Kassam v. The Regional Land Officer Civ. Rev. 2-M-70; 6/11/70; El-Kindy Ag. J.

 

Kassam v. The Regional Land Officer Civ. Rev. 2-M-70; 6/11/70; El-Kindy Ag. J.

            This was an application brought under s.79(1) of the Civil Procedure Code for revision of an interlocutory ruling made by a resident magistrate. The respondent had filed a suit against one Dharamshi claiming a declaration that Dharamshi was in unlawful possession of a plot of land and that he should be ordered to vacate. In his defence, Dharamshi stated that, he had been granted a Right of Occupancy in respect of the plot and that before the expiration of the right, the plot was sold to one Fazal whereupon Dharamshi held the property in trust for Fazal. He also     stated that he did not know whether the property had been registered and transferred to Fazal or to the applicant. Whereupon the applicant applied to be joined as one of the defendants to the suit alleging that she was the equitable owner in respect of the plot and had an interest in the suit filed. The applicant also alleged that Dharamshi defending the suit on her behalf and at her expense. The magistrate rejected the application on the ground that the applicant and the defendant did not have the same interest at the time of the suit.

                        Held:  (1) That section 79 of the Civil Procedure Code would not apply to revise a decision of the subordinate court over an interlocutory matter.  Citing Gandesha v. Killingi Coffee Estate Ltd     and Another [1969] E.A.299, Muhinga Mukono v. Rushwa Native Farmers Cooperative Society [1959] E.A.595, Hasham Karim and Co. v. Africa Import and Export  [1960] E.A.396, Vithaldas Jetha v. Valibai l. T.L.R. (R).  (2)  “I think, with due respect to the learned magistrate, the affidavit of the applicant disclosed that he had the same interest as Dharamshi in the sense that both of them were claiming that they held property in trust pending the finalization of he alleged sales. This is interest and is sufficient for the purposes of Or.1, r. 8 C.P.C. In fact the affidavit, which was not challenged by the respondent, alleged that the applicant was in physical possession of the property, and I should have thought that this should have been a factor to be taken into consideration since, in the event of the respondent succeeding against Dharamshi, the decree and order of the court would not have been capable of execution as against the applicant since she was not a party to the suit.”  (3)  “Whether or not the applicant would have succeeded in establishing her rights and against whom would have been a matter of proof. The learned magistrate seemed to have accepted that the applicant had beneficial interest, and if that was so, that would have been sufficient to allow the applicant to be joined as a co-defendant in the suit.”  (4)  Application dismissed.

            Editor’s Note

                        It is pertinent to note that the Court of Appeal in Kitundu Sisal Estate & Others v. Shingo Mshuti & others Civ. App. 54-D-69 (1970) raveled the technicalities of s.79 of C.P.C. see [1970] H. C. D. 242.