4/2552 Thailand Supreme
Court Opinion (No. 3315) 2009
Mr. Kaew Tungkarn, Mr. Boonmee Pienngam with Mr. Thanakorn Pienngam
as Represented Party
Re: Sale with Right of Redemption, Change of Seisin
Civil Sale with Right of Redemption, Change of Seisin (section 491, 1381)
K., the plaintiff’s father, had the land registered to be sold with right of redemption under the Certificate of Title (N.S. 3 K.) no. 139 which included the disputable land to B., the defendant’s wife. The plaintiff’s father did not redeem the mortgage within the time limit. Then B. had the right to possess the disputed land. Thus, no matter how long K. had possessed the disputed land, he remained the person allowed to make benefit from the disputed land yet not having any right over the land like the possessor. When K. passed away, the plaintiff impressively and openly possessed the disputed land with an intention of ownership. The Trial Court had appointed the plaintiff as the real representative of K. Then the plaintiff as the real representative of K. had redeemed the mortgage from the bank and had assigned the plaintiff as the possessor. The possession and the authorization of the disputed land were considered as the transmission of right of K. The plaintiff then did not have the better right or title than K. Apart from that, the plaintiff did not inform the change of seisin to B. or the defendant who possessed the disputed land that he did not intend to take over the disputed land under the Civil and Commercial Code section 1381. The plaintiff will not have the right to posses the disputed land no matter how long the plaintiff had possessed.
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The plaintiff enforced an action and amended the plaint to the court that the plaintiff was the owner and had the right to possess the land at the area of 10 rai 1 ngan 10 square wah under the Certificate of Title (N.S.3 K.) no. 1702. The defendant and party should be prohibited for any legal business. The Certificate of Title (N.S. 3 K.) no. 139 should be revoked. If the revocation could not be performed, then the name mentioned as the possessor in the Certificate of Title or other property document should be under the plaintiff’s name.
The defendant no. 1 pleaded for the dismissal of the charge.
The defendant passed away during the trial. Mr. Thanakorn Pieangam, son of the defendant, submitted the petition applying to be the represent party of the defendant. The Trial Court had granted the permission.
The Trial Court adjudicated that the case must be dismissed. The plaintiff was responsible for the Trial Court fee for the defendant with the lawyer fee at the amount of 5,000 baht.
The plaintiff appealed to the higher court.
The Court of Appeal Region 5 had given the confirmation of the verdict. The defendant did not submit the petition for any correction in the appeal. The defendant then did not have to pay for the lawyer fee for the Court of Appeal.
The plaintiff submitted the petition to the Supreme Court.
The Supreme Court adjudicated that “..after the consideration, both parties had completely agreed with the absolute presumption and did not appeal for correction in the Dika that Mr. Kumma Tungkarn, father of the plaintiff, was originally the person entitled to posses the land according to the Certificate of Title (N.S. 3 K.) no. 139 with the approximate size of 15 rai 1 ngan 64 square Wah. On March 11, 1976 (B.E. 2519), father of the plaintiff had sold the stated land with redemption to Mrs. Boonthong Pienngam, wife of the defendant. The redemption period was set for 3 years. Mr. Kumma did not redeem the mortgage from Mrs. Boonthong within the time set for the redemption period. On November 1, 1973 (B.E. 2516), another Certificate of Title (N. S. 3 K.) no. 1702 with the approximate size of 10 rai 1 ngan 10 square wah was issued. This land was the disputed land between the Certificate of Title (N.S. 3 K.) no. 1703 with an area of 5 rai 20 square wah which was overlapped with the land under the Certificate of Title (N. S. 3 K.) no. 139. Subsequently on December 8, 1994 (B.E. 2537), Phayao Provincial Governor had revoked the Certificate of Title (N.S. 3 K.) together with other legal documents related to the Certificate of Title (N.S. 3 K.) no. 137. The legal issue needed to be interpreted according to the plaintiff’s Dika petition was whether the disputed land was belonged to the plaintiff or the defendant. The Court then suggested that according to the fact, Mr. Kumma, father of the plaintiff, had registered the property to be sold with redemption under the Certificate of Title (N.S. 3 K.) no. 139 including the disputable land to Mrs. Boonthong, wife of the defendant. Later on, Mr. Kumma did not redeem the mortgage within the time limit. Therefore, Mrs. Boonthong became the person entitled to possess the land. Even though Mr. Kumma, father of the defendant, had possessed the land for a period of time according to the testimony but it was only the action of possess but he did not gain the right of possession which was belonged to Mrs. Boonthong. The plaintiff supplied more information during the testimony that when Mr. Kumma passed away, the plaintiff impressively and openly possessed the disputable land with an intention of ownership. The plaintiff also testified that the plaintiff had contacted the legal officer in order to have his name registered as the person entitle to possess the disputed land but the legal officer had informed the matters of objection. The legal officer allowed the plaintiff to be registered as the person entitle to possess the disputed land only when the plaintiff had became Mr. Kumma’s real representative. The plaintiff then submitted a petition in order to be appointed as Mr.Kumma’s real representative. The Trial Court had appointed the plaintiff as Mr.Kumma’s real representative as requested. After that, the plaintiff as Mr. Kumma’s real representative had redeemed the mortgage from Bangkok Bank Co., Ltd. and had his name entitled as the person having the right over the stated property. The possession and the hand over of the disputed land occurred as the transmission of right. The plaintiff then did not have a better right over Mr. Kumma. Apart from that, the plaintiff did not testify to prove that the plaintiff had informed the change of seisin to Mrs. Boonthong or the defendant who possessed the disputed land that he had no intention to take over the disputable land under the Civil and Commercial Code section 1381. Therefore, even though the plaintiff had possessed the disputed land for a period of time but the plaintiff will not gain the right to possess over the disputed land. The Supreme Court then certified the verdict of the Court of Appeal Region 5 that the defendant had the right to process over the disputed land. The other adjudication was no longer needed. The plaintiff’s Dika appeal sounded unreasonable.
The verdict was confirmed. The defendant did not submit for the correction of the Dika Appeal so the lawyer fee for the Supreme Court was omitted.
(Chaiwut Lopchitranon – Issares Chaiyarat – Maitree Sriarun)
Korchok Buthchaingam – Summarized
Somchai Teekauttmakorn - Inspected |