( 479 )
Present; Garvin A.J.HELEN1S v. HENDRICK el «l.
242—C. M. Colombo. 78Mi.
Informal lease of land for three years—Forcible ouster by lessor—Actionfor damages—Appeal—Security for easts—Notice.
Where a person entered into occupation as a tenant of anagricultural land on an informal lease for three years, but wasousted forcibly by the lessor the expiration of the period.
Held, that the lessee could have been ousted only by dne processof law, and he could maintain an action for damages against thelessor.
^JTHE facts are set out in the judgment.
E. G. P, JayetiBeke, for respondent, took the preliminary objectionthat no notice of the tender of security for cost of appeal had beengiven to the respondent.
J.S. Jayawardene. for appellant, submitted that the respondent-must be taken to have waived such objection, as his proctor hadconsented to the security for costs of appeal*
The objection was overruled.
J.8. Jayawardene, for appellant.—The action is maintainablealthough there was no notarial agreement. The appellant cannotbe regarded as a trespasser. He has all the rights of the monthlytenant, and the document being non-notarial must be construed soas to be consistent with a tenancy that does not require a notarialwriting (J N. L. if. 106; 21 N. L. if. 156; 299 C. R. Galle,9,280*).
The appellant is clearly entitled to damages for forcible andunlawful ouster.
E. <7. P. JayetiBeke, for respondent.—The action cannot bemaintained without a notarial document (2 C. A. C. 121). Theappellant is not entitled to any damages.
Jayewatdene, in reply.
Cur. adv. vulL
1 S. C. Min., Oct. 6,1916.
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1921. November 9,1921. GUnvnr A.J.—
HeUnis v. This ease must go back for a trial of all the issues properly arisingHendrick on the pleas of the parties.
The foots so far as they are at present available would seem tosbbw that plaintiff was a market gardener, and for the purposes of'his business took over from the defendants,for a term of threeyears,a piece of agricultural land on a non-notarial document referred toin the proceedings as on informal lease. He appears to have laidout nurseries, and, in other ways, developed the land in the ordinarycourse of his business as market garden??. Some two years afterhe first entered into occupation, the defendants, his lessors, oustedhim, and it is alleged “uprooted all the plants grown by theplaintiff and appropriated the vegetable?'for themselves.*’
The defendants answered ^hafc they entered into possessionbecause plaintiff failed to pay the third year’s rent, and pleaded,further, that the action was not maintainable because there was nonotarial attestation of the signatures to the informal writing onwhich plaintiff relied.
The Commissioner upheld the contention that plaintiff’s actionwas not maintainable; and the plaintiff appeals. The plaintiff isnot seeking to enforce the lease. .He recognizes that inasmuch asthe writing was not notarially attested, he cannot resist, the defend-ants should they chose to go behind their agreement and determinebis occupation. This, however, must be done in accordance withlaw, and not by way of forcible ouster.
But a person in the position of the plaintiff is not without remedyagainst a forcible or illegal entry. He is not a trespasser, but waslet into possession by the defendants as their tenant, and as suchcould only be ejected by due process of law.
If, as is alleged, the plaintiff was forcibly ousted, he is clearly'entitled to some damages. On the material before me I am unableto say what these damages should be. I would, therefore, set asidethe judgment pro formA and remit the ease for trial upon the footingthat, as a pure matter of law, the action is maintainable, leavingall other questions to be determined after trial.
A preliminary objection was taken to the hearing of this appealfounded on the ground that no notice of the tender of security wasgiven to the, respondent. I find, however, that security for costsof appeal was fixed on a motion by appellant’s proctor on whichthe respondent’s proctor had endorsed his consent. This motionis dated July 25,1921, while the appeal was not entered till the dayfollowing. Under these circumstances the respondent must bedeemed to have waived the notice required by section 756.
The appellant is entitled to the costs of this appeal.
HELENIS v. HENDRICK et al