was a longdescription divided into four paragraphs. The defendant did not appearin Court and the Court entered ex parte judgment and decree in favour 10of the plaintiff. When the Writ of execution was issued for the deliveryof possession to the plaintiff the fiscal went to execute the Writ on12/8/1985.
In his report dated 13/8/1985 the Fiscal has stated what happenedwhen he went to the land situated at Cuda Ratwatte Mawatha to exe-cute the Writ. A person called Dhanapala was present in the property.
He claimed that he was the watcher looking after the property onbehalf of Wilbert (petitioner) who has taken the land on lease fromRev.Vipassi, the 4th respondent. The defendant who was present saidthat Wilbert was not a person who possessed the property on her 20behalf. The fiscal thereafter returned to court and reported that sincethe property was in possession of Wilbert who did not possess it onbehalf of the defendant, he could not deliver possession to the plaintiff.
The plaintiff thereafter by petition dated 9/9/1985, filed in terms ofsection 325(1) of the Civil Procedure Code, complained to court aboutthe resistance offered to the Fiscal and moved Court to issue notice onthe petitioner, Dhanapala and Rev.Vipassi and to make an order to theFiscal to execute the writ and deliver possession to him.
Appearing in Court upon notice issued on them, the petitioner andthe 3rd respondent filed their objections/ claim on 7/11/1985. They stat- 30ed that the land to which the Fiscal came was a land the petitioner tookon lease from the 4th respondent Rev.Vipassi. They have described inthe schedule to the petition the land possessed by them. They havefurther stated that they knew nothing about the land described in theschedule to the plaintiff’s petition.
Wilbert v Jayasiriwardena and others
When the description of the land given in the schedule to the plain-tiff’s application under section 325(1) (and also in his plaint) is com-pared with the land described in the schedule to the petitioner’s objec-tions a significant difference between the two descriptions at oncebecomes apparent. The western boundary of the land described in thepetitioner’s objections is the Mahaweli Ganga. There was no referenceto the Mahaweli Ganga as one boundary to the land claimed by theplaintiff. Therefore it is clear that on the face of those documents there.were two conflicting claims before Court. While the plaintiff claimed thatthe petitioner and the 3rd respondent offered resistance to the Fiscaland prevented him from delivering possession of the property to whichthe Writ related, the petitioner claimed that he knew nothing about thatproperty and the Fiscal came to the land possessed by him upon alease obtained from an independent source and that land is different tothe land claimed by the plaintiff. In terms of section 325(4) both claims.must be decided in one inquiry. Who has the duty to begin at theinquiry?
Writ of execution for the delivery of immovable property is issued inForm 63 of the 1 st Schedule to the Civil Procedure Code. When thatform is read with Form 62, it is clear that the Writ should contain adescription of the property to be delivered under the Writ and thisdescription given in the decree is based on the description given in theschedule to the plaint. To deliver possession the Fiscal has to go to theland described in the Writ. Recourse to the provisions of section 325of the Civil Procedure Code is possible if, and only if, resistance isoffered to the Fiscal’s attempt to deliver the property described in theWrit. Therefore the identification of the property to which the Fiscalwent to execute the Writ, is the first thing to be considered in decidingwho shall begin in an inquiry under section 325 when there is a clearconflict between the claims of the contending parties about the land towhich the Fiscal went. Thus the positive identification of the land towhich the Fiscal went is a matter which goes to the Court’s jurisdictionas well.
The learned President’s Counsel for the petitioner therefore con-tended that it was the duty of the plaintiff to begin by calling the Fiscalto prove the identity of the property to which he went to execute theWrit. Ori the other hand the learned President’s Counsel for the plain-tiff contended that the Fiscal’s report, made to Court after a ministerial
Sri Lanka Law Reports
 3 Sri L.R
act,, forms a part of the record and therefore it constitutes evidencerelating to the identity of the property to which the Fiscal went andtherefore, on the face of this evidence the burden to begin was on thepetitioner. This contention is sound in principle. But the question iswhether the Fiscal’s report contains prima facie evidence to satisfy aCourt that he went to the land described in the Writ?
The Fiscal’s report says that he went to the land to execute the Writ.He has not stated that he went to the land described in the Writ but Itake it that he meant to say so. When one looks at the schedule of theplaint it is very clear that.one cannot identify the land described there-in physically, I mean on the ground, unless it is clearly demarcated anddepicted in a survey plan or demarcated and pointed out by surveyor.In this case there is no material to show that the Fiscal had such a sur-vey plan. The report shows that a surveyor was also in the Fiscal’sparty. However the report does not say that the surveyor identified andpointed out the boundaries of the property described in the Writ.Therefore the question is how did the Fiscal identify and decide theland to which he went was the specific land described in the Writ? TheFiscal’s report does not provide an answer to this.
The Fiscal's report also indicates that when he went to the land theplaintiff was there. Usually the Fiscal is led to the property by the judg-ment creditor. How did the Fiscal find the property without any assis-tance from the plaintiff judgment creditor? This question also remainsunanswered.
The schedule to the plaint refers to assessment numbers – former197 present 9/1 to 9/6. The description given in the schedule to thepetitioner’s objections refer to the land as former 197 present No 27.The Fiscal’s report does not give the assessment number of the prop-erty to which he went. The descriptions of the lands given in the sched-ule to the plaint and in the schedule to the petitioner’s objections indi-cate that both lands were situated in the same vicinity, but this fact wasnot enough. It is therefore clear that even if the Fiscal's report is accept-ed in toto, it does not contain sufficient material to prima facie indicatethat he went to the land described in the Writ. The Fiscal has to explainand establish the manner in which he identified the land in question.Until it is first established that the Fiscal went to the land described inthe Writ, the learned Judge has no power in law to call upon the peti-tioner to begin.
Mudalige Group (Pvt) Ltd. v The Commissioner of Labour
This is the principle to be extracted from the decision in •Thuraisingham v Kangaratnam(1). Section 325(4) of the CivilProcedure Code, as it presently stands, has no bearing bn the burdenof proof. For the reasons set out above, I hold that, on the facts of thiscase, the learned Judge was in error when he ordered the petitioner toestablish his claim. The appeal is therefore allowed and the order of thelearned judge is set aside.
I note that proceedings under section 325 have commenced in1985 and the impugned order had been made in.2002. This Court has 120no material to ascertain the cause for this delay, but it is a blatant vio-lation of the provisions of section 325(4) of the Civil Procedure Code.
The plaintiff shall pay a sum of Rupees.5000/- to the petitioner as costsof this appeal.
WILBAERT v. JAYASIRIWARDENA AND OTHERS