1913 Present: Lascelles C.J. and Pereira J.

GOONARATNA v. FERNANDO et al.

45-D. C. (Inty.) Kurunegala, 3,254.

Ouster-Action by person ousted-Proof that third party has a superior title than person ousted-Proof that defendant has acquired title since date of action-Action-Loss of title by plaintiff during progress of action.

Where a plaintiff who was in possession of a land in claim is proved to have been ousted by the defendant, neither the fact that at the time of the ouster a third person had a title superior to that of the plaintiff, nor the fact that since the commencement of the action the defendant has acquired title to the land, is relevent on the question whether the ouster was justified.

Semble, per PEREIRA J.-Where a plaintiff having title to land claimed at the commencement of the action loses it during its progress the defendant is entitled to be absolved.

A formal grant under the Public Seal of the Colony is necessary for the conveyance of land belonging to the Crown. The title on such a grant does not refer back to the date when the sale was actually determined upon between the grantee and the Crown.

THE facts are set out in the judgment.

F. M. de Saram, for the plaintiff, appellant.-The issues proposed do not arise in the case, as the case has to be decided on the rights of parties at the date of the institution of the action. See Silva v. Fernando.1[(1912) 15 N. L. R. 499.] The fact that defendants have acquired title to the land after action does not affect the decision of the case; other principles may apply to partition actions. Both parties claimed title at first from a common owner. The subsequent Crown grant cannot be pleaded in this action. Counsel also cited Silva, v. Nona Hamine,2[(1907) 10 N. L. R. 44.] Ponnamma v. Weerasuriya.3[15 C. D. 67.]

F. de Zoyza, for the defendants, respondents.-A party defendant may rely on title acquired by him after institution of action. See Silva v. Silva.4[ (1913) 16 N. L. R. 89.] The plaintiff did not object to the amendment of the answer. These issues arise on the pleadings as they now stand. Defendants have to put forward all their titles to the lands; otherwise they will be barred by section 207 of the Civil Procedure Code from putting any claim forward hereafter.

F. M. de Saram, in reply.

Cur. adv. vult.

May 7, 1913. PEREIRA J.-

In this action, which was instituted on September 19, 1907, the plaintiff claimed certain allotments of land, and, complaining of an ouster by the defendants on February 26, 1906, he prayed for a declaration of title, ejectment of the defendants, and damages. The defendants by their answer claimed title in themselves to the allotments of land in dispute on certain old deeds. On September 30, 1912, the defendants were allowed to amend their answer by averring therein that the lands in claim " were the property of the Crown, and that the Crown advertised the same for sale in the Government Gazette of October 28,1910,and the defendants purchased the same from the Crown and paid the Crown the purchase amount for the same "; and on January 31, 1913, they were allowed to amend further their answer by adding to the above the words " and have obtained Crown grants Nos. 4,785 and 4,786, both dated January 4, 1913." On these averments the District Judge framed four issues, which are classified in the proceedings as the 3rd, 4th, 5th, and 6th issues respectively, and they are as follows:-

(3) Can the defendants set up under Crown a title acquired by them after the institution of this action ?

(4) Was the land in dispute the property of the Crown ?

(5) Did the Crown convey it to the defendants ? and

(6) Are the lands in dispute, or any of them, identical with the land conveyed by the Crown to the defendants ?

The present appeal is from an order of the District Judge overruling the plaintiff's objection to these issues. Clearly these issues do not arise in th