ELIASHAMY v. PUNCHI BANDA et al

033-NLR-NLR-V-14-ELIASHAMY-v.-PUNCHI-BANDA-et-al.pdf


( 113 )
[Full Bench.]Feb- 7>1911
Present: Hutchinson C.J., Middleton and Grenier JJ.
ELIASHAMY v. PUNCHI BANDA et al.
151 to 153—D. C. Ratmpura, 1,738.
Action for declaration of title, ejectment, and damages—Sale of land byplaintiff pending action—Plaintiff entitled to recover damages inspite of sale.
Where during the pendency of an action for declaration of title,ejectment, and damages consequent on the trespass and the wrong-ful removal of plumbago from the land in dispute, the plaintiffsold the land in dispute to a third party,—
Held (per Hutchinson C..T. and Middleton J„ ddssentienteGbenier J.)» (1) that the vendees need not be added as plaintiffs ;
(2) that plaintiff was not precluded from maintaining his claimfor damages, though he could not get a decree for declaration oftitle and ejectment.
Oasen Lebbe v. Coder Lebbe 1 over-ruled.
I
N this action plaintiff sued for declaration of title to 19-24ths of acertain land, and to recover possession, and damages, and for
an injunction. He alleged that the first three defendants and certainother persons are the nindagarfia proprietors, and that he and hispredecessors in title duly performed rajakariya, and that he was onDecember 17, 1909, in the enjoyment of all the rights and privilegesincidental to the said rajakariya, and that on the last-mentioned date
'(1899) 2 A. C, R, 775.
13J, X, A 03348 (11/49)
( 114 )
Feb. 7, ion the fiTSt ^Tce defendants, in collusion with the last three, entered theEUa»hmny land and took forcible possession of it from him and sank pits andVBmrfa* *™nec* f°r plumbago and removed a large quantity of plumbagofrom it, causing him damage to the amount of Rs. 2,500, and heclaims the said Rs. 2,500 and further damages. The first threedefendants filed a joint answer denying the plaintiff’s title to anyshare in the land, or that he or his predecessors ever performedrajakariya in respect of the land, or that they themselves took forciblepossession ; they also alleged that the land is bandara, and is theexclusive property of themselves and certain others, but that even ifit is paraveni land, and if the plaintiff is entitled to 19-24ths of atenant’s share in it, the minerals belong to the defendants and theirco-owners ; and that, lastly, that the plaintiff has since the institutionof this action conveyed all his interest in the land to E. L. F. deSoysa and T. Cooray, and is therefore not entitled to maintain thisaction. The fourth and sixth defendants filed a joint answer tothe same effect as that of the first three defendants. The fifthdefendant in his answer did not admit any of the allegations madein the plaint, but disclaimed title for himself.
The learned District Judge framed, inter alia, the followingissues :—
Is the plaintiff not entitled to maintain this action by
reason of conveyance No. 3,952 of March 12, 1910, toMr. E. L. F. de Soysa and to Themis Cooray ?
Was plaintiff on December 17, 1909, in possession of
19-24ths of the land described in the plaint, and ifso, entitled to be presumed paraveni nilakaraya ownerthereof ?
(8) The plaintiff having vindicated his title to the said sharesof the land against the defendants in D. C. Ratnapura1,507, for the fifth and seventh defendants, of whom thefourth defendant herein was the proctor, is the fourthdefendant herein entitled to set up a title derived fromthe first, second, and third defendants herein, obtainedafter decree, to defeat the same ?
On the first issue the learned District Judge held (August 20,1910) that the action was not maintainable, but ordered thatSoysa and Cooray be added as plaintiffs within a specified time.They were accordingly added on August 31, 1910.
There were three appeals by the defendants, and there was across objection filed by the plaintiff under section 776 of the CivilProcedure Code.
The appeal in No. 151 was by the fourth, fifth, and sixth defendantsagainst an order dated August 31, 1910, directing two persons,vendees of the plaintiff, to be made added plaintiffs to the action.The appeal No, 152 was by the first, second, and third defendants,
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and was against an order refusing to vacate the order of August 31,1910. The appeal No. 153 was by the first, fourth, and sixthdefendants, and was against an order allowing issues (2) and (8),and further sought that the order adding plaintiffs should be setaside.
The case was reserved for a Full Bench.
H. A. Jayewardene (with him Jayatileke), for the appellants.—The main prayer of the plaint is one for declaration of title ; theright to recover damages depends on the right to get a declarationof title. Since plaintiff has sold his interest after the filing of theaction, he cannot get a declaration of title, nor can he get damagessince he is not owner now. Ossen Lebbe v. Coder Lebbe1, Norton v.FreckarJ Voet 6, 1,4 (Casie Chitty's Translation, p. 14) lays downthe same principle. Counsel also referred to 2 W. R. 169.
The eighth issue does not arise on the pleadings. The plaintiffshave not followed the proper procedure for the adding of parties.
Bawa, for the respondent.—Ossen Lebbe v. Coder Lebbe proceedsupon the assumption that we have various kinds of action by nameas under the old law. Under the Code actions are not labelledby names. We have only to state facts and ask for relief. Evenif under the Roman-Dutch Law we cannot maintain this action,the action is maintainable under the Civil Procedure Code. Theplaintiff alleges that the defendants had removed his plumbago ;the fact that he had sold his land does not deprive him of the rightto recover the value of the plumbago. Chapter XXV. of the CivilProcedure Code specifies all the cases in which an order of abate-ment may be made ; it nowhere says that alienation, pendente life,causes the action to abate. The Court should not have ordered thevendees to be joined as plaintiffs. They have no right to recoverdamages. Counsel referred to Pless Pol v. Soysa,3 Veeravagu v.Fernando.*
H. A. Jayewardene, in reply.
Cur. adv. vult.
February 7, 1911. Hutchinson C.J.—
His Lordship stated the facts, and continued :—
The second and eighth issues raised questions of law proper to betried by the District Court, and I see no reason why they shouldnot be tried. The main question in these appeals is whether theorder adding plaintiffs should stand, and if not, whether the actionshould be dismissed. The action was commenced in January,1910. By deed dated March 12, 1910, the plaintiff conveyed tothe added plaintiffs 15- 18th shares in the land. It seems clear
1 (1899) 2 A. C. R. 175.3 (1907) 10 N. L. R. 252 ; 3 Bal. 146.
* (1737) 1 AtkyM 523.4 (1893) ?. C. L, R. 207.
Pd>. 7, 1911
Eliashamyv. PunchiBanda
( 116 )
Feb. 7,1911
Hutchinson
C.J.
Elutshamyv. PttnoJitHonda
that under that conveyance the added plaintiffs are not entitledto the damages which the plaintiff claims for the plumbago removedby the defendants before the date of the conveyance ; the right (ifhe had any) to those damages is still vested in the original plaintiff ;if he cannot recover them the defendants will keep the value of thatplumbago, even though it is decided that they were trespassers andwrongdoers. That claim of the plaintiff must therefore be decidedin this action. The plaintiff contended before the District Courtthat he should maintain his claim for damages in this action withoutadding the purchasers as plaintiffs ; the Judge expressed his opinionthat the action must be dismissed, unless the purchasers were added ;and the plaintiff accordingly asked that they should be added,and the Judge allowed his request. The appellants’ contention,if I have rightly understood it, is that the order adding plaintiffswas irregularly made and should be set aside, and that when thatis done, the plaintiff’s action must be dismissed, because there is arule that a man cannot recover what are called “ mesne profits ”from a trespasser on his land, unless he gets at the same lime a decreedeclaring him to be still entitled to the land ; that this plaintiffadmittedly cannot now get such a decree, and that the damageswhich he claims are “ mesne profits,” or at any rate should bedealt with in the same way as if they were “ mesne profits Thecase of Ossen Lebbe v. Cader Lebbe1 was cited in proof of the allegedrule. If there is such a rule the original plaintiff’s claim must fail,whether the purchasers are added or not, because he is not nowentitled to the land, and the added plaintiffs are not entitled todamages for the plumbago removed before their purchase. Fromany point of view, therefore, it was not necessary to add thepurchasers as plaintiffs. For if there is such a rule, the plaintiff’sclaim must fail whether the purchasers are added or not.
In Ossen Lebbe v. Cader Lebbe1 the plaintiff sued for declarationof his title to land and to eject the defendant, and for damages, andfor mesne profits. He had never had possession, but claimed tohave been entitled to it up to the time of the commencement ofthe action ; and his interest in the land had, during the pendency ofthe action, been sold under a writ of execution against him. The.District Judge dismissed the claim for ejectment, but gave theplaintiff mesne profits for the period before the sale. The SupremeCourt (Lawrie and Withers JJ.) dismissed the action. Lawrie J.said : “ It seems to work injustice in this case, but I think thatcertainly the law is that to maintain an action for mesne profitsfounded on wrongful possession of the land the plaintiff must haveat the date of the decree for mesne profits a present possessorytitle That opinion seems to me to be right in so far as it “ worksinjustice,” but in other respects I cannot assent to it. He refersto Norton v. Freckar2 and another case, the report of which I have
1 (1899) 2 A, 0, B, 175,
(1737) 1 Atkyns 523.
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not been able to find. Withers J. agreed with him, and quoted apassage from Voet 6, 1, 4. In Norton v. Freckar' R had been formany years in possession of land, claiming it as his own, and afterhis death the plaintiff filed a bill in Chancery against R’s adminis-trator for an account of the rents and profits ; the plaintiff hadnever had possession, and had not brought any action at law toprove his title and recover possession, and his bill was thereforedismissed. Voet in the passage quoted was speaking only of anaction rei vindicatio. I think that these authorities only deal withthe form of action or (in the case of Norton v. Freckar') with theCourt in which the action should be brought. They do not say,and I cannot believe they meant that, if a man has a right to recoverdamage for trespass on his land, he loses it, and no one else acquiresit, when he sells the land. And if he still has the right, he musthave a remedy ; the form of the action is no longer material.
In 151 and 153 the order of August 31 adding plaintiffs, and in152 the order of September 15 refusing to vacate the order ofAugust 31, should be set aside ; and so much of the appeal in 153as asks that the order of August 17 be set aside and that the actionbe dismissed ought to be dismissed. The case must go back fortrial on the issues settled by the District Court other than the first.The plaintiff has substantially succeeded on all the appeals, and Ithink that he Should have his costs of the appeals.
Middleton J.—
There were three appeals by the defendants, and there was a crossobjection filed by the plaintiff under section 776 of the Civil Pro-cedure Code. The appeal in No. 151 was by the fourth, fifth, andsixth defendants against an order dated August 31, 1910, directingtwo persons, vendees of the plaintiff, to be made added plaintiffs tothe action. The appeal in No. 152 was by the-first, second, andthird defendants, and was against an order refusing to vacate theorder of August 31, 1910. The appeal No. 153 was by the first,fourth, and sixth defendants, and was against an order allowingissues (2) and (8), and further sought that the order adding plaintiffshould be set aside. The action was brought on January 4, 1910,in the form of an action rei vindicatio for a declaration of title to aland, ejectment therefrom, damages for removing plumbago thereon,and an injunction to prevent further interference.
On March 12, 1910, the plaintiff sold his interest in the land totwo other persons, now made added plaintiffs by the District Judge.The object of the action was to obtain damages for certain plumbagoalleged by the plaintiff to have been diig- and removed by thedefendants from the land while in the possession of the plaintiff.The sale by the plaintiff unquestionably terminated his claim to be
1 (1737) 1 Atkyne 523.
Feb. 7. lull ■
HrTCHTN'SO.V
CJ.
EfUishaintfv. PuncJri
Honda
( 118 )
Feb. 7,1911 declared owner of the land or to have ejectment or an injunction,Middleton but what he sold was his right in the land, not his right to recoverJ* damages fdr injury inflicted when he was owner of the land. If,Eliaahamy therefore, he had a right to claim such damages, I cannot see that heVBandai ls P^fduded by the form of his action from proceeding in con-formity with it for their recovery. As a condition precedent to theirrecovery he will be bound to prove that at the time the plumbagowas wrongfully removed—if it was wrongfully removed—he had alegal right to the share of the land he claims in his action. The factthat his action is supposed to be in the form of an action rei vindi-cate does not prevent him from abandoning that part of his claimseeking a declaration of title and ejectment and reducing his claimto one of damages only. There are no set forms of action underour present procedure, but for the sake of brevity and distinctionit is customary to use the old names of actions under the Roman-Dutch procedure. The District Judge has ordered the vendees ofthe plaintiff to be added as plaintiffs, on the grounds apparently thatan action for mesne profits cannot be maintained unless the plaintiffhas at the date of the decree a possessory title (Ossen Lebbe v.Coder Lebbel)* This is a judgment purporting to be founded onNorton v. Freckar1 an old case decided when the distinction betweenlaw and equity in the English Courts was marked and determined,and when procedure was governed by restricted forms. Underthe old procedure it was necessary by an action at law to recoverpossession of land by ejectment before in equity you could recovermesne profits, and Norton v. Freckar2 is authority for it. In lawalso apparently no action would lie in trespass for mesne profits tillpossession was recovered. This would not, however, have preventedan action on the case for damages to the corpus while in the lawfulpossession of the plaintiff. It must be remembered also that underthe English Law mesne profits has a signification limited to theyearly value of the premises to a person wrongfully kept out ofthem, while under our Procedure Code (section 196) it means profitsactually received or which with ordinary diligence might have beenreceived. If in Ossen Lebbe v. Coder Lebbe the plaintiff had a claimfor damages to the corpus while he was in lawful possession of it,or if his claim was for rent or profits wrongfully taken by the defend-ants while the plaintiff was entitled to the possession, I think, with.all respect, that the learned Judges were wrong in dismissing theaction. Again, I think that Voet 6,1,4, at page 14 of Casie Chitty9sTranslation does not apply here. It no doubt applies to a simpleclaim for declaration of title, but here there is a claim for damagesin addition, and the foundation of the action still exists, althoughthe interest of the plaintiff in the corpus may have ceased to exist.As regards the second issue, it appears clearly to arise in the case ;and the fourth issue raises a question of law, which must be decided
1 {1899) 2 A. C. R. 175.
H1737) 1 Atkyns 523.
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by the District Judge in the first instance. I think that both appealsNos. 151 and 152 should be allowed. As regards appeal No. 153,in my opinion it should be allowed as regards the addition of theadded plaintiffs and dismissed as regards the issue objected to, andthe case sent back for trial upon the question whether the plaintiffwas entitled to a share in the land at the time of the allegedabstraction of the plumbago, which would give him a right to bereimbursed for it by the defendants, and to what amount. I agreewith my Lord in the order he makes as to costs.
Grenier J.—
This is an action rei vindicatio instituted on January 4, 1910,against six persons in respect of a land called Damunuketayahena,of which the plaintiff claimed l9-24ths. We are not concerned atpresent with the title which he has set out in the plaint, or withthe merits of the case. In addition to his claim for a declaration.of title, the plaintiff claimed the sum of Rs. 2,500 as damages, and
further damages at the rate of Rs. 300 a day from the date ofinstitution of action, alleging that all the defendants had entered onthe land on December 17, 1909, and had mined for plumbago andappropriated the same.
The defendants severed in their defence. The fifth defendantfiled answer disclaiming title ; the first, second, and third defendantsdenied the plaintiff’s title, and raised several questions which are notmaterial on this appeal ; and the answer of the fourth and sixthdefendants followed practically on the lines of that of the first,second, and third defendants. Both these sets of defendants raisedthe objection that as the plaintiff had by his conveyance No. 3,952,dated March 12, 1910, transferred the land in question to E. L. F. deSoysa and Themis Cooray, the plaintiff was not entitled to maintainthis action. When the case came on for trial on August 17, 1910,several issues were suggested by plaintiff’s counsel, and to some ofthese the defendants’ counsel objected, and suggested other issues.The Court thereupon framed eight issues, the first of which was :“ Is the plaintiff not entitled to maintain this action by reason ofthe conveyance No. 3,952 of March 12, 1910, to E. L. F. de Soysaand to Themis Cooray ? ” This issue, which went to the very rootof plaintiff’s action, if decided against him, was first argued, andthe District Judge held that the judgment of Lawrie and Withers JJ.,reported in Appeal Court Reports, vol. II., pp. 175-178, was on allfours with the present case, Mr. Justice Withers having said in hisjudgment : ” I do not see how you can disassociate the res from thefructusy and when the dominium goes, the foundation of the actiongoes with it The District Judge, however, instead of dismissingthe plaintiff’s action, appears to have given way to a suggestionfrom plaintiff’s counsel that the purchasers, De Soysa and Cooray,should be added as plaintiffs. The District Judge thought this was—
Feb. 7,1911
Middieton
J.
Eliashamyv. PunchiBan da
( 120 )
Feb. 7, mi
Grenieb J.
Eliaehamyv. PuncfiiBanda
I am quoting his words—“ the fairest course to pursue in a case ofthis nature, where such large interests are involved, and so as*toavoid further litigation ; the law requires that justice not injusticebe done”. He accordingly made order as follows : ** If the plaintiffwithin fourteen days, with notice to the defendants in writing, asrequired by section 403 of the Code, moves this Court to add thepurchasers from the plaintiff as added plaintiffs in this case, thisCourt will, subject to the hearing of any objection raised bydefendants’ counsel, allow the motion, in default the plaintiff’saction will be dismissed. The plaintiff must pay the defendants thecosts of this contention.”
This order is dated August 20, 1910. On August 29, 1910, theplaintiff's proctor moved in conformity with the order of Courtdated August 20, 1910, that E. L. F. de Soysa and Themis Cooraybe added as plaintiffs in this action, mentioning in his motion paperthat these two persons had consented to be added as parties. Noticeof this motion was served on the proctors for the fourth and sixthdefendants and fifth defendant, but it was not served on Mr. Dharma-ratne, who was the proctor for the first, second, and third defendants.The District Judge allowed the motion of the plaintiff’s proctorto add the purchasers on August 31, 1910. On September 12Mr. Dharmaratne gave notice to the plaintiff that he would on thenext day move the Court to vacate the order made by the DistrictJudge on August 31,1910. His motion was supported by an affidavit,in which he stated the circumstances under which he was unable tobe present in Court on August 31. His first objection was to theprocedure adopted by the plaintiff, which he said was wrong, as theapplication to add parties should have been made by petition byway of summary procedure, and the defendants should have beenmade respondents on the face of the application. His secondobjection was that the application to add parties should not havebeen considered pending the decision of the appeal preferred againstthe order of the Court dated August 20, 1910. His third objectionwas that it was not competent for a party who had, pendente lite,acquired an interest in the subject of an action rei vindicatio tocontinue the action in his name. The matter came up for dis-cussion before the District Judge, and on September 15, 1910, hemade order declining to vacate the order allowing the plaintiff’smotion of August 29,1910, made in conformity with his order of the20th of that month. We have therefore now three separate petitionsof appeal: the first by the fourth, fifth, and sixth defendants, whoare appealing from the order of the District Judge dated August 31,1910 ; the second by the first, second, and third defendants, who areappealing from the order dated September 15, 1910 ; and the thirdby the first, fourth, and sixth defendants, who are appealing froman order dated August 17, 1910, allowing the second and fourthissues suggested by the plaintiff’s counsel, and from the order made
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on the first issue, allowing the purchasers to be added, of the same J’'Kb- 7<1931date. The main appeal, however, is from the order allowing the gbeniuu J.purchasers to be added as parties plaintiffs at the present stage of E!~fnnothe action. If that appeal succeeds, I think it will be unnecessary rUpuncMto consider the other appeals, as they are entirely dependent upon Bandathe result of our decision on the main appeal. The judgment ofLawrie and Withers JJ., to which I have already referred, is inpoint; and in the absence of any authority to the contrary I feelbound by it. The plaintiff is in this position, now that he hasparted with the dominium to a third party, that he cannot obtaina declaration of titl^ under any circumstances. .1 do not thinkthat either section 18 dr section 404 is helpful to the plaintiff in theposition in which he has placed himself by conveying the propertyin question to third parties, for ho declaration of title can be madein this action in favour of the purchasers so long as the plaintiffis on the record. It may be that the defendants have grounds ofdefence against the purchasers which cannot be raised in the presentaction, and it would not, I think be either convenient or proper,,or indeed right in law, to allow the plaintiff, after he has onceparted with the dominium, to go on and maintain his action for adeclaration of title for a land of which admittedly he is no -longerthe owner. He cannot claim mesne profits because he has alienatedthe res, and the fructus cannot be allowed to be claimed by him.
Voet, in Liber 6, title 1, section 5, appears to be quite clear on thepoint. This passage runs as follows, as translated by Casie Chitty :
“ But, again, if he who brought this action was the dominus at thetime of the institution of the suit but lite pendente has lost thedominium, reason dictates that the defendant should be absolved{Arg. Dig. 13, 1, 14, 12), both because the suit has then fallen intothat case from which an action could not have a beginning, and inwhich it could not continue (Inst. 4, 8, 6), and because the interestof the plaintiff in the subject of suit has ceased to exist (Arg. Dig.
10, 4, 7, 7), and, in short, because that (right of dominium) has beenremoved and become extinct, which was the only foundation ofthis real action.”
I would set aside the order appealed from, and dismiss theplaintiff’s action, with costs in both Courts.
Order varied. s
<*>