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Present: Dalton J. and Jayewardene A.J.
SILVA HAMINE v. WIJEKOON.279—D. C. Badulla, 4,072.P rescripiion—Claim by purchaser of property for damages for legaleviction—Cause of action—Date of eviction.
Where a purchaser of property who has suffered legal evictionsued his vendor for recovery of purchase price and damages.
Held, that prescription began to run against such a claim fromthe date of eviction, and not from the date'of sale.
James Appu v. Don Cornells de Silva1 distinguished.
r I ''HE plaintiffs purchased a certain property from the defendant in-L 1915. They were not given vacant possession. In 1924 theyinstituted an action No. 3,943 in the District Court of Badullaagainst certain persons in possession for the recovery of the property,and summoned the defendant to warrant and defend the title.The defendant gave evidence but judgment went against theplaintiffs. On February 4, 1925, they commenced the present1 (1885) 7 s, c. c. m.
t 440 )
1926. action to recover the purchase money, and the costs incurred in theprevious suit; the defendant pleaded inter alia that the plaintiffs’Hamine v. ol&im was prescribed, and the learned District Judge upheld the plea.Wijekoon
H. V. Pererat for plaintiff', appellants.
O. P. Jayatillehe (with him R. C, Fonseka), for defendant,respondent.
March 18, 1926. Jayewardene A.J.—
This case raises a question regarding the prescription of an actionbrought by a purchaser who has suffered legal eviction to recoverfrom his vendor the purchase price with interest and the costsof the action -in which he suffered eviction. The appellantspurchased certain property on a deed of sale in the year 1915.They were not given vacant possession. About the year 1924 theycommenced an action, No. 3,943, D. C., Badulla, againstcertain persons in possession for the recovery of the property soldto them. They summoned the defendant, their vendor, to warrantand defend the title he had conveyed. The vendor gave evidence,but judgment was entered against the appellants on June 27, 1924,and they thereby lost their title to the property sold to them andsuffered “ eviction.”
On February 4, 1925, they commenced this action to recoverthe purchase price with interest up to the date of action, the coststhey had themselves incurred in action No. 3,943, and the coststhey had to pay their opponent, all amounting to Rs. 1,628. Thedefendant pleaded inter alia that the plaintiffs’ action was notmaintainable as their claim was prescribed as it was not commencedwithin three years of the date of the sale, and as the plaintiffs didnotappeal against the judgment inNo. 3,943. On certain admissionsthese two defences which formed the fifth and sixth issues framed weretaken up for decision first. The learned District Judge held thatthe plaintiff’s claim was prescribed, and dismissed the action. Inhis opinion the cause of action arose in 1915, when the defendant 'failed to give plaintiffs vacant possession, and not when theysuffered eviction in June, 1924. He did not decide the sixth issue.
In the present action the plaintiffs claim not only a repetition ofthe price paid by them, but also the costs incurred and paid bythem in D. C., No. 3,943. Now their claim for these costs cannotbe said to be prescribed as they were incurred and paid not in1915, but in 1924.
Whatever might have been the rights of a purchaser who had notobtained vacant possession under the Roman-Dutch law, under ourlaw as settled by the decisions of this Court, such a purchaser caneither rescind the sale and obtain a refund of the purchase moneyor accept delivery of the deed as sufficient delivery "of possession
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of the property, for the delivery of a duly excecuted deed confersdominium on the purchaser, and sue the persons in possession inan action rei vindicatio. If he adopts the latter course he can callupon his vendor to warrant and defend the title transferred:Batwatte v. Dullewe,1 a Full Bench decision, and Balasuriya v.Appuhami.2 The latter is on all fours with the present case, andin identical circumstances a purchaser who had been defeated in anaction he had brought against the party in possession was heldentitled to sue the vendor, who had failed to warrant and defendtitle, for damage, which might include the costs of the abortiveaction.
The plaintiffs in the present case adopted the second of thealternatives and did exactly what the plaintiff in Balasuriya v.Appuhami (supra) had done, and was held entitled to do. Afterthey were defeated in the action and lost title to the land, owingto the vendor’s failure to warrant and defend, they have broughtthis action to recover the purchase price, and the costs incurred andpaid. Their right to do so accrued on their suffering evictionwhich was the result of the dismissal of their action. That is theircause of action. Voet clearly lays down in his title De Evictions(Book XXI. 229) that in such cases prescription begins to runnot from the time of the sale, but from the date of eviction(Berwick's Trans. p. 523), This would appear to conclude thematter. In fact, it seems difficult to understand how it pould beotherwise, if the ground or cause of action for the recovery of theprice is the legal eviction of the purchaser. But learned Counselfor the respondent contends on the authority of James Appu v. DonCorndis de Silva (supra) that time begins to run from the date of sale.The facts of that case appear to be similar to those of the presentcase, and it was there held, that a purchaser who had unsuccessfullysued a party in possession of property sold to him in an action inwhich his vendor was an intervenient could not recover the purchasemoney, as the action was not brought within three years of the dateof the deed, which is the date on which the purchaser ought to haveobtained possession. The action, there, was in form an actionfor money had and received by the defendant for the use of theplaintiff—an action condidio indebiti. The cause of action was thefailure of consideration. It was not framed as an action for thereturn of the price on the ground of eviction as it might have been.There was no appearance of Counsel for either side, and the viewthat the claim might be treated as one arising from eviction was notpresented to the Court, The ratio decidendi of that case has,therefore, no application to the present case, and it cannot beregarded as an authority which ought to govern the decision of thiscase. An argument was also based on the hardship to a vendor
1 (1907) 10 N. L. R. 304.
J A YE WAR*DENE A.J.
* (1914) 17 N. L. R. 404.
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Hamim v.W ijekoon
who is sued many years after the sale, as he has to return thepurchase price with interest. In the present case the interestclaimed is equal to the principal. That is a contingency which thevendor can avoid by giving the purchaser vacant possession, oneof the primary obligations arising on a sale. If he fails to do so,he would be having the use of the purchaser’s money—the price—but the purchaser would have obtained nothing for the considerationhe has paid. If it is subsequently proved that he has sold propertyto which he has no title, it is but just and fair that he should returnthe price with interest.
In my opinion, therefore, prescription begins to run in cases likethe present, not from the date of sale, but from the date of eviction.As this action was instituted before the expiry of three years fromthe date of eviction, the plaintiffs’ claim is not prescribed.
The decree dismissing the action will be set aside, and the casewill go back for the trial of the other issues including the sixth.The appellants are entitled to the costs of this appeal and of theargument in the Court below. –
Dalton J.—I agree.
Set aside, and case remitted.
SILVA HAMINE v. WIJEKOON