1942 Present: Howard C.J.

TISSAHAMY. PERERA.

188-C. R., Badulla, 10,307.

Estoppel - Fiscal's sale-Bid by plaintiff-Purchase by defendant-estoppel against plaintiff.

At a Fiscal's sale, the plaintiff made two bids for a property. which was knocked down- to the defendant. The substituted defendant stated in his evidence that" whether plaintiff bid or not we would have purchased unless the price went very high ".

Held, that the plaintiff was estopped from claiming title to the property as against the defendant.

APPEAL from a judgment of the Commissioner of Requests,

Badulla. N. K. Choksy (with him Ivor Misso), for the plaintiff, appellant.

Cyril E. S. Perera, for the defendant, respondent (substituted).

Cur. adv. vult.

June 1, 1942. HOWARD C.J.

This is an appeal by the plaintiff from a judgment of the Commissioner of Requests, Badulla, dismissing his action with costs. The learned Commissioner has decided in the plaintiff's favour an issue as to whether the latter had prescribed to the land in dispute. He has also held that the plaintiff is estopped from denying the title 'of the original defendant who bought the land in question at a Fiscal's sale. The only question for decision is whether the Commissioner was right in coming to the conclusion that the plaintiff was estopped from denying the title of the defendant.

It is conceded by the plaintiff that he was present when the land was sold by the Fiscal. The sale took place on the land itself; The plaintiff, though present, made no claim to any portion of the land. In fact he offered two bids. In spite of this conduct on the part of the plaintiff his Counsel contends that he is not estopped from denying the title of the original defendant, who purchased the property at the auction. He bases this contention on certain statements made by the substituted defendant when he gave evidence. In cross-examination, the latter stated a£ follows:

"On a writ against brother-in-law the land was sold and my wife bought. The plaintiff bid twice. His bidding did not influence my conduct. I knew the land when it belonged to father-in-law and that it was bequeathed to brother-in-law. Whether plaintiff bid or not we would have purchased unless the price went very high. "

Counsel for the plaintiff maintains that the inference to be drawn from this evidence is that the defendant's purchase at the sale was independent  of the conduct of the plaintiff in bidding. The defendant was not therefore induced to purchase by the conduct of the plaintiff. The latter, in these circumstances, is not stopped from denying the title of the defendant.

A number of authorities have been cited. In Ukku Banda v. Karupai[ 25 N.L. R. 2O4.]  it was held that, in order to establish an estoppel by conduct by silence, the person who is sought to be estopped by reason of his silence must be proved to have intended to create a false impression on the person who I sets up the estoppel and that he caused him thereby to do a particular act. The facts in this case were that a puisne incumbrancer, who was not bound by a mortgage decree, was present at the execution sale and was silent. De Sampayo A.C.J. gave the judgment of the Court and held that in the circumstances of the case the defendant was not estopped from asserting his title. In the course of his judgment, the learned Judge in referring to the conduct of the defendant says: - .

"Even assuming that she was among the circle of people who were attracted to the spot by the sale, it is quite certain that she was not there as a bidder, nor did she say or do anything to indicate to any person that she had no objection to the sale. She was in fact only silent, and it is contended on behalf of the plaintiff that she should have made her claim to the land publicly. Now, this class of estoppel

by conduct is generally very difficult to apply. From all the decisions on the subject, two clear propos