Bastian Appuhamy V. Haramanis Appuhamy

1945 Present: Soertsz A.C.J. and Canekeratne J.

BASTIANAPPUHAMY, Appellant, and HARAMANIS APPUHAMY,.
Respondent.

97-C. R. Gampaha, 2,463.

Possessory action by lessee-Value of the subject-matter-Jurisdiction- Prescription Ordinance (Cap. 55), s. 4.

Where the plaintiffs, as lessees of a certain land, brought a possessory action against the defendants who claimed to be on the land as the tenants of a different owner,-

Held, that in a possessory action, whether brought by a plaintiff suo nomine or as lessee, the subject-matter is the right to possess the whole land, without limitation in point of time, and the jurisdiction of the Court is determined by the value of that right.

THIS was a case referred by Wijeyewardene J. to a Bench of two Judges, under section 48 of the Courts Ordinance. The question for decision was whether when a possessory action is brought by a lessee the jurisdiction of the Court should be determined by the value of the remainder of the plaintiff's lease.

H. W. Jayewardene (with him G. T. Samarawickreme), for the plaintiffs appellants.-The question for decision is whether the test of jurisdiction in. a possessory action brought by a lessee is the value of the land or the value of the remaining period of the lease. It is submitted that, according to section 75 of the Courts Ordinance, the term of the lease must be considered in assessing the value of the subject-matter in dispute. In. Silva v. Siyaris 1, where a usufructuary mortgagee brought a possessory action, it was held that the test of jurisdiction was not the value of the land but the value of the plaintiff's interest in the land, that is, the amount of the mortgage debt. In Siyadoris de Silva v. Punchirala 2 it was held that in a possessory action the test of jurisdiction was the value of the plaintiff's interest and not the value of the land. In John Sinno v. Julis Appu3 where a lessee brought a suit to recover possession of property leased to him the jurisdiction of the Court was held to be determined not by the value of the land but by the value of the plaintiff's interest. In Wickremesinghe v. Jayasinghe 4 Pereira J. held that the value of the subject-matter in a possessory action was the value of the right claimed which in that action was the right of perpetual possession of the land as against the defendant. See also Deonis v. Labonis 5. Further, a lease is regarded as a pro tanto alienation only for the term of the lease- Abdul Azeez v. Abdul Rahiman 6 ; Carron v. Fernando 7. A contrary view was taken by Sampayo J. in Lebbe v. Banda 8 to the effect that the value of the subject-matter of a possessory action for the purpose of jurisdiction when the suit is brought by a lessee is not the value of the unexpired

1 (1909) 2 S. C. D. 64.                  6 (1913) 2 C. A. C. 125.
2 (1908) 1 S. C. D. 32.                  7 (1909) 1 Curr. L. R. 275.
3 (1906) 10 N. L. R. 351.               8 (1933) 35 N. L. R. 352.
4 (1914) 18 N. L. R. 84.                 9 (1918) 20 N. L. R. 343.

term of the lease but the value of the land itself. This view was not adopted by Bertram C.J. in Appuhamy v. Agidahamy [(1921) 23 N. L. R. 473.] It is submitted that Wickremesinghe v. Jayasinghe (supra) laid down the correct principles regarding the test of jurisdiction.

N. Nadarajah, K.C, (with him Kingsley Herat), for the defendants respondents.-The test adopted in Wickremesinghe v. Jayasinghe (supra) is good only in certain circumstances. Where an action is brought by a lessee against the lessor the value of the interest is the value of the unexpired portion of the lease. But where, as here, a third party claims the interest, the value of the interest is the value of the land. Lebbe v. Banda (supra) states the correct view. See also Leidohamy v. Goonetilleke 2[(1813) 5 Bal. N. C. 14.].

Cur. adv. vult.

November 14, 1945. SOERTSZ A.C.J

The plaintiffs., relying upon a deed of l

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