048-NLR-NLR-V-58-R.-W.-PATHAIRANA-Appellant-and-R.-E.-DE.-S.-JAYASUNDARA-Respondent.pdf
' Present: Gratiaen, J., and Fernando, J.]>. W. PATH IR AX A, Appellant, and It. E. l)li S. -TAYAS UX DA R A.it cs ponde lit
S. C. {Inly.) 144—D. G. Kunineynln, 0,00-4
Pleadings—Amendment of plaint—Lessor and lessee—Action against overholdinglessee—Plea of prescriptive title raised by defendant—Jlighlof plaintiff to amendplaint so as to alter action info one of rci viiidicntio—Distinction between tenancyaction and vindicatory action.
A lessor of property who institutes action on tho basis of a cause of actionarising from a breach by tho dofendant of his contractual obligation ns lesseeis not entitled to amend his plaint subsequently so as to alter tho nature of thoproceeding to an action rci vindicatio if such a course would prevent or prejudicetho setting up by the defendant of a ploa of prescriptivo title.
Plaintiff sued tho defendant on tho basis that tho defendant was an over-holding Icsseo by attornment. Defendant admitted tho boro execution of tholease, but stated that tho lessors were unablo to givo hiin possession of tholand in question. Ho averred that tho land was sold to him by its lawful owner(not ono of tho lessors) and that by adverse possession from that date ho hadacquired title by prescription. The plaintiff tl cn sought to amend tho plaintbj1- claiming a declaration of titlo and ejectment upon tho footing thathis rights of ownership had been violated.
Held, that the plaintiff was not entitled to amend the plaint if the amend-ment would causa prejudice to the defendant’s plea of prescriptivo possessionby him.
A
-XA-PPEAL from a judgment of the District Court, TCurunegala.
if'. Jayeuardene, Q.G., with L. Mulutantri, for the plaintiff-appellant-.
If. V. Perera. Q.C., with X. E. Wcerasooria, Q.G., and IF. D.Gttnasekera-. for the defendant-respondent.
Car. ado. vuU.
June 15, 1955. H. X. G. Eerxakdo, J.—
TOC o "1-5" h z
'The plaint in this action which was filed on 17th September, 1952contained averments :—.
that at the material time certain persons were the owners of the
land described in the Schedule. '.•
that those persons had let the land to the Defendant on 21st' February, 1942.
SLVIII
that those persons sold the land to the Plaintiff on the 6th February,
1950, and that the Defendant as lessee attorne'd to the Plaintiff-
that the Defendant is estopped from denying the title of the
Plaintiff.
that the Defendant failed and neglected to deliver possession of the
land notwithstanding the determination of that lease on 21stFebruary, 1952, and
that the Plaintiff has sustained damages consequential to the
Defendant’s unlawful possession. The plaint then pmyed for adeclaration of title to the land, for the ejectment of theDefendant and for damages.
The Defendant in his answer admitted the bare execution of the lease,but stated that the lessors were unable to give him possession of the landand deiucd the alleged attornment. He averred that, on the same day(21st February, 19-12) on which the lease was executed, the land was soldto him by its lawful owner (not one of the lessors) and that by adversepossession from that date he had acquired title by prescription. Hehowever further stated that in the event of the Plaintiff obtaining adeclaration of title he claims a sum of Es. 27,000 as compensation forbona fide improvements.
The Plaintiff then sought to amend his plaint bjr setting out preciselythe title of the persons who had leased the land to the Defendant and hadsubsequently sold the land to the Plaintiff, and by adding an avermentthat he and his predecessors had acquired title by prescription as well.The objections of the Defendant to this amendment have been upheldby the learned District Judge on the ground that it ci alters the entirescope of the action and converts a purely tenancy action into an action fordeclaration of title ”. Although the Defendant had pleaded that hehad entered into possession under a deed of 21st February, 1942, and thedating back of the amembnent to the date of the plaint, i. e., 17th September,1952, would not prima facie prejudice the Defendant’s plea of prescriptivepossession, the Judge thought that the amendment would cause prejudiceto the Defendant if he could only prove possession as from some latertime than February 1942.
Hr. Jayawardene argues in appeal that the cause of action pleaded inthe plaint was not purely the Defendant's refusal to fulfil an obligationarising from the alleged contract of tenancy and was in addition a denialby the Defendant of the Plaintiff’s title to the land, and that accordinglythe action upon the original plaint was ah action rei vindicalio in whichan issue as to the Plaintiff’s title could properly have been raised. Ishall try to deal seriatim with the arguments relied upon for the appellant.
The plaint in general terms recites that the Plaintiff’s vendors werethe owners of the land at the material time, and it is said that the objectof the amendment is merely to set out in detail the source of vendor’stitle. Hut this recital was in aiiy event neccssaiy for the purposesof the tenancy action, because the Plaintiff's title as lessor was derivative
and he had therefore to state and pro c from whom lie derived it. Whilea recital that certain persons had let the land to the Defendant and thatthe Plaintiff had subsequently acquired the rights of the original lessorswould have been a sufficient exposition of the derivation of title, I donot see how the express reference to the fact that the Plaintiff’s vendorswere owners can put in issue the question of their title, any more than thequestion of a Plaintiff-landlord’s title would be put in issue by an avermentthat “ the Plaintiff was the owner of the land and leased the premises tothe Defendant The recital in paragraph 2 of the plaint is so clearly re-ferable to the need to prove the derivative title that it is of little signi-ficance in determining whether the main question arising upon the originalplaint would have been the proof of the Plaintiff’s title.
Mr. Jaj'awardene then points to a statement in paragraph 7 that thePlaintiff has sustained damages consequential to the Defendant’s unlawful■possession, from which he socks to argue that his action was for a vindi-cation of property which the Defendant possessed in denial of the Plain-tiff’s rights as owner. Hero again, the statement follows immediatelyafter the averment in paragraph G that “ the Defendant has failed andneglected to deliver possession of the said lands notwithstanding that hisrights as lessee thereof were duly determined on the 21st February,1952 ”. The two paragraphs constituted together the statement of thePlaintiff’s first cause of action and it is clear that the unlawful possessionof which the Plaintiff complained was the overholding by the Defendantafter the cessation of his contractual rights.
There is however the further point that the Plaintiff in his prayersought not only ejectment but also a declaration of title, a prayer forwhich latter relief is probably unusual in an action against an overholdingtenant. I have no doubt that it is open to a lessor in an action for eject-ment to ask for a declaration of title, but the question of difficulty whicharises is whether the action thereby becomes a rei vindicatio for whichstrict proof of the Plaintiff’s title would be required, or else is merelyono for a declaration (without strict proof) of a title which the tenant isby law precluded from denying. If the essential element of a rei vindi-catio is that the right of ownership must be strictly proved, it is difficultto accept the proposition that an action in which the Plaintiff can auto-matically obtain a declaration of title through the operation of a rule ofestoppel should be regarded as a vindicatory action. The fact that theperson in possession of property originally held as lessee would not precludethe lessor-owner from choosing to proceed against him by a rei vindicatio.
But this choice can I think be properly exercised only by pleadingsclearly setting out the claim of title and sounding in delict. I am unableto agree with Mr. Jajmwardene that the pleadings here indicate a properexercise of that choice.
Take for instance the case where a person alleges that he had leased hisland for a twenty-year term with rent paid in advance, but subject toforfeiture for breach of covenant. If he purports to terminate after 12or 15 years for such a breach, and then come? into Court averring thathe is owner and that the Defendant has failed to deliver up possessiondespite the termination of the lease by forfeiture and asks for a declaration
of title and ejectment, can he, after answer is filed to the same effect as inthe present case, seek to maintain that he had in the plaint put his titlein issue in ari action rci vindicalio ? If he can, then it would seem thatalthough the plaint conceded by implication that rent was duly paiduntil the date of termination, he may nevertheless add by amendment aclaim for damages for the 3 year period before action on the footing of awrongful possession. I think the true position in such a case too wouldbe that the owner originally decided to proceed upon a cause of actionarising from a breach of the contractual obligation and cannot alter thenature of the proceeding to an action rci vindicalio if such a course wouldprevent or prejudice the setting up by the Defendant- of a plea ofprescription.
Ujxm the question of amendment of pleadings generally, Withers J.said in liahcatle v. Owen 1 :—“ After the plaint, has once been accepted,I think as a- general ride that it- should not be amended till after the issuehas been settled. The office of an amendment will generally be at thatstage to square the plaint with the issue,if necessary ”, thus indicatingthat the discretionary power to permit- an amendment of the plaintshould not be exercised unless firstly, a particular issue does arise uponthe original plaint and secondly, further pleadings arc necessary in orderto explain or clarify matters relevant to the particular issue. Subsequentdecisions show that the general rule as so stated is not to be regardedas inflexible and that relaxation is permissible in order to securethe more expeditious termination of disputes. But no such relaxationis proper if it would be prejudicial to a plea of prescription available to aDefendant.
The Defendant’s attempt in this case to deny the operation against-him of the rule of estoppel and to set up possession adverse to the Plaintiffand his predecessors constitutes merely a denial relevant to the issue ofletting and attornment arising upon the plaint-. It is argued that theinclusion by the Defendant of a claim for bona fide improvements in theevent of the Plaintiff obtaining a declaration of title indicates that theDefendant understood the Plaintiff’s action to be one of rei vindicalio.Even if the Defendant’s state of mind at- the time .lie filed the answeris o£ assistance in determining the character of the action earlier institutedby the Plaintiff, there is in this case the further consideration that such aclaim is not necessarily out of place in an action between landlord andtenant … (Wille ; Landlord and Tenant, 4th Ed. Ch. 22).
For these reasons I think that the order of the learned Judge was rightand that the appeal must- be dismissed with costs.
Gratiakn, J.—
I agree. In a rci vindicalio action proper the owner of immovableproperty is entitled, on proof of his title, to a decree in his favour for therecovery of the property and for the ejectment of the person in wrongfuloccupation. “ The plaintiff’s ownership of the thing is of the very essenceof the action ”, Jlactsdorp’s Institutes (7th Ed.) VoI. 2, 9G.
1 (1S0C) S -V. L. It. 14J.
TJic scoiic of an action by a .lessor against an overholding lesseo foirestoration and ejectment, however, is different. Privity of contracl(whether it be by original agreement or by attornment) is the foundationof the right to relief and issues as to title arc irrelevant to the proceedings.Indeed, a lessee who has entered into occupation is precluded from dis-puting his lessor’s title until he has first restored the property in fulfilmentof his contractual obligation. “ The lessee (conductor) cannot plead thoexceplio dominii, although ho may bo able easily to prove his own owner-ship, but he must by all means first surrender his possession and thenlitigate as to proprietorship …. ” Voet 19.2.32.
Both these forms of action referred to are no doubt designed to securethe same primary relief, namely, the recovery of property. But thocause of action in one case is tho violation of the plaintiff’s rights ofownership, in the other it is the breach of tho lessee’s contractualobligation.
A decree for a declaration of title may, of course, be obtained by wayof additional relief either in a rei vindicalio action proper (which is in truthan action in rent) or in a lessor’s action against his overholding tenant(which is an action in personam). But in the former case, the declarationis based on proof of ownership ; in the latter, on proof of the contractualrelationship which forbids a denial that the lessor is the trueowner.
As to procedure, Section 33 of the Code permits the joinder ofcertain forms of relief in an action (either in rent or in personam)for the recovery of immovable property and/or for the declaration oftitle. For instance, in a rei vindicalio action proper, the plaintiff mayask for (a) mesne profits and (b) damages consequential on the trespass.Similarly, in the lessor’s action in personam against the overholdinglessee, he may claim (a) arrears of rent and (b) damages for breach of thecontract of lease.
Analysed in the light of these simple rules, the plaintiff’s original plainthad very clearly asked for relief against the defendant on the ground of analleged contractual relationship created by attornment. Paragraphs2, 3 and 4 contain averments which, if true, establish (1) the original con-tract of lease between the plaintiff’s vendors and the defendant (2) thesubsequent purchase of the property by the plaintiff pending the durationof the lease, and finally (3) an attornment in 1950. Paragraph 5 in effectrelies on the contractual relationship thus established as giving rise to anestoppel against denying the lessor’s title, and it is this averment whichforms the foundation of the prayer for a declaratory decree as totitle.
The rest of the plaint pleads three causes of action each of which i3unambiguously based on an alleged breach of a contractual obligation,namely, (a) failure to restore the property upon the termination of thelease (b) failure to maintain the property in good condition during thot*
pendency of the lease and (c) failure in terms of the lease to improve theproperty. Upon these causes of action, the plaintiff has claimedrestoration of the property, ejectment and damages.
It is therefore quite apparent that the action as originally constitutedwas not a rei vindicatio action proper in which any issues as to rights ofownership could property arise for adjudication. Nothing that thedefendant has since alleged by way of defence can by itself alter the scopeof the real issues relevant to the granting of the relief prayed for in theplaint.
The defendant has denied attornment. If this be true, the entirefoundation of the plaintiff's claim is destroyed. If it be false, the plain-tiff’s claim for a declaration of title (based on the legal consequences ofa contractual relationship) and for ejectment must necessarily succeed.In the latter event, the defendant’s claim for compensation could onlyarise on proof of special circumstances in which a lessee, as opposed to abona fide improver who possessed vl dominu-s, could be compensated underour law.
In the situation which has now arisen, the plaintiff has sought to amendhis plaint so as to ask, in the alternative, for the same relief as he hadoriginally sought but on entirely different grounds. In other words, heclaims a declaration of title and ejectment upon the footing that hisalleged rights of ownership had been violated even if his original avermentas to privity of contract by attornment be untrue. Similarly, his alter-native claim for damages would stand on an entirely different footing.
To allow the amendment at this stage would be to convert an actionin personam into an action in personam (founded on contract) coupledin the alternative with an action in rein (founded on ownership). I donot think that it would be proper to allow the scope of the action to besubjected to a fundamental alteration of this kind, because the additionof the alternative cause of action would potentially prejudice the defend-ant on the issue as to the plaintiff’s prescriptive title if the date of thoaverment is to relate back (as it necessarily must) to the date of theoriginal plaint. Waduganalhan Chetliar v. Sena Abdul Cassim *.
The Court should always refuse a party’s application to amend hispleadings by asking for relief (even the same relief as he had originallyclaimed) upon a fresh cause of action which majr have become prescribedin the interval. I am aware that in Noorbhoy v. Mohideen Pillai 2, theplaintiff, having originally sued the defendant on a promissory note, waspermitted to amend his plaint by asking alternatively for a money decreefor a like amount upon a cause of action for goods sold and delivered.But in that case the possibility of prejudice to the defendant on the issueof prescription was not raised. I do not doubt that Aoorbhoy s casewould have been differently decided if, at the date of the proposedamendment,.the cause of action on the alternative count had alreadybecome barred by limitation.
{1952) 54 N. L. 11. 1S5.
{1929) 31 A', h. n. 3.
A]>peal dismissed.