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Present: Garvin A.J.
CADER v. WAMIPU et at.
265—G. R. Balapitiya, 13,749.
Landlord and tenant—Evidence Ordinance—Partition decree subsequentto lease—New lease by person declared owner under the decree—Must lessee surrender possession to original lessee beforebecoming lessee under person declared to be owner:
A lessee cannot refuse to pay rent on the ground that the lessorhad no title to the premises leased at the date of the lease. Hemay prove that since the tenancy commenced the landlord’stitle had expired) and that he had been evicted by title paramount.
The title of the first defendant (in an interpleader action) whohad leased the premises to plaintiff had been wiped out by asubsequent partition decree in favour of the second defendant*
The plaintiff without surrendering actual possession to the firstdefendant took a lease under the second defendant.
Held, that the second defendant was entitled to the rent.
“The,second defendant has since the decree been entitled toeject the plaintiff and then let him into possession) and in thelanguage of Denman G.J. it seems absurd to require him to gothrough the form of ejectment in order to put plaintiff into thevery position in which he now stands.”
rpHE facts appear from the judgment.
Amarasekere, for appellant.
November 17,1921. Garvin A.J.—
This is an interpleader suit. The plaintiff brought into Courta sum of money being rent of certain premises occupied by him ata rental of Rs. 12‘50 a month, stating that both the defendantsclaimed the rent, and prayed that the defendants should be calledupon to interplead, and the money paid to the person whom theCourt found to be entitled to receive the rent.
It would seem that plaintiff had entered into occupation of thepremises as the lessee of the first defendant under a lease for a year.After the expiry of that period he continued in occupation payinga monthly rent.
In the meantime, as a result of a partition action, the .premisesin question were decreed to the second defendant and another.Of this the plaintiff was aware, and the facts are not disputed.
On March 28,1921, by deed No. 52 of that date, the plaintiff tookthese premises on lease from the second defendant, who, as I havesaid, was declared by the decree in the partition case to be the owner.
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The '^ottuniosidner dismissed plaintiff's aotion,. so far as I oangather, onthe ground that plaintiff is still the first defendant’stenant, and will continue so till he surrenders actual possession tohim, and till he has done so cannot make him interplead..
But he has proceeded further, and has directed the payment ofthe xnoney brought into Court to the first defendant on the footingthat the tenancy still subsisted. From this order the plaintiffhas not appealed, but an appeal has been entered by the seconddefendant.
In view of the fact that there has been previous litigation betweenthe parties, I propose to deal with the case as a whole, and determinethe rights of the parties once and for all.
So far as the first defendant is concerned, his title and that of hispredecessors in title have clearly been determined. The decreeto which I have already referred binding on all the world, it isbinding on the plaintiff. The second defendant,' whose title wasdeclared by that decree, has asserted ids title and claimed rent forthe use of the premises.
Under these circumstances, the Commissioner thought that theplaintiff still remained the tenant of the first defendant, and Wasbound to pay to him the rent of the premises.
It is sound law that a lessee cannot refuse to pay rent on theground that the lessor had no title to the premises leased at thedate of the lease. It is equally good law, however, that he mayprove that since the tenancy commenced the landlord’s title hasexpired and that he has been evicted by title paramount.
Now the plaintiff has proved—indeed it is admitted—that bya decree in rem the title to these premises has since the commence-ment of his tenancy under first defendant been declared to be inthe second defendant. He has also proved that the seconddefendant has, on the footing that he is the owner, demanded rentfor the occupation of these premises.
The second defendant is now and has certainly since the decreereferred to been entitled to eject the plaintiff and then let him intopossession ; and in the language of Lord Denman C. J. in Doe v*Barton and Warburton, 117 Adolphus and EUis, p. 316, “ it seemsabsurd to require him to go through the form of an ejectment inorder to put (plaintiff) into the very position in which he nowstands.”
For these reasons I hold that the first defendant is not entitledto claim any part of the money deposited in Court as rent of thesepremises. It follows from what I have already said that it is thesecond defendant to whom this money should be paid. .. .
It has been proved that plaintiff is not the lessee of ^' seconddefendant under a duly attested notarial deed. seconddefendant as the. landlord of the plaintiff may possibl/ have beenjustified in denying plaintiff’s right to make him interplead with
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first defendant. He has not, however, taken the objection, and itis certainly not for first defendant to complain or object that forthat reason the plaintiff’s action should fail.
This is essentially a case in which the rights of the parties shouldbe defined, and the sooner the better.
For these reasons given I allow the appeal and set aside thejudgment of the Commissioner of Bequests. I further direct thatjudgment be entered for the second defendant for the money nowlying in Court, and that the first defendant’s claim in reconventionbe dismissed. The first defendant will pay the costs of the seconddefendant in the Court below and in appeal. The plaintiff will bearhis own costs.
Oabvik A. J.
CADER v. HAMIDU et al