136-NLR-NLR-V-43-SILVA-v.-JAYAWARDENA.pdf
551
KEUNEMAN J.—Silva v. Jayawardena.
1942Present: Soertsz and Keuneman JJ.SILVA v. JAYAWARDENA.
i
56—D. C. Balapitiya, B482.
Action Rei-vindicatio—Transfer of title pending action—Claim for damages.
Where, after the institution of an action for declaration of title tfive blocks of land, plaintiff transferred three blocks, no' decree for titlcan be entered in respect of the blocks sold. The right to claim damageup to the date of transfer is not affected by the sale.
Eliashamy v. Punchibanda (14 N. L. R. 113) followed.
PPEAL from a judgment of the District Judge of Balapitiya.
N. . E. Weerasooria, K.C. (with him S. W. Jayasuriya andD. M. Wcerasinghc), for defendant, appellant.
N. Nadarajali, K.C. (with him H. A. Chandra send), for plaintiff,respondent.
Cur. adv. vult.
October 16, 1942. Keuneman J.—
Fiainiiff brought this action for declaration of title to five blocks ofland, and has been declared entitled to them, and has obtained damagesand ejectment against the defendant.
The findings of the District Judge cannot be assailed, except in onerespect. It lias been admitted by the plaintiff that since the institutionof the action, she has transferred three of these blocks, viz., the 1st,2nd and 4th blocks, mentioned in the decree. It is contended for thedefendant that no decree can be entered for declaration of title or eject-ment in respect of these three blocks. It is, however, conceded that theplaintiff is entitled to claim damages up to the date of the transfer, viz., 4May 19, 1941.
I think this argument is sound. Voet has set out this principle.(Voet 6:1:4).
“ But again, if he who brought this action was the dominus at the
time of the institution of the suit, but lite pendente has lost the dominium,
reason dictates that the defendant should be absolved …. both
552
KEUNEMAN J.—Silva v. Jayawardena.
because the suit has then fallen into that case, from which an actioncould not have a beginning, and in which it could not continue. … and because the interest of the plaintiff in the subject of
the suit has ceased to existand in short because that
(right of dominium) has been removed and become extinct, whichwas the only foundation of this real action.” Voet’s Title on Vindica-tions and interdicta by Casie Chitty).
It is clear that the action contemplated by Voet was the action reivindicatio, and I think it follows that all rights in rem against the propertyare lost, when the dominium has been transferred pending the actionto another person. It is clear, however, that the right to claim damagesup to the date of the transfer is not affected. This was held by a Divi-sional Court in Eliashamy v. Punchi Banda (supra).
It follows, therefore, that the District Judge was not entitled to enter adecree for declaration of title and for ejectment in respect of the 1st,2nd and 4th blocks referred to in the decree. The judgment and decreeare affirmed as regards the 3rd and 5th blocks in the decree, but thedecree for declaration of title and ejectment ate set aside in respect ofthe 1st, 2nd and 4th blocks in the decree. The order for damages isvaried as follows:—viz., that the defendant do pay to the plaintiff thesum of Rs. 250 as damages, and a further damage of Rs. 20 from April 18,1941, to May 18, 1941, and further damages at the rate of Rs. 8 per monthfrom May 19, 1941, until the plaintiff is restored to possession of the3rd and 5th blocks mentioned in the decree.
The plaintiff will retain the order for costs in the Court below, butthere will be no order for costs in this appeal.
Judgment Varied.
Soertsz J.—I agree.