MACDONELL C.J.—De Silva v. Senaratne.
1932Present: Macdonell C.J. and Dalton J.
' DE SILVA v. SENARATNE.
301—D. C, Kalutara, 15,886.
Lease—Failure to give vacant 'possession—Trespasser claiming title underlessor—Claim for damages against lessor.
The rule that a lessee who has obtained vacant possession of theleased premises must, in the first instance, sue a trespasser in ejectmentdoes not apply, where the trespasser claims title under the lessor.
' In such a case, the lessee is entitled to sue the lessor for damages.
PPEAL from a judgment of the District Judge of Kalutara.
L. A. Rajapakse, for defendant-appellant.
N. E. Weerasooria, for plaintiff-respondent.
October 4, 1932. Macdonell C.J.—
The facts in this case are that the plaintiff, who owns and leasescinnamon bearing land, took on April 11, 1928, the lease of two lands,No. 1 Polkutuwewatta and No. 2 Alubogahakurunduwatta^ from oneFrancis Senaratna for 2£ years to commence on November 1, 1928, payingFrancis Rs. 600 cash in advance. The reason for this postponement ofthe date when the lease was to take effect was because another man wasthen in possession of these two lands as lessee, and there is sufficient
(1907) 3 Balasinghams reports 243.,2 (1907) 2 A. C. R. 165.
2 (1905) 1 A. C. R. 27.
MACDONEL.L C.J.—De Silva v. Senaratne.
evidence to show that this lessee was the person described in the evidenceas the “ Uggalboda man ” and as “ Velun Baas The plaintiff seemsto have discovered that Francis’ Senaratna, his lessor, was not the owner ofland No. 2, but that Francis’ mother was. Consequently he took a furtherlease No. 572 executed to him by the defendant, the mother of Francis, onJune 29, 1928, of the same two lands to commence on December 1, 1928,recited to be for the same consideration, viz., Rs. 600 ; really theconsideration was the forbearance by plaintiff to sue the said Francis forhaving leased him a land to which Francis had no title. Plaintiff, it maybe stated, does not live near these two lands, but at some little distance.It would appear that land No. 1 bears better cinnamon crops than landNo. 2 and plaintiff asserts that though he got possession of land No. 2and took crops therefrom—this would be in the early months of 1929—he was not able to take possession of land No. 1 since the prior lesseeVelun was still in possession and would not quit. He complained to thedefendant who “ promised to settle ”, but evidently she did not settle,and the evidence of one of defendant’s own witnesses shows that thisVelun was still in possession about the latter part of the year 1929.Evidently he had remained on after his own lease had expired, and fromall the circumstances one can conclude that his doing so was with the•acquiescence and probably the assistance of the defendant and her sonFrancis, one or both. On October 29, 1929, the plaintiff commenced thepresent action against the defendant claiming damages and alleging thatshe had not given him peaceful and vacant possession of land No. 1.
In reply the defendant avers that land No. 1 was the property of herson Francis and says that she did give possession of land No. 2, and shealso alleges fraud on the part of plaintiff and her son in getting her toexecute lease No. 572. The case went to trial on certain issues of whichthe following are important: —
“ (1) Was the deed of lease No. 572 executed merely as proof that thedefendant would not disturb the lessee in the possession of the ,second land mentioned in the deed of lease or was it executed anddid the defendant undertake to place the plaintiff in possessionof both the lands leased ?
(3) Did the plaintiff obtain possession of both the lands leased tohim ?
The evidence of the plaintiff was that he did not get possession of landNo. 1 so as to peel any cinnamon off it and that defendant, when com-plained to, promised to put things right but did not. A cinnamon peelercalled for the plaintiff gave evidence that another man peeled land No. 1and that he was still in possession, and one of the defendant’s witnessesshows that this man was the former lessee Velun, as has been stated.The only evidence suggesting that the plaintiff did get possession was thathis complaint to the headman was not made till October, 1929, whereashis difficulties as to possession would have been iia the early months ofthat year, and that then he only mentioned “ disputes ” “but not inabilityto get possession, also that his cinnamon peeler, giving evidence, says“ Polkutuwewatta, land No. 1, was also weeded by us and somebody elsepeeled the cinnamon. We took one, and a half months over that, thensome people came and disturbed our possession.” As to this last piece
MACDONELL C.J.—Djs Silva v. Senaratne.
of evidence it may be pointed out that possession so as to be able to weedis not a particularly beneficial possession—the prior lessee Velun mayhave been quite glad to see someone else doirfg the weeding for him—and that the evidence is quite uncontradicted that the plaintiff never gotpossession of land No.. 1 for the purpose of peeling cinnamon, that forwhich he leased the land. The learned District Judge, in his judgmentduly considered the evidence as to a servant of the plaintiff havingweeded, as tending to show possession by the plaintiff, and concluded onthe whole evidence as follows:—“In the circumstances it cannot be saidthat the defendant had given effective vacant possession of the first landto the plaintiff.” I do not think on the evidence that one can say thathe was wrong or that it was proved that plaintiff ever did get vacantpossession of this land No. 1.
On the appeal it was strenuously argued that the evidence showed thatthe plaintiff had obtained possession and that therefore his action wasmisconceived -and should have been brought against the trespasser Velunand not against the defendant. On the balance of testimony I think thelearned District Judge was right in holding that possession was never given.
Even however if the evidence were that possession was given, the rulethat if you have once obtained possession action must be brought notagainst the lessor but against the trespasser, at the same time warningthe lessor of the trespass, does not seem to apply where the trespasserclaims title under the lessor. See per Wood Renton J. in AlagiawanncuGurunanse v. Don Hendrick.' “A lessee who has been put into vacantpossession of the property demised cannot, in the absence of an expresscovenant by the lessor in the lease empowering him to do so, bring hislessor into Court against the latter’s will as a defendant to an actionbrought by him against third parties, not claiming title under the lessor,who have ousted him from possession.” Here the lessor is the soledefendant but the same principle would seem to hold. The third partydoes claim title under the lessor, then the objection to suing the lesserherself disappears. The passage from the Censura Forensis IV., c. 19,■s. 10, cited in 10 N. h. R. 311 seems to recognize the same distinction.“ Tradere hie non est simpliciter de manu in manum conferre, aut in nudamdetentionem emptorem deducere, sed vacuam possessionem praestare, id est,liberam ab omnibus possessoribus et detentoribus justis.” Then Velunholding possession against the plaintiff woiild be a possessor et detentorjustus, that is to say, he would claim under title from the owner, plaintiff’slessor. If that is so the defendant could not maintain that she had givenvacant possession since there was another person then in possession bytitle—lease or at the very least licence—under her. The evidence, as Ihave said, is sufficient to raise the very strong presumption that thisprior lessee Velun was in possession with the support or at the very leastthe acquiescence of the defendant. On either ground, therefore, I thinkthis appeal faiis and must be dismissed.
The plaintiff gave evidence, as to damages, which was not contradicted.The learned District Judge found the damages reasonable and there is noevidence on the record to suggest the contrary. The appeal is dismissedwith costs.
> 13 N. L. R. at. 232.
DALTON J.—Sabapathy v. Velupillai.
I agree that the appeal must be dismissed, defendant having failed togive vacant possession of the first land to the plaintiff. It is to be notedthat neither in her pleadings nor in her evidence does she say she aslessee ever gave plaintiff possession of this land. Francis; her son, wasnot called by her as a witness, for a fairly obvious reason since he couldnot help her case, a third party being in possession of the property.Vacant possession means such possession as can be legally maintainedagainst a third party (Jamis v. Suppa Umma et aV), and that possession," possession unmolested by the claims of any other person in possession ”(vide Ratwatte v. Dullewe 5), both mother and son knew under the circum-stances here they could not give.
The fact that one of the plaintiff’s workmen had done some weedingon the land, that fact standing alone and in face of other facts upon whichplaintiff relies, is quite insufficient to support defendant’s case. Plaintiffdid not live in the locality, and as the trail Judge points out, this weedingwas done at a time when the land was unoccupied.
DE SILVA v. SENARATNE