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ALVAR PILLAI v. KARUPPAN.D. 0., Anuradhapura, 321.
Tenancy tinder plaintiff—Refusal of tenant to deliver up possession, on expiry oflease, of a portion of the tenement—Plea that such portion was held ofanother- -Duty of tenant to quit first, and then to litigate.
K, having been let into possession of the whole of a certain land byA, it would seem that, by the law of Ceylon, it is not open to K, eventhough be were owner of a moiety of it, to refuse to give up possessionof the whole to A, on the expiry of his lease.
He must give up possession and then litigate about the ownership ofhis alleged half.
HIS was an action rei vindicatio brought ■against the defend-ant on the footing that he was a tenant under plaintifi, but
declined to give up possession after expiry of lease. Plaintiffprayed for ejectment of defendant and for his own restoration topossession. Defendant denied tenancy under the plaintiff, butpleaded that be held ah undivided half share of the land underone JVP'hideen Tamby.
The issues framed were—First, did plaintiff lease the land inquestion to defendant in la95 ? And second, is plaintiff entitledto the whole land as claimed, or only to half thereof?
The District Judge, after hearing evidence, found that the landoriginally belonged to Uduman Kangany and Mohideen Tamby;that TTduman transferred his half to plaintiff; that plaintiff hadno right to lease to defendant the entire land as he did, but onlya half of it; and that plaintiff was entitled to judgment only forhis half share.
Sampayo, for appellant.—Defendant’s own witnesses haveproved that, he entered into the land as tenant of plaintiff. Thequestion of title should not have been raised in the case. Havingentered under plaintiff, defendant is estopped from disputing hislandlord’s title (C. R., Anuradhapura, 1,202 ; 2 C. L. R. 235,17jet, XIX. 2. 32).
Wendt, for respondent.—The eviuence of entry under defendantis not at all clear. A document was produced in evidence to showthe lease of the whole land, bus that document not beingnotariallv attested is inadmissible.
The plaintifE in this case sues to recover possession of a pieceof land which, he alleges, he let to the defendant for a term ofyears which had expired. The defendant refuses to give up
RR 19790 (12/66)
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1699.possession of the whole of the land on the ground that he was
November 22. tenant of the plaintiff of a half only, and he sets up a title underBonser. C.J. another person to the other half. There is a conflict of evidenceas to whether the plaintiff let the defendant into possession of thewhole or only a moiety. A non-notarial document in Tamil wasproduced in evidence, by which the plaintiff purported to let thewhole of the land to the defendant for a term of years, but thatdocument, not being notarially attested, conveyed no interest hilaw to the defendant, but it confirmed the statement of the plaintiffthat he let the defendant into possession of the whole, and it isinconsistent with the story of the defendant that he was tenantunder the plaintiff for only a half.
Now, it appears that the plaintiff can only prove title to a halfof the land. It is not necessary for the purposes of this case tostate the devolution of the title, for even though the ownershipof one-half of this land were in the defendant himself, it wouldseem that by our law, having been let into possession of the wholeby the plaintiff, it is not open to him to refuse to give up possessionto his lessor at the expiration of his lease. He must first give uppossession, and then it will be open to him to litigate about theownership (see Voet XIX. 2. 32).
In my opinion the defendant has no defence to this action. Hemust give up possession to the plaintiff.
I am of the same opinion.
Taking it as proved—and I think it is proved—that the defendanttook possession of the whole of the property in question from theplaintiff, it was his manifest duty under our law to restore it to theplaintiff as soon as his term of tenancy had expired.
There are several passages of the Digest which illustrate thisrule of law, but a passage in the Code, cited by Voet in his Com-mentary on this part of the law, exactly applies to this case (IV. 65.25: Si quin conductionis titulo agrum, vel aliam quamcunquerent accepit, possessionem prius restituere debet, et tunc deproprietate litigare.
ALVAR PILLAI v. KARUPPAN