DE KBETSEB J.—Heras Singho and Amolis Appuhamy.
1943Present: de Kretser J.HERAS SINGHO, Appellant, and ARNOLIS APPUHAMY,
154—C. R. Panadure, 9,040.
ZietsOT and lessee—Partition of land leased—Eviction of lessee—Lessee's claimfor damages.
Where the undivided share of a land which was partitioned had beenleased and the portion leased had been allotted to a co-owner other than;the lessor, who was given compensation,—
Held, that the lessee was not bound to intervene in the partition?action and that he was o entitled to claim damages from the lessor.
A PPEAXi from a judgment of the Commissioner of Requests, Panadure-
H. W. Jayewardene for the defendant, appellant.i>. N. Rajah for the plaintiff, respondent.
October 22, 1943. de Kretser J.—
The plaintiff took on lease from the defendant the tea plantations,made by the defendant on the land called Ihalawatta, for five yearsat the rate of Rs. 14. a year, the full rental being paid in advance. At-the time the lease was entered into a partition action for the land Ihala-watta had been instituted and had been taken off the roll as the plaintiffin that action had died. The action was subsequently revived and inthe scheme of partition, which was adopted by the Court, the tea-plantation fell in lots to persons other than the defendant, and, as aresult, the plaintiff lost his possession of the tea. He now claims damages'from the defendant. The defendant has received compensation in thepartition case to the extent of Rs. 193.40. At the trial the plaintiffstated that as damages he claimed a sum of Rs. 135.50 for the unexpiredportion of the lease, being. the value of the coupons and 'the green leaf-He gave no details. In cross-examination he admitted that the lease-was at the rate of Rs. 14 a year, and in re-examination stated that the-
DE KBETSBR J.—Her as Singho and Amo lie Appuhamy.
price of the tea coupons and the price of green leaf "went up in 1939 and1940. No details were given of the way in which he arrived a.t his figure.On that we have n<? evidence. -The point urged on defendant’s behalfwas that the plaintiff should have intervened in the partition action toprotect his rights and if he had failed .to do so he has only himself toblame, and therefore could not claim damages. The learned Commissionergave judgment for the plaintiff as prayed for. The same objectionis raised on behalf of the defendant in this Court, and it is further urgedthat the plaintiff, being aware of the defect in title on the part of thedefendant, heshould not bealloweddamages,for. which proposition
Wille on Landlord and Tenant, p. 137 is quoted. Undoubtedly plaintiffmight have intervened in the partition action. Hut he was not underobligation to do so, for his right would be conserved if the tea plantationfell to the lot of the lessor and, if it could not so fall, his interventionin the ease would not affect the situation and any question of damagesbetween him and his lessor could not be properly settled in the partitioncase and would have to be the subject of a separate action. With regardto the secondobjection therewas nodefect inthe defendant’s title.
Except for the operation of the Partition Ordinance he would have beenentitled to remain in possession of the tea plantation until compensated.The partition action has been off the roll and there was apparentlynothing to indicate .that the action would come to a termination beforefive years elapsed, for it is scarcely likely that the defendant would haveleased or the plaintiff have taken lease for five years if a more speedytermination of the trial was envisaged. There was a certain elementof risk, but I do not think that is sufficient to disentitle plaintiff todamages. It must also be remembered that in the indenture of leasethe lessor covenanted that the lessee would have peaceful and quietpossession, andthe duty lay upon himto protectthe lessee’s rights as
far as possible.I do not thinkthere isanything in the law which is in
the defendant’s favour, but it seems to me that the defendant is entitledto a relief on the question of damages. The plaintiff is clearly entitledto a refund of the rent. It is true he has not claimed a refund in thatform, but the amount of rent paid is involved in his claim for damages.The tea plantation was apparently valued at Rs. 393.40. There is nosuggestion that the compensation was inadequate and it does seem outof proportion to award Rs. 135.50 as damages for years’ possessionon a lease, an amount so near the total value of the tea plantation:On the other hand compensation may have been assessed on artificiallines and may not represent the true value of the plantation. In theabsence of details which the plaintiff should have given the case oughtto go back for a proper assessment of damages. But rather than subjectthe parties to further expenses, I propose to make a rough estimate my-self. Seeing that the rental was paid in advance' it was probably lessthan what would be paid annually and, allowing a fair return and providingfor the rise in the price. I think a ..total sum of Rs, 75 is enough. Tothis extent the decree will be varied. The appellant will have costs ofappeal.
HERAS SINGHO, Appellant, and ARNOLIS APPUHAMY Respondent