069-NLR-NLR-V-10-JOHN-SINNO-v.-JULIS-APPU.pdf
( 351 )
Present: Mr. Justice Wendt.JOHN S1NNO w. JULIS APPU.
1907.
October 20.
C. fiM Panadure, 7,344.
Lessor and lessee—Action by lessee, to recover possession of property leased—Valuation ofsuit—Non-joinderoflessor—Waiver—CivilProce-
dure Code, s. 22.
Where » lessee brings a, suitto recover possession ofproperty
leased to him,the jurisdiction ofthe Court isdeterminednotby
the value of theland, but by the value of plaintiff'sinterest*
An objectionto .non-joinder ofparties shouldbe – takenatthe
earliest possible opportunity; otherwise such objection will beconsidered to have been waived.
Quaere t—Whether ^it is* open to a party to a suit to rely on theprescriptive'possession of a third party?
A
PPEAL from a judgment of the Commissioner of Bequests, ofPanadure.
A. St- y. Jayewardene, for the defendant, appellant.
Van Langenberg, for the plaintiff, respondent.
Cur. adv. vult.
October 26, 1906. Wendt J.—
This is gn action by a lessee to recover from defendant possessionof the leased land. Plaintiff says he took possession upon his least},and defendant ousted him two and a half months later. *The subjectof the lease is a defined portion of Dawatagahawatta, but defendant,who claims an undivided interest in # the land and admits the lessor’sright to an undivided one-tenth share, denies that the lessor w£sentitled in severalty to the defined portion demised.
2S-1907.
October 26.Whnpx J.
( 352 )
The Commissioner has upheld the lessor's right by prescription tothat portion, and has given plaintiff judgment. The lessor was nota party to the action, although he was added as a witness; and themost important point argued by defendant, the appellant, was thatin the lessor’s absence no declaration of his title could be made.Now, this is clearly an objection for want of parties, and one whichsection 22 of the Code requires to be taken “ at the earliest possibleopportunity, and in all cases before the hearing.” It therefore cametoo late when taken, as it is said to have been, on the trial day. Iftaken in due time, it would have been open to plaintiff to add hislessor as a co-plaintiff. The decision which appellant’s counselreferred to as establishing that a third party could not be brought inwith the view to his prescriptive title being proved by one of theoriginal parties, is said to have been rendered in an action underseotiou 247 of the Code, and if a sound decision must be limited tothat class of cases, to it peculiar considerations apply. The decisionwas not produced, and I have not been able to refer to it.
Going by the record, however, it appears to me that the first issuewas framed to raise only the question whether a lessee has such aninterest in the land demised as will entitle him to sue in ejectment.That he has is, I think, settled law, notwithstanding the qualificationwhich Lawrie A.C.J. imposed on his concurrence with the judgmentof Withers J. in Perera v. Babappu.1 If the objection to his doingso be that the defendant may have to litigate afresh with the lessor,the non-joinder is a matter which, while it inconveniences defendant,does not affect plaintiff's right of action and therefore the objectionwas one which defendant could waive.
As to the valuation of the suit, I am of opinion that not the valueof the land has to be looked at, but the value of plaintiff’s interest,■and that has not been shown to exceed Rs. 300.
On the merits I see no reason for differing from the Commissioner.Appeal dismissed with costs.
Appeal dismissed. i
i (1897) 3 N. L. R. 46.