Sri Lanka Law Reports
(1994) 1 Sri LR.
COURT OF APPEALWIJERATNE, J. ANDWEERASEKERA, J.
C.A. NO. 374/86 (F).
JULY 31. OCTOBER 27 AND NOVEMBER 4, 1992.
Rent and ejectment – Distinction between tenant and ticencee – Section 10(1)Rent Act, No. 7 of 1972.
The tests to be applied for determining whether a tenancy has been created are –
Is the person claiming tenancy in exclusive occupation of a defined andseparate portion over which the landlord has tor the time being relinquishedhis right of control?
Was there payment of rent?
No person is to be deemed a tenant, by reason solely of the fact that he ispermitted to use rooms in such premises.
In the last resort it is the intention of the parties that determines the questionwhether a person is a tenant or a licensee.
Cases referred to:
Cobb v. Lane  1 All ER 119.
Errington v. Errington  1 KB 290.
Booker v. Palmer  2 All ER 674,677.
Marcroft Wagons Ltd. v. Smith  2 KB 496.
fsaac v. Hotel de Paris Ltd.  1 All ER 348.
Swami Sivagnanda v. The Bishop of Kandy 55 NLR 130.
Britto v. Swamikannu 74 NLR 209.
APPEAL from judgment of District Court of Colombo.
Miss Maureen Seneviratne PC. with 6. L. Geethananda and RohanaJayawardena for plaintiff-appellant.
P. A. D. Samarasekera PC. with Keerthi Sri Gunawardena for the substituteddefendant-respondent.
Cur. adv. vult.
Prins v. Paternott (Wijeratne, J.)
April 8, 1993.
The plaintiff-appellant filed this action on 29.9.83 against the originaldefendant (since deceased) stating that prior to the dates material tothe action the plaintiff-appellant permitted the defendant to occupythree rooms in premises No. 3,37th Lane, off Queen's Road, Colombo,for which the plaintiff-appellant charged Rs. 750/- per month. Thesethree rooms were described in the schedule to the plaint,
The defendant had made payments up to 31.1.83. The plaintiff hadsent a notice dated 22.2.83 through her Attorney-at-Law to thedefendant to quit and vacate the premises, which he had beenoccupying, on or before 31.3.83, which he had failed to do. Thereforeshe sought ejectment of the defendant from the said premises andpayment in a sum of Rs. 1500/- on account of occupation for themonths of February and March 1983 and damages in Rs. 5000/- forthe period from 1.4.83 to 31.8.83 and thereafter damages atRs. 1000/- per month from 1.9.83 till possession is restored to her.
The defendant Tiled answer claiming to be a lawful tenant of thesepremises.
When the trial was taken up on 30.8.85 the receipt of the notice toquit was admitted. The following issues were framed
On behalf of the Plaintiff:"1. Did the plaintiff give the defendant permission to occupy thepremises in suit as indicated in paragraph 2 of the plaint ?
2. If issue No. 1 is answered in the affirmative, is the plaintiffentitled to rellefe prayed for In the plaint ?’
On behalf of the Defendant:“3. Is the defendant the lawful tenant of a part of the premisesbearing No. 1 (ale), 37th Lane, Colombo 3 ?
Sri Lanka Law Reports
 2 Sri LR.
If so, can the plaintiff maintain this action ?
In any event can the plaintiff maintain this action as thesubject matter had not been properly described ?”
At the trial only the plaintiff-appellant gave evidence on her behalfand produced documents marked P1 to P15.
On behalf of the defendant he himself gave evidence anddocuments D1 to D63 were marked and produced.
The learned Additional District Judge by his judgment dated1.9.86 held that the defendant was the lawful tenant of thesepremises and dismissed the plaintiff's action with costs, from whichjudgment and decree this appeal has been filed.
The main question to be decided is whether the defendant-respondent was a tenant or a licensee.
In this case there is no formal document setting out the terms andconditions on which the plaintiff-appellant’s husband gave thesepremises to the defendant-respondent for his occupation. In theabsence of any formal documents the intention of the parties must beinferred from all the surrounding circumstances having regard to anydocumentary evidence which may have been produced.
In the case of Cobb v. Lanew it was stated that in former days thedistinction between a tenancy and licence was not so important as ithas become after the Rent Restriction Act came into operation andthe solution would seem to be found, as one would expect, on theintention of the parties.
In Errington v. Errington m it was held that although a person whowas left into exclusive possession is, prima facie, to be considered tobe a tenant, nevertheless he will not be held to be so if thecircumstances negative any intention to create a tenancy.
Prins v. Patemott (Wijeratne, J.)
Lord Green, M.R. said in Booker v. Palmer (3):
“There is one golden rule which is of very general application,namely, that the law does not impute intention to enter into legalrelationship where the circumstances and the conduct of theparties negative any intention of the kind,"
In Macroft Wagons Ltd. v. Smith w Sir Raymond Evershed, M.R. (ashe then was) stated as follows:-
“Until, in the present century, the Rent Restriction Acts cameinto force, the law, broadly speaking, necessarily inferred, whenexclusive possession was granted to one of the property ofanother, at a rent payable to that other, that a tenancy had beencreated. The law did not recognise that those conditions werecompatible with any other kind of relationship."
He also went on to state that consideration of similar facts today mustbe against the background of the conception of the statutory tenancy.
In this case it was held that though rent had been paid for aboutsix months, no tenancy had been created.
Jn Isaac v. Hotel de Paris Ltd.!S), which was a case from Trinidad inthe West Indies where the appellant was let into occupation of thefirst floor of the Paris Hotfl to run a night bar to be managed by the mappellant on behalf of the hotel company; the appellant ran the nightbar. paid all expenses, took all the profits and paid the monthly rent to #the hotel company. It was held that the relationship between theparties was not that of a landlord and a tenant but of a licensor andlicensee, even though there was exclusive possession by theappellant and acceptance of rent by the hotel company.
In a local case, Swami Sivagnanda v. The Bishop of Kandy,™ itwas held that the question whether or not the parties to an agreementintended to create between themselves the relationship of landlord
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 2 Sri L.R.
and tenant must in the last resort be a question of intention. The testslaid down in the case of Britto v. Swamikannu(7) are also helpful.
Section 10(1) of the Rent Act, No. 7 of 1972, also lays downcertain tests to decide whether a person is a tenant.
Broadly speaking the tests to decide whether a tenancy has beencreated are as follows:-
Is the person claiming tenancy in exclusive occupation of adefined separate portion over which the landlord has for thetime being relinquished his right of control ?
Was there payment of rent ?
No person is to be deemed a tenant by reason solely of thefact that he is permitted to use rooms in such premises.
Miss Maureen Seneviratne, PC., for the plaintiff-appellant, in alengthy oral and written submission, has strongly argued that despitethe use of the word "rent" no tenancy was created.
In this case the evidence clearly shows that three rooms were let tothe defendant-respondent for which rent was charged and a portionof these premises was used as a store. In D1, D2, D3, D4, D9, D13,D14, D15 and D16 there are references to rent.°
• Finally in the evidence given by the plaintiff-appellant on 20.8.85,towards the commencement of the cross-examination, she has stated. as follows:-
“Q. When did the defendant come to reside; is it in 1973 ?
A. In 1973 or 1974. I may say that my husband rented outthese premises to the defendant, that the tenancycommenced in 1973, that the defendant paid a monthlyrental, and that monthly rental was paid in respect of threerooms.*
Prins v. Paternott (Wijeratne, J.)
The plaintiff-appellant has clearly admitted that the defendant wasa tenant and not a licensee.
The fact that a portion of these three rooms was used for storinggoods supports the view that it was given on monthly rent. For thesereasons the appeal has to be dismissed.
However I wish to add one more matter. Paragraph 2 of the plaintof the plaintiff-appellant states: “Prior to the dates material to thisaction the plaintiff permitted the defendant to occupy three rooms inpremises bearing Assessment No. 3, 37th Lane, off Queen's Road,Colombo 3’
However, according to the evidence of the plaintiff-appellant it washer deceased husband who had given this permission. Paragraph 2of the plaint is at variance with the evidence led on behalf of theplaintiff-appellant.
Having regard to the totality of the evidence, oral anddocumentary, the tenancy has been established. Therefore theappeal is dismissed with costs payable by the plaintiff-appellant tothe substituted defendant-respondent.
WEERASEKERA, J. -1 agree.
PRINS V. PATERNOTT