1923 Present : Schneider J. 

 FERNANDO v. FERNANDO.

74-C. R. Colombo, 83,340.

Jurisdiction-Courts of Requests-Inquiry under section 327, Civil Procedure Code-Value of land over Rs. 300-Scope of inquiry.

The appellant made complaint by petition that the respondents had resisted the execution of a decree of the Court of Requests, directing that F be ejected from certain premises and the appellant be placed in possession, The respondents stated, that they were in possession, of the premises on their own account, and not under the judgment-debtor (F). The premises were over Rs. 300 in value.

Held, that the Court of Requests had no jurisdiction to investigate the claim under section 327 of the Civil Procedure Code.

Section 327 has not by its provisions vested Courts of Requests with a higher jurisdiction than that conferred on them by the Courts Ordinance.

It is not the question of ownership, but of possession which should be the subject-matter of the investigation under section 327. Actual or physical possession as well as constructive possession, such as a possession through a tenant, come within the scope of the inquiry; not only the fact of possession, but also the title of possession are within the scope of the sections.

THE facts are set out in the judgment.

Nagalingam, for appellant,

H. V. Perera, for respondents.

June 11, 1923. SCHNEIDER J.-

A new and interesting point in the construction of section 327 of the Civil Procedure Code, and a point of importance in practice, is raised by this appeal. The appellant, as judgment-creditor, made complaint by petition that the respondents had resisted the execution of decree of the Court of Requests of Colombo, directing that one William Fernando be ejected from certain premises and the appellant placed in possession. The respondents admitted the resistance complained of, and stated that they were in possession of the premises on their own account, and not under the judgment-debtor. The proceedings were regarded by both parties as if the complaint were numbered and registered as a plaint, though I am unable to find from the record that this was in fact done.

It was admitted that the premises are over Rs. 300 in value.  The respondents took the objection that, therefore, the Court of Requests had no jurisdiction to investigate their claim. The investigation proceeded upon the two issues following:-

(1) Is the petitioner (appellant) or are the respondents (respondents in this appeal), the owners of this property?

(2) Has this Court jurisdiction?

Instead of deciding the second issue which, if upheld, would have ended the contest, the learned Commissioner tried the first issue upon evidence, but eventually, without adjudicating upon it, held that he had no jurisdiction, as the property was over Rs. 300 in value. Ha made order that execution be stayed " till plaintiff has established his title against the respondents in a regular action."

The plaintiff has appealed.

The first issue indicates that the scope of an investigation under section 327 was not rightly understood. It is not the question of ownership, but of possession which should be the subject-matter of the investigation. The language of the section itself makes this clear. It speaks of the claim of the defendant as a claim "to be in possession of the property, " and directs the Court to investigate this claim. This has been pointed out in several cases decided in India under the corresponding section of the Indian Code. Of these, I need only mention Pillai v. Pillai,[1] Mould Khan v. Gorikhan[2] Mancharam v. Fakirchand,[3] and Isub Takappa.[4] It is of interest to note that in these cases the nature of the possession has been considered, and it has been pointed out that Mutual or physical possession as well as constructive possession, such as a possession through a tenant, come within the scope of the inquiry, and that not only the fact