( 54 )
Present: Bertram C.J.
DIAS v. NIKKO.
63— C. R. Galle, 2,564.
Action for trespass—-Constructive possession of plaintiff.
Mere constructive possession is not a sufficient basis for anaction for trespass.
rJ*' HE tacts appear front the judgment.
Soertsz, for plaintiff, appellant.
Keuneman, for defendant, respondent.
August 25, 1922. Bertram G.J.—
I cannot allow this appeal. The plaintiff is the Crown grantee,and he brings the action in respect of an alleged trespass, but atthe date of the trespass he had not obtained his grant. It is clearfrom the case (Chellatnma v. Navasivayam.) 1 that at that date hehad no title, and though it would appear from the case of DauduMaricar v. Edirisuriya 3 that if a purchaser has taken possessionof the land, even before a deed of transfer has been obtained, hehad a sufficient interest in the land to ^enable him to bring apossessory action or to sue for trespass ; in this case it does notappear that the plaintiff had ever assumed active possession of theland. The record is not full, but at least this is clear that a docu-ment was put in by the plaintiff which disclosed the facts on whichhe relied. The document consisted of the proceedings of a PoliceCourt case, in which the plaintiff had prosecuted the defendant.From those proceedings it appears that the land was then chena,and that plaintiff had never cleared it. On those facts, therefore,the case cannot be brought within the authority last cited. Mr.Soertsz says that if the case is sent back, he might he able to proveconstructive possession ; he might show that somebody hadattended from the Kachcheri, and handed over the land to him.I doubt that very much. There is a letter front the GovernmentAgent informing the plaintiff that the land had been sold to him.I think it most unlikely that anyone would have troubled after thatletter to go and put the plaintiff in possession. As advised atpresent T doubt whether mere constructive possession would hesufficient basis for an action for trespass. Under the circumstancesI do not feel justified in sending the matter back for formal trial,and I must dismiss the appeal, with costs.
‘ (1907) 3 Bal.209.
* (1910) S Bal. 39.
DIAS v. NIKKO