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VYTHILINGAM v. MUTTIAH.
G. R., Gampola, 2,818.
Action fo-r rent—Derivative title of plaintiff—Denial of plaintiff's right ofpossession as landlord—Occupation of defendant under a third party—Averments necessary in plaint.
in an action to recover house rent, where the landlord’s right isa derivative one he should state in his plaint and prove how hederived it, and from whom.
rPHE plaintiff, alleging that lie was the landlord of a tenementand that the defendant was his monthly tenant, claimedUs. 80 as rent for four months at the rate of Rs. 20 a month.The defendant denied that the plaintiff was his landlord, andthat he ever paid him rent. He also stated that for the last elevenyears he was the tenant of one Muttappa Chetty, and had paidrent to him for the four months referred to. The evidence showedthat the plaintiff was not the owner of the tenement but anassignee of a lessee, and that at the date of the assignment thetenement was .lawfully occupied by the defendant and others on
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contracts of lease between the defendant and another. TheCommissioner held that the plaintiff was the landlord of thedefendant, and entered judgment for the plaintiff as claimed.
The defendant appealed.
Domhorat, for appellant.
Sampayo. for respondent.
23rd March, 1898. LaWrte, J.—
f am unable to understand what right the plaintiff has to suefor rent.
In his plaint he avers that he is the landlord of the premises,•but it is plain that he is not the owner, and that he was not thelessor to the defendant, and as his title is a derivative one heought to have shown how he derived it, and from whom. Woodfall(chapter III., section 1, p. o-jO, ofed. of 1889) and Bullen and Leake(4th ed., p. 246). If the plaintiff had in the plaint set forth thelease to Buksh and the assignment of that lease to him, it wouldthen have been plain that he had no right to enter on the premises,because these (according to the plaintiff) were at that date law-fully occupied by the defendant and others under contracts oflease between the defendant and a third party.
The plaintiff had no right to step in until the owner and lessorhad by notice to quit terminated the eixsting contract. The caseis not affected by the Ceylon Evidence Ordinance, which estopstenants during the continuation of their tenancy from denyingthat the landlord had a title at the beginning of the tenancy.
Is the defendant by attornment estopped from denying the titleof the persen to whom the attornment was made ? Woodfallsays : “ It is te be observed that in all such cases the onus of“ proof as to the title is shifted and thrown upon the person who“ attorned. He must (among other things) disprove the title of“ the person to whom such attornment was made, which is“ sometimes impracticable and very difficult."
But, is it impracticable or difficult here ? From the plaintiff’sown showing he has acquired no right of entry nor of possession.So, even if the plaintiff’s statements be true, the defendants bytheir payments have not bound themselves to pay to him for ever.
On the question of fact I am unable to agree with theCommissioner. The evidence that the firm of Muttiah Chettihave for years been the rightful owners, and that, the defendantshave paid rent to them, seems to me very much stronger andmore credible than the evidence for the plaintiff. I set aside anddismiss with costs.
VYTHILINGAM v. MUTTIAH