Spenser Wilkinson J:

The appellant, who was the plaintiff in the Court below, claimed possession of a house No. 365 Main Road, Prai, which is described as a plank house with an attap roof.

The respondent's defence was that the house in fact belonged to him and that a bill of sale of the house which on the face of it purported to be an out-andout sale of the house to the appellant, was in fact a bill of sale by way of security.

In addition to the bill of sale there was also a tenancy agreement signed by the respondent in favour of the appellant which the defendant claimed had been signed by him under duress.

The learned Magistrate who tried the case decided that the bill of sale was a bill of sale by way of security and that the tenancy agreement had been signed under duress and dismissed the suit with costs on these grounds.

The appellant raised 17 grounds of appeal but as, in view of my decision, the case may come before the Courts again I express no opinion at all on the merits and will deal only with the points raised regarding jurisdiction.

The seventh ground of appeal was to the effect that the Magistrate had exceeded his jurisdiction because his decision in favour of the respondent was in effect a declaration that the alleged bill of sale was not a sale but a document of security and that the tenancy agreement was void and ought to be set aside.Whilst it is not necessary for me to decide this ground of appeal I do not think there is much substance in it. Fraud and duress were pleaded as defences and not as counterclaims, and I do not feel inclined to accept the proposition that the dismissal of a claim on a contract because it was induced by fraud or duress amounts to a declaratory judgment.Although it appears to me that the kind of questions which arose in the Magistrate's Court in this case were more suitable to be dealt with by the High Court because of the difficulty of the points of law involved and also because of the importance of fraud being specifically and fully pleaded I think the appellant's remedy in this respect would have been to apply under sub-section (2) of s. 66 of the Courts Ordinance (which by reason of s. 93 applies to a Magistrate's Court) for the transfer of the case to the High Court.

My decision in this appeal rests on the first ground of appeal, which was that the learned Magistrate had no jurisdiction to hear the case as there was a bona fide question of title involved and that the proceedings were, therefore, a nullity.

In considering this ground of appeal a preliminary question arises as to whether the house in question is movable or immovable property within the meaning of the provisions of the Courts Ordinance.Mr. Abdoolcader for the appellant pointed out that there was no definition in the Courts Ordinance of the expression "immovable property." There is, however, a definition of "immovable property" in the Interpretation and General Clauses Ordinance, 1948.The relevant provisions of s. 2 of that Ordinance are as follows:

2.(1) In this Ordinance and in any written law as hereinafter defined . . . . . enacted, made or issued before or after the commencement of this Ordinance the following words and expressions shall, as from the commencement of this Ordinance. . . . . have the meanings hereby assigned to them respectively, unless there is something in the subject or context inconsistent with such construction or unless it is therein otherwise expressly provided -

(39) 'immovable property' includes land, benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.

I would observe that the definition does not say "Permanently attached to the earth" and uses the word "permanently" only in respect of things fastened to anything attached to the earth.Even temporary attachment to the land would appear, therefore, to be sufficient.

In Kartar Singh V. Pappa [1954] 1 MLRH 69, [1954] 1 MLJ 193 it was held by Thomson J that a dwell