Present: Dalton J. and Jayewardene A.J.

SILVA HAMINE v. WIJEKOON.

279-D. C. Badulla, 4,072.

    Prescription-Claim by purchaser of property for damages for legal eviction-Cause of action-Date of eviction.

Where a purchaser of property who has suffered legal eviction sued his vendor for recovery of purchase price and damages.

Held, that prescription began to run against such a claim from the date of eviction, and not from the date of sale.

James Appu v. Don Cornelis de Silva1[1 (1885) 7 S. C. C. 129.] distinguished.

THE plaintiffs purchased a certain property from the defendant in 1915. They were not given vacant possession. In 1924 they instituted an action No. 3,943 in the District Court of Badulla against certain persons in possession for the recovery of the property, and summoned the defendant to warrant and defend the title. The defendant gave evidence but judgment went against the plaintiffs. On February 4, 1925, they commenced the present

action to recover the purchase money, and the costs incurred in the previous suit; the defendant pleaded inter alia that the plaintiffs'
claim was prescribed, and the learned District Judge upheld the plea.

H. V. Perera, for plaintiff, appellants.

E. G. P. Jayatilleke (with him R. C. Fonseka), for defendant, respondent.

March 18,1926. JAYEWARDENE A.J.-

This case raises a question regarding the prescription of an action brought by a purchaser who has suffered legal eviction to recover from his vendor the purchase price with interest and the costs of the action in which he suffered eviction. The appellants purchased certain property on a deed of sale in the year 1915. They were not given vacant possession. About the year 1924 they commenced an action, No. 3,943, D. C, Badulla, against certain persons in possession for the recovery of the property sold to them. They summoned the defendant, their vendor, to warrant and defend the title he had conveyed. The vendor gave evidence, but judgment was entered against the appellants on June 27, 1924, and they thereby lost their title to the property sold to them and suffered " eviction."

On February 4, 1925, they commenced this action to recover the purchase price with interest up to the date of action, the costs they had themselves incurred in action No. 3,943, and the costs they had to pay their opponent, all amounting to Rs. 1,628. The defendant pleaded inter alia that the plaintiffs' action was not maintainable as their claim was prescribed as it was not commenced within three years of the date of the sale, and as the plaintiffs did not appeal against the judgment in No. 3,943. On certain admissions these two defences which formed the fifth and sixth issues framed were taken up for decision first. The learned District Judge held that the plaintiff's claim was prescribed, and dismissed the action. In his opinion the cause of action arose in 1915, when the defendant failed to give plaintiffs, vacant possession, and not when they suffered eviction in June, 1924. He did not decide the sixth issue. In the present action the plaintiffs claim not only a repetition of the price paid by them, but also the costs incurred and paid by them in D. C, No. 3,943. Now their claim for these costs cannot be said to be prescribed as they were incurred and paid not in 1915, but in 1924.

Whatever might have been the rights of a purchaser who had not obtained vacant possession under the Roman-Dutch law, under our law as settled by the decisions of this Court, such a purchaser can either rescind the sale and obtain a refund of the purchase money or accept delivery of the deed as sufficient delivery of possession

of the property, for the delivery of a duly excecuted deed confers dominium on the purchaser, and sue the persons in possession in an action ret vindicatio. If he adopts the latter course he can call upon his vendor to warrant and defend the title transferred: Ratwat