116-NLR-NLR-V-23-APPUHAMY-v.-NONIS.pdf
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Present: Sohneider J.
APFUHAMY «. NONIS.
71—C. JR. Colombo, 83,588.
Partition Ordinance, e. 17—la lease an alienation t
A lease is not an alienation within the meaning ef soetion 17 ofthe Partition. Ordinance, 1808.
fj^ms facts appear from the jm’gseant.
L. V. Loot, for plaintiff, appellant.—The Commissioner waswrong in holding that a lease during the pendency of a partitionsuit was void. It has been held that a lease is not an alienationwithin the meaning of section 17 of thePartition Ordinance (Kirihamyv. Mudtansex). If the lease is valid, the plaintiff is entitled to claimdamages.
Croos-Dabrera (with him Altois), for defendant, respondent.—Alease has been held to be a pro ianto alienation. It must, therefore,be held to be an alienation within the meaning of section 17 of thePartition Ordinance. (See Abcysekere v. Silva.2)
The damages claimed are excessive. The plaintiff cannot claimboth the rent paid in advance as well as damages for being kept out
July 12,1922. Schnetdbb J.—
In this action the plaintiff claimed a sum of Bs. 150 as damages;and Bs. 37*50 as repetition of rent paid by him to the defendantsupon a lease granted by the defendants in his favour. His cause ofaction was the failure on the part of the defendants to give himpossession of the property leased. In their answer the defendantsadmitted that the plaintiff had suffered damage to the extent ofBs. 160, and that ho had also paid the sum of Bs. 37*50 as rent, butpleaded that tbe lease was void, in that it had been granted duringthe pendency of an action for the partitioning of the land, and that,therefore, the only claim which the plaintiff was entitled to maintainwas one for the repetition of Bs. 37*50. Two issues were framed:.(1) Whether the lease was void, in that it had been executed duringthe pendenoy of the partition action; and (2) if it was void, whetherthe plaintiff could claim any more than the sum of Bs. 37*50? Thelearned Commissioner decided the first issue against the plaintiff,
*Um)iSX.L.B.g7g.* 11911) 10. A. 0.87.
1982.
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1988. following certain cases which had been cited to him. He, aooord*«ji-Vir.—dismissed the whole oi the plaintiffs case. The plaintiff has
j. appealed, and hist counsel cited the judgment of this Oonrt inA^nuhamu ae^on (Kirihamy v. MwKanse1), in vhioh the question whethera lease was void because it had been executed during thependenCjrof a .partition action has been folly considered with referenceto previous authorities. This Court held, in the case I have men-tioned, that a lease was not an alienation within the meaning ofsection 17 of Ordinance No. lOof 1803. I agree with the principleof t*ie decision of the Kegalla case, and would follow it. Thepresent appeal is covered by the principle hM down in the Kegallacase. The lease, therefore, upon which plaintiff bases his chumis a valid one, and he is entitled to g&aintadn his action upon a breachof the terms of that lease. Hisclaim for damages has been admitted.The sum paid as rent has been admitted. Therefore, the plaintiff isenti&kd !$• judgment for the sum of Es. 197*60, with legal interesthorn this date, and to the costs of the action in the lower Court andin this Court. Counsel for the defendants has strenuously arguedthat it would be inequitable to award the sum of Be. 160 as damagesupon a lease, the total rental of which is only Bs. 62*60. Thedamages certainly do appear to.be excessive, but I am unable togrant any relief after the admission which has been made in theanswer. It cannot be regarded as a slip of the pen.
The appeal is accordingly allowed.
'{192D23N.L.B.272,