112-NLR-NLR-V-16-GOONARATNA-v.-FERNANDO-et-al.pdf
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Present : Lascelles C.J. and Pereira J.
IMS.
GOONARATNA FERNANDO et al.
45—D. C. (Inti/.) Kurunegala, 3,254.
Ouster—Action by person ousted—Proof that third party has a superiortitle than person ousted—Proof that defendant has acquired titlesince date of action—Action—Loss of title by plaintiff duringprogress of action.
Where a plaintiff who was in possession of a land in claim isproved to have been ousted by the defendant, neither the fact thatat the time of the ouster a third person had a title superior to thatof the plaintiff, nor the fact that since the commencement of theaction the defendant has acquired title to the land, is relevent onthe question whether the ouster was justified.
Semble, per Pebeira J.—Where a plaintiff having title to landclaimed at the commencement of the action loses it during itsprogress the defendant is entitled to be absolved.
A formal grant under the Public Seed of the Colony is necessaryfor the conveyance of land belonging to the Crown. The title onsuch a grant does not refer back to the date when the sale wasactually determined upon between the grantee and the Crown.
rpHE facts are set out in the judgment.
F. M. de Saram, for the plaintiff, appellant.—The issues proposeddo not arise in the case, as the case has to be decided on the rightsof parties at the date of the institution of the action. See Silva v.Fernando.1 The fact that defendants have acquired title to theland after action does not affect the decision, of the case; otherprinciples may apply to partition actions. Both parties claimedtitle at first from a common owner. The subsequent Crown grantcannot be pleaded in this action. Counsel also cited Silva, v. NonaHamine,i 2 Ponnamma v. Weerasuriya.9
F. de Zoyza, for the defendants, respondents.—A party defendantmay rely on title acquired by him after institution of action. SeeSilva v. Silva.4, The plaintiff did not object to the amendment ofthe answer. These issues arise on the pleadings as they now stand.Defendants have to put forward all their titles to the lands;otherwise they will be barred by section 207 of the Civil ProcedureCode from putting any claim forward hereafter.
F. M. de Saram, in reply.
Cur. adv. vult.
i (1912) 15 N. L. B. 499.
* (1907) 10 N. L. B. 44.
» 15 C. D. 67.
* (1913) 16 N. L. B. 89.
1013.
Qoonaratna9. Fernando
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May 7, 1918. Psbeira J.—
In this action, which was instituted on September 19, 1907,the plaintiff claimed certain allotments of land, and, complainingof an ouster by the defendants on February 26, 1906, he prayed fora declaration of title, ejectment of the defendants, and damages.The defendants by their answer claimed title in themselves to theallotments of land in dispute on certain old deeds. On September80, 1912, the defendants were allowed to amend their answer byaverring therein that the lands in claim were the property of theGrown, and that the Crown advertised the same for sale in theGovernment Gazette, of October 28,1910,and the defendants purchasedthe same from the Crown and paid the Crown the purchase amountfor the same ; and on January 31, 1913, they were allowed to amendfurther their answer by adding to the above the words “ and haveobtained Crown grants Nos. 4,785 and 4,786, both dated January4, 1913/’ On these averments the District Judge framed fourissues, which are classified in the proceedings as the 3rd, 4th, 5th,and 6th issues respectively, and they are as follows:—
Can the defendants set up under Crown a title acquired by
them after the institution of this action ?
Was the land in dispute the property of the Crown?
Did the Crown convey it to the defendants? and
Are the lands in dispute, or any of them, identical with the
land conveyed by the Crown to the defendants ?
The present appeal is from an order of the District Judge over-ruling the plaintiff's objection to these issues. Clearly these issuesdo not arise in this action. Before proceeding further, I shouldlike to observe that, at the argument of the appeal, I was under .the impression that the defendants, in addition to praying for adismissal of the plaintiff's claim, had prayed for a declarationof title in themselves. If they had done so, they would, withreference to that prayer, be in no better position than the plaintiffwith reference to his prayer in his plaint for a declaration of title;and as lias been recently held by the Privy Council in the caseof Silva v. Fernando,l in an action rem vindicate, the plaintiffcannot succeed on the strength of a title acquired after thecommencement of the action, although, possibly (I may add),where a plaintiff having title at the commencement of the suitloses it during its progress the defendant is entitled to be absolved(see Voet 6, I, 4). However, as observed already, the defendantscontended themselves with praying for dismissal of the plaintiff'sclaim. There is, in fact, another prayer, namely, a prayer forcompensation for improvements, which need not be noticed inconnection with this appeal. Now, the defendants cannot succeedin their prayer for a dismissal of the plaintiff’s claim unless they show
i (1912) 15 N. L. R: 499.
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that they did not oust the plaintiff, or they are in a position tojustify the ouster by proof that at the date of the ouBter they hada superior title, or were acting under the authority of somebodyhaving a superior title. The mere fact that some third person hada title superior to that of the plaintiff is no justification at all ofthe ouster by the defendants. So that neither the fact that, at thedate of the ouster pleaded, the Crown had title to the property inclaim, nor the fact that, since the commencement of the action, thedefendants have acquired title, is relevant on the question whetherthe ouster was justified.
In the course of the argument in appeal the case of Silva v. Silva 1was cited to us on behalf of the respondents, and the cases of Pon-namma v. Weerasooriya 2 and Silva v. Nona Hamine 3 were cited onbehalf of the appellant, but the documents of which the effecthas been considered in these cases are Fiscal’s conveyances, whichconfer titles that relate back to the actual sales in execution. Aformal grant under the Public Seal of the Colony, which is the onlymeans by which the Governor is empowered to alienate land belong-ing to the Crown, has not that effect.
For the reasons given above I would allow the appeal with costs.
Appeal allowed.
1913.
Pbbbx&a J,
Qoonaratnao. Fernando
Lascelles C.J.—I agree.