Sri Lanka Law Reports
119821 I S.L.R
COURT OF APPEALPathiranaVs.
(.A. 7HM75 U:) – DC. Kandy No. 1051 ML
Section – .128 Civil Procedure Code – Investigation into right to possession -vendor in occupation after sale – licensee.
One W.S. Percra. by Deed No. 10458 of 10.8.67 transferred his 2/3rdshare of premises bearing assessment No. 24 Brownrigg St.. Kandy tothe Appellant reserving to himself the right to repurchase it within three years.
On 2.3.69 W.S. Perera entered into a tenancy agreement with theRespondent and on the basis of this agreement carried on a stationerybusiness at 24 Brownrigg Street.
When the three years stipulated in Deed No. 10458 of 10.8.67 expiredthe Appellant filed action for declaration of title and eviction of W.S. Perera.
A consent decree was entered whereby W.S. Perera was given time till30.9.73 to pay and on failure to pay writ was to issue.
W.S. Perera failed to pay and Appellant obtained Writ of Possession-.Acting on this Fiscal evicted Respondent and handed over vacant possessionto Appellant. The District Judge found that the Respondent was a tenantof W.S. Perera – the judgment debtor. He was in bona fide possessionon his own account and'he had not been made a party to the action fordeclaration of title. The District Judge ordered that Respondent be restoredto possession.
Appellant appealed against this Order.
Held I. In an action under Section 328 of Civil Procedure Code theonly question that arises is that of possession and not title.
that W.S. Perera the judgment debtor was only a licenseeafter he transferred his 2/3rd share to the Appellant.
that the Respondent was a licensee of W.S. Percra who washimself a licencec and that he had no right to possession onhis own account and therefore he was liable to be ejected.
I'uthirtmii r. Ahiingamti«/■' .t/iWv. I.)
APPEAL from judgment of the District Court of Kandy.
. H. dc Alwis.J. & Abevwardena.J
H. W. Jayewardene. O..C.. with N. IXvendra &R. Perera for Defendant – Appellant.Shanmugalingam.forlhe Plaintiff- Respondent
H. DE ALWIS. J.,
This is an appeal from the judgment of the learned District Judgeof Kandy in proceedings instituted under section 328 of the old CivilProcedure Code, ordering the plaintiff-respondent to be restored topossession of the premises in suit after he had been evicted by theFiscal in execution of a Writ issued by the District Court. Kandy,in case No. L 9519,'to which he was not a party. Case No. L 9519,was instituted by the appellant, against one W.S. Perera seeking adeclaration of title to the premises in suit and his ejectment therefrom.
'The position taken up by the respondent was that he was thetenant of W.S. Perera, of these premises, having contractual rightsof his own even against W.S. Perera. the judgment debtor, and assuch was in bona fide possession on his own account of the premisesin suit. He was therefore not liable to'be ejected under the decreepassed in that case and the judgment-creditor was only entitled toobtain constructive possession of the premises in execution of theWrit. Besides he was not a party to the action in which decree hadbeen entered and was not bound by it. He applied to Court undersection 328(1) of the Civil Procedure Code stating his grounds ofdispute and sought to be restored to possession of the premises. Theapplication was numbered and registered as a plaint in an actionbetween him as the plaintiff and the decree-holder the appellant, asthe defendant. He gave evidence that he entered into a tenancyagreement with W.S. Perera on 2.3.69 (PI) by which the premisesin suit were let to him on a monthly rental of Rs. 10(1/-. He carriedon a stationery business in the premises under the name of "Ahangama& Sons” and was a stockist for the Eastern Paper Mills Corporation.
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On 14.9.73 W.S. Pcrcra unlawfully evicted him but he was restoredto possession- ihC; next day. on it complaint' made by him to thePolice and on his giving W.S. Pcrcra a cheque for Rs. 500/- (P6).Thereafter on 188.8.131.52 he applied to the1 Rent Control Board tohave the rent determined and to deposit it with the .Hoard. He thenfiled ari' attirin' for damages against W.S.' Pcrcra claiming a sum ofRs. 25.000/- for wrongful ejectment, and stating in the Plaint (P4)that he was the tenant of W.S. Pcrcra. He also made an applicationto the Assistant Commissioner of National Housing on 3I.T.74 (P5)through his lawyer for relief under the Protection of Tenants (SpecialProvisions) Act No. 2<X of 1970.
The ease of the appellant was that W.S. Pcrcra transferred to herby deed No. 10458 dated 10.8.1967 (Rl) his 2/3 share of premisesNo. 24 Brownrigg Street. Kandy, reserving to himself the right tore-purchase it within three years of the date of the execution of thedeed. These premises arc. now re-numbered as No..-.50;. BrownriggStreet and are the premises, in suit.-
Whcn the stipulated period of three: years for the re-conveyancehad expired, the appellant filed action No-. L 9519 for a declarationof title to the premises in suit and .the ejectment of-..W.S. Pcrcratherefrom. The case was settled on,-the terms.that W.S.- Pcrcra wasto pav the appellant a sum of Rs. 2,100/- on or before 30.6.1973 inaddition to the-sum .of Rs. 2.4(H)/- which was admitted-to have beenpaid by him. and was given time, till 30.9.73 to pay the full balanceand interest. In default of payment, both Writs were to issue withoutnotice to him. If he made payment on-the due dates, the appellantwas to execute a deed of transfer in respect of the said premises inhis favour and on her failure to do so. the Secretary of the Courtwas to execute the deed of transfer (vide R2). A decree by consentwas entered in accordance with these terms (vide R3). The respondentalleges-that .this was a. collusive settlement entered into between theappellant and W.S. Pcrcra with a view to -evicting him from thepremises. Be tlvtl as it may. W.S. Pcrcra failed to satisfy the termsof the consent decree and the appellant obtained a Writ of possessionand an order to break open the padlocks of the doors of the premiseswhich were closed, and /to place her in possession. The Fiscal’sOfficer in execution of 4hc – writ issued to him proceeded to thepremises on 10.12.73 and after breaking open the padlocks of thedoors and removing the property that was.inside, handed over vacantpossession of (he ‘premises to the appellant. The property consisted
I’aihinmn r. Ahanatuna ll..11. <U' Ahvis. J.l
of a big iron safe, a table, two show eases and some items ofstationery which the Fiscal stacked on the pavement outside. Therespondent was not present at the time but one Milton who wasthere claimed a share of the property.
The learned District Judge has come to the finding that therespondent was the tenant of the premises under W.S. Perera from2.3.(W and was carrying on a stationery business there. He held thatthe respondent was in possession of the premises bona fide on hisown account and was not a party to the action in which the decreehad been entered. He was of the view that the appellant had noright to dispossess the respondent from the premises in suit andordered that the respondent be restored to possession. It is fromthis Judgment that the appellant now appeals. 1
Counsel for the respondent contends that the respondent is protectedfrom eviction by section 324 of the Civil Procedure Code since hewas the tenant of the premises under W.S. Perera and was notbound by the decree entered in case L 9519.
Section 324 provides as follows
“Upon receiving the Writ the Fiscal or his officer shall as soonns reasonably may be repair to the ground, and there deliver*over possession of the property described in the Writ to thejudgment – creditor or to some person appointed by him toreceive delivery on his behalf, and if need be by removingany person bound by the decree who refuses to vacate theproperty:
Provided that as to so much of the property, if any. as is inthe occupancy of a tenant or other person entitled to occupythe same as against judgment-debtor, and not bound by thedecree to relinquish such occupancy, the Fiscal or his officershall give delivery by affixing a copy of the Writ in someconspicuous place on the property and'.proclaiming to theoccupant by beat of tom-tom. or in such other mode as iscustomary, at some convenient place, the substance of thedecree in regard to the property:
It is the contention of the learned counsel for the respondent that'under section 324, only constructive possession of the premises could-have been given by the Fiscal to the appellant in execution of theWrit of possession.
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This section came up for consideration by a Bench of five Judgesin Ibrahim Saibo Vs. Mansoor, 54 N.L.R. 217. and the Court tookthe view that this section recognised a tenant as belonging to thecategory of persons “entitled to occupy the same as against thejudgment-debtor and not bound by the decree to relinquish suchoccupancy." The Court further said –
“It follows that the proviso enjoining constructive deliveryapplies to all tenants.. Where the decree for ejectment isagainst a tenant a sub-tenant would be covered by the word‘tenant’ in the section. Upon the view we have formed nosub-tenant who is not a party to the decree is bound by thedecree to relinquish occupancy but is a person to whom theproviso applies. He is ai person who cannot be ejected upona Writ of ejectment against the tenant, but in relation to whomconstructive delivery under the proviso should be given to thedecree-holder.”
Learned Counsel for the respondent submitted that the respondentwas at least a sub-tenant of W.S. Perera and in that capacity too,was not liable to be evicted under section 324 of the Civil ProcedureCode. But it had never been his position that W.S. Perera was thetenant of the premises so that he could not have been his sub-tenant.His case all along was that W.S.Perera was the owner and thelandlord of the prerhises and that he took the premises direct fromhim as his tenant.
Counsel for the respondent next contended that what the Courthas to investigate in proceedings under section 328 of the CivilProcedure Code is whether the appellant- had bona fide possessionof the premises on his own account and not his title to the property,In the present case the premises were in the possession of W.S.Perera at the time the respondent entered into the tenancy agreementwith him (PI). The respondent was therefore under the bona fidebelief that W.S. Perera was the owner of the premises although hehad in fact transferred- his 2/3 share of it to the appellant on R1prior to the agreement PI.
In Rosahamy Vs. Diago, 3 N.L.R. 203, it was held that theinvestigation on an application numbered and registered as a plaintunder section 328 of the Civil Procedure Code should be limited tothe question as to whether the applicant is entitled to be restored
Pathirana r. Almruwmu (/_.//. </<• Alnix. J.)
to possession of the property claimed by him. The question of titleto the property should not be gone into.' Bonser. C.J.. in that casefollowed the decision in Ratnaikc Vs. Rodrigo. Bal. Notes of cases h<8.
In Snppar Rcttiar Kv. Mohaninunln. 32 N.1..R. 189. it was heldthat in an application under section 328 of the Civil Procedure Code,the test of jurisdiction is the value of the applicant's interest in thepremises, that is, a month’s rental.
Learned Queen's Counsel for the appellant on the other handcontended that an investigation in an action under section 328(2) ofthe Civil Procedure Code involves questions of title and since thephraseology of the sub-section is similar to that of section 327 inregard to the investigation he relied on the case of VanderpoortcnVs. Amerasekera. 28 N.L.R. 452. That case was an action under theprovisions of section 327 of the Civil Procedure Code and it washeld that the investigation there is not limited to the determinationof the right to possession but that questions of title arising betweenthe parties in connection with their right of possession may bedetermined in such an investigation. That case admittedly dealt with: section 327 of the Civil Procedure Code and Drieberg A.J., thoughtit was not necessary to consider the cases of Rosahantv and ofRatnaike which held that the only question to be decided undersection 328 is the “right to possession", since " the right of a claimantin an investigation under section 327 to retain possession and rightof a claimant in an investigation under section 328 to be restoredto possession may well be determined on different grounds."
In this state of the law the decisions in the cases of Rosuhamyand of Ratnaike which are' in respect of section 328 of the CivilProcedure Code are binding on this Court and the only questionthat arises for determination is the respondent's right to the possessionof the premises.
Learned Queen's Counsel for the appellant, contended that therespondent had neither a right to possession of the premises norlegal title to it. since On the execution of the conditional transfer ofthe 2/3 share of the premises in suit to the appellant on deed Rl.W.S. Percra lost his title to the premises and continued to remainin occupation only as 1-‘licensee of the appellant. The deed Rl
has been filed in case Nb. L 9519 and was not produced in this
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case. But it is not in cjlisputc that the appellant was entitled to thepremises in suit and learned Counsel even at the hearing of theappeal proceeded on this basis. Indeed the decree entered by consentin case No. 1. 9519 is on the footing that the appellant was entitledto the premises.
In Sithy Marhooma Vs. Weerasingham, 68 N.L.R. 304 it was heldthat where A continues to remains :in possession of a house after hehas sold it on condition that B should reconvey it to A, if theconsideration for the transfer is repaid within a fixed period, A'spossession is that of a licensee, H.N.G.. Fernando, S.P.J., as he thenwas. observed that
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“according to his own (the defendant’s) position the only righthe had was to demand a re-conveyance of the property uponfulfilment of the alleged cbnditioji for the reconveyance. Itdoes not even appear that the. defendant claimed to havesatisfied this condition.”
In the present case too W.S. Perera has failed to comply with theterms of settlement entered in case No. L 9519 and to obtain are-transfer of the premises in his favour. After the execution of deedRl on 10.8.67, he remained in occupation of the premises in suit,only as a licensee of the appellant.
He was entitled to a re-transfer of the premises within three yearsof the date of the execution of the deed Rl but before the threeyears had expired, he let the premises to the respondent on thetenancy agreement PI dated 2.3.69, when he was still a licensee ofthe appellant. As a licensee in occupation of the premises he couldnot have given a better right to the premises.to the respondent thanhe himself had. The words used in PI alone will not suffice to turna licence to occupy into a tenancy.
In Swami Sivagananda Vs. Bishop of Kandy, 55 N.L.R. 130 it washeld that when a prospective purchaser of certain premises is permitted,pending his,, purchase to occupy, the premises on payment of astipulated, sum of money, his occuption is, at best, that of a licenseeand not that of a contractual tenant entitled to claim the protectionof the Rent Restriction Act. If the contemplated sale does not takeplace, the duration of the licence expires and the licensee becomes
C'/l ■I'alhiruiui »•. Alumyama (/..//. </<• AMs. J.l.,-.W
a trespasser liable to be ejected at the instance of the owner of theproperty.
It follows therefore that the respondent as a licensee cannot claimto be in possession of the property on his own-.account under section328 of the Civil Procedure Code, even if his possession was bonafide under the purported tenancy agreement PI.
In my view the learned district Judge was therefore wrong whenhe held on the evidence that the respondent was the tenant of thepremises under W.S. Perera and could not be ejected as he was notbound by the decree entered against W.S. Perera in action No. 1.9519. His finding that the respondent’s possession of the premisesin suit was bona fide on his own account is also not sustainablebecause he was only a licensee of the premises under W.S. Pererawho was himself a licensee of the appellant and therefore liable tobe ejected by the Fiscal in execution of the Writ against W.S. Perera.
1 accordingly allow the appeal. The judgment of the learned DistrictJudge is set aside .and the action filed by the respondent undersection 328 of the Civil Procedure Code is dismissed.
In the circumstances of this case I make no order for costs infavour of the appellant both here and in the Court below.
ABLY WARDEN A. J.,— I agree.