1955 Present: Gratiaen, I., and Fernando, J.


R. W. PATHIRANA, Appellant, and R. E. DE S. JAYASUNDARA,
Respondent


S. C. (Inty.) 144-D. C. Kurunegala, 9,003

Pleadings-Amendment of plaint---Lessor and lessee-Action against overholding lessee-Plea of prescriptive title raised by def end ant-Right of plaintiff to amend plaint soar to alter action into one of rei vindicatio-Distinction between tenancy action and vindicatory action.

A lessor of property who institutes action on the basis of a cause of action arising from a breach by the defendant of his contractual obligation as lessee is not entitled to amend his plaint subsequently so as to alter the nature of the proceeding to an action rei vindicatio if such a course would prevent or prejudice the setting up by the defendant of a plea of prescriptive title.

Plaintiff sued the defendant on the basis that the defendant, wan an overholding lessee by attornment. Defendant admitted the bare execution of the lease, but stated that the lessors were unable to give him possession of the land in question. lie averred that the land was sold to him by its lawful owner (not one of the lessors) and that by adverse possession from that date he had acquired title by prescription. The plaintiff then sought to amend the plaint by claiming a declaration of title and ejectment upon the footing that his rights of ownership had been violated.

field, that the plaintiff was not entitled to amend the plaint if the amendment would cause prejudice to the defendant's plea of prescriptive possession by him.

APPEAL from a judgment of the District Court, Kurunegala.

H. W. Jayewardene, Q.C., with L. Mututantri, for the plaintiff appellant.

H. V. Perera, Q.C., with N. E'. Weerasooria, Q.C., and W. D. Gunasekera, for the defendant-respondent.

Cur. adv. vult.

June 15, 1955. H. N. G. FERNANDO, J.-

The plaint in this action which was filed on 17th September, 1952 contained averments

(1) that at the material time certain persons were the owners of the land described in the Schedule. - -

(2) that those persons had let the land to the Defendant on 21st February, 1942

(3) that those persons sold the land to the Plaintiff on the 6th February 1950, and that the Defendant as lessee attorned to the Plaintiff.

(4) that the Defendant is estopped from denying the title of the Plaintiff.

(5) that the Defendant failed and neglected to deliver possession of the land notwithstanding the determination of that lease on 21st February, 1952. and

(6) that the Plaintiff has sustained damages consequential to the Defendant's unlawful possession. The plaint then prayed for a declaration of title to the land, for the ejectment of the Defendant and for damages.


The Defendant in Ins answer admitted the bare execution of the lease, but stated that the lessors were unable to give him possession of the land and denied the alleged attornment. He averred that, on the same day (21st February, 1942) on which the lease was executed, the land was sold to him by its lawful owner (not one of the lessors) and that by adverse possession from that date he had acquired title by prescription. He however further stated that in the event of the Plaintiff obtaining a declaration of title he claims a sum of Rs. 27,000 as compensation for bona fide improvements.

The Plaintiff then sought to amend his plaint by setting out precisely the title of the persons who had leased the land to the Defendant and had subsequently sold the land to the Plaintiff, and by adding an averment that he and his predecessors had acquired title by prescription as well. The objections of the Defendant to tins amendment have been upheld by the learned. District Judge on the ground that it " alters the entire scope of the action and converts a purely tenancy action into an action for declaration of title ". Although the Defendant had pleaded that he had entered into possession under a deed of 2