JUANIS et al. v. DISSANAIKE et al.

JUANIS et al. v. DISSANAIKE et al.

D. C., Matara, 1,334.

Landlord and tenant-Liability of outgoing tenant to the incoming tenant for waste on land leased.

Per Lawrie, J.-As a general rule an. incoming tenant has no right of action against the outgoing tenant for damages for waste committed by the latter on the land leased. He must look to his landlord to put him in possession of the land leased in such order as ho and the landlord agreed on. If, however, the outgoing tenant has acted contrary to local custom, facts admitted or proved in a case may disclose liability in him to the incoming tenant.

Per Withers, J.-Where the incoming tenant has entered into possession of the leased premises and has not withhold from the landlord so much of the stipulated rent as made up for the alleged waste, and has instituted proceedings against the landlord to recover damages for delivering to him the premises in a waste. 1 condition, ho has a right of action against the outgoing tenant, but it is incumbent on him to prove that the latter committed the acts imputed to him, that the acts were unlawful, and that they have injured the reversion he has leased.

THE facts of the case sufficiently appear in the judgments.

Dornhorst, for appellants.

Wendt, for respondents.

11th November, 1896. Lawrie, J.-

The plaintiffs allege that they, on the 2nd November, 1894, took a lease of a garden, with entry on the 1st January, 1895; that the defendants, the tenants then in occupation, after the expiration of the plaintiffs' lease and before the term of their occupation commenced, unlawfully and maliciously and contrary to the terms of their lease and to the local custom, plucked half-ripe, unripe, and tender fruits, and damaged the flowers of the trees of the garden, and caused great damage, to wit, Rs. 500.

The defendants pleaded that no cause of action was disclosed against them.

The District Judge sustained that plea and dismissed the action, and hence this appeal.

I am of opinion that it is necessary that the Court should have all the facts admitted or proved before it can decide whether the defendants are or are not liable in damages to the plaintiffs. It is necessary that there should be evidence as to the local custom.

There is no privity of contract between the plaintiffs and the defendants, but the principle sic uiere two ut alienum non laedas applies.

Did the defendants so deal with the garden during the last two months of their lease as to injure the rights of those who lawfully succeed them in occupation ?

Whether the plaintiffs' rights were unlawfully damaged will, I think, depend upon whether the defendants acted contrary to the local custom.

I cannot say that as a general rule an incoming tenant has an action against the outgoing tenant for damages for waste, or if the land and houses be not left in good order and repair.

As a general rule I would say that the incoming tenant must look to his landlord to put him in possession of the subject let in such order as the new tenant and the landlord had agreed on.

In the great majority of cases I should say that the landlord is the proper plaintiff to recover damages for waste committed by his tenant. I am not sure that the landlord can assign his right to these damages, so as to put the incoming tenant in a position to sue.

I notice that the plaintiffs here allege that the outgoing tenants' duty, with regard to the state in which they were to leave the garden, was fixed by the lease; if this be so the landlord with

whom the contract was made is the only party who can sue for a breach of it.

I feel the danger of exposing outgoing tenants to two actions for the same wrong, an action by the landlord and another by the succeeding tenants.

Before deciding that these plaintiffs cannot recover damages the Court must know the facts and the custom: it will then be able to determine to whom the wrong was done,

I wo

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