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Present: Sir Joseph T- Hutchinson, Chief Justice, andMr. Justice Middleton.
WIJANAIKE v. DE SILVA.D. C., Galle, 7,673.
Contract of lease—Implied convenant ' to put lessee in possession—Failure—Damages
It is an implied term of the contract of letting and hiring' thatthe lessor Bhould put the lessee in possession of the property let;and a lessor who fails to implement his contract by so doing isliable in damages for breach of contract.
IJl HE facts and arguments sufficiently appear in the judgments.
Walter Pereira, K.C., S.-G., for the defendant, appellant.
Van Langenberg, for the plaintiff, respondent.
Cur. adv. vult.
30th October, 1906. Hutchinson C.J.—
This is an appeal by the defendant from a judgment of the DistrictCourt of Galle given on 2nd July, 1906.
• The defendant, by a “ deed of lease ” dated 26th September, 1904,and attested by a Notary Public, leased to the plaintiff a number ofcoconut trees standing on land described in the lease for four yearsfrom the date thereof for Rs. 100 per annum. The plaintiff allegesthat when he went to take possession he found other persons in pos-session of the most important lot of trees, and that those personsdisputed his right to the trees and the defendant’s title to them, andthat in consequence he. never received possession of any of the treesleasfcd to him. He therefore sued for cancellation of the lease andfor return of rent which he had paid in advance and for damages.
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^he defence was that the defendant did place the plaintiff in 1906..possession, and that the plaintiff had not suffered eviction by "process Poster 60.of law and had failed to give the defendant due notice to warrant and Hutchinsondefend the* plaintiff’s title.
Tl^e District Court found that the plaintiff never obtained actualpossession of any of the trees, and that finding was clearly rightupon the evidence.
But it is argued on behalf of the defendant that delivery of thelease was in law delivery of possession of the property leased; thatthe lessor after delivering thVlease was not bound to deliver actualpossession; and that the lessee cannot maintain such an action asthis unless he has been evicted by law in an action of which he hasgiven the lessor notice. That is to say, If I take a lease of a houseor land by a document such as this and I find when I go to takepossession that Mr. A is in possession, who denies the lessor’s title,so that I am unable to get possession, I cannot make any claimagainst my lessor until I have sued. Mr. A. It may be true thatbefore my lessor delivered me the lease Mr. A was both in law andin fact in. possession of the property; but the Solicitor-General, ifI understand him rightly, would contend that the moment my leasewas delivered to me Mr. A ceased to be and I began to be in pos-session. That is not the law. The law is that the lessor Is bound toput the lessee in possession of the property leased; that is an impliedterm of the contract~of lease; and if he fails to do so he is liable topay the lessee damages for his breach of the contract.
Appeal dismissed with costs.
I agree. It is not necessary for me to recapitulate the facts, butI quite concur in the opinion that the District Judge was right inholding that the defendant has not established that he has enabledtlie plaintiff to acquire vacant possession of the trees he leased tohim (Berwick’s Voet, p. 172).
It was the defendant’s duty to give to the plaintiff, his lessee, sucha possession of the trees that he might have the use of them (T7an-dcrlinden 1, 15, 2; Vol. II., Pereira’s Laws of Ceylo.n).
Here all ^hat was done was a forcible marking by the defendant’sagent in the presence of protesting claimants to the trees. It maywell be that the plaintiff thought there was a possibility that hemight get possession, and was content to wait for a period to seeif it were physically possible, and tried again, but, in my opinionhe never had that possession of the trees he was entitled, to^haveconferred on him, viz., a possession such as would enable him toenjoy the fruits of his contract with the defendant.
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On the question whether a delivery of the deed of lease to a lesseeis a delivery of possession of the properly let by the lessor, I am un-able to accede to the -argument of the learned Solicitor-General. Ithink, as I stated at the argument, there is a very considerabledifference between the symbolical delivery of possession thedominium of a property,, and the physical delivery of the right ofoccupation under a lease, which alone enables the lessee to enjoy theright which is conferred on him.
I think that the appeal must be dismissed with costs.
WIJANAIKE v. DE SILVA