Alagiawanna Gurunnanse V. Don Hendrick Et Al.,

[FULL BENCH]

Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice
Wood Renton.

ALAGIAWANNA GURUNNANSE v. DON
HENDRICK et al.

D. C, Colombo, 28,365.

Action by lessee against trespassers and lessor-Misjoinder of parties- No cause of action against lessor till judicial eviction.

A lessee who has been given vacant possession of the property leased cannot, in the absence of any express covenant in the lease empowering him to do so, make the lessor a party defendant to an action brought by him against trespassers for declaration of title as lessee and claim in the alternative damages against the lessor; the lessee has no cause of action against the lessor unless and until he suffers eviction by due process of law.

THE facts of this case are fully set out in the judgment of the Chief Justice as follows: -

This is the plaintiff's appeal against the dismissal of his action. The action as it was constituted at the date of the trial was by a lessee against his lessor and against third parties (the added defendants), who had disputed his title; he alleged that the lessor had granted him a lease of certain land for four years, and had agreed that, should there be any dispute in respect of the demised premises by reason of any flaw in his title, he would pay all damages to the lessee; that he paid the rent in advance, and was in possession of the premises for seven months, when the first of the added defendants prevented him from possessing them, and the first and second added defendants granted a lease of an undivided half of the premises to the third added defendant, who is in possession of the land; that his lessor had title only to one-half of the premises, and he claimed a declaration of his right to possession for the term of his lease; and that the added defendant be ejected, but, in the event of the Court holding that his lessor had no right to lease more than half of the land, then his lessor should pay him damages.

The lessor in his answer said that the plaintiff is still m possession, alleged that his title was good, and that the action against him is not maintainable until the plaintiff has suffered eviction, and he also claimed from the plaintiff in reconvention damages for waste. The added defendants denied that the plaintiff had been prevented from possessing the land, and, while admitting the execution of the lease, the third added defendant denied that the defendant is or that they are in possession of the land.

The Judge by consent decided first, two of the issues proposed, i.e.- (1) The plaintiff having been put in possession of the land, is this action maintainable without his suffering eviction? And (6) Is the plaint bad for misjoinder of causes of action as well as of defendants? The decided the first issue in the negative and the sixth in the affirmative, and he dismissed the action.

The plaintiff appealed.

H. A. Jayewardene (with him B. F. de Silva), for the plaintiff, appellant.-In an action against a trespasser for restoration of possession the lessee may join an alternative claim against the lessor for the return of the lease money (Dingiriya v. Payne,1 Fernando v. Waas 2). It was held in Silva v. Punchirala,3 Juan Fernando v. Fernando,* that in Courts of requests the two causes of action could not be joined in one suit, in view of the special provisions of section 805 of the Civil Procedure Code. In District Courts the two causes of action might be joined in one suit with the leave of the Court. See Silva v. Punchirala 3 and Appuhamty v. Dionis.5 Counsel also referred to Appuhamy v. Guneris 6 and Menon v. Krishnan.7

In any event the dismissal of the action against the added defendants (trespassers) is wrong.

Samarawickram'a, for the respondent.--The plaintiff has no cause of action against the lessor until he has been legally evicted by a third party. Se

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