Muttu Caeuppen Et Al. V. Eankira Et Al.

Present : The Hon. Sir Joseph T. Hutehinson, Chief Justice
and Mr. Justice Wood Renton.

MUTTU CAEUPPEN et al. v. EANKIRA et al.

D. C, Nuwara Eliya, 117.

Prescription-Possession by judgment-debtor after Fiscal's sale for ten years-Adverse possession-Civil Procedure Code, ss. 289 and 291-' Deemed."

There is nothing in sections 289 and 291 of the Civil Procedure Code which debars a judgment-debtor who has been in possession of the land sold for ten years after Fiscal's sale, and before the execution of the Fiscal's transfer, from claiming title to the land sold by prescription.

THE facts are set out in the judgment.

A. St. V. Jayewardene, for the first defendant, appellant.-The judgment-debtor continued to be in possession of the land sold for a period exceeding ten years after .the sale by the Fiscal and its confirmation by the Court. The purchaser at a Fiscal's sale, when the sale is confirmed by Court after the lapse of thirty days, must procure his conveyance forthwith. After the sale, and until the confirmation of the sale and the execution of the Fiscal's conveyance, the judgment-debtor may use and enjoy the property sold in the manner laid down in section 291 of the Civil Procedure Code, but the judgment-debtor is not entitled to the crops and produce of the land (section 291, sub-section (3), Civil Procedure Code). But if the judgment-debtor not only uses and enjoys the property in the manner limited by section 291, but appropriates the crops and produce and otherwise possesses the property ut dominus, he is entitled after the expiry of ten years to claim a title by prescription (vide the remarks of Withers J. in Silva v. Hendrick Appu [1 (1895) 1 N. L. R. 13.] ).

Bawa, for the plaintiffs, respondents.-The effect of the provisions of sections 289 and 291 of the Civil Procedure Code is to constitute the judgment-debtor a trustee for the purchaser. The purchaser cannot turn the judgment-debtor out till he gets a conveyance, and section 291 gives the judgment-debtor a statutory right to remain in possession of the land till the execution of the conveyance. Where, for instance, a purchaser gets a Conveyance within ten years of the sale, he is always at liberty to plead the judgment-debtor's possession as his own as against third parties, who set up title on the ground of prescription. [WOOD RENTON J.-Sections 289

and 291, Civil Procedure Code, cannot over-ride the Prescription Sept. 30,1910 Ordinance. The sections merely define .the position of .the judgment- debtor after sale.1 The Prescription Ordinance only comes in'  when .the possession is adverse. The possession is not adverse in this case, because the law makes the judgment-debtor only a licensee; the judgment-debtor should not be permitted to say that possession, which the law says is on behalf of some one else, is as a matter of fact on his own behalf. [HUTCHINSON C.J.-But section 29, sub-section (3), says he cannot appropriate the crops and produce, but if he does so, does not his possession become adverse?] No; the execution-purchaser cannot take possession as he has not obtained a Fiscal's conveyance, which alone divests the judgment debtor of his rights.

September 30, 1910. HUTCHINSON C.J.-

The plaintiff's claim is for a declaration of title to certain lands, which the first plaintiff bought at a Fiscal's sale, in execution against the first defendant, on May 11, 1894. The sale was con firmed in October, 1895. The Fiscal's transfer was not obtained till September 26, 1906. The first defendant, who is the appellant, asserts that, notwithstanding the sale, and ever since the sale in 1894, he has had undisturbed and uninterrupted possession by, a title adverse to that of the plaintiffs, and so has acquired a right under Ordinance No. 22 of 1871. There were issues settled as to whether the first defendant has been in possession since 1894, and whether he or the fi

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