DALTON' SJPJf—Sandra Ammal v. Jusey Appu.
1934Present: Dalton S.P.J
SUNDRA AMMAL v. JUSEY- APPU.
10—C. R. Colombo, 92,115.
Landlord and tenant—Landlord’s title disclaimed—Notice to quit not necessary.
A tenant who disclaims to hold of his landlord is not entitled to havethe action dismissed for want of a valid notice to quit.
A PPEAL from an order of the Commissioner of Requests, Colombo.
N. E. Weerasooria, for plaintiff, appellant.
P. Tiyagarajah, for defendant, respondent.
October 5, 1934. Dalton S.P.J.—
This is an appeal arising out of a summary proceeding under theSmall Tenements Ordinance, No. 11 of 1882.
The person claiming as landlord in this case is a woman, stated to beold, and a Brahmin, whose business is done for her by her grandson.She duly authorized these proceedings, and an affidavit by her grandsonRamanatha Kurukkal was filed, stating that he, on or about June 15,1932, let the premises, No. 40, Captain's Gardens, Colombo, to JuseyAppu, the alleged tenant, at a monthly rental of Rs. 2.50 a monthHe further alleged that on September 1 he gave the tenant notice to quiton September 30 and deliver up possession.
In reply Jusey Appu filed an affidavit denying he was the tenant ofthe landlord here. He pleaded that in or about the year 1911 the thenowners of the land, one Seeni Ayar and other co-owners, gave himpermission to build the tenement No. 40, and that he had lived in itsince then without paying any rent. He claimed that he had since 1911acquired a prescriptive title to the tenement, and presumably to the landon which it stands. He admitted he had paid taxes to the Municipalitythrough the landlord’s husband, Kailasanatha Kurukkal, who had diedsome time in 1932.
DALTON S.P.J.—Sundra Ammal v. Jsey 4ppu<
Issiies were then framed:—
Was due notice to quit given?
Was there a tenancy?and evidence was led.
Ramanatha Kurukkal gave evidence alleging, the premises in questionbelonged to. his grandfather Kailasanatha Kurukkal, who had let themabout 1918 or 1920 to Jusey Appu with his wife’s consent. During thattime he stated the tenant paid Rs. 4.50 a -month. The Grandfatherdied some time in the year 1932, and the witness states his grandmothersent for Jusey Appu and the latter agreed to continue the tenancy underher at the rate of Rs. 2.50 a month, paying rent .that became due up toJuly 1, 1933. Thereafter he paid no rent and notice was given him.The witness could produce no receipt books.
An Inspector of the Assessor’s Department of the Municipality wascalled to state he had assessed the premises, and an objection was madeto the assessment of tenement No. 40 by the landlord here as owner.He went to the premises and found it was worth Rs. 2.50 a month,but took no statement from the tenant. Another 'witness was called,who denied the truth of Jusey Appu’s allegation in his affidavit thathe had lived in this tenement since 1911. At the time of the riots in1915 he stated that Jusey Appu lived in another garden. He corroboratesRamanatha Kurukkal on this point.
At the close of the case, and at the end of the judgment dismissingthe claim, the Commissioner granted an application made by the land-lord’s proctor to produce the title deed of Kailasanatha Kurukkal forthe premises. This deed (P 2) is dated July 30, 1928, and is a conveyanceto Kailasanatha Kurukkal by the Chairman of the Colombo Municipality.Why the Commissioner allowed it to be produced and accepted it at thatstage is not stated. It is suggested he may have had some doubt as tothe correctness of his judgment on seeing the document.
For the defence Jusey Appu gave evidence, repeating the statementsmade in his affidavit. He denied he had paid rent at any time to anyone.He did not call any of the persons who he said had authorized him to putup the tenement in 1911, although he said one of them was still alive andin Court at the time he was giving evidence. He called in fact no wit-nesses at all except his wife, although he stated in his affidavit that hehad a number of reliable witnesses to prove his case. The title deedP 2 was of course not put to him as it had not been- produced at thatstage, but he admits he had made payments of Rs. 4 a month to Kailasa-natha Kurukkal apparently over a period of about ten years. Thesepayments he says were for rates due from him, which he paid throughKailasanatha Kurukkal. The receipts he got for these payments hestated had been taken away by Kailasanatha Kurukkal, but he doesnot give any reason why he should regularly pay his rates through aperson who he says had no right either to the land or tenement. If isurged for the landlord that the payments made by Jusey Appu werereally payments of rent to her husband.
On this evidence the Commissioner states the landlord has not, in hisopinion, proved the contract of tenancy. The reasons he gives are short,36/29
Afuttiah Chettiar v. Abeysinghe.
but are difficult to follow. I have had the shorthand notes of theCommissioner’s judgment again transcribed but can only find oneprobable error in the transcription signed by the Commissioner, theword “ issue ”, which makes no sense at all, probably being a mistakefor the word “ usual
He states that ti&e landlord “ is and may have been the owner of thepremises in question, but in this case the usual material in evidence hasnot been produced, such as the contract of tenancy or counterfoils toshow payments of rent and such points”. He does not refer to theadmitted payments of Jusey Appu or say what he thinks of his explana-tion, although he appears satisfied that he has been residing on the landonly since 1918. He then concludes that there is no “ tangible evidence ”which points to the fact that at some time or other Jusey Appu was thetenant of the landlord. There is certainly evidence to that effect andthat he in fact made an agreement with the landlord, although notdocumentary evidence, but the Commissioner does not say whether ornot he disbelieved the evidence of Ramanatha Kurukkal. If he hasdirected himself, as he appears to have done, that there must be evidenceof the tenancy that answers to the description he gives, he has clearlymisdirected himself. In this Court, however, I feel unable to assess theworth of the evidence led, and the result is that there must be a fresh trial.
On the question of notice I understood counsel for respondent, JuseyAppu, conceded that the issue did not arise, since a tenant who disclaimsto hold, of his landlord and puts him at defiance is not entitled to havethe action dismissed for want of a valid notice to quit. (See MuttuNatchia v. Patuma Natchia )
The appeal is allowed, the costs of appeal following the event of thefurther trial.
SUNDRA AMMAL v. JUSEY APPU