SHARVANANDA, C.J., COLIN-THOME, J. AND ATUKORALE, J.
S.C. No. 40/83.
C.A. No. 485/74 (F).
D C. COLOMBO 13560/L.
MARCH 17. 18 AND 21. 1986.
Landlord and Tenant – Vindicatory suit – Title not disputed by defendant – Sub-tenantor licensee – Claim for ejectment resisted by defendant claiming possession as partnerof tenant – Tenancy not terminated ^Burden of proof.
The occupation by a sub-tenant or licensee of the tenant is not. in law, unlawfuloccupation. The statutory protection afforded to a tenant can always be availed of byhis sub-tenant or licensee except of course where such protection had ceased to existby the tenant surrendering possession to the landlord or by eviction of the tenant bydecree of a competent court.
■ When the legal title to the premises is admitted or proved to be in the plaintiff theburden of proof is on the defendant to show he is in Jawful possession. But where thepremises have beenlet out if the landlord qua owner of the premises chooses to sue forejectment a third party in occupation, the burden will then be on the plaintiff to showthat the right of the tenant to.be in possession had come to an end and that the right ofpossession had reverted to him and that he is' thus entitled to sue for recovery ofpossession from such third party. As here the tenancy was admitted the burden was onthe plaintiff to show that the defendant had got into possession and was remaining inunlawful possession of the premises without the consent, acquiescence or licence ofthe tenant and was questioning his title to the premises in suit. Until the tenancy isterminated and decree of ejectment obtained against the tenant the plaintiff cannotreach the defendant. The defendant was carrying on business in partnership with the -tenant in the premises and the partnership had not ceased. Hence it cannot be said thedefendant was in unlawful occupation
Cases referred to:
Ibrahim Saibo v. Mansoor- (1953) 54 N.L.R.,217, 224.
Zubair v. Sultan Kannu-Sri Kantha's Law Reports Vol. 11 -p. 87.
APPEAL from judgment of Court of Appeal.~
K. N. Choksy, P.C. with S. Mahenthiran, V. Thevasenathipathy, Britto Muthunayagamand Miss J. Rodrigo for defendant-appellant.
Dr. H. IN. Jav&wardene. Q.C. with N. ft M. Daluwatte. P C. and Miss T. Keenawinnefor plaintiff-respondent.
Cur. adv. vult.
May 7. 1986.
Thff"plaintiff-respondent an Indian citizen instituted by his attorney, thisaction, for a declaration of title to. and. for ejectment of the defendantfrom premises No. 142, Sea Street. Colombo 11. In his plaint hestated that the defendant is estopped from denying and disputing thetitle of the plaintiff to the said premises, as the defendant was falselyclaiming to be the tenant thereof. The defendant filed answer denyingthat he had at any time claimed to be a tenant under the plaintiff inrespect of the premises in suit. The defendant further stated that oneSri Renganathan "had been for several years and still is a tenant of thepremises in suit under the plaintiff and the said tenancy is still in forceand no grounds exist for its termination." The defendant stated that hewas in occupation of the premises in suit under an agreement enteredinto with the said Sri Renganathan by Deed No. 67 dated 21.1.1972and attested by C. Sri Kanthan. Notary Public.. The defendantspecifically pleaded that the plaintiff had chosen to file this reivindicatio action to evade the provisions of the Rent Act.
The case proceeded to trial on the following issues
Is the plaintiff the owner of the premises described in theschedule to the plaint?
Is the defendant in wrongful and unlawful occupation of the saidpremises from 1.4.1972?
(both parties agree that the damages per month is Rs. 1 50).
If issues 1 and 2 are answered in favour of the plaintiff, is theplaintiff entitled for judgment as prayed for in the plaint?
After trial the District Judge dismissed the plaintiff's action. Theplaintiff appealed to the Court of Appeal against the said judgment.The Court of Appeal allowed the appeal preferred by the plaintiff. Thedefendant has appealed to this Court from the judgment of the Courtof Appeal.
The case of the plaintiff that he was the owner of the premises wasnever disputed by the defendant. The defendant resisted only theprayer for ejectment.
The only witness for the plaintiff was one Letchuman Chettiar whowas plaintiff's attorney for over thirteen years. Though, in the plaint,the plaintiff had stated that the defendant was claiming to be thetenant of the premises and this allegation was denied by the
defendant, the plaintiff's attorney did not seek to substantiate theallegation that the defendant was claiming to be the tenant of thepremises. The evidence does not support the allegation that thedefendant was claiming to be the tenant of the premises in suit. Theallegation that the defendant was claiming- to be a tenant of thepremises is a false allegation, falsely made for the purpose of foundingthe action for ejectment on the ground that the defendant wasclaiming to be the tenant to the exclusion of the actual" tenant, incompetition.with him. The attorney's evidence in examination-in-chiefwas that Sri Renganathan was the tenant of the premises from 19.58.and that he was running a hotel called "Komathi Vilas" in the premises.There is no evidence to suggest that Sri Renganathan s tenancy hasbeen terminated by surrender of possession or that the defendant wasclaiming adversely to Sri Renganathan. The attorney "stated that therents were paid by the defendant in the name of Sri Renganathan. Hefurther stated that "Komathi Vilas", was still being run in the premisesin suit. The attorney had in the declaration DV dated 28.7.1972.made under the provisions of the Rent Act. declared that SriRenganathan was the tenant of the-premises. He further stated thatbefore Renganathan left for good in April 1 972, for India, he had senta notice asking Sri Renganathan to quit, but the notice was notcomplied with.-This notice has not been marked in evidence and hasnot been relied on by the plaintiff. The plaintiff's attorney furthertestified that the defendant had. after April 1972, remitted to him inthe name of Sri Renganathan the rents through the Rent ControlBoard. The-defendant in evidence testified that prior to his departureto India, Sri Renganathan had appointed him as his attorney, by powerof attorney marked D7 dated 21.1.1972. This power of attorneyauthorises the defendant to act "for me and on my behalf and in thename of me in respect of my firms "Komathi Vilas and KalyaniCorporation" and tenancy of"premises No. 142. Sea Street. Colombo11. and to act for me in connection with the tenancy of No. 142. SeaStreet. Colombo, remit rent to the landlord and doing all thingsconnected therewith." –
The premises in question are business premises governed by theRent Act No. 1 of 1972.
It is not the case of the plaintiff that the tenancy of Sri Renganathanhad been terminated and a decree for eviction entered against him interms of the provisions of the Rent Act. Sri Renganathan continues toenjoy the statutory protection of the Rent Act, even if his tenancy had
been terminated by notice to quit as alleged by the plaintiff's attorney.As stated by the Divisional Court in Ibrahim Saibo v. Mansoor (1):
“The only two ways in which the statutory protection comes to anend are
By the handing back of the premises to the landlord.
By the order, of a competent court that is to say a courtacting with jurisdiction.”
It is in the backdrop of Sri Renganathan’s continued tenancy of thepremises in suit that one has to examine the plaintiff's complaint thatthe defendant is in unlawful occupation of the premises from 1 st April1972.
The occupation by a sub-tenant or licensee of the tenant is not. inlaw, unlavyful occupation. The statutory protection afforded to atenant can always be availed of by his sub-tenant or licensee except ofcourse where such protection has ceased to exist. An owner of a landhas the right to possession of it and hence is entitled to sue for theejectment of a trespasser. In a vindicatory action the claimant needmerely prove two facts; namely, that he is the owner of the thing andthat the thing to which he is entitled to possession by virtue of hisownership is in the possession of the defendant. Basing his claim onhis ownership, which entitles him to possession, he may sue for theejectment of any person in possession of it without his consent.Hence when the legal title to the premises is admitted or proved to bein the plaintiff, the burden of proof is on the defendant to show that heis jn lawful possession. But, where the evidence shows that theplaintiff has let out the property to a tenant and that it is the tenantwho is entitled to the possession of the premises, it is the tenant whomay institute action to recover possession of the premises frompersons who are in unlawful possession as against him. Vide Zubair v.Sultan Kannu (2). A contractual or statutory tenant, has the locusstandi to sue for the ejectment of any person who disturbs hispossession. A landlord who has parted with the possession of theproperty to the tenant, cannot therefore sue for the ejectment of athird party in occupation if such third party entered into possession ofthe premises with the consent or licence of the tenant. A tenant maybe in occupation ofthe premises by himself, his agent, his licensee orhis sub-tenant. Hence in the case of premises which have been let outif the landlord qua owner of the premises, chooses to sue forejectment a third party in occupation, the burden will then be on him to
show that the right of the tenant to be in possession had come to anend and that the right of possession has revested in him and that he isthus entitled to sue for recovery of possession from such third party.Had Sri Renganathan, the tenant, abandoned or surrenderedpossession of the premises when he left for India, the plaintiff mightthen have treated the tenancy of Sri Renganathan as determined andthus having become entitled to possession sued for the ejectment ofthe defendant; the defendant cannot remain in occupation after theexpiration of the main tenancy. The plaintiff had appearedJto have hadsuch a situation in mind when he falsely alleged that the defendantwas claiming'to be the tenant'of the premises. Though the plaintiff hadnot disclosed the fact in his plaint that the 'premises is suit had been letby him to Sri Renganathan and that the tenancy was still in subsistenceat the time of the suit, yet on the evidence in examination-in-chief ofthe plaintiffs attorney itself it transpired that the premises had,'at thetime the present action was filed, been let to Sri Renganathan and thestatutory protection given to the tenant had not come to an end andthat Sri Renganathan had not surrendered possession of the premisesto the plaintiff . In that state of .facts the burden of proof is. in my view,on the plaintiff to show that the defendant had got into possession andwas remaining in unlawful possession of the premises without theconsent, acquiescence or licence of the tenant, Sri Renganathan andwas questioning his title to'the premises in suit. In such a,context .theordinary rule applicable in a rei vindicatio action that once title isproved or admitted the defendant has to justify his possession toresist ejectment does not apply. In the instant case it is not contestedby the plaintiff that the defendant got into occupation of the premiseswith the consent, acquiescence or licence of Sri Renganathan, the.tenant. The plaintiff does not dispute that the defendant got intopossession of the premises- as partner of Sri Renganathan of thebusiness of "Komathi Vilas" with the consent of Sri Renganathan buthe states.that-as the partnership had terminated on 1.4.1972, thedefendant has no more any right -to remain in possession of thepremises after that .date. But even assuming, as opposed to thefinding of fact (infra) that the partnership had on that date beenterminated, it does not follow that the plaintiff will be able to sue thedefendant over the head of the tenant who let the defendant into thepremises, The only person who could have sued the defendant inejectment on .the expiration of the partnership was Sri Renganathan,who as tenant, was entitled to be in possession of the premises at thatrelevant time. It is only after the plaintiff had-successfully sued Sri
Renganathan in ejectment under the provisions of the Rent Act andbrought to an end the statutory protection of the tenant that he couldhave proceeded against this defendant on the ground of his being inunlawful possession of the premises as against him. The presentaction against the defendant by the plaintiff is thereforemisconceived.The plaintiff cannot reach the defendant without firstgetting a decree of ejectment against Sri Renganathan.
The Court of Appeal has not addressed its mind to this preliminarylegal question which arises in the case. In view of the admitted factthat the premises in question had been let to Sri Renganathan and thathis tenancy has not been terminated by decree of a competent court. Ihold that the plaintiff cannot in law maintain the action for theejectment of the defendant. In the circumstances disclosed, there isno legal basis for a decree for the ejectment of the defendant.
The defendant in his answer stated that on and after 21.1.1972, hehas been in occupation of the premises in suit under Deed No. 67dated 21.1.1972, marked D2 entered into with Sri Renganathan. TheDistrict Judge has held that the defendant is in lawful occupation ofthe premises by virtue of the partnership agreement D2 with SriRenganathan, who, although he has left this country and gone back toIndia, still continues to remain the tenant of the plaintiff and carry onhotel business in partnership with the defendant.
Sri Renganathan is an Indian citizen, who was in the island on a visawhich expired on 2.2.1972. He was arrested and deported on
It would appear from the Certificate of Registration of the firm of"Komathi Vilas" dated 18.1.1956 (P3) issued under the BusinessNames Ordinance, Sri Renganathan had been carrying on the businessof an eating house (hotel) called "Komathi Vilas" and of "KalyaniCorporation" in the premises in suit from 5.7.1 943 in partnership withone Kandasamy Pillai. According to the Certificate of BusinessRegistration dated 24.1.1972 a change was effected in the partnersin the business as from 1.1.1 972. S. Kandasamy Pillai retired from thepartnership and a new partner S. Thevendran (the defendant) wasadmitted to the firm. The Certificate of Business Registration Namedated 17.3.1972 (P4A) discloses the name of the partners of thefirm as M. Sri Renganathan and S. Thevendran. The change referredto in P2 is consequent to the Partnership Agreement No. 67 dated
marked D5. This agreement was entered into by Sri
Renganathan and Theivendran (defendant) and one Vythialingam tocarry on the two businesses of "Komathi Vilas" and "KalyaniCorporation" in partnership in the premises in suit. Clause 5 of theAgreement provides as follows:
"Hereinafter the business shall be registered with the Registrar ofBusiness Names in the name of the party of the first part (defendant)only who shall hold the said business in trust for himself and theparties of the 2nd and 3rd part/
Clause 16of the Agreement provides:
"that the tenancy of premises No. 142. Sea Street, Pettah, inColombo, shall continue in the name of the party of the third part(Sri Renganathan) during the continuance of the partnership, butsuch tenancy shall be the property of all three partners."
Thereafter on 1.4.1972, the defendant and Sri Renganathan, jointlyinformed the Registrar of Business Names, of a change viz: that SriRenganathan had ceased to be a partner and S. Theivendran (thedefendant) was the sole proprietor of the Business of "Komathi Vilas"and "Kalyani Corporation" as from 1.4.1972. The Certificate ofRegistration, P5A dated 14.4.1972, issued pursuant to thestatement of change dated 1.4.1972 (P5) shows that the soleproprietor of the business of "Komathi Vilas" was S. Theivendran (thedefendant). The evidence on record shows that Sri Renganathan.hadleft the island on 1 3.4.1 972. Counsel for the plaintiff submitted thatthe documents P5 and P5A unequivocally show that the earlierpartnership between Sri Renganathan and the defendant had ceasedto exist by 1.4.1972 and that the partnership agreement evidencedby Deed No. 67 (D5) had come to an end and hence the defendantwas from 1.4.1972 in occupation of the premises not as a partner of"Komathi Vilas" along with Sri Renganathan but as sole proprietor of"Komathi Vilas" and "Kalyani Corporation" and that the ground onwhich the defendant sought to justify his occupation of the premises insuit namely, partner with Sri Renganathan of the business of "KomathiVilas", run in the premises in suit has ceased to be valid.
The defendant stated in evidence that P5 and P5 A do not representthe true facts and that his partnership with Sri Renganathan continuedto subsist even after the declarations in P5 and P5A. He gave atenable explanation for the declaration in P5 and P5A by him and SriRenganathan viz: that he had become the sole proprietor of thepartnership business from 1.4.1972. He said that he was a Jaffna
Tamil, while Sri Renganathan and Vythialingam were Indians and thatfor the sake of obtaining quotas of rice and flour from the Governmentthey agreed to register the business in his name only. This wasembodied in clause 5 of Agreement D5 which also provides that heshould hold the business in trust for all the three partners.
The Court of Appeal has come to the conclusion that thepartnership referred to in D5 has ceased to exist by 1.4.1 972 on thebasis of P5 and P5A. On the other hand the trial judge has addiessedhis mind to the question whether the business registered under D5 bythe defendant and Sri Renganathan was a genuine business or afraudulent business and has after examing the oral and documentaryevidence led in the case come to the conclusion that the partnershipbusiness was a genuine one and that the defendant was carrying onthe business along with Sri Renganathan even after 1.4.1972.Counsel for the plaintiff sought to demonstrate that the statement ofchange P5 was not consequential to clause 5 of the partnershipAgreement P5. The trial judge had on the evidence come to theconclusion that Sri Renganathan continued after 1st April 1972 tohave interest over the business of "Komathi Vilas" and had acceptedthe defendant's explanation as to how the declarations in P5 and P5 Acame to be made. Though I appreciate the force of counsel'sargument it cannot be stated that the trial judge erred in accepting thedefendant's evidence and holding that the defendant is in factcontinuing to carry on business in partnership with Sri Renganathaneven after 1 st April 1972. Apart from the aforesaid declarations in P5and P5A, the plaintiff led no evidence to show that Sri Renganathanand the defendant had ceased to be partners. In terms of section 109of the Evidence Ordinance, the burden of proof was on the plaintiff toestablish that Sri Renganathan and the defendant had from 1.4.1972ceased to stand in the relationship of partners. It is to be noted that byletter D2, dated 14.4.1972, the plaintiff's attorney returned thecheque for Rs. 149.50 representing rent of the premises on theground that "the cheque had been drawn by a partner of KomathiVilas". This supports the defendant's evidence that the firm of"Komathi Vilas" continued to function, to plaintiff's knowledge, evenafter the departure of Sri Renganathan to India and that the plaintiff'sattorney was aware of that fact.
In the statement of particulars required to be furnished undersection 37 of the Rent Act No. 7 cf 1972 (D1), dated 28th July1972, the plaintiff through his attorney has stated that the tenant of
the premises was Sri Renganathan. This is significant, as SriRenganathan had admittedly been deported or left the country on orabout 13.4.1972, and the plaintiff's attorney who was residing a fewyards away from the premises in suit, must have been fully aware ofthat fact. This declaration militates against the suggestion that SriRenganathan had surrendered possession of the premises before heleft for India.
Since the information given in P5 and P5A that the defendant hasbecome the sole proprietor of the business of "Komathi Vilas" and"Kalyani Corporation" is not factually correct, it does not affect thecontinuance of the partnership. Counsel submitted that clause 5 ofD5 should not be given effect to, as it is illegal. Even assuming that theclause is illegal, it is severable and does not vitiate the partnership.
The trial judge has answered issue 2 in the negative. Sufficientreason did not exist to justify the Court of Appeal to reverse the findingof fact by the trial judge that the defendant continued to carry on thebusiness of "Komathi Vilas" and "Kalyani Corporation" in the premisesin suit with the tenant Sri Renganathan even after the latter'sdeparture to India and that the partnership had not come to an end on1 st April 1972. In view of this finding of fact, it cannot be said that thedefendant is in unlawful occupation of the premises from 1st April1972, as contended by plaintiff.
I allow the appeal, of the defendant-appellant and set aside thejudgment of the Court of Appeal and restore the judgment of theDistrict Judge. Subject to the declaration that the plaintiff is the ownerof the premises in suit, the plaintiff's action is dismissed with costs.The defendant-appellant is entitled to costs in all three courts.
COLIN-THOM£( J. – I agree.ATUKORALE, J. – I agree "