008-NLR-NLR-V-24-FERNANDO-v.-WICKREMESINGHE-et-al.pdf
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Present ; Ennis J.
;PfttNANDO v. WICKBEMES1NGHE et al.49—D. C. (Inty.) Ratn&pura, 3,681.
1988.
Action by. lessor against heirs of lessee for recovery of possession—Decreefor delivery of possession—Subsequent action for compensation forimprovements—Jus retentionis.
The – loss .of the jus retentionis ■ by a person vho had effectednprovemeotB on landed property does not. bar his right toompensation.
HE facts appear from the judgment.
E. W. Jayaavardene, for the appellant.
Samarawickreme (with him Arulanandan), for the respondents.
July 6, 1922.' Ennis J.—
.The' only question, on this appeal is whether the fourth plaintiff■was entitled' to claim compensation in respect of a building. Itappears that the fourth plaintiff is the widow of one Martheiiis Silva,by .whom she had three children, the first, second, and third plaintiffs.On the death of Marthenis, the defendant, who had leased certainland to -Marthenis; brought an action, D. C. 3,391, against thepresent, fourth-plaintiff for the recovery of possession of the leasedland.. In that action the present fourth plaintiff claimed as heirto her husband. ..During the course of the action, the present fourthplaintiff asserted, a title independently to a-portion of the land.But no issue was raised on. the point in the case, and under the termsof tile lease the lessee was bound to' give up possession to the lessor,
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test.
Ennis J.
Fernando tWickrcm*.singh*
. which waft accordingly ordered in that case. It is now urged onappeal that, 'inasmuch as the present fourth plaintiff did not .claimcompensation- in^that action, she is barred under section 207 of the’* Civil' Procedure Code from claiming- it in the present action. Thispoint, has already, been decided in the case of Appuhamy v. Banda 1and in the case of The Assistant Government Agent, Kegalla, v. Banda*.In the latter case Pereira J. said that the loss of the jus retention**by a person Who has effected improvements on landed property doesnot bar his right-to compensation. The only other case cited to uswas the case of* Costs Chetty v. Cowell. 9 I am unable to see how thatcase is in conflict with the principle decided in Appuhamy v. Banda(supra) and in The Assistant Government Agent, Kegalla, v. Banda(supra)’.- *Tn Caste Chetty v. Cowell (supra) there had been a previousclaim for a declaration of title for the whole land, and the defendantin the action had not in his defence claimed a right of way over the.land. It : was held that the omission to claim this right of waybarred a subsequent action-for the right of way, because a right ofway effected the corpus of the land which was in claim in theprevious suit, and would, therefore, under section 207, be. a claimwhich could have been put in-issue upon-the cause of action for whichthe action was brought. But m case. No. 8,891 claim to compen-sation did not affect the. subject of the claim in the plaintiff's causeof action. I would accordingly dismiss the *;^peal, with costs.
De Sampayo J.—I agree.
Appeal dismissed.
* (1914) 16 N. h, B. 274.
* 2 C. W. B. 255.
1 (1914) 16 tf. L. R. 205.