141-NLR-NLR-V-49-JANE-NONA-Appellant-and-GUNAWARDENE-Respondent.pdf
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BASNAYAKE J.—Jane Nona v. Gunawardene
1948Present: Dias and Basnayake JJ.
JANE NONA, Appellant, and GUNAWARDENE, Respondent.S. C. 193—D. C. Negombo, 13,959
Prescription—Execution sale—Debtor in possession after sale—Interruption— Delivery
of possession by Fiscal—Undivided share—How far delivery valid—Civil
Procedure Code—Section 288.
Appellant mortgaged an undivided half share of a field which was sold inexecution and purchased by M. Order for delivery of possession was issuedand the Fiscal reported that he was unable to trace the co-owners and thatthe purchaser failed to attend to receive possession. The Fiscal then purportedto act tmder section 288 of the Civil Procedure Code and deliver possessionto the purchaser. Appellant continued in possession of the field.
Held, (i) that a judgment debtor who continues in adverse possession after asale in execution can acquire title by prescription ;
that symbolical possession by a purchaser at a court sale is notinterruption of such possession. There must be an interruption of actualphysical possession.
Where property is not in the occupation of anyone section 288 of theCivil Procedure Code has no application and the action of the Fiscal was anullity.
^^PPEAL from a judgment of the District Judge, Negombo.
N. E. Weerasooria, K.C., with B. Senaratne, for the defendantappellant.
No appearance for the plaintiff, respondent.
Cur. adv. vult.
April 20, 1948. Basnayake J.—
As security for a loan of Rs. 1,500 by deed No. 1,443 dated June 22,1926, attested by A. D. C. Amirthaweera, Notary Public, the defendant-appellant (hereinafter referred to as the appellant) created a mortgagein favour of two persons named Kaluaratchige Herath Appuhamv andWeerasinghe Aratchige Charlis Perera over her undivided half shareof a field called Pitakotuwe Knmhnra in extent four acres, two roods,and thirty-three perches, and some other lands. The mortgageesabove-mentioned instituted D. C. Negombo, Case No. 3,502 for therecovery of the debt due to them and in execution of the decree thereinthe appellant’s share in the field Pitakotuwe Kumbura was sold andpurchased by one Weeragoda Achchilage Mudiyanse to whom it wastransferred by deed No. 140 of April 4, 1936, attested by H. C. Sansoni,Notary Public.
BASNAYAKE J.—Jane Nona v. Gunau ardene.
523
On February 17, 1937, an order for delivery of possession was issued.The order was in the following terms :
“ You are hereby ordered to put the said purchaser or his agentinto possession of the said lands and fields and the buildings andif need be to remove any person bound by the decree who may refuseto vacate the same.”
On March 23, 1937, the Fiscal reported :
“ My Officer reports that he was unable to trace the co-owners ofthe undivided lands and that the purchaser failed to attend and receivepossession of the divided lands.”,
and asked for an extension of time to enable him to proceed undersection 288 of the Civil Procedure Code. The extension was granted.On February 3, 1938, he reported :
“ By virtue of the hereto annexed Order for Delivery of Possessionmarked A issued in case No. 3, 502 of the District Court of Negombo,I have caused my Officer D. S. A. Amerasekera to deliver possessionof 1, 2, 4 and 6th named undivided shares to the purchaseron January 24, 1938, in terms of section 288 of the C. P. C. and thecomplete possession of 3rd and 5th named lands which are more fullydescribed in the Order for Delivery of Possession to the purchaseron the same day, as will appear from the affidavit of the said Officer,Marked B dated February 3, 193S.”
Affidavit B referred to :
“ I, D. S. A. Amarasekera, Fiscal’s Officer, do hereby declare andaffirm that I did on January 24, 1938, deliver possession of the 1st,2nd, 4th and 6th named undivided shares in terms of Section 288of the C. P. C. and the complete possession of 3rd and 5th namedlands which are more fully described in the Order for Delivery ofpossession to the purchaser.”
On September 4,1944, Mudiyanse transferred the half share he purchasedin Pitakotuwe Kumbura by deed No. 3,849 attested by S.M.A. Baheeman,Notary Public, to the plaintiff-respondent (hereinafter referred to as theplaintiff), who instituted this action on May' 29, 1946, for a declarationthat he is entitled to an undivided half share of the field and for an orderof ejectment against the appellant who he alleges is in unlawful possessionof the field. The appellant while admitting the sale in execution of thedecree against her states that even after the sale in execution she continuedto possess her share adversely to the purchaser Mudiyanse and the plain-tiff, his successor in title, for a period of over ten years and claims to haveacquired a prescriptive right to her share. The appellant denies that shewas entitled to half share in the field as alleged by the plaintiff butstates that she was entitled to only three-tenths of the field. But thatpart of the dispute is immaterial for the purposes of this appeal.
The learned District Judge finds that the appellant has been inpossession of the field after the sale in execution of the decree in .D. C.Negombo, Case No. 3,502 but holds that her possession was interruptedby the action taken by the Fiscal under section 288 of the CivilProcedure Cods in that case. I find myself unable to agree with the
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BASNAYAKE J.—Jane Nona v. Gunawardene.
conclusion, of the learned Judge. It has been held in the case of SimanAppu v. Christian Appu1 that possession is interrupted if the continuityof possession is broken by the disputant legitimately putting thepossessor out of the land and keeping him out of it for a certain time,if the possessor is occupying it ; or by occupying it himself for a certaintime and using it for his own advantage, if the party prescribing is notin occupation. In the same case Lawrie A.C.J. states :
“ If the actual physical possession has never been interrupted, itmatters not that the possessor has been troubled by lawsuits, or byclaims in execution, or by violence ; if he has succeeded in holdingpossession, these attempts to oust him only make it the more certainthat he held adversely to those who disputed with him.”
Lawrie J. amplified this view in the later case of Emanis v. Sadappuet al.2 wherein he said :—•
“ What is undisturbed and uninterrupted possession ? It is. defined in the Ordinance itself : it is a possession unaccompaniedby payment of rent or produce or performance of service or duty'or by any other act by the possessor from which an acknowledgmentof a right existing in another person would fairly and naturally beinferred. In the present case the defendant has possessed the landsfor more than ten years. He has paid no rent, no produce, nor hashe performed any service or duty, nor has he, either in Court oranywhere else, done any act from which an acknowledgment of aright in the plaintiff could fairly and naturally be inferred.”
Apart from the fact that the appellant’s possession has accordingto the decisions I have cited been “undisturbed and uninterrupted”,it seems to me that the plaintiff’s predecessor in title, the purchaserMudiyanse, never obtained even legal possession of the land. TheFiscal’s first report, on being ordered to place the purchaser in possession,was that he was unable to trace the co-owners of the undivided landsand that the purchaser failed to attend and receive possession of thedivided lands. How then can it be said that Mudiyanse obtainedpossession ? On the facts appearing in that report the Fiscal was notentitled to proceed under section 288 of the Civil Procedure Code.
That section reads :
“ When the property sold is in the occupancy of a tenant or otherperson entitled to occupy the same, and a conveyance in respectthereof has been made to the purchaser under section 286, the courtshall order delivery thereof to be made by affixing a notice of thesale having taken place, both in English and in the vernacularlanguage or languages prevailing within the district, in someconspicuous place on the property, and proclaiming to the occupantby beat of tom-tom, or in such other mode as may be customary,at some convenient place, that the interest of the judgment-debtorhas been transferred to the purchaser, and the cost (to be fixed bythe court) of such proclamation shall in every case he prepaid by thepurchaser.”
On the Fiscal’s own statement the property sold was not in theoccupancy of anyone. A paddy field is never in the occupation of1 {1896) 1 N. L. R. 288.* (1896) 2 N. L. R. 261 at 265.
de Vaas v. Mendis.
525
anyone in the sense that a house or land is occupied. For if it wasoccupied, the Fiscal would have had no difficulty in meeting theoccupying co-owners and the appellant. As the condition precedentto proceeding under section 288 did not exist, no legal consequencesflow from the Fiscal’s action which is a nullity. His action does nottherefore in any event interrupt the appellant’s possession.
Tn the case of Mahadev Sakharam Parkar v. Janu Namji Hatley 1 theFull Bench of Bombay held that symbolical possession of immovableproperly by a purchaser at a court sale cannot prevent limitationrunning in favour of the judgment-debto.- where the latter remains inactual possession and the property is not in the occupancy of a tenantor other person entitled to occupy it. Scott C.J. in answering thequestion referred to the Full Bench in the sense I have indicated aboveobserves :
“ Symbolical possession is not real possession nor is it equivalentto real possession under the Civil Procedure Code except where theCode expressly or by implication provides that it shall have thateffect.”
The case of Muttu Karuppen et. al. v. Rankira et. al. 2 is authority forthe proposition that a judgment-debtor can by adverse possession forthe requisite period after he has lost his title by the sale in executionobtain a decree declaring him entitled to the land.
Beamed counsel for the appellant made the submission that theproceedings by the Fiscal under section 288 of the Civil Procedure Codewere not properly proved. I agree with him that there is no provisionof law under which the statements in an affidavit of a Fiscal’s Officercan be admitted in evidence in the way it has been done in this case.The appellant.seems to have raised no objection at the time to the coursetaken, and in the absence of a rasonable explanation of his acquiescencehe is not entitled to object to the document at this stage. I wish howeverto state that in any suit other than that in which the Fiscal has madethe return, proceedings by the Fiscal in execution of the orders of Courtmust be formally proved unless the parties agree otherwise.
The judgment of the learned District Judge is set aside and the appealis allowed with costs. The plaintiff’s action is dismissed with costs.
Dias J.—I agree.
Appeal allowed.