Balasuriya V. Appuhami

1914 Present: Lascelles C.J. and Pereira J.

BALASURIYA v. APPUHAMI.

160-D. C. Matara, 5,768.

Vendor and purchaser-Purchaser not placed in possession-Action by purchaser against trespassers for ejectment-Notice to vendor- Subsequent action against vendor for damages-Measure of damages-Costs of action against trespassers-Prayer for judgment against several defendants jointly-May judgment be entered for the full amount claimed against one defendant only ?

It is competent to a purchaser of land, although he has not been placed in possession of the land sold by the vendor, to sue a trespasser in ejectment calling upon the vendor to warrant and defend title, and if defeated in the action, to sue the vendor for damage. The damage might in such a case include the costs of the abortive action.

Where a defaulting debtor or obligor is not guilty of fraud, but his failure to perform his obligation is due to lack of caution or to imprudence, moderation should be exercised in the assessment of damages.

Where a certain sum is claimed as damage against a certain number of defendants jointly, and as against some cf them the claim is dismissed, the whole amount claimed cannot be recovered from the rest without at least an amendment of the claim.

THE facts are set out in the judgment.

A. St. V. Jayewardene, for first defendant, appellant.

Drieberg, for respondents.

Cur. adv. vult.

July 21, 1914. Pereira J.-

In this case the contract sued upon is a contract between the plaintiff on the one side and the first, second, and third defendants on the other. The fourth defendant has been made a party to the case as the husband of the third. By their deed No. 8,492. dated the 10th April, 1909, the first, second, and third defendants sold and conveyed to the plaintiff, inter alia, the land called Depagoda-watta. undertaking expressly to warrant and defend the title conveyed by them to the plaintiff. Admittedly, he failed to put the plaintiff in physical possession of a portion of the land of the extent of eleven acres, and the plaintiff was resisted by certain persons in his attempt to take possession of that portion. He thereupon instituted against them action No. 10,310 of the District Court of Matara, and in that action the plaintiff, by notice, called upon the present defendants to warrant and defend his title as against the defendants in that case. They failed to do so, and hence the present

action for the recovery of the loss sustained by the plaintiff by reason of the failure on the part of the defendants to warrant and defend his title to the eleven-acre lot referred to above. Numerous cases were cited and relied on as showing that the plaintiff had mistaken his remedy. It was contended that the plaintiff should have sued his vendors, the defendants, in the first instance, and not incurred the expense of suing the so-called trespassers. Now, the cases cited were mainly those of lessee against lessor or vendee against vendor, where the lessor in the one case or the vendor in the other had placed his lessee or vendee in full physical possession of the land leased or sold by him. These cases can have no application whatever to the present, because in this case, admittedly, the plaintiff was not put in possession of the land sold to him by the defendants. As I have endeavoured to explain in my judgment in the case of Fernando v. Perera,1 under our law the contract of sale of land is complete on the execution of a notarial conveyance followed by the delivery of the conveyance by the vendor to the purchaser, and it is now well-settled law (see Appuhamy v. Appuhamy 2) that it is not necessary that the purchaser should be placed in physical possession of the land sold to enable him to sue a third party in ejectment. That being so, it was quite competent to the plaintiff in the present case to sue, as he did, the defendants in case No. 10,310, and call upon the present defendants to warrant an

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