1922  Present: Bertram C.J. and Porter J.

MARALIYA v. FERNANDO.

 429-D. C. Ratnapura, 3,538.

Lease of ground share of plumbago lands-Is delivery of possession necessary .'-Vacant possession-Is there a difference between lease and sale-Lease of a chose in action-Lease of rents of tenements-Lease of taxes and tolls-Actio conducti-When damages may be recovered from lessor for not delivering possession- Remission of rent or damages.

A lessor must give possession of the tiling let to the lessee. IN the case of a lease of a chose in action, the requirement as to delivery of possession is fulfilled by the execution of the assignment; for example, in the case of the lease of the rents of a line of tenements, a formal attornment from each tenant to the lessee is not necessary.

But in addition to the right to be put into possession the lessee is also entitled to "quiet enjoyment." Consequently the actio conducti lies when the lessee is not permitted to enjoy the thing leased. This action lies whether the obstruction to the enjoyment of the property is due to any act of the lessor or to the act of a third party, and notwithstanding the fact that the lessor acted in good faith-

" If your tenant is prevented from enjoying the farm leased to him, either by yon or some one whom you can restrain, you must pay him damages in which his anticipated profits may be included. If, however, he is so excluded by some one whom you cannot restrain, or by reason of vis major, you are only responsible to him for a remission of rent,"

Where the lessee of the ground share of certain plumbago lands was prevented from getting his ground Share by reason of certain
antecedent contracts, the lessor had entered into with the minors

Held, that be was entitled to recover damages.

THE facts are Set out in the judgment,

Pereira, K.C (with him Samarawickreme, Batuwantudawa, H. V. Perera, and R, C. Fonseka), for appellant.

E. W, Jayawardene (with him D. B, Jayatileke and Croos-Dabrera), for respondent.

October 5, 1922. BERTRAM C.J.-

In this case plaintiff is a trustee of a vihare, and his claim is for arrears of rent due under a lease of the temple's ground share of certain plumbago lands. The learned District Judge has so fully and lucidly set out the complicated history of the transaction, that I need only refer to the facts very briefly. The lease was executed on September 6, 1912.' ,The defendant is the lessee. According to his own account of the matter when he took measures to prepare for collecting the ground share teased to him, he found that he was precluded from doing so by certain arrangements which his lessor has made with the persons mining on the property, inconsistent with his own rights under the lease. These persons were four in number: Jayasinghe Bandara, Mathias Bandara, Dharmawardene Bandara, and Abraham Bandara. There had been certain negotiations between these persons, the temple trustee, and other persons claiming an interest in the land, and at this stage the position appears to have been as follows: An agreement (dated October 9, 1910) had been come to with Jayasinghe, Mathias, and Dharmawardene Bandara, under which these persons, on certain conditions precedent being complied with, one of which was the payment of a sum of Rs. 8,750 each, were to receive a mining lease of the temple lands. But it was expressly provided that the payment of this sum of money should be in full and final settlement, and discharge of all claims which the trustee might have in respect of plumbago which the three persons might excavate between the date of the agreement (October 9, 1910) and the execution, of the promised lease. The position of the other Bandara, Abraham, was less clear, and, even up to the end of the argument in this Court, it remained imperfectly explained. The result, however, as the case was presented to us, was this,: That defendant, the lessee of the ground sh