114-NLR-NLR-V-69-ACHCHIKUDDY-Appellant-and-S.-KRISHNAR-et-al.-Respondents.pdf
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Achchikuddy v. Kriahnar
1965Present: H. N. G. Fernando, S.P.J., and Tambiah, J.ACHCHIKUDDY, Appellant, and S. KRISHNAR et al., RespondentsS. C. 42711966—D. C. Jaffna, 1493IL
Thesavalamai—Action for pre-emption—Rejection of plaint on ground ofprcscriptionr—Permissibility—Civil Procedure Code, s. 44—ThesawalamaiPre-emption Ordinance (Cap. 64), s. 0—Registration of a deed—Proper folio~ —Registration of Documents Ordinance.
Where the plaint in an action for pre-emption was rejected on the groundthat the action fell under section 9 of the Thesawalamai Pre-emption Ordinanceand was prescribed by reason of the lapse of more than one year from the dateof the registration of the purchaser’s deed of transfer—
Held, that the plaint could not be rejected under section 44 of the CivilProcedure Code if there was nothing on the face of it to indicate that theaction was prescribed.
Obiter : Where a deed has been registered by the defendant in the wrong folio,the plaintiff’s registration of the lis pendens in that folio cannot convert thewrong folio into the correct folio.
H. N. G. FERNANDO, S.P.J.—Achchikuddy v. Krithnar
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Ap:
PEAL from a judgment of the District Court, Jaffna.
Banganathan, Q.C., with E. B. Vannitamby, for the plaintiff-appellant.
V. Arulambalam, for the defendants-respondents.
November 5, 1965. H. N. G. Fernando, S.P.J.—
This is an action for pre-emption in respect of a land which wastransferred by a deed executed on 22nd of June, 1959. The plaint wasfiled on 20th November, 1961. The learned District Judge has held thatthe provisions of Section 44 of the Civil Procedure Code apply in thiscase and that the plaintiff should have set out in his plaint the groundupon which he claimed exemption from the relevant limitations createdby section 9 of the Thesawalamai Pre-Emption Ordinance (Chapter 64).For the reason that the plaintiff has failed to state the ground the learnedDistrict Judge has rejected his plaint.
Section 9 limits the time within which action can be instituted ormaintained, that is if more than one year has elapsed from the date ofthe registration of the purchaser’s deed of transfer action cannot beinstituted.
When the objection taken by the defendants in this case was inquiredinto, the defendants took up the position that their deed had beenregistered but the plaintiff maintained that the deed had been registeredin the wrong folio. Undoubtedly, if the deed had been registered inthe wrong folio, it was not duly registered and the wrong registrationwould not bring into effect the provisions of section 9 of Chapter 64 andthe plaintiff’s action would not therefore be barred.
The plaintiff maintains that the correct folio applicable to this landwas some other earlier folio but when he brought his action he registeredthe lis 'pendens of this action in the same folio as that in which thedefendants’ deed was registered : but the plaintiff in addition had across-connection inserted to connect up with the former correct folio.The learned District Judge seems to think that in this way the plaintiffadopted a wrong folio and that the wrong folio thus became the correctone. The idea, that a registration in a wrong folio could subsequentlybecome correct by reason of some sort of acquiescence on the part ofsome individual, is not supported by the provisions in the Registrationof Documents Ordinance as to what is the proper folio for registration.What seems to have happened in this case is that the plaintiff well afterthe execution of the deed came to know of it and on a search found theregistration of the transaction in a particular folio. Although hisposition is that some other folio is the correct folio, he has taken theprecaution to register his lis pendens in the folio where the deed wasregistered. This action on the part of the plaintiff cannot convert whatmight be the wrong folio into a correct one. When the plaint was filed,there was nothing on the plaint to indicate that the action was prescribed
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Perera v. Attorney-General
on the face of it, and therefore there is no reason for the applicationof section 44 of the Civil Procedure Code. The order rejecting theplaint is set aside and the record is returned to the District Court forfurther proceedings to be taken. It will be open to the defendants tocontend subsequently that the folio in which they actually registeredthe deed is in effect the correct folio. The plaintiff will be entitled tothe costs of this appeal and also of the proceedings of 9th September,1963.
Tambtah, J.—I agree.
Case sent back for further proceedings.