4/2552 Thailand Supreme
Court Opinion (No. 1976) 2009
Mrs. Doi Boonlom
vs. Mrs. Aon Boongthong or Putha
Re: Estate, Mass of the estate, rank, and estate portion of spouse
Pre-empt certificate (Bai-Chong) means a certificate issued to certify the right to temporally posses a piece of land as shelter or make a living under the rules and regulations of the State. The principle of this certificate indicated that the person who has the right to posses a piece of land can not transfer his ownership to other except by the way of inheritance. The Land Code section 8 second paragraph under the Act of Parliament stated that the land under pre-empt certificate (Bai-Chong) is considered to be posses by the State not by any individual in order to eliminate the argument among people. When a person who was given the permission to posses the land according to the pre-empt certificate (Bai-Chong) is dead, the lawful right according to the pre-empt certificate (Bai-Chong) is devolved to his heir who is the plaintiff of this case according to the Civil and Commercial Code section 1599, first paragraph; section 1600; section 1635 together with the Land Code according to the Act of Parliament section 8, second paragraph.
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The plaintiff enforced an action that the plaintiff was a legal wedded wife of Mr. Prayuan Boonlom. Mr. Prayuan was given a permission to temporary posses a piece of land approximately the size of 17 Rai 80 Square Wah at Moo 10, Baan Gangyang, Don Jig Sub district, Piboonmungsaharn District, Ubonratchatani Province according to the pre-empt certificate (Bai-Chong) no. 174 in book 1 on page 92. When Mr. Prayuan passed away, the plaintiff and child continuously possessed and made benefit from the stated land. Around May 2002 (B.E. 2545), the defendant prevented the plaintiff from making benefit from the stated land. The defendant claimed that the land on the west side at about the size of 15 Rai belongs to the defendant so he had the right to plough and cultivate in this land. The plaintiff has informed the defendant together with his party to leave the plaintiff’s land but the defendant remained inactive. The defendant’s actions caused the plaintiff debt at approximately 12,000 baht per year. The plaintiff requested for the verdict that the land under the pre-empt certificate (Bai-Chong) no. 174 in book 1 at Baan Gangyang, Don Jig Sub district, Piboonmungsaharn District, Ubonratchatani Province should belong to the plaintiff. Furthermore, the plaintiff requested for the order that the defendant and party are forbidden in involve in this land. Apart from that, the defendant had to pay the debt to the plaintiff at the price of 12,000 baht per year from the day after to the date of accusation onward.
The defendant testified that the defendant did not affirm that the stated land is the land with pre-empt certificate under the name of the plaintiff’s husband as the person entitle to possess. However, the defendant has been openly making benefit from the stated land at approximate size of 10 Rai even before the year 1963 (B.E. 2506) with an intention of ownership until present day without any controversy and objection for more than 1 year. Therefore, the plaintiff then did not have the right to sue for the right to posses. Apart from that, as the plaintiff was not the lawful possessor of the disputable piece of land then the defendant did not ruin anything belongs to the plaintiff. As a result, the defendant requested for the dismissal of the case.
The Trial Court has delivered the verdict that the plaintiff had the right to posses the land which was colored in green according to the map of the disputable land which was the land registered to the pre-empt certificate, Bai-Chong, (N.S. 2) no. 174 in book 1 at Baan Gangyang, Don Jig Sub district, Piboonmungsaharn District, Ubonratchatani Province. The defendant and party were forbidden to involve in any activity with the stated land. Apart from that, the defendant had to pay the compensation to the plaintiff at the price of 1,000 baht per month by counting from the day after the date of accusation onward [date of accusation: November 12, 2003 (B.E. 2546)] until the day when the defendant and his party leave the disputed land. The defendant was also responsible for the court fee of the plaintiff with the lawyer fee for the Trial Court for the amount of 5,000 baht.
The defendant appealed to a higher court.
The Court of Appeal Region 3 has given the confirmation of the verdict. The defendant also had to pay for the Trial Court fee for the plaintiff with the lawyer fee at the amount of 5,000 baht.
The defendant submitted the petition to the Supreme Court.
The Supreme Court adjudicated that “As a primary fact, Mr. Prayuan Boonlom was the rightful person to posses the land under the pre-empt certificate (Bai-Chong) no. 174 in book 1 page 92 at Moo 10, Baan Gangyang, Don Jig Sub district, Piboonmungsaharn District, Ubonratchatani Province. According to the pre-empt certificate, Bai-Chong, (N.S 2), the stated land on the west side of the property is next to the defendant’s land. Mr. Prayuan was a legal wedded husband to the plaintiff. Mr. Prayuan passed away on February 5, 2002 (B.E. 2545). The plaintiff was the owner of the land with the Certificate of Title no. 21069 Don Jig Sub district, Piboonmungsaharn District, Ubonratchatani Province. According to the deed, the disputable land was situated to the east of the defendant’s land which was colored in green in the map of the disputable land. In the year 2002(B.E.2545), the defendant has ordered Mr. Boonmak Boongthong, son of the defendant, to enter and plough the disputable land with a tractor. The defendant did not argue with the fact given in the plaint that the disputable land was a part of the land as stated in the pre-empt certificate (Bai-Chong) no. 174 in which indicated that Mr. Prayuan, the plaintiff’s husband, was the legal possessor. For the issue of the case whether the defendant can counterclaim that he has openly possessed the disputable land for more than one year, The Court of Appeal Region 3 adjudicated that the disputable land was considered as a part of land under the pre-empt certificate (Bai-Chong) owned by Mr. Prayuan. Any land with pre-empt certificate (Bai-Chong) is the State-own land that was given to the people as shelter or make a living under the rules, principles, regulations and restrictions of the State according to the prescription by the committee according to the Land Code section 27. The pre-empt certificate (Bai-Chong) also means the certificate issued to the person who legally temporally posses of land. As stated in section 1 of the Land Code, if the person who was given the authority to posses the land with the pre-empt certificate (Bai-Chong) has absolutely followed the rules, principles, regulations and restrictions of the State according to the prescription by the committee then the official will issue a certificate entitlement the land to the possessor. However, if the possessor did not absolutely followed the rules and regulations then the director-general of the Department of Land has the authority to order that person to leave that piece of land and that person will immediately lack of the right according to the Land code section 90 and section 32. As the pre-empt certificate (Bai-Chong) was the only certificate issued for the disputable land, therefore, the stated land is still belongs to the State. People are not allowed to entitle to posses the land. The defendant submitted the petition to the Supreme Court in order to object the verdict of the Court of Appeal Region 3 that the disputable land is the land with pre-empt certificate (Bai-Chong) which is considered to be the property of the State. Therefore when Mr. Prayuan, husband of the plaintiff, passed away then the disputable land can not be considered as the transferable succession by the way of inheritance. Further more, the plaintiff did not occupy the disputable land. Then the plaintiff did not have the power to appeal for this case. According to the Land Code section 1, the pre-empt certificate (Bai-Chong) means a certificate issued to certify the right to temporally posses a piece of land. From the stated definition, it means that the State did not give the absolute power in possession of the land to Mr. Prayuan whose name was stated in the certificate. Mr. Prayuan only had the right to make benefit from the disputable land in which he must absolutely followed the rules, principles, regulations and restrictions as indicated by the official. During the time of possession, Mr. Prayuan had to follow the Act of Parliament under the Land Code B.E. 2497 section 8, second paragraph which stated that the land permitted to be pre-empted. . . . the authorized person does not have the right to transfer the ownership to other except through the transferable by the way of inheritance. According to the fact that Mr. Prayuan, whose name was stated in the pre-empt certificate (Bai-Chong) was a husband of the plaintiff and Mr. Prayuan passed away on February 5, 2002 (B.E. 2545), the pre-empt certificate (Bai-Chong) right must be transferable by the way of inheritance to the plaintiff as the heir. According to the Civil and Commercial Code section 1599, first paragraph; section 1600 and section 1635 together with the Act of Parliament that the Land Code B.E. 2497 section 8, second paragraph. As mentioned above, the plaintiff had the power for prosecution. But the defendant did not raise this issue during the testimony then this issue was not considered in the Trial and Appeal Courts. The problem whether a person is empowered to sue is the point of law involving public order therefore the defendant had the right to raise this issue as admissible in the Supreme Court according to the Civil Procedure Code section 249, second paragraph. The defendant appeal in the Supreme Court sounded unreasonable.
The verdict was then confirmed. The Supreme Court fee was omitted.
(Thanit Kaesawapitak – Boonsong Phoputhachai – Singpol Laongmanee)
Daecha Ubonpong – Summarized
Worapoj Wattharangkul - Inspected |
