MAARTENSZ J.—de Mel. v. Amarasinghe.
1938Present: Maartensz J.
DE MEL et al. v. AMARASINGHE.
37—C. R. Panadure, 6,485.
Use and occupation—Agreement to purchase land—Purchaser placed inpossession—No liability for use and occupation.
An action for use and occupation does not lie against a person who wasgiven possession of land in pursuance of an agreement to purchase theland which was not completed through no default on his part.
PPEAL from a judgment of the Commissioner of Requests,Panadure.
P. J. Kurukulasuriya (with him Gilbert Perera), for plaintiff,appellants.
D. W. Fernando, for defendant, respondent.
Cur. adv. vult.
July 29, 1938. Maartensz J.—
This is an appeal from a decree dismissing the plaintiff’s action for therecovery of a sum of Rs. 375 alleged to be due from the defendant for useand occupation of the premises bearing assessment No. 208, Horana.
It appears that the father of the plaintiffs acting on their behalfverbally agreed to sell the property in question to the defendant, thepurchase was to be completed in two months, and the defendant wasplaced in occupation of the premises pending completion of the sale. Thedefendant denied liability to pay rent while admitting the circumstancesin which he was placed in possession and further stated that he wasready and willing to complete the sale.
The learned Commissioner in dismissing the case relied on the case ofIsla Maricar v. Andris Appu In that case it was held that an actionfor use and occupation, will not lie unless there has been a. contract,expressed or implied between the parties. There the plaintiff sued forrent on a parol lease. The Commissioner held that the parol leasehad not been proved, but gave the plaintiff judgment in a certain sumas compensation for use and occupation. Tlfat decision was clearlywrong because the defendant -had denied the plaintiffs’ title and theplaintiff was not entitled to recover except on the footing that thedefendant had agreed to pay rent. In this case, however, the defendant,admits the title of the plaintiffs and he would be liable to pay com-pensation for use and occupation unless he was placed in possessionin circumstances from which it would be inferred that he was to be inpossession free of rent.
In the case of Winterbottom and others v. Ingham2 it was held thatwhere the vendee of an estate sold by auction had been allowed to enterupon and hold the premises while the title was under investigation,and where the contract had afterwards been determined for want of titlethat the vendor canribt on these grounds only, recover for use andoccupation, although a jury found that the occupation had been beneficial.
1 (1907) 10 N. L. R. 178.2 (1845) 7 Q. B. R. Oil.
MAARTENSZ J.—de Mel v. Amarasinghe.
In a South African case, Wepner v. Schrader the report of which is notavailable, it was held that a person who was allowed use and occupationon the understanding of a future purchase, will not be liable for use andoccupation on an action brought by the person, who put him in possession,as the facts did not constitute an implied contract to pay rent, but thatthe plaintiff was entitled to eject the defendant on refunding to himthe sum of money paid in advance.
I think these decisions are applicable to the facts of the present case.It is clear from the evidence of the plaintiffs* father that the defendantwas willing to purchase the property till January, 1937. He also statedthat he was still prepared to sell the premises even now to the defendantif his wife will agree. The defendant says that he is still ready andwilling to purchase the premises.
The plaintiffs are therefore not entitled to succeed in this appeal.They have received a certain amount of compensation because thedefendant has not claimed the sum of Rs. 200 which he had paid as anadvance, and I understand he has given up possession of the premises. -o The appeal is dismissed with costs.
Appeal dismissed. i
i (1903) T. S 689.
DE MEL et al. v. AMARASINGHE