143-NLR-NLR-V-23-FERNANDO-v.-APPUHAMY.pdf
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1921.
Present: Erin™ A.G.J. and De Sampayo 3.
FERNANDO v. APPTJHAMY.
237—D. C. Negombo, 13,181.
Action for declaration of title and ejectment and damages by vendor aftersale to third parti/ against party in occupation.
Plaintiff purchased a land subject to a lease in favour of thedefendant and then sold it to L, and as defendant did not in duetime deliver possession brought this action for declaration of title,ejectment, and damages, alleging that L would not pay underthe contract of sale until possession was delivered.
Held, that after the sale to L plaintiff could not maintain theaction for declaration of title, but that he could maintain the actionfor .ejectment and damages.
rpEE plaintiff-respondent sued the defendant-appellant for decla-ration of title to a land called Moragahalanda. for ejectmentof defendant therefrom and for damages, alleging that the defendantwas in occupation of the same on a lease from plaintiff’s vendor, andthat the defendant was overholding the said lease.
The defendant-appellant filed answer admitting plaintiff’s claimto one block of the land claimed by plaintiff, but denying the allegedoverholding and asserting title to one block which he alleged didnot form part of the leased land.
In the course pf the plaintiff’s cross-examination, it was elicitedthat the plaintiff had executed a conveyance of the land claimed byhim in favour of one Luvina, whereupon the appellant’s counselcontended that the plaintiff could not maintain the action.
The appellant’s counsel having stated his whole case on this pointof law only, the learned District Judge held that the plaintiff-respondent could maintain the action, and gave judgment for plaintiffon the facts.
F. de Zoysa, for the appellant.
E. W. Jayawardene, for the respondent.
March 9,1921. Ennis A.C.J.—
This was an action for declaration of title for ejectment anddamages. It appears that the plaintiff in 1912 purchased a landsubject to a lease to the defendant which was to expire on November30, 1918. Within a month of the plaintiff’s purchase, he sold theland to one Luvina, who is not a party to tins case. The plaintiffsays that Luvina has not paid under this contract of sale, andrefuses to do so until she could have the land. The defendant atfirst asserted that he had given up all the land he held under the
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lease and had retained a portion which he held under an independenttitle. During the course of the case, when the plaintiff had disclosedhis sale to Luvina, the defendant raised a new issue as to whetherthe plaintiff could maintain the action, and he abandoned theposition he had previously taken up, and called no evidence, relyingentirely upon the strength of this new issue. The learned Judge,on the .authority of the case of Wijesinghe v. Charles,* decidedthat the plaintiff could not maintain the action for declaration oftitle, but could maintain it for ejectment and damages, and hefound in favour of the plaintiff in that respect. I am unable to saythat the substantial rights of the parties are in any way affectedby the decree under appeal, and, farther, the case of Wijesinghe v.Charle8(swpra) seems to be in point as showing that a purchaser of landunder a lease has an election whether hewill step into the place of thelessor or not. The plaintiff as purchaser appears to have exercisedan election and taken the place of the lessor. Luvina, on the otherhand, does not appear to have exercised an election in the sameway. If then the plaintiff is in the position of a lessor, on theauthority of the case of Wijesinghe v. Charles (swpra) he could maintainan action for ejectment and damages. I would accordingly dismissthe appeal, with costs.
1981.
Eskxs
A.C.J.
Fernando
Appuham
Ds Sampato J.—I agree.
Appeal dismissed.