016-NLR-NLR-V-23-ALI-MARIKAR-v.-OMARDEEN.pdf
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Present: Schneider A. J.
ALI MARIKAR v. OMARDEEN.
224—(7. R. Kalutara, 9,109.
failure to deliver vacant possession—Action for cancellation of deed andrefund of price and damages—Judgment cancelling deed and orderingrefund of price—Does appeal lie except upon a matter of law, or withthe leave of Court—Court of Requests.
The plaintiff alleging that defendant who had sold certain un-divided shares of land had failed to give him vacant possessionprayed that the deed be cancelled, and that the defendant be orderedto repay the price Bs. 200, and a further sum, Rs. 24, as damages.
[The Court held that possession'was not given, and declared thedeed of transfer cancelled and null and void, and ordered that thedefendant should pay Rs. 200 to plaintiff.
Held, that no appeal lay except upon a matter of law, or withthe leave of the Court.
rjpHE facts appear from the judgment.
Abdul Cader, for plaintiff, respondent.—No leave to appeal wasobtained. This is an action for damages consequent upon a breachof contract. The main issue in the case is whether defendant hadfailed to give possession of the land sold to the plaintiff. No interestin land is involved. The plaintiff does not ask that he be putin possession of. the land. Counsel cited P.unchirala v. Appu-homy.1
J. S. Jayewardene, for defendant, appellant.—It has been heldotherwise in Appuhamy v. Appuhamy,2 which was an action forcancellation of a lease or, in the alternative, for a refund of theconsideration involved. It has been held that a suit by a lessor forrent is a suit for land. Counsel also cited Maricar v. Ismail.9
Abdul Cader referred the Court to Babunhami v. Subehami.*
October 12,1921. Schneider A J*.
The plaintiff alleged that the defendant had sold certain undividedshares of land to him by a deed, but had failed to give him vacantpossession. He prayed that the deed be cancelled, and thedefendant ordered to repay to him the sum of Rs. 200, which wasthe consideration paid for the land, and a further sum of Rs. 24 asdamages. The defendant pleaded that he had given possession.Upon these pleadings two issues were formulated and tried ofconsent. The first was whether possession had been given, and the
1 {1913116 N. L. R. 360.* {1913) 16 N. L. R. 362.
4 {1913) 16 N. L. R. 365.* {1900) 3 Bed. 244.
14-22/453
10
1921.
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1621.
^r‘HKBU>ER
A.J.
Ali Marikarv. Omardeen
second what was the quantum of damages. The learned Commis-sioner held in favour of the plaintiff on the first issue, and gavejudgment for him, by which he declared the deed of transfercancelled and null and void, and ordered that the defendant shouldpay Us. 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 ofthe Court, as the action must be regarded as an action for “ damageor demand ” within the meaning of section 13 of the Courts ofRequests Amendment Ordinance, 1895.
In support of his contention he cited the case of PunchiraXa 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 Appuhamy v, Appuhamy2 and Maricar v. Isthail.3 Thelatter case does not help him. On the contrary, Wood Renton A.C. J.in his judgment cites with approval the decision of Pereira J. inPunckirala v. Appuhamy.* 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 ofan interest in lands. To adopt the languageof Pereira J.: “ Clearlythe first issue involved no question of right or title to any immovableproperty. It is an issue based upon an alleged breach of contract.”Mr. Jayawardene, for the respondent, contended that the allegationsin the plaint must alone be considered in determining the questionof the nature of the action, because section 13 of the Courts x>fRequests Amendment Ordinance, 1895, speaks of “ an action fordebt, damage, or demand.” I cannot agree with this contention.So far back as in 1900 Bonser C. J. took the contrary view. In thecase of Babunkami v. Subehami* where the plaintiff sued for adeclaration of title to_ immovable property and for damages fortrespass, and the defendant admitted the plaintiff’s title but deniedtiie trespass, and the only issue tried was whether the defendant didin fact commit the trespass, he held that the action was “ no less anaction for damages, because it was orginally joined with an actionfor a declaration of title.” In other words, he held that thecharacter of the action is to he determined by the issues raised andtried.
I would, therefore, uphold the preliminary objection and dismissthe appeal, with costs.
Objection upheld.
MWW) 16 N.L.R. 362.4 (1900) 3 BqL 244.
1 (1913) 26 N. L. B. 360.4 (1913) 16 N. L. R. 366.