068-NLR-NLR-V-47-ELIYATHAMBY-et-al-Appellants-and-KANDIAH-Respondent.pdf
DE SELVA J.—Eliyathamby v. Kandiah.
199
1946Present: de Silva J.
ELIYATHAMBY et al., Appellants, and KANDIAH, Respondent.296—C. B. Jaffna, 247.
Action for use and occupation—Informal agreement relating to land—Possession•Under, by one party—Rights of the other party, though he is not trueowner—Prevention of Frauds Ordinance (Chapter 57), s. 2.
Where a person has entered into possession of a land under an informalagreement and has received the benefit of such possession for a definiteperiod he is bound to pay a reasonable amount for such use and occupationto the person who placed him in possession though the latter may not bethe true owner of the property.
^ PPBAL from a judgment of the Commissioner of Requests, Jafiha.H. W. Thambiah, for the first defendant, appellant.
Renganathan, for the plaintiff, respondent.
Cur. adv. vult.
March 8, 1946. de Silva J.—
The first defendant, against whom judgment has been entered for asum of Rs. 280 for the use and occupation of a field at Murasamoddai,appeals from this judgment on questions of law. He has also made anapplication for leave to appeal on the facts.
The plaintiff, who claimed to be the owner of an extent of 21 acres ofland called Murasamoddai field, alleged that on or about December 13,1941, he entered into an informal agreement with the first and seconddefendants (PI) by which they agreed to cultivate the field and give him80 bushels of paddy out of the Sirupogam and 50 bushels of paddy out ofthe Kalapogam cultivations and a cartload of straw, and that the firstand second defendants entered into possession and cultivated the landfor the Sirupogam cultivation of 1942, but failed to give the 80 bushelsof paddy, which are reasonably worth Rs. 280. The plaintiff also claimedRs. 14'70 in respect of certain gunny bags and Rs. 32 for a cartload ofstraw, amounting in all to Rs. 326*70. He restricted his claim to Rs. 300for the purpose of bringing the action in the Court of Requests.
Summons could not be served on the second defendant and the plaintiffwaived his claim against him. The first defendant, who was served withsummons, filed answer denying that the plaintiff was the owner of the
1 (1910) 12 N. L. R. 119.
200
DE! SILVA J.—Bliyathamby v. Kandiah.
land. He alleged that he and the other defendant entered into theagreement D 1, which was for a term of 5 years and contained certainterms which were hot in P 1, and that they cultivated 8 acres of the fieldbut that owing to the default of the plaintiff in not keeping the fences ingood repair cattle damaged the crops and he realised only 29 bushels ofpaddy. He further stated that they spent Rs. 260 in improving the land,the benefit of which they could not obtain as they were prevented fromcultivating for the Kalapogam by Mr. Cumarasooriar, the owner of theland. He accordingly claimed Rs. 125 as the share of compensationdue to him. He also pleaded that as a matter of law the agreement wasunenforceable.
The parties went to trial on the following issues :—
Did defendant cultivate plaintiff’s land at Murasamoddai, Paran-
than ?
Did defendant agree to deliver 80 bushels of paddy to plaintiff ?
Did defendant use and occupy plaintiff’s land ?
What amount is due to plaintiff for such use and occupation 1
Is the agreement referred to in the plaint enforceable in law ?
Did plaintiff agree to have the fences of the land referred to in
paragraph 2 of the plaint to be kept in good order ?
Were the crops damaged by reason of plaintiff’s failure to keep
the fences in good repair 1
Have the defendants improved the lands ?
If so what compensation are defendants entitled to ?
Is the plaintiff the owner of the land referred to in the plaint ?
If not is the action maintainable ?
After trial the learned Commissioner of Requests answered issues (1),(2) and (3) in the affirmative, and (5), (6), (8) and (10) in the negative.On issue (4) he fixed the amount due for use and occupation at Rs. 280.On issue (7) he found that the crops were damaged but not owing to anydefault on the part of the plaintiff. He did not answer issue (9) in' viewof his finding on issue (8). He also found that the land belonged toMr. Cumarasooriar and not to the plaintiff.
In appeal it was urged that the action, which was based on an informalagreement, could not be maintained in view of the provisions of section 2of Chapter 57. It was further urged that even if an action could bemaintained for use and occupation, it was not available to the plaintiffas he was not the owner of the land. In support of these contentions theCounsel for the appellant cited the cases of Per era v. Fernando1, de Silvav. Thelenis and others2, Charles v. Baba 3 and Subramaniam v.Viswanathan *. On the other hand the Counsel for the respondent rebedon the cases of Sinno Appu v. Appu Sinno B, Nanayalckara and others v.Andris and others 6 and Kanagaraina v. Banda 7.
A consideration of these authorities shows (1) that an informal agree-ment with regard to land does not become enforceable in law in itsentirety though it has been partly performed by one of the parties, (2)
’ (186 3^ Ramanathan Reports 83.3 (1916) 3 G. W. R. 130.
3 (1920) 22 N. L. R. 189.
« (1937) 8 C. L. W. 137.
6 (192S) 6 C. L. Rec. 171.• (1921) 23 N. L. R. 193.
(1923) 25 N. L. R. 129.
Parikldya v. Kadi-ravel.
201
that where a person has entered into possession of a land under aninformal agreement and has received the benefit of such possession for adefinite period he is bound to pay a reasonable amount for such use andoccupation as he may have had and that such amount can be recoveredby action, and (3) that this action is available to the person who placedhim in possession though he may not be the true owner of the property.
The only case which seems to be in conflict with the above conclusionsis the case of Charles v. Baba {supra). In that case the action is said tohave been based on the use and occupation of a paddy field. Only oneissue seems to have been framed, that is “ Can plaintiff maintain thisaction ? ”. Schneider J., who dealt with the case, stated that it wasentirely within the ratio decidendi of the case of de Silva v. Thelenis{supra). He appears to have taken the view that the agreement wasattempted to be enforced on the basis that it fell within the provisions ofsection 1 of Ordinance No. 21 of 1887, which made provision for “ ande ”cultivation. This view is supported by the only issue which had beenframed. If that was the case the judgment would be consistent with theother authorities.
Where a person enters into occupation of a land under an unenforceableagreement, to which he himself is a party, be is not entitled to enrichhimself by enjoying the land at Hie expense of the other. In my opinionthe appeal on the law fails. There is no reason why leave should begranted to appeal cm the facts.
A certain amount of confusion has arisen in this case by the evidenceof title of Mr. Cumarasooriar. He is no party to the action and whateverrights he may have as against the plaintiff or the defendants will notaffect the rights of the plaintiff as against the defendant who entered intopossession under the plaintiff.
No issue was framed with regard to the liability of the first defendantalone for the full sum due to the plaintiff and this point need not bediscussed. The first defendant may have a right of contribution from thesecond defendant.
The appeal and the application are both dismissed with costs.
Appeal dismissed.