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Mar. 14,1910 Present: Mr. Justice Wood Benton and Mr. Justice Grenier.
FEBNANDO et al. v- FEBNANDO et al.
D. C., Negombo, 7,418.
Invalid lease of an undivided share—Possessory action by lessee—Co-owners—Possession ut dominus.
An owner of an undivided share of land can maintain a possessor;action in respect of such share, if he joins the other co-owners as
A lessee who has entered into possession bona fide under a teaseis entitled to a possessor; rented;, even though the lease may betechnicall; defective; he has to prove possession ut dominus, i.e.he must have possession not aUeno nomine, but with the intentionof holding and dealing with the propert; as his own for the full termof the lease.
fp HE facts are fully set out in the judgment of Wood Benton J.
A. St. V. Jayewardene (with him Soertsz), for the appellants.—Ithas been held in Silva v. Sinno Ajypu 1 that the owner of an undividedshare of land can maintain a possessory action. The possession ofthe plaintiffs was clearly ut dominus.
Sansoni, for the respondents.—The possession of the plaintiffswas not ut dominus.
March 14, 1910. Wood Benton J.—
This is a possessory action in which the plaintiffs-appellants claimto be restored to the possession of certain undivided shares of thelands described in the plaint, which were leased to them by thefirst dnd second defendants-respondents, and from which theyalleged that the defendants-respondents, among whom other personsbesides the actual lessors are included, have ousted them. Thelease is dated February 28, 1903, for a period of eighteen years, andthe first plaintiff-appellant, who is the husband, of the second, andwho on November 22, 1906, assigned a one-third share of his interestin the lease to the second plaintiff-appellant, alleges that he paid thewhole rental in advance when he entered' into possession, andremained in possession of the demised lease for more than threeyears, and that he was forcibly ousted by the defendants-respondentson January 8, 1908. The plaint is dated October 12, 1908- At thetrial issues were raised whether the action for damages could bemaintained, in view of the fact that the husband of the seconddefendant, who was actually the lessor, had not given his consentto the lease, and that consequently section 9 of Ordinance No. 15 of
1 (1903) 7 N. L. R. S.
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1876, .to the provisions of which the parties are subject, prohibited Mar. 14,1910the wife from dealing with it at all. The husband was subsequently Woodmade a party to .the action, and the remaining issues raised the Renton J.question of ouster and damages. The learned District Judge held Fernando v.that a possessory action cannot be maintained in respect of undivided Fernandoshares of land; that even if, as averred in the plaint, the shares inquestion were possessed separately, it was doubtful if a possessoryaction was open to a lessee against his lessor, and that, in any event,this plaintiff could not sue on the lease, which in view of the provi-sions of section 9 of Ordinance No. 15 of 1876 not having beencomplied with, was invalid in law. He accordingly dismissed theplaintiff's action with costs. It was held by Mr. Justice Wendt in thecase of Silva t>. Sinno Appu 1 that the owner of an undivided share ofland can maintain a possessory action in respect of such share, pro-vided that he joins the other co-owners as parties, either plaintiffs ordefendants; and it is clear, I think, that in a possessory action aperson who has entered into possession bona fide under a lease, even •although .that lease may be technically defective, has his remedywhere he can prove the fact of ouster by the defendant. For .thepurposes of such an action as section 4 of Ordinance No. 22 of 1871contemplates, it is not necessary that the plaintiff should set out. atitle sufficient to support an action rei vindicatio. He has to provepossession ut dominus, that is to say, as the term has been definedby a Bench of three Judges in the recent case of Abdul Agees v. AbdulRahiman 2, he must have possessed not alieno nomine, but with theintention of holding and (dealing with .the property as his own, where,as here, he is a lessee for the full term of the lease. If the plaintiffshould succeed in satisfying the District Judge that he did possessthe property in question in that sense, and that he was .oustedtherefrom by the defendants, he would be entitled to a possessorydecree with such damages as the Court should think reasonable onthe evidence. In the present case, although there is evidence atleast on the question of ouster, and perhaps also on the question ofdamages, there is no finding by the learned District Judge in regardto either of these issues. Under these circumstances, I do not .think -that we can finally dispose of the case as it stands. I would setaside the decree of the District Court dismissing the plaintiff'saction, and send the case back for the trial of the issues of possessionut dominus, within the meaning of the law as we have endeavouredto define it in this judgment, and also of ouster and of damages. Iwould give the plaintiffs-appellants the costs of this appeal and ofthe proceedings at the hearing of the case in .the District Court, butI think that the costs of the subsequent proceedings should abidethe event.
Grenier J.—I agree.
‘ 11903) 7 N. L. R. S.
* 11909) Our. L. R. 271.
FERNANDO et al. v. FERNANDO et al