12/2551 Thailand Supreme Court Opinion (No. 14737) 2008

Mr. Vikrom Visutjindaporn, Ms. Lamaiporn Plodtongsom or Intachot and party

Re: Possessory, Transfer of Possessory

Civil  Possessory, Transfer of Possessory (section 1367, 1373, 1378)

 The plaintiff was entitled to have the possessory over the disputable land. The plaintiff then should benefit from the disputed land under the presumption of Civil and Commercial Code section 1373 that the plaintiff was entitled to possession. But it was not the absolute presumption. The defendant no. 1 then was allowed to attest to the fact to disprove the stated presumption. The fact that the plaintiff possessed the disputed land only by theory or documentation but did not actually make any benefit from the disputable land had been considered. Though O. was indicated in the Certificate of Title (N.S. 3 K.) as the person entitled to have the possessory. When O. sold the disputed land to L. and has given the right over the possessory to L, it  was considered as the renounce of possession of O. since 1987 then O. has waived the right over the disputable land according to the Civil and Commercial Code section 1378.  L. sold and transferred the right of possession of the disputed land to defendant no. 1. The defendant no. 1 then had entered and filled the disputed land with dirt since 1993 (B.E. 2546)  which was considered as the possession with intention to seize for one self. The defendant no. 1 then had the right to possess the disputed land according to the Civil and Commercial Code no. 1367. When L. had renounced the right to possess the disputed land then L. did not have the right to sell with right of redemption to the plaintiff. Even when the sale with right of redemption between L. and the plaintiff was in a written form and had been registered with the official, the plaintiff did not have the right to possess the disputable land.

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The plaintiff enforced an action for both the defendants to revoke the Certificate of Title (N.S.3 K.) no. 2379, Baan Na Sub district, Jana District, Songkha Province. If the defendants neglected to take actions, then the verdict will be used as the declaration of intention of the defendants.

The defendant no. 2 did not appear for the testimony.

The defendant no. 1 pleaded and counterclaimed for the counterclaim of the defendant no.1 to be dismissed.

The Trial Court has delivered the verdict for the case to be dismissed. The court fee is omitted. The plaintiff and his party were prohibited for any action which was considered as the interference for both the defendants’ right. The plaintiff was ordered to pay for the court fee for both the defendants and the lawyer fee was set at 8,000 baht.

The plaintiff appealed for the higher court.

The Court of Appeal Region 9 has given the confirmation of the verdict. The lawyer fee for the Court of Appeal for both the defendants which was set at 1,500 baht was the plaintiff’s responsibility.

The plaintiff submitted the petition to the Supreme Court.

The Supreme Court adjudicated that “As a primary fact, Mr. Ahwang Mharae was originally the owner of the land at the size of 6 rai 1 ngan 78 square wah according to the Certificate of Title (N.S. 3 K.) no. 2383, Baan Na Sub district, Jana District, Songkha Province. Later on, the Hatyai-Jana highways cut through this land. Afterward, the land was measured and split as public right of way for 6 rai 51 square wah. The disputed land for this case then had the remaining area of 1 ngan 27 square wah. Mr. Ahwang sold the land with the right of redemption to the plaintiff on May 27, 1997 (B.E. 2540). The reimbursement will be expired within 1 year. Mr. Ahwang failed to reimburse. After that the plaintiff submitted a petition for the issuing of a title of deed for the disputable land. The land officer could not complete the process because the defendant no. 1 had asked for the measurement of the disputed land at the same time with another 9 plots of land since 1996 (B.E. 2539).

The legal issue in the plaintiff’s Dika petition needed to be interpreted that whether the disputed land was belonged to the defendant or the plaintiff. The plaintiff had himself as the witness in giving the evidence that the sale with right of redemption agreement was registered with the present of the official but the plaintiff can not submit for the issuing for a title of deed as the defendant no. 1 and the defendant no. 2 had bought up the other 9 plots of land in the same area. The defendant no. 1 and the defendant no. 2 then had asked for the measurement of the disputable and with other plots of land all at the same time. The defendant no. 1 had himself as the witness in giving the evidence that Mr. Ahwang had sold the disputed land to Mr. Lomlee Hayeewang since 1987 (B.E. 2530) and had also given the right of posses to Mr. Lomlee. Later on, Mr. Lomlee sold the stated land and gave the right of posses to the defendant no. 1 in 1993 (B.E. 2536). The defendant no.1 then ploughed and filled up the disputed land together with the other 9 plots of land. By the time of filling up the land, Mr. Ahwang and Mr. Lomlee were at the site observing the fill up and did not argue about the land filling up. After the filling up, the defendant no. 1 had asked for the measurement of the other 9 plots of land with the disputed land which Mr. Lomlee claimed that it lacked of document of title. The land officer had completed the process with a report according to the Document J. 7 that the plaintiff who had his name registered as the person holding the deed then benefits from the presumption under the Civil and Commercial Code section 1378 as the person who has the right to posses. But the stated presumption was not the absolute presumption. The defendant no. 1 then can attest the facts to refuse the presumption. The defendant no. 1 then adduced with the support from the testimony from Mr. Ahwang who was the original owner of the disputed land as witness for this case that the disputed land belonged to the defendant no. 1. Mr. Ahwang had sold the disputed land which was the remaining piece of land from the cut through of the highway to Mr. Lomlee and had given the right of posses to Mr. Lomlee. After that the disputed land was filled up. Mr. Ahwang observed the filling up but did not argue which was consistent with the testimony of the defendant no. 1. Yet, make the testimony of defendant no. 1 more solid and deliberated. Apart from that, the plaintiff admitted that the plaintiff bought the disputed land with right of redemption after the accumulated of the other 9 plots of land by the defendant no. 1. Furthermore, the plaintiff can not make any benefit from the disputed land as the defendant’s land was overlapped on. The plaintiff then testified by answering the objecting question from the lawyer of the defendant no. 2 that the reason behind the buying with right of redemption of the disputed land was that the plaintiff expected to make benefit from making interest from the sale with redemption and he had no interest in the land itself. This showed that the plaintiff was only entitled to the land of disputable but did not make any benefit from the land. The defendant no. 1 has possessed and made benefit from the land since 1993 (B.E. 2536). Thought Mr. Ahwang was registered as the person entitled to the deed in the Certificate of Title (N.S. 3 K.) but Mr. Ahwang had sold and had given the right to posses to Mr. Lomlee since 1987 (B.E. 2530), so Mr. Ahwang had given up the right to posses the stated land according to Section 1378. Mr. Lomlee then sold and gave the right to posses the disputed land to the defendant no.1. When the defendant no. 1 ploughed and filled up the disputed land, it showed that the defendant no. 1 had an intention to retain of the land. The defendant no. 1 then had the right to posses the disputed land under the Civil and Commercial Code section 1367. Since Mr. Ahwang had given up his right of possession then he did not have the right to sell with right of redemption to the plaintiff thought the sale was in written form and was registered to the official. Therefore, the plaintiff did not have the right to posses the disputed land. The evidence from the defendant no.1 was more solid than the plaintiff’s and can disprove of such legal presumption. Both the defendants then owned the disputed land. The other Dika appeal of the plaintiff did not affect the verdict of the Supreme Court; therefore no further investigation was needed. The Supreme Court agreed with the Trial Court and the Court of Appeal for the case dismissal. The plaintiff and his party were prohibited for any action which was considered as the interference for both the defendants’ right. The Supreme Court affirmed with the verdict. The plaintiff’s Dika appeal sounded unreasonable.

The verdict was confirmed. The Supreme Court fee was omitted.

(Chalermkiat Chansilp – Supachai Somchalearn – Sanong Laosriworakot)

Solathorn Noisopol – Summarized
Muntree Ulchin – Inspected