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Present; The Hon. Sir Joseph T. Hutchinson, Chief Justice,1908.
and Mr. Justice Middleton.March 25.
DINGIRIYA v. PAYNE et al.
D. C., Kurunegala, 3,121.
Possessory action by lessee—Dispossession—Superiortitle of person
dispossessing—Alternative claim against lessor—Ordinance No. 22of 1871.
Where a lessee of immovable property who has been in possessionis dispossessed of sneh property by a purchaser of the same fromthe lessor otherwise than by process of law, the lessee is entitledto be restored to possession under section 4 of Ordinance No. 22 of1871, even though such purchaser may have a better title to theproperty).
In an action against a trespasser for restoration of possession,the lessee may join an alternative claim against the lessor for thereturn of the lease money.
Fernando v. Waas 1 followed.
PPEAL by the plaintiff from a judgment of the District Judge- of Kurunegala (Bertram Hill, Esq.). The facts material to
the report sufficiently appear in the judgments.
Bawa, for the plaintiff,appellant.
Weinman, for the defendants, respondents.
Cur. adv. vult,
March 25, 1908. Hutchinson C.J.—
By an indenture dated February 6, 1905, the first defendantleased to the plaintiff 3 acres of land for four years from the date ofthe lease in consideration of Rs. 48, which sum the plaintiff, paid tothe lessor in advance.
The plaintiff says in his plaint that in pursuance of the terms ofthe lease he felled the jungle on the land and sowed it with finegrain and planted 1,800 plantafin bushes thereon; and that onJanuary 22, 1907, the workmen of a servant of the defendantcompany, alleging that the company had bought the land, unlaw-fully and forcibly cut down the fence of the land and rooted out800 plantain bushes standing thereon, and “ is ” (meaning apparentlythat the defendant company is) in the unlawful and forcible posses-sion, of the land. He then says that in the lease the first defendantundertook to warrant and defend the title, and to settle any disputewhich might arise during the term of the lease. And the plaintiffclaims (1) a declaration of his title to possession for the term of thelease; (2) possession; (3) damages; or (4) in the alternative thatthe first defendant may be ordered to refund the said Rs. 48 and topay damages.
(1891) 9 S. C, €. 189.
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The first defendant by her answer said that the plaint disclosed nocause of action, against her. The District Judge held that this wasa good defence, and dismissed the action as against the first defend-ant. Before considering whether this was right, I will state therest of the facts.
The second defendants, the company in their answer do notadmit that the plaintiff felled jungle and sowed the land and plantedplantains in pursuance of the lease; and they say that by deed datedFebruary 3, 1906, registered on February 9, 1906, they boughtfrom the first defendant an estate, of which the premises describedin the plaint form part, and that, by virtue of the registration ofthe said deed before the plaintiff’s lease, the plaintiff’s claim againstthem is not maintainable.
The only issue suggested between the plaintiff and the companywas whether the plaintiff’s lease was void as against the company.The company’s proctor submitted that the plaintiff’s lease was notregistered until January 4, 1907 (as to which there is no evidenceor admission recorded, though the District Judge says in his judg-ment that it is admitted). The plaintiff’s proctor then said thathe was not asking for judgment for the land, but for improvementson it; and that he was a bona fide possessor of it; and -that hewould confine his prayer to damages, and would give up theprayer for possession. The company’s proctor said, in reply, thatthe improvements, if any, were not permanent or necessary.Thereupon, without any other issue being settled or any evidencebeing taken, the District Judge dismissed the action as againstthecompany.Hesaid “the point I have to decide is, whether
thelease totheplaintiff is void as againstthe companyby
virtue of theprior registration of the transferin favour ofthe
company. ’’ Having said so he did not decide the point, andmade on further reference to it. . He dismissed the action,because the only claim then made against the company wasfordamages,and“ no owner can be liablefor damagesfor
keeping out of possession one who has an inferior title; ” he thoughtthe case would have been different if compensation for improve-ments had been claimed, but, he said, “ in this case there is nothing •whatever about compensation, and no suggestion in the wholeplaint that any improvements have been effected on the land. ”
There, I think, he is in error. The plaint (paragraph 4) does notallege or ask for damages simply “ for keeping out of possession, ’’but also for cutting down the plaintiff’s fence and uprooting hisplantains; and the Judge has recorded that the plaintiff’s proctoron the day of the hearing said that his client was asking for judg-ment “ for improvements for the land,” because he was a bona fidepossessor. The company in their answer deny the allegations inthe 4th paragraph of the plaint. There should have been issues(1) whether the company did the acts complained of in the 4th
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paragraph of the plaint; (2) (unless it is admitted) whether thecompany’s deed of transfer was registered before the plaintiff’slease; (3) whether the plaintiff was in possession and was disposses-sed by the company otherwise than by process of law; and (4) ifso, to what damages, if any, he is entitled. If the 1st and 3rd ofthese am decided in the affirmative, it appears to me that theplaintiff will be entitled to a decree for possession under section 4of Ordinance No. 22 of 1871, and for damages for the wrongful actscomplained of, even though it is held that the company have abetter title than the plaintiff.
I now come to the case against the first defendant. Against hertile plaintiff claims “ in the alternative ” refund of the Rs, 48 anddamages. The plaint is not well worded, but I can give no othermeaning to the words “ in the alternative ” than “ if the claim fordeclaration of title to possession fails.” If it is proved or admittedthat after leasing the land to the plaintiff, that is, selling it to himfor a; term of four years and receiving from him the purchase money,she sold it again to the company, the question whether the lattersale was a breach of her covenant to warrant and defend the plain-tiff’s title, or gives any other cause of action to the plaintiff, is oneto be tried. The District Judge says that she had a perfect rightto sell her land, notwithstanding the subsistence of the lease.Surely not, unless she sold it subject to the lease. If nothing moreappeare than that she sold the same thing twice over and receivedthe purchase money twice over from two different persons, so thatone of them must lose the benefit or part of the benefit of hispurchase without any further explanation of her conduct, it wascertainly dishonest, and I hope it was illegal. But she may havea good defence; and she has set up a claim in reconvention; andthese are matters which should be inquired into. I think theDistrict Court should settle issues of fact and law and try them.
I think the decree of the District Court should be set aside, andthe case go back to the District Court to settle and try the issueswhi’ch I have indicated. -Appellant to have the costs of this appeal.Costs in the District Court up to date to be costs in the cause.
This was an action by a lessee against his lessor, the first defend-ant, and a purchaser from his lessor, the second defendant company,to be declared entitled to possession of the land leased for the termof the lease, to be placed and quieted in possession, and for damages.
On February 6, 1905, the first defendant leased a portion ofBulatwalkandewallemullewatta for four years to. the plaintiff, whopaid in advance the sum of Rs. 48 and took possession. This leasewas not registered, but the plaintiff covenanted , in it not to cutuseful trees and to plant plantain bushes and cereal products
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therein, and that if the first defendant desired to plant cacao orrubber thereafter amidst the plantains and cereals, she should bepermitted to do so.
On February 3, 1906, the first defendant sold the land in questionwith other land to the second defendant company, the sale beingregistered on February 9, 1906. On January 22, 1907, the seconddefendant company, by their agent and superintendent, tookpossession under the conveyance, and the plaintiff alleges that theydid so forcibly, cutting down a fence and uprooting plantain bushesto the value of Rs. 1,800, while the second defendant alleges thatpossession was merely taken under the conveyance, and, denyingthe damage, asserts that the plaintiff had planted in breach of hiscovenant in the lease and had exceeded the acreage thereunderconceded to him.
As between the plaintiff and first defendant an issue was agreedto:—Is this action maintainable By the plaintiff? After argumentby the proctors on both sides the District Judge dismissed theplaintiff’s action, holding the first defendant had a perfect right tosell the land, notwithstanding the subsistence of the lease.
As between the plaintiff and the second defendant the followingissue was agreed to:—Whether the lease is void as against thesecond defendant company by virtue of prior registration.
The plaintiff’s proctor in the course of his argument disclaimedright to possession, but confined his prayer to damages against thesecond defendant company.
The District Judge in giving judgment stated that the point hehad to decide was whether the lease to plaintiff was void as againstthe second defendant company by virtue of the prior registrationof the transfer in favour of the company, but overlooking that pointproceeded, without in fact deciding it, to discuss plaintiff’s claimfor damages, and, differentiating between damages and compen-sation, appears to have held that the Supreme Court decision inDistrict Court, Kurunegala, 2,493, did not apply, and dismissedthe plaintiff’s action against the second defendant.
The plaintiff appealed, and by his counsel contended, althoughhe did no.t claim it, that by reason of the forcible dispossession hewas entitled to a possessory decree as against the second defendant,and further, for the value of his improvements on the land, whetherit was denominated compensation or damages, and as against thefirst defendant that he was entitled to a refund of his lease money.
For the first defendant it was contended that the case in 1 Bala-singham 8 was exactly in point. He had given the plaintiff posses-sion, and the plaintiff’s legal course was to proceed against thesecond defendant company in a possessory action, and under thecircumstances plaintiff had no cause of action against the firstdefendant, and no issue h'ad been suggested as to the refund of thepurchase money.
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As regards the second defendant company, it was urged that noissue was placed before the Court as to compensation or damages,though the District Judge had in fact decided as if there had beenone, and that the District Judge was right in holding that no actionlay against the second defendant company for taking possessionunder its registered conveyance of the property it had legallypurchased.
In my opinion the plaintiff had-a good cause of action againstthe second defendant company under section 4 of Ordinance No. 22of 1871 for being dispossessed otherwise than by process of law,and brought the present action, which might have been treated asa possessory action within time.1 The dispossession of the plaintiffby the second defendant company in this case if not actuallyforcible was certainly otherwise than by process of law.
This Court has held in 5 N. L. R. 320 that upon a forcible ousterproof of dispossession and forcible ouster is all that is necessary tobe proved to entitle a plaintiff to a possessory decree, it not beingeven necessary to prove possession for a year a day. By variousdecisions this Court has consistently upheld the principle of theBoman-Dutch Law that persons are not entitled to take the lawinto their own hands.
The plaintiff in this case does not seek possession as being of novalue to him. There is no question that he was in possession, andthat his possession as a lessee was a bona fide one under his lease.As such he is entitled to compensation for impensoe utiles,2 and, Ithink, for any damage that may have happened to him by thesecond defendant company enforcing their right without proceedingin the ordinary course of law.
The judgment in the case set out in the record (226, DistrictCourt, Kurunegala, 2,493) also supports the equitable right of theplaintiff to compensation for improvements, if such be found on theland in dispute. At the same .time I hink that if any damage hasbeen caused to the plaintiff by the second defendant companyenforcing their right without proceeding in the ordinary course oflaw, the second defendant company will be responsible for it.
The Boman-Dutch Law appears to me to absolutely deny theright of any person to take possession of property as against thewill and without the consent of the person who is in possession ofit. " The right arising out of possession consists in every manbeing entitled to retain whatever he has in his possession, to resistwhoever attempts to deprive him of it, and to continue in suchpossession until another person has judicially established his owner-ship to the thing.” 3
Again, Van Leeuven (Kotze's. translation, vpl. I., 1908) says:“ The possessor may protect and maintain himself and his property
J C1898) 4 N. L. R. 195.* (1900) 4 N. L. R. 158.
Maas dorp's Grotius 49.
( nc 5against any person who seeks to disturb his right of possession,even to the loss of his adversary, and may recover the possessionof which he has been deprived or in which he has been disturbed…… provided this be done while the deed is fresh and without
Again, Van der Linden, translated by^ Jut a. page 99, says:” Xo
one may be put out of possession without legal process. Shouldhe be ousted from possession even upon a claim of ownership, thepossession must first be put in the same position it was before anyinquiry as to the ownership can be entered into.”
If this be the law, the acquisition of possession as against thepossessor without process of law constitutes an injuria, for whichreparation must be made in damages, if such be proved.
As regards the first defendant, the plaintiff’s right to claim inthe alternative against her for the return of the lease money is,1 think, well founded on the case reported in 9 S. C. C. 189.
I therefore think that the judgment of the District Judge shouldbe set aside with costs, and the case should go back for the trial ofthe issues set out in the judgment of the Chief Justice, the costs inthe District Court up to date to be costs in the cause.
Appeal allowed; case remitted.
DINGIRIYA v. PAYNE et al