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Present: Dalton and Lyall Grant JJ.SAPARAMADU APPUHAMY v. ANTHONY PULLE et al.
281—D. C. KurunegeUa, 9,335.
Planting agreement—Claim to land—Specific performance—Damages-
. Where a contract cannot be completely performed, the party indefault may be ordered to specifically perform his part of thecontract as far as possible.
^^PPEAL from a judgment of the District Judge of Kurunegala.
Hayley, K.C. (with R. F. P. JayatiUeke and H. K. P. de Zilva), forappellant.
H. V. Perera (with Rajapakse), for respondents.
May 8, 1928. Lyall Grant J.—
When this case was last before this Court, an action was pending,taken at the instance of the defendants by the plaintiffs against oneJotihamy who claimed one-sixth of the land.
It was agreed that Jotihamy should be made a party to thisaction and that the plaintiff should be responsible for the paymentto the defendants of any damages which after inquiry might beawarded to the defendants under the conditions of the plantingagreement. Jotihamy was added and the District Judge foundhim entitled to one-sixth of the land.
The plaintiff had undertaken under the planting agreement to givethe defendants half of the land, and if his title were proveddefective to pay damages in so far as the defendants were preventedby such defect from planting. The defendants have planted asmuch of the land as they could, but they were prevented fromcompleting the planting by Jotihamy. In respect of this failurethey have been awarded damages by the District Judge.
He has also found them entitled to a half of the planted area. Itis only in respect of the latter part of this order that the presentappeal is brought.
I do not agree with the argument advanced on appeal that wherea contract cannot be completely performed the only remedy isdamages. The party in default can be ordered to perform hispart of the contract so far as that is possible. See Fry on SpecificPerformance, p. 491, and Walter Pereira’s Laws of Ceylon, p. 578.
The respondents contend that pecuniary compensation is not anadequate equivalent. They want the land they have planted.
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The District Judge’s order Is for half the planted land, and if thiswere a possible order, I agree that the plaintiff would, have no Lyaixcause of complaint.Gbaw-J;
Unfortunately the plaintiff does not possess any specific part of Saparamaduthe land, and I do not see how in these circumstances such an ordercould be carried into effect. Jotihamy is entitled to a one-sixth ■ PvHUundivided share, and until a partition is carried through it is notpossible for the plaintiff , to give the defendants-clear title to anyspecific part of the land.
As the plaintiff has a five-sixth share of the land, however, it isquite possible to make an order giving to the defendants anundivided share of the land. This seems to me to be sufficientlynear the original contract. It leaves the one-sixth share of Jotihamyunaffected', mid on a partition the defendants will be entitled to aspecific half share.
The only difficulty is that on a partition the question of plantingwill again have to be taken into account. I do not, however, thinkthat this is a serious difficulty. The defendants will, it seems to mebe entitled to a half share which is fully planted, Jotihamy toan unplanted one-eighth, and the plaintiff to the remainder.
In order to secure thiR result I would vary the order by directingthe plaintiff to execute a conveyance to the defendants of a three-sixth undivided share in the land and declaring them entitled tosuch a number of trees actually planted as may. be found to corres-pond to the number which could be planted on half of the landaccording to the terms of their lease. I would delete the referenceto damages. Until such a deed is executed and a partition takenand completed, I would allow the defendants to remain in possessionof the whole planted area.
Dalton J.—I agree.
SAPARAMADU APPUHAMY v. ANTHONY PULLE et al