Silva Et Al. V. Kumarihamy

Present: Porter J. and Jayewardene A.J.  1923.

 SILVA et al. v. KUMARIHAMY.

235-D. C. Ratnapura, -3,681.

Lease of land to owner-Is possession by lessee possession of the lessor ?-Prescription-Evidence Ordinance, s. 116-Estoppel--Res judicata.

A lease to an owner of his own property is not valid in law, and a person who possess his own property under a lease from another does not possess under or on behalf of that other.

Semble, section 116 of the Evidence Ordinance, 1895, applies only to cases in which the owner-lessee is let into possession by the lessor, and does not extend to cases in which the owner-lessee takes on lease a property of which he is already in possession.

In April, 1911, the defendant leased for nine years to M lot X, and the boundaries in the deed of lease included an adjoining block Y, of which M was owner. In 1919, on the termination of the lease, the heirs of M were prepared to surrender the lot leased exclusive of Y. The defendant brought an action against the fourth plaintiff (the widow of M) for rent and ejectment.

The Court held in July, 1921, that under the terms of the lease the fourth plaintiff was bound to give up possession, and the defendant was placed in possession in November, 1921. In September, 1921, plaintiffs, who were the widow (fourth plaintiff) and children of M, instituted the present action for declaration of title. The defendant pleaded prescription claiming the possession by his lessee from April, 1911, to September, 1921, as his possession. Held, that defendant had not acquired title by prescription, and that the fourth plaintiff was not barred by the decree in the former action from asserting her title to one-half of the lot.

THE facts are set out in the judgment.

E. W. Jayewardene, K.C. (with him Soertsz), for defendant-appellant,-The old case was between the same parties and operates as res judicata, and the same matter cannot be reagitated between the same parties. Martenis was lessee under the defendant's predecessor in title of this lot now in dispute, and Martenis' possession is possession which accrued to the benefit of the defendants. A lessee cannot plead the exceptio domini (Voet 19, 2, 32). This principle of the Roman-Dutch law is embodied in section 116 of the Evidence Ordinance.

Arulanandan (with him R. C. Fonseka), for plaintiffs-respondents.-The finding of the District Judge in both cases shows that Martenis was never let into possession of lot 1 by the defendant.

The inclusion of lot 1 within the boundaries recited in the deed of lease was an obvious mistake, and therefore Martenis cannot be
said to be a tenant of the defendant's predecessor. Martenis was in possession by virtue of his own right.

The case reported in 3 Bal. 115 is expressly in point, and is binding on the Court. The old tenancy case was wrongly decided, and cannot operate as res judicata, 33 Mad. 102 ; 39 Cal. 848. A tenant may always show that his conduct was due to mistake or ignorance of fact. Caspersz on Estoppel, section 241.

Jayewardene, in reply.

Cur. adv. vult.

October 19, 1923. JAYEWARDENE A.J.-

In this case the plaintiffs, as the heirs of one Martenis de Silva, sue the defendant to be declared entitled to a piece of land called Aluliaddegodawatta. The fourth plaintiff, the widow, also claims compensation for a house built by her on the land. The defendant denies the title of the plaintiffs, and claims the land as a part of a land called Bandarawatta. He also alleges that he leased this piece of land along with the rest of Bandarawatta to Martenis in the year 1911 for nine years, and that he has acquired a title by prescription to the land through his lessee Martenis and his heirs. The learned District Judge has decreed the claim of the plaintiffs, and the defendant appeals. We have no hesitation in agreeing with the learned Judge that the paper title to the land in dispute is in the plaintiffs, but t

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