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FERNANDO et al. v- FERNANDO et al.
NLR13V164
Present : Mr. Justice Wood
Renton and
Mr. Justice Grenier.
FERNANDO et al. v- FERNANDO et al.
D. C, Negombo, 7,418.
Invalid lease of an undivided
share-Possessory action by lessee-Co-owners-Possession ut dominus.
An owner of an undivided share of land can maintain a possessory action in
respect of such share, if he joins the other co-owners as parties.
A lessee who has entered into possession bona fide under a lease is entitled to
a possessory remedy, even though the lease may be technically defective; he has
to prove possession ut dominus, i.e. he must have possession not alieno nomine,
but with the intention of holding and dealing with the property as his own for
the full term of the lease.
HE
facts are fully set out in the judgment of Wood Renton J-
A. St. V. Jayewardene (with him Soertsz), for the appellants.-It has been held
in Silva v. Sinno Appu [ 1 (1903) 7 N. L. R. 5.] that the owner of an
undivided share of land can maintain a possessory action. The possession of the
plaintiffs was clearly ut dominus.
Sansoni, for the respondents.-The possession of the plaintiffs was not ut
dominus.
March 14, 1910. WOOD RENTON J.-
This is a possessory action in which the plaintiffs-appellants claim to be
restored to the possession of certain undivided shares of the lands described in
the plaint, which were leased to them by the first and second
defendants-respondents, and from which they alleged that the
defendants-respondents, among whom other persons besides the actual lessors are
included, have ousted them. The lease is dated February 28, 1903, for a period
of eighteen years, and the first plaintiff-appellant, who is the husband of the
second, and who on November 22, 1906, assigned a one-third share of his interest
in the lease to the second plaintiff-appellant, alleges that he paid the whole
rental in advance when he entered into possession, and remained in possession of
the demised lease for more than three years, and that he was forcibly ousted by
the defendants-respondents on January 8, 1908. The plaint is dated October 12,
1908- At the trial issues were raised whether the action for damages could be
maintained, in view of the fact that the husband of the second defendant, who
was actually the lessor, had not given his consent to the lease, and that
consequently section 9 of Ordinance No. 15 of
1876, to the provisions of which the parties
are subject, prohibited the wife from dealing with it at all. The husband was
subsequently made a party to the action, and the remaining issues raised the
question of ouster and damages. The learned District Judge held that a
possessory action cannot be maintained in respect of undivided shares of land;
that even if, as averred in the plaint, the shares in question were possessed
separately, it was doubtful if a possessory action was open to a lessee against
his lessor, and .that, in any event, this plaintiff could not sue on the lease,
which in view of the provisions of section 9 of Ordinance No. 15 of 1876 not
having been complied with, was invalid in law. He accordingly dismissed the
plaintiff's action with costs. It was held by Mr. Justice Wendt in the case of
Silva v. Sinno Appu [1 (1903) 7 N.L.R.5. ] that the owner of an
undivided share of land can maintain a possessory action in respect of such
share, pro vided that he joins the other co-owners as parties, either plaintiffs
or defendants; and it is clear, I think, that; in a possessory action a person
who has entered into possession bona fide under a lease, even although .that
lease may be technically defective, has his remedy where he can prove the fact
of ouster by the defendant. For .the purposes of such an action as section 4 of
Ordinance No. 22 of 1871 contemplates, it is not necessary that the plaintiff
should set out. a title sufficient to support an action rei vindicatio. He has
.to prove possession ut dominus, that is to say,
