JAYPAUL v.

CAYEUX

1954 MR 181
Sir Francis Herchenroder*, CJ and
Osman, J

This is is an appeal from a judgment of the District Magistrate of Flacq

whereby he held that he had no jurisdiction to try a possessory action entered
by the appellant against the respondent. The plaint, after amendment, averred
that the plaintiff was the owner by title of a plot of land of one acre and
eighteen perches situate at Clémencia, that the plaintiff had been in
possession of the land for one full year previous to the disturbance of such
possession by the defendant on the 2nd February, 1953. The action was entered
on the 20th February, 1953. (The date of the alleged disturbance is stated in
the plaint to be the 22nd February, 1953, but it was agreed between counsel
that this was a clerical error for the 2nd February, 1953).

The defendant denied the facts alleged in the plaint. He pleaded that he
was the owner by title of the land in suit which was worth more than Rs 1,000
and that, consequently, the magistrate had no jurisdiction to try the question
of ownership of the land. Mr. Attorney Ducasse and Mr. Dubruel de Broglio who
appeared, respectively, for the plaintiff and the defendant in the court below
were agreed that the action was a possessory action and that the land in
question was worth more than Rs 1,000. But while Mr. Ducasse contended that,
the action being a possessory action, the magistrate had jurisdiction to try
it, whatever might be the value of the land, Mr. Dubruel submitted that he had
not by reason of the provision contained in section 120(3) of the Courts
Ordinance.

After hearing the respective contentions, the magistrate upheld the plea
that he had no jurisdiction to try the case which he dismissed.

The action was based upon section 120 of the Courts Ordinance (formerly
section 9 of Ordinance No. 22 of 1888) the material parts of which, for the
purposes of this appeal, run as follows:

120(1). The Magistrate shall have jurisdiction in possessory actions

concerning any land… or other real property… including actions where such
property… exceeds one thousand rupees in value when the plaintiff claims to
be maintained or restored to the quiet enjoyment and possession of such
property:

Provided (a) the possessory action has been entered during one year from
the imputed trespass, and (b) the plaintiff has been in quiet possession
for one full year at least.

(2)…

(3) When the value of the property… concerning which a possessory action is
brought does not exceed one thousand rupees, the Magistrate may go into and
decide upon the question of ownership if same be raised.

Mr. Avrillon, who appeared for the appellant, submitted that this
provision was borrowed from article 23 of the Code of Civil Procedure which
runs thus:

Les actions possessoires ne seront recevables qu’autant qu’elles auront été

formées, dans l’année du trouble, par ceux qui, depuis une année au moins,
étaient en possession paisible par eux ou les leurs, à titre non précaire.

He also referred to articles 24 and 25 which read:

 24. Si la possession ou le trouble sont deniés, l’enquête qui sera ordonnée
ne pourra porter sur le fond du droit.

25. Le possessoire et le pétitoire ne seront jamais cumulés.

The legal position on the subject in France is tersely summed up in notes

23, 35 and 40, Vo. Action Possessoire, in Encyclopédie Dalloz, Droit Civil,
Vol. 1:

23. Le principe de la séparation du possessoire et du pétitoire est la

condition d’efficacité de la protection possessoire comme défense avancée
de la propriété. Il assure l’autonomie de la protection possessoire par
rapport à celle de la propriété; le débat ne pouvant être déplacé d’un
terrain sur l’autre, la possession sera garantie, quelle que soit la
situation véritable de la propriété. Il permet le règlement rapide et
préalable de la question possessoire, la propriété étant réservée et
l’élimination des difficultés touchant au fond du droit favorisant la
simplification de la procédure.

35. Le débat possessoire doit suivre son cours, sur le terrain qui lui est
propre, sans qu’aucune entrave puisse y être apportée pour des raisons
tirées du fond du droit. Le possesseur doit être protégé, encore que l’on
soit certain qu’il n’est pas propriétaire. Il en résulte que, si le
défendeur soulève une exception tirée du fond du droit, le juge du
possessoire ne doit pas s’y arrêter, et se dessaisir, comme le ferait un
juge des référés en présence d’une contestation sérieuse; il doit
s’abstenir de l’examiner, et statuer sur la possession… (G.P. 1929.2.729
and note: cf. however G.P. 1932.2.60).

40… . les titres peuvent être utilisés pour fixer le sens et la portée des
faits matériels, pour éclairer et colorer la possession… Il n’est pas
interdit au juge du possessoire d’examiner les titres produits par les
parties, à charge de les apprécier au seul point de vue du possessoire, et
d’y rechercher, non le droit mais le caractère de la possession invoquée…
(D. 1946.133).

Before the enactment of section 9 of Ordinance No. 22 of 1888 the law on

the subject was contained in section 6 of Ordinance No. 34 of 1852 which ran as
follows:

“The District Magistrates shall… in their respective courts have

jurisdiction in all actions of ejectment against the occupiers of any
lands… or any other right arising out of real property when the right of
occupation only shall be in question, unless it shall be shown by the
defendant that such right of occupation during the term or period as to
which it shall be in dispute is to him of a clear value of more than £100;
and whatever may be the value of the right in question the District
Magistrates are hereby empowered to take cognizance of the case so far as
to secure to the plaintiff, or restore him to, a quiet enjoyment and
possession thereof until such right has been finally adjudicated on by the
Supreme Court, provided always such possessory action has been entered
before the District Magistrate within one year from the imputed trespass
and the plaintiff thus occupying or claiming to occupy has been in quiet
possession for one full year at least.”

That provision has received judicial consideration by this court in the

following cases: Murray v. Rahiman, [1863 MR,]136; Brue v. Duval, [1864 MR 62];
Ardé v. Baissac, [1864 MR 83]; Bardin v. Brousse de Gersigny, [1864 MR 90]; Florens
v. Michel, [1864 MR 126]; Macquet v. Cantin, [1865 MR 67]; and Burguez v. Régnier,
[1877 MR 160].

The conclusions to be drawn from those cases may be stated under four
heads:

(1) A party who claims to be the owner of a plot of land of which he

 has been in possession for one full year at least, is entitled, in an
action to get rid of a trespasser who disturbs his possession, to rest
his case solely upon the fact of his quiet possession animo domini. He is
not bound, in every instance, to set up his title in a petitory action
before the competent court. A possessory action will lie even though the
possessor may ultimately be found not to be entitled to the property.

(2) In order that a District Magistrate should have jurisdiction to try

a possessory action, the plaintiff must invoke lawful possession for one
full year at least before the disturbance complained of took place, and
the action must be brought within one year of the disturbance.

(3) A District Magistrate trying a possessory action has no

jurisdiction to decide upon questions of title to the land in suit; but
he may nevertheless look at the plaintiff’s title, if there is one, to
ascertain, not whether the title is unimpeachable, but whether it throws
any light upon the nature of the plaintiff’s possession.

(4) A plaintiff alleging possession for a year at least is prima facie

entitled to apply to the District Magistrate to maintain him in
possession; and it is the duty of the magistrate to satisfy himself
whether the fact alleged is true and, if so satisfied, to maintain the
plaintiff in his possession and not to allow him to be summarily ejected.

Mention may also be made, here of the case of Nina v. Vert, [1880 MR 28],
where Cox, J. said, with reference to section 6 of Ordinance No. 34 of 1852:

The second part of the article is borrowed from the French law of Actions
Possessoires, as established by article 23 of the Code of Civil Procedure.
In such cases whatever may be the value of the right of occupation, one who
has possessed for upwards of one year may ask the Magistrate to secure and
restore to him the quiet enjoyment of the subject. The jurisdiction is
there conditioned upon (1) possession for one whole year by the plaintiff
(2) action brought within one year from the trespass complained of.

While not disputing that the action was a possessory action, Mr. Dubruel
for the respondent contended that the questions of ownership and possession
were so intimately mixed up in the case that it was impossible for the
magistrate to decide the question of possession without going into that of
ownership and that, he said, the magistrate was debarred from doing. Mr.
Dubruel submitted an a contrario argument derived from section 120 (3) of the
Courts Ordinance. He urged that the position after the enactment of section 9
of Ordinance No. 22 of 1888 was this: when in a possessory action the defendant
pleaded that he was the owner of the property in question, and that property
was worth more than one thousand rupees, the jurisdiction of the magistrate was
ousted altogether.

Mr. Dubruel referred to Teeluckdharry v. Nundlall, [1951 MR,]110, and

Brasse v. Léonide, [1953 MR 137]; but we may say at once that in our view neither
case finds its application here: they were both actions in ejectment enterred
under sections 118 and 116, respectively, of the Courts Ordinance, and not
possessory actions under section 120(1).

It will be observed that while under section 6 of Ordinance No. 34 of

1852 the magistrate’s jurisdiction was confined in all cases to adjucating on
the question of occupation or possession, section 9 (3) of Ordinance No. 22 of
1888 conferred upon the magistrate jurisdiction, in a possessory action, to go
into and decide the question of ownership of the land (where that question was
raised) if the land was not worth more than one thousand rupees. We do not
think that that provision (which is now section 120 (3) of the Courts
Ordinance) means, or was intended to mean, a contrario, that when the value of
the property concerning which a possessory action is brought exceeds one
thousand rupees, and the question of the ownership of the property is raised by
the defendant the magistrate has no jurisdiction to try the case. We think that
the object of the provision was to create a departure from the principle
embodied in article 25 of the Code of Civil Procedure cited above in the case
of property of a value not exceeding one thousand rupees, and to obviate the
necessity for the defendant in a possessory action concerning such property who
desired to have the question of the ownership thereof decided in that action to
enter a new action for the purpose after the possessory action had been
disposed of (cf. art. 27, C.C.P.).

In his judgment the magistrate stated that both plaintiff and defendant
were claiming the ownership of the land and that accordingly he could not
decide whether the defendant’s occupation of the land was unlawful or not
without deciding upon the question of ownership of the land which he had no
power to do as it was worth more than one thousand rupees. We think that the
magistrate misdirected himself. Although the plaintiff mentioned in his plaint
that he was the owner of the land in suit by title, it is clear, and that was
common ground in the court below, that by his action he claimed to be
maintained in the quiet possession of the land of which he had been in
possession for one full year. That being so, it was not necessary for the
magistrate to look into the respective titles of the parties and decide upon
their validity. It was his duty to satisfy himself whether, as averred in the
plaint, the plaintiff had been in possession of the land for one full year at
least before the imputed trespass and whether the action had been entered
within one year of that trespass. He had also, of course, to ascertain whether
the plaintiff’s possession was of the character and nature required by law. We
hold, therefore, that the magistrate was wrong to decide that he had no
jurisdiction to try the case. We reverse his decision and remit the case back
to the District Court of Flacq to be heard on the merits. The respondent will
pay the costs of this appeal.

Appellant: Attorney V Ducasse

Avrillon, of Counsel

Respondent: Attorney F A Bradshaw

Dubruel de Broglio, of Counsel

RECORD NO. 1708