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June 25 andJuly 20.
ISAAC PERERA v. BABA APPU el al.
D. C., Kurunegala, 1,148.
Lease—Right of lessee not in possession to compel third parties inpossession of leased premises to yield to him such possession.
A lessee, under a notarial contract, not being put in possession byhis lessor who has a valid title to the property leased, can recoverfrom third parties in adverse possession the use of such property forthe period of his lease.
TN this case the plaintiff, a lessee of certain premises under anotarial lease from the first defendant, sued his lessor, the firstdefendant, and the other defendants, to obtain possession of thepremises leased. The defendants pleaded that the plaintiff, neverhaving had possession of the premises, could not sue the defendantsin ejectment. The District Judge held that the plaintiff’s lessorhad title to only a moiety of the premises claimed, and gave theplaintiff judgment for such moiety.
The defendants appealed.
Asserappa, for first and second defendants, appellants.
Jayawardena, for third defendant.
Dornhorst and Wendt, for plaintiff, respondent.
20th July, 1897. Withees, J.—
The only question argued before us was one of law, and it wasthis : Can a lessee of land, for a term of years under a notarial lease,who has not been put in possession by his lessor, compel third parties,in possession of the premises, to yield him such possession as hewould be entitled to as lessee ?
An opportunity was given to counsel to search for any autho-rity in our courts on that point. The nearest approach to it isthe passage in Mr. Justice Clarence’s judgment (1 S. C. R. 145,1891,Pinhami v. Puran Appii) :—By a late decision of the majority of“ the Court, which is binding on me, a purchaser is allowed“ to maintain an action to eject from the land a party claiming“ adversely to his vendor, even though he himself has never“ had any possession under his purchase. It was admitted by“ respondent’s couasel that the principle of this latter decision“ extends to a lessee.” No doubt, under the old law, there weremany general rules common to the two contracts of sale and lease,
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just as the vendor is bound to deliver the thing sold in such *897-
9June 25 and
a manner that the purchaser may have the full enjoyment and July 20.possession as if the thing belonged to himself (vacuum, possessionem WrrHEBS> jtraders), so the lessor of a thing is bound to place the use of that thingat the disposition of the hirer. So, again, there were threeelements common to the two contracts, viz., the thing sold or let,the price, to be paid for the thing itself or for the use ofthat thing, and the consent of the parties. In later years ourCourt has brought the analogies between the two contracts moreclosely together than seems to have been the case in former times.
In the case of Gunewardena v. Bajapakse (I N. L. B. 217,1895) theChief Justice expressed himself thus :—“ In my opinion we ought to“ regard a notarial lease as a pro tanto alienation, and we ought to“give the lessee, under such a lease, during his term, the legal“ remedies of an owner or possessor.”
I subscribed to that opinion. It therefore seems to me to followthat a lessee, under a notarial contract, can recover from thirdparties in adverse possession the use of the property for the timeto which he is entitled under his lease, assuming of course thathis lessor had the right to let him what he asks for.
Here, the landlord is found to have had the right to let a moietyof the premises for a term of years to the plaintiff, so that the con-testing defendant is bound to let the plaintiff have the use of a moietyof the premises for the term mentioned in his lease. The plaintiffseems to be content with that judgment, for he has not appealedfrom it. It ought, in my opinion, to be affirmed.
I agree to affirm the judgment. This is an action by a lesseewho never got possession against his lessor, and also against thosein possession, who refused to let him in. The presence of thelessor, as defendant, seems to me to remove the difficulty I wouldhave felt had the lessee sought to get a declaration of his lessor’stitle, and a decree for possession and damages, in an action broughtonly against the men in possession.
I hesitate to say that they are liable to be sued by the lessee inan action to which the lessor is no party, for in such an action thequestion of title could not be finally decided and the'defendantswould be exposed to further litigation at the instance of the lessor.In an action like the present that is impossible, because the lessor,
being a party, is bound by the judgment.
ISAAC PERERA v. BABA APPU et al