1932 Present : Macdonell C.J. and Dalton J.

DE SILVA v. SENARATNE.

301-D. C. Kalutara, 15,886-

Lease-Failure to give vacant possession-Trespasser claiming title under lessor-Claim for damages against lessor.

The rule that a lessee who has obtained vacant possession of the leased premises must, in the first instance, sue a trespasser in ejectment does not apply, where the trespasser claims title under the lessor.

In such a case, the lessee is entitled to sue the lessor for damages.

APPEAL from a judgment of the District Judge of Kalutara.

L. A. Rajapakse, for defendant-appellant. N. E. Weerasooria, for plaintiff-respondent.

October 4, 1932. MACDONELL C.J.-

The facts in this case are that the plaintiff, who owns and leases cinnamon bearing land, took on April 11, 1928, the lease of two lands, No. 1 Polkutuwewatta and No. 2 Alubogahakurunduwatta, from one Francis Senaratna for 2 1/2 years to commence on November 1, 1928, paying Francis Rs. 600 cash in advance. The reason for this postponement of the date when the lease was to take effect was because another man was then in possession of these two lands as lessee, and there is sufficient

evidence to show that this lessee was the person described in the evidence as the " Uggalboda man" and as " Velun Baas". The plaintiff seems to have discovered that Francis" Senaratna, his lessor, was not the owner of land No. 2, but that Francis' mother was. Consequently he took a further lease No. 572 executed to him by the defendant, the mother of Francis, on June 29, 1928, of the same two lands to commence on December 1, 1928, recited to be for the same consideration, viz., Rs. 600; really the consideration was the forbearance by plaintiff to sue the said Francis for having leased him a land to which Francis had no title. Plaintiff, it may be stated, does not live near these two lands, but at some little distance. It would appear that land No. 1 bears better cinnamon crops than land No. 2 and plaintiff asserts that though he got possession of land No. 2 and took crops therefrom-this would be in the early months of 1929- he was not able to take possession of land No. 1 since the prior lessee Velun was still in possession and would not quit. He complained to the defendant who " promised to settle", but evidently she did not settle, and the evidence of one of defendant's own witnesses shows that this Velun was still in possession about the latter part of the year 1929. Evidently he had remained on after his own lease had expired, and from all the circumstances one can conclude that his doing so was with the acquiescence and probably the assistance of the defendant and her son Francis, one or both. On October 29, 1929, the plaintiff commenced the present action against the defendant claiming damages and alleging that she had not given him peaceful and vacant possession of land No. 1.

In reply the defendant avers that land No. 1 was the property of her son Francis and says that she did give possession of land No. 2, and she also alleges fraud on the part of plaintiff and her son in getting her to execute lease No, 572. The case went to trial on certain issues of which the following are important: -

" (1) Was the deed of lease No. 572 executed merely as proof that the defendant would not disturb the lessee in the possession of the second land mentioned in the deed of lease or was it executed and did the defendant undertake to place the plaintiff in possession of both the lands leased ? (3) Did the plaintiff obtain possession of both the lands leased to him ?

The evidence of the plaintiff was that he did not get possession of land No. 1 so as to peel any cinnamon off it and that defendant, when complained to, promised to put things right but did not. A cinnamon peeler called for the plaintiff gave evidence that another man peeled land No. 1 and that he was still in possession, and one of the defendant's witnesses