Bastian v. Panagoda
SUPREME COURTG. P. S. DE SILVA, CJ..
S.C. APPEAL NO. 67/96
A. NO. 319/89(F)
C. COLOMBO NO. 5347/ZLSEPTEMBER 30. 1998
Landlord and Tenant – Plea of tenancy in suit for declaration of title – Acceptanceof rent – Certificate of tenancy.
Mere acceptance of rent cannot establish a tenancy where the owner hasunequivocally repudiated the claim of tenancy. A contract of letting and hiringcannot arise except by agreement of parties. A tenancy by contract can only arisewhere the parties are ad idem as to its essential particulars.
Although a certificate of tenancy is prima facie evidence of the facts stated therein,it is not conclusive evidence. Where the evidentiary value of the certificate oftenancy is displaced by the evidence on record to the contrary, the claim basedon the certificate of tenancy fails.
Cases referred to:
Fernando v. Samaraweera 52 NLR 278, 283.
Dolawatta v. Gamage (1989) 2 Sri LR 327, 332, 333.
APPEAL from judgment of the Court of Appeal.
P. A. D. Samarasekera, P.C with A. A. M. Marleen for defendant-appellant.
A. K. Premadasa, P.C with C. E. de Silva or substituted plaintiff-respondent.
Cur. adv. vutt.
Sri Lanka Law Reports
 3 Sri L ft.
October 15, 1998
P. S. DE SILVA, CJ.
The plaintiff as administratrix of the estate of Edwin Fernando institutedthese proceedings on 25th November, 1986, against the defendantseeking (a) a declaration that the plaintiff and her 3 children are entitledto the premises in suit, (b) ejectment of the defendant and (c) recoveryof damages. Edwin Fernando died on 18.10.85. There was no seriousdispute at the trial in regard to Edwin Fernando's title to the premises,and the District Court held with the plaintiff on the issue of title. Thecase for the plaintiff is that the defendant is in wrongful and unlawfuloccupation of the premises. The defendant, however, contends thathe was a tenant under Edwin Fernando and continues to be a tenantunder the plaintiff. After trial, the District Court rejected the defendant'sclaim that he was a tenant under Edwin Fernando and enteredjudgment for the plaintiff. The defendant's appeal to the Court ofAppeal was unsuccessful. Hence the present appeal to this court bythe defendant.
The defendant's grandfather Albert Bastian was admittedly thetenant under Edwin Fernando. Albert Bastian died on 4.8.73. Thedefendant's father Frank Bastian predeceased his grandfather in theyear 1967. The defendant's claim to tenancy is on a two-fold basis.In the first place, it is urged, that Edwin Fernando accepted paymentsof rent made by him from August, 1973 to January, 1976, throughthe Rent Department of the Municipal Council, Colombo, without anyprotest. By reason of the acceptance of rent, it is submitted, that thedefendant had become the tenant of the premises in his own right.Secondly, the defendant relies strongly on the certificate of tenancydated 22.8.81 (D4) issued by the Rent Board in his favour in termsof section 35 (2) of the Rent Act.
As regards the defendant's claim to tenancy based on the accept-ance of rent, it is necessary to consider the course of conduct betweenthe parties as evidenced by the documents produced at the trial. Uponthe death of Albert Bastian on 4.8.73, the Attorney-at-law of thedefendant wrote P11 dated 15.8.73 informing Edwin Fernando that
Bastian v. Panagoda (G. P. S. De Silva, CJ.)
Albert Bastian the tenant had died on 4.8.73 and that the defendantis claiming the tenancy. The Attorney-at-law of Edwin Fernando repliedP11 by letter dated 21.8.73 (P12) stating that the defendant was notentitled to the tenancy in terms of section 36 of the Rent Act. It wasfurther stated in P12 “If your client does not immediately vacate thesaid premises, legal steps will be taken to have him ejected therefrom".Thus within a very short time of the death of Albert Bastian thedefendant's claim to tenancy was totally rejected. It is to be notedthat the defendant was the grandson of the deceased tenant.Moreover, the evidence establishes that he was not a dependant ofthe deceased tenant.
The letter P10 dated 24.9.73 addressed to the Rent Departmentof the Municipal Council, Colombo, by Edwin Fernando is of the utmostimportance. In this letter Edwin Fernando informs the Municipal Councilthat the defendant is in forcible occupation of the premises, the tenanthad died on 4.8.73, and the rent paid for August, 1973, is returned.The Municipal Council was further directed not to accept any moneypaid by the defendant since he intends taking “legal action". It is truethat thereafter Edwin Fernando had accepted certain payments butno receipts were issued until 1976. The receipts for February, April,May and July, 1975, issued by Edwin Fernando specifically state thatthe money is accepted "without prejudice to my rights".
It was strongly urged on behalf of the defendant that EdwinFernando had accepted payments made by the defendant by way ofrent from August, 1973 to January, 1976, unconditionally and withoutprotest. It seems to me that the documentary evidence is not in accordwith this submission. In any event, the mere acceptance of rent cannot,in the facts and circumstances of this case, establish a contract oftenancy between Edwin Fernando and the defendant. As stated earlier,immediately upon the death of Albert Bastian (the admitted tenant)Edwin Fernando unequivocally repudiated the defendant's claim oftenancy. There is nothing in the evidence to suggest that EdwinFernando at anytime thereafter resiled from this position. "A contractof letting and hiring cannot arise except by agreement of parties. Atenancy by contract can only arise where the parties are ad idem
Sri Lanka Law Reports
 3 Sri LR.
as to its essential particulars”. Per Basnayake, J. in Fernando v.Samaraweeret11 at 283.
I now turn to the defendant's claim of tenancy based on thecertificate of tenancy issued in terms of section 35 of the Rent Act.It is true that the certificate is ”prima facie evidence of the facts statedtherein". The meaning of the expression “prima facie evidence" wascarefully considered by Ranasinghe, J. (as he then was) in Dolawattav. Gamagd®. "Prima facie“ evidence is certainly not conclusive evidence.Therefore the facts set out in the certificate of tenancy can be rebuttedby other cogent evidence. In my view, the documentary evidencereferred to above constitutes strong evidence which clearly andunambiguously negatives an intention on the part of Edwin Fernandoto create a contract of tenancy between himself and the defendant.In other words, the evidentiary value of the certificate of tenancy hasbeen displaced by the evidence on record to the contrary. Thus theclaim of the defendant based on the "certificate of tenancy” fails.
For these reasons the judgment of the Court of Appeal is affirmedand the appeal is dismissed with costs fixed at Rs. 2,500.
WIJETUNGA, J. – I agree.
BANDARANAYAKE, J. – I agree.
BASTIAN v. PANAGODA