Babaihamy V. Danchihamy Et Al.

1913 Present: Lascelles C.J. and Wood Renton J.

BABAIHAMY v. DANCHIHAMY et al.

32-D. C. Galle, 11,333.

Sale-Vacant possession-Compromise by purchaser-Right to sue vendor for damages.

If a vendor does not give vacant possession to the purchaser, the purchaser would not be under any obligation to take preliminary steps against the persons who had ousted him, or to give to his vendors notice to warrant and defend the title which they had purported to convey, but would have an immediate right of action against them for their failure to implement the primary obligation of the contract of sale. On the other hand, if vacant possession was given, the first duty of the purchaser who had been ousted by third parties would be to avail himself of the remedy which the law gives him against such parties, and thereafter, when he had suffered judicial eviction, to call upon his vendors to warrant and defend title.

The acceptance by a purchaser of a compromise in an action brought by him against third parties who had ousted him would throw on the purchaser himself the burden of showing that the settlement arrived at was the best thing that could be done under the circumstances with which he had to deal.

THE facts appear from the judgment.

A. St. V. Jayewardene, for the defendants, appellants.-The respondent compromised the action in the Court of requests on his own responsibility. He is not, therefore, entitled to sue the defendants (his vendors) for damages. Counsel cited Voet 21, 2, 30.

Zoysa (with him Vernon Grenier), for the plaintiff, respondent.- The respondent had no alternative but to compromise the case under the circumstances. The defendants were noticed to warrant and defend the plaintiff's title, but they took no part in the case, and left the plaintiff alone to fight the case. The plaintiff was unable to establish his title in the Court of requests case, and the compromising of the case was the best thing to do under the circumstances.

The District Judge has held that the plaintiff was not given vacant possession by the vendors; in such a case the plaintiff has an immediate cause of action against the vendors for damages (Ratwatte v. Dullewe 1[(1907) 10 N. L. R. 304]).

Jayewardene, in reply.-There is no material on the record to support the finding of the District Judge that vacant possession had not been given. Counsel cited Gurunnanse v. Don Hendrick.2[(1910) 13 N. L. R. 223.]

February 28, 1913. WOOD RENTON J.-

The parties to this action have so far been content to rest their respective cases in the District Court on the pleadings, on certain issues of law which were framed, at the hearing, and on documentary evidence that was adduced. The plaintiff-respondent alleges that the appellant sold a land to him by deed dated October 17, 1910; that he was prevented from taking possession of the land by certain third parties; that he sued them in case No. 6,461 of the Additional Court of requests of Galle, calling upon his vendors to warrant and defend title; that the latter failed to do so; and that his action in the Court of requests was dismissed. On the strength of these allegations, he claims damages against the appellants in the present action. The appellants in their answer denied that there was any express condition in the deed of sale which bound them to warrant and defend the respondent's title in the Court of requests action, and they say that the notice issued to them in that action was bad in law; that the respondent has debarred himself from any remedy against them by having compromised it, and, further, that when fie informed them of the dispute they offered to take back the land and to repay him his money. Four issues were framed at the trial, raising respectively the following questions:-The existence of the

alleged covenant to warrant and defend title; the eviction or non-eviction of the respondent by process of law; the valid

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