Sri Lanka Law Reports
 1 Sri LR.
CANDAPPA nee BASTIAN
G.P.S. DE SILVA, C.J., KULATUNGA, J. ANDRAMANATHAN, J.
NOVEMBER 02, 03, 1992 ANDFEBRUARY 03 AND 23. 1993.
Re-vindicatory suit – Tenancy as defence – Partners as tenants – Payment ofrent by a new partner without consensus ad idem – Subtenant – Licence -Section 150 Explanation 2 (C.P.C.).
One Brenda Bastian had let the premises in suit to a firm called S. M. R. &Co. of the four partners of which one was Mandirampillai, father of the defendant.Later the defendant was admitted as a partner. The father continued to be apartner but the other three partners ceased to be partners of the firm. Thedefendant ceased to be a partner from 1st April 1959 till June 1975. On 15 June1975 the defendant became the sole partner, all the original partners havingleft the firm. Title was admitted and the question was whether the tenant wasentitled to continue as the tenant of Mrs. Brenda Bastian. The burden was onthe defendant to satisfy court that the defendant as partner carried on the businesscalled S. M. R. & Co., as the tenant of Mrs. Brenda Bastian from June 1975to December 1978.
The Partnership not being a legal personal did not have the capacity toenter into a contract of tenancy with Brenda Bastian. The tenancy was betweenthe 4 partners of the firm as on 01 April 1945 on the one hand and Mrs. BrendaBastian on the other. By 15 June 1975 all the 4 original partners, including thefather of the defendant, Mandirampillai ceased to be partners of the firm. At thispoint of time the contract of tenancy came to an end.
SC Candappa Nee Bastian v. Ponnambalampillai (G. P. S. de Silva, C.J.)185
The fact that the defendant as sole partner of the firm purported to pay" rent ‘ to Brenda Bastian does not, on the proved facts and circumstances ofthis case, make him a tenant under Brenda Bastian. One of the essentials ofa valid contract of tenancy is consensus ad idem between the parties to thecontract. Here there was no evidence of " mutual assent ", of an intention tocreate a tenancy between the defendant and Mrs. Brenda Bastian.
A new contract of tenancy under Brenda Bastian was not created whenever therewas a change of partners as there was no consensus ad idem.
The defendant was not in occupation as a subtenant or licencee because hisposition always was that he was tenant under Brenda Bastian. He cannot nowchange his position (vide Section 150 Explanation 2 (C.P.C.).
A party cannot be permitted to present in appeal a case different from thatpresented in the trial court where matters of fact are involved which were notin issue at the trial such case not being one which raises a pure question oflaw.
Cases referred to:
Ibrahim Saibo v. Mansoor 54 NLR 217.
Samsudeen v. Farook  2 Sri LR 187, 189.
Theivandran v. Ramanathan Chettiars  2 Sri LR 219.
The Tasmania (1890) 15 App. Cases 233.
Setha v. Weerakoon 49 NLR 225, 228, 229.
APPEAL from Judgment of the Court of Appeal.
H. L de Silva, P.C. with Chula de Silva, P.C. and N. M. Musafer forthe plaintiff-appellant.
P. A. D. Samarasekera, P.C. with Keerthi Sri Gunawardena and D. J. H.Gunawardena for the defendant-respondent.
Cur. adv. vult.
March 19. 1993.
G. P. S. DE SILVA, C.J.
The plaintiff instituted these proceedings in March 1979 seeking adeclaration that she is the owner of an undivided half share ofpremises bearing assessment Nos. 58 and 62, Fourth Cross Street,Colombo 11, for ejectment of the defendant and for damages. In herplaint she pleaded, inter alia, (i) that the owner of these premiseswas her mother, Mrs. Brenda Bastian who in May 1958 gifted and
Sri Lanka Law Reports
 1 Sri L.R.
conveyed a half share to her ; (ii) that from about 19th March 1979the defendant is in wrongful and unlawful occupation thereof. Theplaintiff relying on her title alleged that the defendant was a trespasserand sought the ejectment of the defendant. At the trial, the title ofthe plaintiff was admitted and damages were agreed upon atRs. 593/60 per month.
The defendant in his answer while denying that he is a trespasserpleaded : (a) that Brenda Bastian has been and continues to bethe landlady of the premises ; (b) that the tenant was the firm ofSana Mana Ravanna and Company (hereinafter referred to as the" firm ");
(c) the defendant became the sole proprietor of the firm in June 1975and that thereafter all payments of rent have been made by himand accepted by Brenda Bastian ; (d) that the defendant hadcorrespondence with Brenda Bastian as sole proprietor of thefirm ;(e) that the plaintiff and her mother Brenda Bastian are
estopped by their conduct and have accepted the defendant andacquiesced in the tenancy of the defendant as sole proprietor of thefirm.
The only issue raised on behalf of the plaintiff was whether thedefendant was in unlawful and forcible occupation of the premisesfrom 19.03.79. The defendant raised the following issues
Did Brenda Bastian let to the firm the premises in suit?
Has the defendant as sole proprietor of the firm paid BrendaBastian rent for the period June 1975 to December 1978?
Did Brenda Bastian accept rent for the period June 1975to December 1978?
(0) If the above issues are answered in favour of the defendant,is the defendant the tenant of Brenda Bastian?
The trial Judge held that the defendant was in unlawful occupationof the premises and also held that Brenda Bastian did not let thepremises to the firm. He took the view that, in these circumstances,the other issues did not arise, and entered judgment for the plaintiff.
Candappa Nee Bastian v. Ponnambalampillai (G. P. S. de Silva, C.J.)
The defendant appealed to the Court of Appeal which allowed theappeal, and set aside the judgment of the District Court subject tothe declaration that the plaintiff is the owner of an undivided half shareof the premises in suit. The plaintiff has now appealed to this courtagainst the judgment of the Court of Appeal.
The following facts emerge from the documents produced in thecase Brenda Bastian let the premises to the firm on 1st April1945 (D19 and D20). At that time there were four partners of thefirm, one of whom was Mandirampillai, the father of the defendant(P3 and P3A). On 1st June 1954 the defendant was admitted asa partner. His father continued to be a partner, but the other threepartners ceased to be partners of the firm (P8 and P8A). On 1stApril 1959 the defendant ceased to be partner (P11 and P11A). FromApril 1959 to June 1975 the defendant was not a partner of the firm.The evidence clearly shows that between 1945 and 1975 at differenttimes new partners were admitted and some ceased to be partners.On 15th June 1975 the defendant became the sole partner of thefirm (P14 and P14A), all the original partners having left the firm.There is also the evidence that the defendant's father left the Islandin 1972 and never returned but continued to remain in India. Whilein India he fell ill, and his leg was amputated.
Since title to the premises was admittedly in the plaintiff, theburden was on the defendant to show by what right he was inoccupation of the premises. The defendant commenced the case andled evidence. On a consideration of the pleadings, the issues andthe evidence there was no doubt that the defendant's position wasthat by reason of the fact that he was the sole partner of the firmfrom June 1975, he was the tenant under Brenda Bastian. IndeedCounsel for the defendant in his closing address before the DistrictJudge put the matter lucidly and succinctly when he stated : " Thereal point in this case for the Court to decide is whether the defendantis entitled to continue as the tenant of Mrs. Brenda Bastian. If theCourt holds against him on that point, then the plaintiff has to succeed.The burden is on the defendant to satify Court that the defendantas partner carried on the business called S. M. R. & Co. as the tenantof Mrs. Brenda Bastian from June 1975 to December 1978".
The partnership not being a legal person did not have the capacityto enter into a contract of tenancy with Brenda Bastian. The tenancywas between the 4 partners of the firm as on 1st April 1945 on the
Sri Lanka Law Reports
 1 SriLR.
one hand, and Mrs. Brenda Bastian on the other. By 15th June 1975all the 4 original partners, including the father of the defendant,Mandirampillai, ceased to be partners of the firm. The principalsubmission of Mr. H. L. de Silva for the plaintiff-appellant wasthat at this point of time the contract of tenancy came to an end.With this submission I agree. Reliance was placed on behalf ofthe appeliant on Ibrahim Saibo v. Mansoor (,) for the proposition thatthere were only two ways in which a tenancy could come to an end,viz. by the handing back of the premises to the landlord or by theorder of a competent Court. This ruling has to be confined, assubmitted by Mr. de Silva, to the question the Court was thereconsidering, namely, " the statutory protection given by the Act toa tenant and of which a subtenant may avail himself “ (at page 224).Under the common law there are other modes of termination of acontract of tenancy.
The fact that the defendant as sole partner of the firm purportedto pay ' rent ' to Brenda Bastian does not, on the proved facts andcircumstances of this case, make him a tenant under Brenda Bastian.One of the essentials of a valid contract of tenancy is consensusad idem between the parties to the contract. The District Judge ona careful and detailed consideration of the oral and documentaryevidence held that there was no evidence of “ mutual assent " ofan intention to create a tenancy between the defendant andMrs. Brenda Bastian. I can find no reasonable basis upon which thiscrucial finding of fact in favour of the plaintiff could be reversed.
It was the contention of Mr. Samarasekera for the defendant-respondent (if I understand counsel correctly) that a new contract oftenancy under Brenda Bastian was created whenever there was achange of partners. I find myself unable to accept this submissionas it is contrary to the fundamental principle of “consensus ad idem"in the Law of Contract. Mr. Samarasekera relied on a passage fromLindley in his treatise on partnership, cited by the Court of Appealin Samsudeen v. Farook (2). I cannot agree that this citation isan authority for so broad a proposition and one fraught withsuch grave consequences. Mr. H. L. de Silva characterized it as a“ novel proposition " for it could result in the landlord entering intocontracts of tenancy at different points of time with various persons,some of whom may not be even known to the landlord.
Candappa Nee Bastian v. Ponnambalampillai (G. P. S. de Silva, C.J.)
In the Court of Appeal it was contended on behalf of the defendant,a contention which was accepted by the Court of Appeal, that theDistrict Judge was in error in holding that the defendant was inwrongful and unlawful occupation of the premises for the reason thatoccupation by a subtenant or licensee of the tenant is not in lawunlawful occupation. Reliance was placed on the case of Theivandranv. Ramanathan Chettiar, p) for this proposition. What is relevant forpresent purposes, however, is that in the case before us neither inthe pleadings nor in the issues did the defendant take up the positionthat he was either a licencee or a subtenant under the original partnersof the firm or at any point of time thereafter. Nor did he in his evidencetake up such a position. His evidence clearly was that he was a tenantunder Brenda Bastian. What is more, the defendant's evidence thathe was a tenant under Brenda Bastian is inconsistent with the claimof licence or subtenancy. The defendant set up a claim of tenancyin himself and in his own right, and thus negatived a claim derivedfrom a third party. In other words, by his evidence he excluded aclaim based on a licence or a sub-tenancy. This was the clearimplication of the position he took up at the trial.
Thus it is seen that the position taken up in appeal for the firsttime was not in accord with the case as presented by the defendantin the District Court.' It is well to bear in mind the provisions ofexplanation 2 to section 150 of the Civil Procedure Code. It readsthus
" The case enunciated must reasonably accord with the party'spleading, i.e. plaint or answer, as the case may be. And no partycan be allowed to make at the trial a case materially different fromthat which he has placed on record, and which his opponent is
prepared to meet ". A fortiori, a party cannot be permitted to
present in appeal a case different from the case presented beforethe trial Court except in accordance with the principles laid downby the House of Lords in The Tasmania (4) and followed by Dias,J. in Setha v. Weerakoon(5). The question of licence or subtenancyinvolved matters of fact which were not put in issue at the trial. Thiswas certainly not a pure question of law which could have been raisedfor the first time in appeal. I find myself unable to agree with Mr.Samarasekera that these were matters which fell within the issueraised on behalf of the plaintiff relating to the unlawful occupationof the premises.
Sri Lanka Law Reports
 1 Sri L. FI.
There is one further significant matter to which our attention wasdrawn by Mr. H. L. de Silva, namely, that there is no finding bythe Court of Appeal that the defendant was either a licensee orsubtenant. The defendant in his evidence expressly took up theposition that he was a tenant under Mrs. Brenda Bastian. The claimof tenancy was rejected by the District Court. As stated earlier, thefinding of the District Court that the defendant was not a tenantunder Mrs. Brenda Bastian is supported by the evidence. The defendantsought to justify his occupation of the premises on the basis of acontract of tenancy with Brenda Bastian and on no other basis. Inthis the defendant failed. The Court of Appeal did not reach a findingthat the defendant was a licensee or subtenant. The defendant istherefore in the position of a trespasser and the plaintiff is entitledto a decree in ejectment against him.
In the result, the appeal is allowed, the judgment of the Courtof Appeal is set aside and the judgment of the District Courtdated 10.12.80 is restored. The defendant-respondent must pay theplaintiff-appellant costs of appeal in both Courts fixed at Rs. 7,500.
KULATUNGA, J. – I agree.
RAMANATHAN, J. – I agree.
CANDAPPA NEE BASTIAN v. PONNAMBALAMPILLAI