060-NLR-NLR-V-31-DE-SILVA-v.-ISAN-APPU-et-al.pdf
( 2?5 )
Present : Dalton J.
DE SILVA b. ISAN APPUst a..
159—C. R. Balapitiya,
Estoppel—Plantingagreement—Fraudulentmisrepresentation as i :
title—Evidence Ordinance, s. 116.
Where the plaintiff induced the defendant, by a fraud uleoimisrepresentation of the ownership of a land to take a planting?agreement from him, the defendant is not eBtopped fromdenying plaintiff’s title to the land.
In such a ease possession of the land by the defendant does notenure to the benefit of the plaintiff.
A
PPEAL from a judgment of the Commissioner of Bequests,Balapitiya.
M.T. de S. Ameresehere, for plaintiff, appellant.
Rajapdkse, for defendants, respondent.
December 11, 1929. Dalton J.—
Plaintiff, who is the appellant, sought to obtain a declaration oftitle to a land called Kapu-ela-addaraowita, stated to be about1 acre in extent. The land in question is the portion marked C onthe plan No. 383 at page 65 of the record.
In his plaint plaintiff sets out no title to the land, but he claimsthat he be declared entitled to the land and possession be givenhim as against the defendants on the following grounds. On May22, 1911, he purported to give the land to the first defendant and toone Punchi Appu on a planting agreement. This agreement, thedocument PI, sets out that first defendant and Punchi Appu takethe land in question for a period of five years from plaintiff to planton the conditions set out. The second to the fifth defendants arethe widow and children of Punchi Appu, who died about three yearsbefore the action was commenced. The lease expired in 1916.defendants remained in possession of the land, and this action wasstarted on February 16, 1926, just under ten years from the termi-nation of the case- The plaint sets out further that first defendantand Punchi Appu failed and neglected to plant the land in terms ofthe agreement, and are now disputing plaintiff’s title.
The case for the defendants was that plaintiff wrongfully andfraudulently represented himself as the owner of the land describedin the planting agreement of which first defendant and Punchi Appuwere in possession at the time, that he had no title thereto &t all,and that they had acquired title by prescription to the land.
$3. N. B 11394 (10/51)
1089.
( 226 )
1929.
Daumw J.
D» Silva v.Item Appu
The matter has been before this Court on u previous occasion.At the first trial the Commissioner held that any action on the leasewas prescribed after six years from the termination of the lease.He therefore dismissed plaintiff’s action. On appeal this judgmentwas reversed, it being held that there was an undoubted conflict oftitle, which was the substantial issue in the case. It would seemthat there was some ground lor the first conclusion of theCommissioner however owing to the way the pleadings were drawn,and the learned Judge in appeal especially directed that the case goback for a further trial to determine the title of the parties to theland and. whether plaintiff was entitled to be restored to possession,for which purpose the parties would be at liberty to amend theirpleadings. The pleadings however have not been amended,although the issues have been re-framed as follows: —
Is the plaintiff entitled to the portion marked. C .in plan
No. 383 ?
Did the defendants dispute plaintiff’s right to that portion?
It being admitted that first defendant and Punchi Appu.
father of the other defendants, got a planting voucher forthis portion, are they estopped in law from questioning theright of the plaintiff ?
Was the deed of agreement executed by misrepresentation of
facts ?•
What is the value of the improvements made ?
Were they done in terms of the agreement ?
The evidence taken on the first trial was by agreement, used atthe second trial and amplified by further evidence. After aconsideration of that evidence the Commissioner has come to theconclusion that there is no evidence that plaintiff ever had possessionof the land in dispute, nor has he any documentary evidence oftitle. On the issue of misrepresentation he finds that first defendant,and Punchi Appu were in possession of the land, which may havebeen. Crown land, and that plaintiff in 1911, whilst he was policeofficer, induced first defendant and Punchi Appu to take the plantingagreement from him, representing that he had bought the landfrom the Crown and that, if they did not do so, they would have toleave the land. They discovered later that plaintiff had no rightto the land, and they did not keep the terms of the agreement.They remained on in possession, plaintiff doing nothing until nineyears after the termination of the. agreement. Plaintiff’s actionwas therefore dismissed.
•ilfter a perusal of the evidence and due consideration of all thecircumstances, I find it impossible to disagree with-, the.:, learnedCommissioner on his conclusions of fact.
( 327 )
It is urged for plaintiff (appellant) however that, inasmuch as firstdefendant and Punehi Appu ^admitted by the agreement PI that DajutokJ.they were tenants of plaintiff, they were precluded by section 116 ^^ ^
of the Evidence Ordinance from denying his title, and they .were in ison Appu'possession for him from 1911 to the date of the bringing of theaction. He had therefore prescribed for the land and was entitledto a declaration of title as against them. It seems to me a mostbold argument to put forward upon the facts here, and I should besurprised indeed if any support could be found for it in any legalauthority. Plaintiff's claim is based upon a fraudulent act. Firstdefendant and Punehi Appu in 1911 had at that date been inpossession of the land for some years although they had no title.
In that year plaintiff induces them by a wilful and false misrepresen-tation of the true position to take a planting agreement under him.
He never put them into possession at any time. At the terminationof the agreement in 1916 he does nothing, and they remain on inpossession. There had been a partition action in 1915, in whichplaintiff was an intervenient and in which first defendant andPunehi Appu supported him, but a partition was found to be .impossible, and in any case it would seem that this was prior to thediscovery of plaintiff’s fraud.
Plaintiff has not had possession for a day, unless it can be saiddefendants possessed for him. In view of the fraud committed,plaintiff is in my opinion unable to obtain the benefit he seeks fromthe agreement, or to say that the character of the earlier possessionof first defendant and Punehi Appu changed thereby to possessionunder him. They entered into possession some years before 1911 andhave remained in possession ever sin^e ; on Punehi Appu’s death hiswidow and children remaining in possession. The conduct of plain-tiff in delaying his action for nine years after the termination of theagreement itself supports the conclusion that after the discoveryof the fraud the parties l’egarded the agreement as of no force.
I can find nothing in section 116 of the Evidence Ordinance thatdebars defendants from proving plaintiff’s fraud, whilst, if thedecision in Lai Mahomed v. Kallanus 1 is good law, inasmuch asplaintiff did not put first defendant and Punehi Appu into possession,section 116 does not help him. Support for this conclusion canalso be found in Silva v. Kumarihamy.2 Although the facts inFernando v. Menika3 are not exactly the same as the case nowbefore me, it does afford support for the proposition that where aperson purports to possess as lessee land by mistake included in thelease, the lessee having in fact other right thereto, such possessionby the lessee does not accrue to the benefit of the lessor.
I would dismiss this appeal with costs.
Appeal dismissed.
’ll Cal, 519.2 25 AT. L. R. 449.*Balasingham 115.
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