NANAYAKKARA v. JAYASOORIYA AND ANOTHER

032-SLLR-SLLR-1989-V-1-NANAYAKKARA-v.-JAYASOORIYA-AND-ANOTHER.pdf


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NANAYAKKARA
V.
JAYASOORIYA AND ANOTHER
COURT OF APPEALJAMEEL, J. AND ABEYWIRA. J.
A. 349 – 350/79 (F),'
C. CHILAW 19493/L
APRIL 27 AND 28 AND JULY 01. 1987.
Land Development Ordinance (LDO) — Protected holding — Section 162 (1jofthe LDO — Effect of non-compliance with Section 162 (1) — Attestation Clause— Jus retentionis — Alleg'ans coniraria non est audiendus — Exceptio reivenditae et traditae — Exceptio doli.
The plaintiff (1st respondent) Jayasooriya obtained the land in suit from theCrown on a permit issued under the Land Development Ordinance (LDO). Theland was a protected.holding. To transfer such a land compliance was necessarywith S. 162 (1) which stipulated prior obtaining of the Government Agent's(G.A.’s)' written consent, attaching of the consent to the Deed and specificreference to the G.A.'s consent in the Notary's attestation. Under S. 1 62 (2) non-compliance made the deed of transfer null and void for all purposes. The plaintiffbeing in arrears in respect of monthly rentals agreed by notarial deed with the1 st defendant-appellant Nanayakkara to transfer the land to the latter in returnfor the latter settling the arrears, paying some extra money to the plaintiff andbeing placed in possession. The 1st defendant paid Rs. 16.496/- as arrears.Against an advance of Rs. 14.750/- the plaintiff transferred two acres of hisresiding land to the 1st defendant by way of security according to the plaintiff.Some time before obtaining the G.A.'s consent the plaintiff retook possession.The Police had to intervene.and the 1st defendant got back possession. Theplaintiff then obtained the G.A.'s consent and executed the impugned transfer.Giving credit for the arrears of rentals paid by the 1st defendant the plaintiffreceived in all Rs. 22,206/- from-1 st.defendant but there was confusion as tothe amounts received ■ vis-a-vis the recitals .re consideration in the Deeds.Nanayakkara. the 1st defendant-transferred-the land to Dharmasena the 2nddefendant-respondent.'
CA' Nanayakkara v. Jayasooriya and Another367.
The .plaintiff contended his deed of transfer to Jayasooriya was null and’voidbecause the Notary who attested had not made special reference to it in theattestation.
Held
The absence of the special reference to-the G.A.'s consent in the attestation
of the Notary was a non-compliance with S. 162 (1) of the -LDO and thereforethe Deed of Transfer was null and vojd under section .162 (2) for all purposes.Paper title was therefore in the plaintiff..’, ■
A reference to the G.A.'s consent in the recitals of the body of the deed' arid theNotary's signature at'the'end-of the body of the deed cannot be treated ascompliance. The reference must be in the attestation clause.
The plaintiff had received Rs. '22.206/- from the 1 st. defendant andtherefore, the latter being a bona fide possessor is entitled to'a jus retentions 'until. thiS'amount is.paid back: As the Deed of Transfer is null and void for1 allpurposes the 1st defendant .cannot reiy on the maxim al/egans contraria non est'■audiendus to prevent plaintiff from irppugmng his own deed.’Nor will the pleasof exceptio ret venditae et traditae or exceptio doii ayail the Vst defendant^because the plaintiff:had good title and the title never left.him in view of S. 162(2) of the Land Development Ordinance.’
Cases referred to:
Hudson v. Parker 163' ER 148
' Em is v. Singho CAC 66 '
Ismail v. Ismail 22 NLR'476 ; -.
R. Dharmawansa v. R. M. Ukku Banda 60. NCR 350 .
Tissera v. Williams 45 .NLR 358 . ,..
TiHekeraine'v. De Silva 49 NLR 25
APPEALS from judgment of the District'Judge of-Chilaw.
N‘'
Dr.. H.'W. Jayewardene Q.C.'/with Miss Guniyangoda for'the 1 st .Defendant-Appellant.in C.'A.-349/79'(F) and Respondent-Respondent in C'.A. S^O/.?9' (F)’. .
Nimai Senanayake, P.C. with.1 A: 8. Dissanayake for 2nd Defendant-Respondentin C.A. 349/79 (F) and 2nd.Appellant in C.A. 350/79 (F).-
K.‘S. Tillekeratne for Plaintiff-Respondent in.both appeals.
Cur. adv. vult ’ ■
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August 07. 1987.
JAMEEL. J.
At the outset it was agreed that both appeals should and wouldbe argued together and that one judgment would suffice in bothappeals.
The Plaintiff-Respondent had obtained this land in suit fromthe crown on a permit issued under the. Land DevelopmentOrdinance. He.had to pay an annual rent of Rs. 1.828/50 to thecrown. The land was a Protected holding within the meaning ofsection 2 of the Land Development Ordinance. As such, anydisposition of this land required the prior written consent of theGovernment Agent.
Till such time as he. the plaintiff, could obtain such a consentand then effect a transfer to the 1st Defendant, he agreed tohand over possession o.f the corpus to the 1st Defendant. Thiswas done in terms of a notarially executed deed No: 344 of23.2.1965 attested by K.H.. A. Fernando N. P. and now marked'P4'. A significant feature of this deed is that the Notary atteststhat no part of the consideration of Rs. 10.000/- passed in hispresence. According to the Plaintiff this arrangement was madebecause he had fallen into arrears to the tune of aboutRs. 16.000/- and the 1st Defendant had agreed to pay off thissum and also pay him something extra. According to the letter'P2'. the 1st Defendant had offered him Rs. 30.000/-. Accordingto ‘P4‘ the Plaintiff had to obtain the requisite written consent ofthe Government Agent and thereon he was to execute a transferto the 1st Defendant on being paid Rs. 10.000/-. The 1stDefendant had undertaken to pay current rents to the state tillthe transfer was effected. The permit in question has beenproduced marked 'PT and the 1st Defendant's information copyof. the consent granted for the transfer to him of the corpus isdated 30.9.1965' and is- marked'"IDT. While granting theDermission asked for the parties have been requested by ' 1 D1' topay up all arrears and to send a draft of the transfer deed to theGovernment Agent for approval. It is common ground that the1 st Defendant had paid Rs. 1 6,496/-. This is by way of arrears.
■ The Plaintiff's position is that pending the completion of thistransaction he had asked the 1st Defendant for an advance of
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Rs. 1 5.000/-. and .that at the request of the 1st Defendant, hehad transferred to the 1st Defendant, as. a security against such,an advance two (2) acres from his residing land. This was onDeed P3’ of 26.2.1 965. That is just thre.e (3) days after enteringinto the agreement ’P4L Although the Plaintiff made^.out in hisevidence that this Deed *P3‘ • was executed in trust and as .asecurity'for the advance.-the. notary (in fact all the deedsproduced in evidence in this.case are attested by one and the-same notary, and who. is. presumably, the 1st Defendants notary)in his attestation – says that -the full – consideration; that is,Rs. 1 4.750/-was'paid in ,his .presence: Sdmetim.e-prior to-.thereceipt of the consent '1 D.1 Ythe Plaintiff had felt uncertain about'the 1st Defendant and had forcibly retaken possession of'thecorpus. This took both parties to the pojice''station' where,according to the Plaintiff he had agreed-to .restore the:. 1stDefendant-to possession on the 1st Defendant’agreeing otoincrease' the. consideration on ‘P4’ /fromv Rs. I 1)0,000./.- toRs. 20,000/-
The,evidence does not .reveal as. to whetherthe -.final deed of .transfer had been sent" ini draft- fo:rfn^tfdr. approvaj^to' the-Government Agent. However, the^deed ^P6' was executed1 on'30.12.1965,t>y the same notary. It is this:d.eed which the Plaintiffchallenges. as being.' of 1 no ! effect '.■’‘•arid invalid fbecause it..contravenesSection 1 62 bf, the ,Land"Development Ordinance.
j The -Plaintiff stated., in evidence-that che received only. -Rs: 3,000/- at .the execution of/POr. but the-notary attests thatthe full consideration of Rs. 20.000/- was acknowledged tohave&,been received. – To ..complete the-cnarrative of.- deed.
. transactions,. the. Plaintiff had to;get back the two (2)- acres hehad,transferred to the .1 st Defendant on ,the deed ’rP3'v.,Although■the 1st Defendant .had.-by-his letter -P5' agreed to' return :,this land .wifhout payment; it .appears from the. attestation-of thenotary, that- the full Rs. i 2.000/- wasjpaid by the Piaintiff to-.the1st Defendant in order, to •obtain , the-return, of his-land, by theDeed 'P7', Thus, according,to, the Plaintiff he has received,in cashRs.–5,7 50/—;’(Rs.-,3;^.0b/-.at. the-execution -of ’R6'. and-Rs.. 2..750/- the-difference betweep-the .considerations ,on .'P7f-and 'P3'j and transferred to-the 1 st.Defendant -in ,l.ieu ’thereof .his
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rights in A17-R3-P37 crown allotment which he had held on"PV. That is of course besides the Rs. 1 6.456/- which had beenpaid by the 1st Defendant in liquidation of the arrears of rent.This totals to Rs. 22,206/- as the overall benefit derived by thePlaintiff- on this transaction. Although this is Rs. 7.794/- lessthan the Rs. 30.000/- promised on the letter 'P2' it isRs. 2.204/- more than the consideration stipulated for on thedeed of transfer 'P6'. In this context, it is significant to note thatthe sum claimed by the Plaintiff in the Issues 15-17 isRs. 1 2.000/- as balance purchase price in case he is forced to■ grant a'fresh-deed to the 1 st' Defendant.
Neither of the Defendants gave evidence at the trial. The 2ndDefendant was brought into the case because the 1st Defendanthad transferred the corpus to the 2nd Defendant, after this casehad been instituted, on deed No: 1618 fP8‘-) of 21.12.1975attested by the very , same notary Mr. Fernando. The 2ndDefendant is now said to be in possession of the corpus.
The evidence of t.he Plaintiff with regard to the cash and otherbenefits he has received are not in accord with the attestations inthe deeds 'P3' and 'R6'. The Plaintiff was also unable to explainwhy .he had-claimed Rs. 25-,908/: from the 1st Defendant in thelette'f'of .demand '1D2'.nor does the evidence show as to whythis was restricted to Rs. 1 2,000/- in the Issues 15-17 framed atthe ..trial. The figure Rs. 25.908/- however, could be made upfrom Rs. 1 0.000/- being the difference between the amounts on'P2' and"P6'; Rs. 1-2.000/- being the amount he had to pay on'P7' in spite of 'P5' and the Rs. 3.908/- mentioned in letter 'P9'.
Another contention of the PI'aintiff was that the 1st Defendantand thereafter the 2nd Defendnat have been possessing the landand enjoying its produce and income. However, as the Plaintiffhad had the benefit, of and the use of the money, at leastRs. 22.000/-. for almost the same period and as he hadvoluntarily' parted with possession he cannot be heard to claimthe value of'the produce and income from the land withoutsetting off the'interest that is accruable on the money that he hadreceived. Dr. Jayewardepe's further argument that the Plaintiffcannot claim damages, as'Ke has not brought into court whateversum he admits to have received is not without merit.
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Nanayakkara v. Jayasoonya and Another (Jameel. J.)
The main contest at the trial.centred around the validity of thedeed 'P6'. and more particularly as to whether it passes title tothe 1st Defendant.' If it did not. then the 2nd Defendant wouldnot have received any title on deed ‘P8‘.
The contest rais.ed by the Plaintiff is that his own Deed 'P6: tothe 1 st .Defendant is null and void, because the notary whoattested it had not made special reference to the written consentof the Government Agent, as required by SECTION 1 62(1) of theLand Development Ordinance, as this corpus is a ‘PROTECTED.HOLDING'. This non-compliance makes the deed 'NULL AND ,VOID FOR ALL PURPOSES' in terms of SECTION 162 (2)'of thisOrdinance.
Dr. Jayewardene conceded that as at-the time of the deed P6’the corpus in this case was a. protected holding within themeaning of the Land Development Ordinance.. He'also_bro.ught itto our notice that, that concept.of a protected holding is ,nolonger in vogue, as the law has since been amended by Act No:16 of .1969, which introduced a new section.- namely.- Section162 in substitution of the-old one. However, we are concernedonly with the old section in this case. According to the,.oldSection 162. a transfer of a protected holding is valid only .ifdone with-the.written consent of the. Government Agent-first.hadand obtained. (Vide:—Section 2 L.D.O.). In terms of SECTION162 (1),. no Notary shall attest any deed operating' as adisposition of a protected holding unless:—.
(a) The written consent of the- G.A. shall have beenpreviously obtained, and
■(b) Such written consent is attached to the deed, and,-
Such document of consent shall be specifically referredto by the Notary in the Attestation of such deed.i
SECTION 162 (2) provides that a deed executed or attested incontravention of the provisions of SUBSECTION (1) shall be nulland void for all purposes.
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In fact, the Government Agent had granted written permissionon 30.9.1 965. Vide:— '1 D V. That was prior to deed P6 He hasmade a request in -1 D1' that the draft deed should be sent to himfor approval. There is no evidence either way with regard to thesubmission of such a draft to him. However, in the body of ’P6’. itis slated that the written consent of the G.A. is attached to theoriginal of 'P6'. That forms part of the recital of that deed. Thus,two (2) of the conditions in SECTION 162 (1) may be said tohave been complied with. The question remains as to the 3rd. •namely, has the notary made special reference to this writtenconsent in his attestation? It is manifest that there is no referenceto if. in 'P6’. in that part of the deed which is generally describedas the'Attestation Clause'.
Dr.. Jayewardene contended that we should give the words 'Inthe attestation of the deed' .a much wider meaning than what isattributed to the words. The Attestation Clause'.in a deed.
This, argument is to the effect that 'Attestation', is TO BEARWITNESS'. That is to say. that when the notary signs at the end ofthe body of a deed, just below the signatures of the executantshe in fact attests to the signatures of the executants and thewitnesses. Dr. Jayewardene contended that this signature actedfurther as an attestation of all the recitals in the deed. I amunable to accept that contention for. some deeds have a widerange of recitals dealing with dates of death, agreements'arrivedat. incidents that have occurred in the past and even incidentsthat may 'have occurred outside the Island. The notary cannotvouch for all these matters leastwise to the.ir accuracy and ortheir authenticity. It is only the executants who can speak tothem. Even the attesting witness may not be aware of those facts,yet. they also sign at the bottom of the body of the deed. The‘WITNESS CLAUSE' is a pointer to this, for it reads IN WITNESSWHEREOF THE SAID ASSIGNOR AND ASSIGNED DO HEREUNTOAND TO TWO OTHERS OF THE SAME TENOR AND DATE ASTHESE PRESENTS SET THEIR HANDS
■ (Vide:— 'P6'). The executants witness their hand to the contentsof the deed and the witnesses, and the notary sign in attestationof the-fact That the signatures of the executants vyere placed intheir presence, all being present at the same time, and further
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that this was done after the deed was read by or read over to and' explained.to the executants by the notary. Hudson v. Parker (1).'
Mere reference to the existence of the prior written consent ofthe G.A, in the body of the deed without attaching it to th.e deed :itself will-not be in due compliance with-Section 162 (1), norwould the deed be valid had the’ G.A.'s consent been obtainedafter the execution of the deed! The section does not make it apart Of the duty of the notary to obtain: the written consent oftheG.A. All that the notary has’to do is to-ensure that such .a consenthas in fact been given and if so to attach it to' the deed and tomake special reference to it in his attestation. Had the law soughtto cast on the notary the duty of satisfying- himself as to th.eauthenticity of- the sanction granted by the G.A., then it wouldand could have'been said so in plain and simple, language. Thereference to this sanction in the body.of the deed and the fact ofit being attached-to the deed will only prevent the executantsfrom thereafter denying its existence and of it being so attached,respectively. In this case it vyill prevent the Plaintiff from pleadingadversely as to its authenticity: The notary's signature atJ the. ’bottom of the body of the deed will hot bind him to any of thesewarranties or stipulations. Indeed he is not expected to. do so.Reference in the recitals will not. to my mind, amount to thespecial reference in the attestatio'n called for by Section 1.62 (1)and will notabsolve him from the.need.-to do so if'the notarydesires to save his deed from the rigours of Subsection (2). ThatSubsection avoids a.deed for non-compliance and that too for al.lpurposes whatsoever. •' .'
The relevant sections' of the Notaries. Ordinance throws some ’’light on the meaning of the,word'ATTESTATION'.
Rule 12 to Section 29 States:—
That the notary shall sign the deed after the executants and the .witnesses have placed their^signatures—all being present at thesame time. These are two signific'ant points of note, namely:-
(a) That he is then required, only to sign and not to $EAL.
-. -and '1''■-
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(b) That he cannot attest the deed until these signatureshave been appended to the deed by the executants, thewitnesses and himself.
Rule 13-16:—
Deals..with some incidental matters.
Rule 17:—
Requires the notary to enter in words the day; month and yearand place of execution and then to sign the deed.
Rule 19:—'
'Without'delay thereafter to authenticate or. attest all that wasexecuted-or acknowledged before him.'
The rules require him to.SIGN AND SEAL his attestation—Non-sealing of the deed. at;this stage has been held:— to be an invalidattestation. (2 N.L.R. 187).
The notary must sign the deed twice. Once at the end of thebody of the deed, (and that too after the executants and thewitnesses have approved and have appended their signaturesto the deed) and again after the attestation, when he isrequired to affix his seal to the deed. That brings to a close theprocess of making out a deed. The scheme outlined in theserules is that there is to be a separate attestation, and whichshould be in FORM JE' in Schedule 1.1. VIDE:— RULE 20.Further, i.t shall contain a declaration of all that happened andname those who were present to sign the deed. It shouldrepeat the recording of the fact of the signatures having beenplaced in the presence of each other all being present at thesame time. It shall record the day; month and year and place ofattestation. It shall also record the payments made and/or theacknowledgements given and from whom, to whom and whaterasures;, alterations or.interpolations have been made in thebody of the deed, with specific details as to whether thoseoccurred in the original or duplicate of the deed. The valueand number of. the stamps affixed should be
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delineated. The attestation must also repeat the legend of thedeed's contents having been read over and.duly explained to theexecutants. The notary has to vouch for all this and-he is licensedto comply with and fulfill all these statutory duties. Hisattestation, is his record and affirmation of all this. It is to. thisthat Section 162 (1) adds the further duty to. make specialreference to the consent granted by the GA and which writtenConsent he has affixed to or annexed to the deed. The notarywho attested 'P6‘ failed to comply with this. -It is significant that -this very same notary complied with this special requirement- ■when he attested 'P8'. The consent document referred to in 'P8-is not the consent document referred to in 'P6'. However, theattestation in 'P6' does not carry, a clause-similar to that in 'P8'.'This makes -'-P6.' NULL. AND. VOID FOR ALL,'PURPOSES'.Accordingly.'no title passes on-deed 'P8' from the 1 st Defendantto the 2nd Defendant, nor-on 'P6: from-the Plaintiff to the 1st.Defendant. Accordingly, paper title remains in the Plaintiff.
lam unable-to agree with the contention of the Plaintiff that allthis time the possession of the 1 st Defendant had been unlawful.-Nor' with the consequential submission that the – Plaintiff isentitled to claim damages from the date of"P6', namely, from •
2.1 965. Plaint has been filed on 1 1.2.1 975. That isHo say.just a few days before the completion of 10 years Of possessionby the 1 st Defendant.•.- ,
Till plaint was filed the Defendants possessed on the basis of alawful deal transacted with the Plaintiff. The'Plaintiff himself hadput the 1st Defendant in possession and had'done-all-that hehad: undertaken'to do in terms of''the agreement 'P4 He hadobtained the necessary sanction from the G.A. and then grantedthe deed 'P6'. wherein be has held out-to the authenticity of thewritten sanction which the notary annexed to the deed whichwas given to the 1st Defendant. There is therefore no room todoubt that the Plaintiff himself intended to part with his rights inthe corpus to the 1st Defendant and in order to implement thatintention he granted the-deed 'P6' and that at that time he verilybelieved that he had so parted With his title to the Tst Defendant.There is nothing to indicate that, as at the time. the. Plaintiffbelieved that or even contemplated that the Defendant's
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possession was unlawful or illegal. There was no act or omissionon the part of the Plaintiff nor on .the part of the Defendants,which could have or did or does make this deed 'P6' invalid. Thesituation in this case is not similar to that of an unaccepted deedof gift. It is the act of the, or rather the omission of the 1stDefendant's notarial adviser that has rendered this deed void.
By the deed 'P4‘ the Plaintiff agreed to execute "A properconveyance for conveying and assuring all that said allotment of. land called DAMBAWE MOOKALANA unto the said WIJAYASIRI
NANAYAKKARA.. . free from all encumbrances"
This he agreed to do at the request, cost and charge of the 1stDefendant.. It now transpires that the deed he gave. ‘P6 isinvalid. It is clear that a deed of rectification will not suffice. Canthe 1 st Defendant, how. ask the Plaintiff to execute another validdeed? Is the right to obtain a second deed prescribed? Theanswer .is, no doubt. – in the affirmative. This question was.answered in the case of Emis v Singho (2) which dictum hasbeen quoted with approval in Ismail v. Ismail(3).
On the Plaintiffs own showing he has received Rs. 22,206/-from the 1st Defendant and should he be declared entitled to theland and its possession he must, of necessity return that moneybefore he. can regain possession. The Defendants are entitled tothe jus retentionis until that amount is paid to them. However,according to the attestations on 'P6'. 'P3J and 'P7' the Plaintiff hasreceived Rs. 22.750/- which together with the money paid tothe G.A: as arrears totals Rs.. 39,206./-. The Learned DistrictJudge has accepted the evidence of the Plaintiff and accordingly,the Defendants can resist the claim for restoration of possessiontill at least the Rs. 22.206/- is paid to them.
Learned President’s Counsel for the 2nd Defendant raisedanother objection to the grant of any relief to the Plaintiff. Thisargument was based on the maxim allegans contraria non estaudiendus.
, The case of R. Dharmawansa v. R. M.. Ukku Banda (4) was onein which.some lay donors had dedicated immovable property tothe Buddhist Sangha and had subsequently sued for its return on
CANanayakkara v. Jayasooriya and Another-(Jameet.J.j'377
the footing that they-had. had’ no title to the land at the time ofthe dedication. They had placed the priest inY possession. Theynow sought recovery of .possession after they obtained a lease ofthe land from the .crown. This'was resisted and using the maxim'referred to above-, the Plaintiff was not allowed to-retract from hisearlier stipulation that they were the owners of the land. ■
The case of. Tissera v. Williams :(5f was the case of a donor who'sought to reclaim a land on the ground that title had not' been inhim at the time of the donation. O.mthe ground that"title hadsubsequently come to -the donor, the District Court enteredjudgmept'for'the donee utilising the plea of exceptio rei veriditaeet traditae'. In' appear the Supreme" .Court stated that, .thisexception did not apply but neverthelessconfi.rhnedjhejudgmentand dismissed the Plaintiff's action adopting the exceptio'doli.This notwithstanding that plea was not-taken in the lower court.
In th'e-inst.an-t case, however-'; the Plaintiff-had-good title andnow seeks a declaration that title never left-him. in spite of his .deed -P6‘. Even in such a case the vendee or the donee as the,case may be can'well avail of this equitable plea of exceptio doit.
VOET XXI-3,2 (Bewrick-1902 Ed: Pg: 544) states:-
"While'the purchaser possesses-the thing and the samepersons who are liable to be sued by him bring an action toevict the property from him. he may repel the vendor andother like persons by the exceptio rei venditae et traditae orby the exceptio doli."-
'-■-i
In Tissera's case (supra), the Supreme Court used thisexception notwithstanding that it had not been raised in the.lower court. It is well settled law that no plea, except on a-pure,question of law. can be taken in appeal unless it was raised in .thecourt below. Tillekerathe v. De Silva (6). In the instant case, as' inTillekeratne’s case, all material needed to found such a plea isalready oh record. No further evidence is required, nor possibleas the whole claim of the Plaintiff rests on the simple, and nodoubt from his point of view fortuitous circumstance, of the notary's
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omission. In all the circumstances of this'case the Plaintiff cannotrepel either this plea nor the prohibition against derogating fromhis earlier stipulations.
Mr. Tillekeratne urged that there was no 'dolt' on the part ofthis Plaintiff as he had had title when he sold the land to the 1st' Defendant, and that-it had been done without fraud or deceit.The exceptio is concerned with the dishonesty displayed whenthe person who made the sale or the gift, himself tries to getback the property.and evict the vendee from possession. We areunable to agree with Mr. Tillekeratne’s further submission thatsince the Defendant had raised a claim in reconvention he haddefeated the very purpose'of this exception. The. claim inreconvention is for improvements made while in bona fidepossession after purchase and is'only an additional relief.towhich a Defendant is entitled when sued in eviction.
For the reasons, we set aside the judgment of the LearnedDistrict Judge and dismiss the Plaintiff's action with costs.
abeywira. J. — / agree
Judgment of the District Judge set aside and Plaintiffs.actiondismissed.■- . ■ ‘-