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Judgment
Maclean, C.J.—The only question we have to consider on this application is whether the Applicant in the Court below has brought his case within Section 335 of the Code of Civil Procedure, so as to give the Court jurisdiction to act under that section : we have nothing to do with any other question. That section allows a summary proceeding in certain cases. It says:--"If in delivering possession" of the property purchased " any such person," that is, a third person, "is dispossessed, the Court, in the complaint of the purchaser or the person so dispossessed, shall enquire into the matter of dispossession." The question we have to consider is whether the Applicant in the Court below was dispossessed within the meaning of the section. I think that, upon his own showing, whatever may be the ulterior rights of the parties, he has not been so dispossessed as to entitle him to apply in the summary way authorized by the section. On his own evidence he is still in possession : he has not been dispossessed. It is said that he has been dispossessed because symbolical possession has been given of the tank in question to the Petitioner. Whatever, as between the parties, ultimately may be the legal effect of this, it does not amount to the dispossession contemplated by Section 335. Section 318 throws at least a side light upon what is meant by "dispossession" in Section 335.
I may point out that if the tank in question belongs to the opposite party, he can assert his right by suit : at present he is in physical possession of the tank.
The Rule must be made absolute with costs.
Ceidt J.
I concur.