063-NLR-NLR-V-23-ABDUL-CADER-v.-OMARDEEN.pdf
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Present: Schneider A. J.
ABDUL CADEB v. OMARDEEN.
224—C. B. Kalutara, 9,109.
Appeal—Action in Court of Bequests for cancellation of deed of sale ofland and for refund of consideration—Decree for cancellation andrefund—Appeal without leave of Court
Plaintiff alleging that defendant had not given vacant possessionof land sold sued in Court of Bequests for cancellation of deed andrefund of consideration paid. Two issues were framed as todelivery of possession and quantum of damages. The Commissionerentered judgment cancelling deed and ordering refund of moneypaid
Held, that no appe&l lay, except upon a point of law or with theleave of Court.
rj^HE facts appear from the judgment.
Abdul Coder, for plaintiff, respondent.—This is an action for“ damage or demand99 within the meaning of section 13 of “ TheCourt of Bequests Amendment Ordinance, 1896.” No appe&llies without leave of Court. The cause of action is a breach, ofcontract, viz.,.that the defendant had failed to deliver possessionof the land to the plaintiff. The issues in the case were (1) whetherpossession had been given, and (2) the quantum of damages. Theplaintiff only asks for damages, and not that he be placed in posses-sion of the Mud. Punchiraia v. Appuhamy1 is directly in point.Counsel also cited Babunhami v. Subahami?
J. 8. Jayawardene, for defendant, appellant.—The action insubstance is one relating to an interest in land. Although theplaintiff does not demand possession of the land, he asks that thedeed of transfer be cancelled, and the Court has therefore toadjudicate upon the question as to whether the defendant validlyconveyed an interest in land to the plaintiff. It has been held inAppuhamy v. Appuhamy 8 that if the form, of an issue is such as toraise the question of an interest in land, no leave is necessary.Counsel also referred to Maricar v. Ismail*
October 12,1921. Schneidbb A.J.—
The plaintiff alleged that the defendant had sold certain undividedshares of land to him by a deed, but had failed to give Mm vacantpossession. He prayed that the deed be cancelled, and the
i {2913) 16 N. L. B. 360.* (1913) 16 JV. L. B. 386.
* (1900) 3 Bat, 244.* (1913) 16 N. L. R. 382.
1921.
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1021* defendant ordered to repay to him the sum of Rs. 200, which wasgo^^>KB the consideration paid for the land, and a further sum of Rs. 24Aj. as damages. The defendant pleaded that he had given possession.Abdtdcaderthese pleadings two issues were formulated and tried of
«. Omard&tt oonsent. The first was, whether possession had been given; andthe second, what was the quarUwni of damages. The learnedCommissioner held in favour of the plaintiff on the first issue, andgave judgment for him, by which he declared the deed of transfercancelled and null and void, and ordered that the defendant shouldpay Rs. 200 to the plaintiff. From this decree the defendant hasappealed. A preliminary objection to the appeal was taken byrespondent’s counsel. He contended that the defendant had noright of appeal, except upon a matter of law or with the. leave gf theCourt, as the action must be regarded as an action for “ damage ordemand ” within the meaning of section 13 of the Court of RequestsAmendment Ordinance, 1896.
In support of this'contention he cited the case of Punchircda v.Appuhamy.1 That case is identical in all respects with the presentcase. I agree with the reasons given by the distinguished Judgewho decided it, and I should have been content to uphold theobjection in this case upon the authority of that decision alonewithout saying more, but for the fact that counsel for the appellantcited Appuharriy v. Appuhamy2 and Maricar v. Ismail* Thelatter case does not help him. On the contrary, Wood RentonA.C. J. in his judgment cites with approval the decision of Pereira J.in Punchirala v. Appuhamy.1 Nor does the other case of Appuhamyv. Appuhamy2 help him. That case was decided by my brotherEnnis upon the ground that the issues raised involved a question ofan interest in land. Here the issues do not raise any question of aninterest in lands. To adopt the language of Pereira J.: “ Clearlythe first issue involved no question of right or title to anyimmovable property. It is an issue based upon an illegal breach ofcontract.'’
Mr. J&yawardene, for the respondent, contended that the^allega-tious in the plaint must alone be considered in determining thequestion of the nature, of the aotion, because section 13 of theCourts Amendment Ordinance, 1895, speaks of “ an action for debt,damage, or demand.” I cannot agree with this contention. Sofar baok as in 1900 Bonser C. J. took the contrary view. In thecase of Babunhami v. Subahami * where the plaintiff sued for adeclaration of title to immovable property and for damages fortrespass, and the defendant admitted the plaintiff's title but deniedthe trespass, and the only issue tried was whether the defendantdid, in fact, commit the trespass, he held that the aotion was “ noless an aotion for damages, because it was originally joined with an
1 (J9J3) 16 N. L. Rt 360.
* (1013) 16 N. L. R. 366.
8 (1913) 16N.L. R. 362.4 (2900) 3 BaL 244.
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action for a declaration of title.” In other words, he held that the 1921.
character of the aotion is to he determined by the issues raised andtried. I would therefore uphold the preliminary objection, anddismiss the appeal, with costs.
A i . jAbdul Cader
Appeal dismissed. t,. Omardten
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