GUNASEKERA & OTHER
COURT OF APPEAL.
EDUSSURIYA, J. (P/CA).
CA NO. 457/99 (REV).
DC KALUTARA 4551/L.
30™ JULY, 1999.
Tenancy admitted – No declaration of title prayed for – Cause of action -Defendant not paying rent – Who should begin.
Plaintiff – Petitioner who admits tenancy in his plaint must prove thatthe tenancy was terminated.
Plaintiff – Petitioner cannot convert an action for ejectment and rightto possession to an action for a declaration of title when firstly he had notasked for such a declaration and secondly merely because the ownershipof the premises in suit which was never disputed was recorded as anadmission.
APPLICATION in Revision from the Order of the District Court ofKalutara.
Case referred to :
Khan vs Jayman  2 Sri. L.R. 233 at 239
A.K. Premadasa, P.C., with C.E. de Silva for Plaintiff – Petitioner.
N.R.M. Daluwatta, P.C., for Defendant – Respondent.
Cur. adv. vult.
September 24, 1999.
EDUSSURIYA. J. (P/CA)The Plaintiff – Petitioner has filed this application to havethe order directing him to begin the case revised by this Court.
The Petitioner in his plaint pleaded that the Defendant -Respondent was a licencee who carried on a business at thepremises in suit, on the payment of a rental of Rs. 250/- per
Assala Arachchie v. Cunasekera & Other (Edussuriya, J.)
mensem but that he is now forcibly carrying on businesswithout payment of rent.
The Petitioner also pleaded that a cause of action hadaccrued to him to sue the Respondent to recover the saidpremises because the Respondent was unlawfully and forciblydisputing his title and possession thereof (paragraph 9) andprayed for ejectment of the Respondent therefrom. Althoughthe Petitioner had pleaded his title he had' not prayed for adeclaration of title to the premises in suit.
The Respondent filed answer claiming tenancy and thathe had been depositing the rent in the name of the Petitionerat the Aluthgama Development Council sub-office afterJ anuary 1982 because neither his landlord Davith Singho norhis wife Jaci Nona came to collect the rent and that fromNovember 1996 when he found that the Plaintiff (Petitioner)had become the owner of the premises in suit he had depositedrent in Plain tiff s (Petitioner’s) name at the Bern wala PradeshiyaCouncil sub-office at Aluthgama.
At the trial an admission was recorded to the effect thatthe Petitioner is the owner of the premises and then thePetitioner’s Counsel raised the following issues
Is the Defendant wrongfully and unlawfully on thepremises in suit?
If so, is the Plaintiff entitled to the reliefs prayed forin the Plaint?
The Respondent’s Counsel had then raised issues 3 to 10.Issues 3 to 7 being on the basis of tenancy.
At that stage counsel for the Petitioner had contended thatthe Respondent should begin as the burden had shifted to theRespondent to establish under what right they were inoccupation.
Sri Lanka Law Reports
1200012 Sri UR.
The learned District Judge had thereafter made orderdirecting the Petitioner to begin.
The Plaintiff – Petitioner came to Court on the basis thatthe Defendants – Respondents are licencees of the premises insuit and had paid rent to him. In other words that theRespondents are his tenants. The Respondents also filedanswer claiming tenancy. The position being that, there wasno question of the Petitioner’s (landlord's) ownership of thepremises being denied by the Respondent. In fact it wasadmitted by the Respondents in their Answer. The recordingof the admission that the Petitioner was the owner doesnot alter the position. The Petitioner has not prayed for adeclaration of title. The Petitioner came to Court pleading thecause of action that the Respondents are not paying rent andconsequently trespassers. The Petitioner has not pleaded fromwhen the Respondents are not paying rent nor has he pleadedthat he had terminated the tenancy by serving on theRespondents a notice to quit and deliver vacant possession.
In these circumstances, in order to “get off the ground" thePetitioner must begin and lead evidence to establish fromwhen the Respondents are in arrears of rent. In any event, thePetitioner must establish that the Respondent's "license" asthe Petitioner calls it, was terminated resulting in the right topossession reverting to him.
This is clearly set out by Kulaiunge, J. in Khan us.Jayman1" 239 "We are therefore left with the fact that thePlaintiff is the owner of the premises in suit and hisuncontraverted evidence that the Defendant occupied a roomby leave and licence. Admittedly the license was terminated in1975. The Plain tiff has thus established theJactumprobandun%namely, the license and its termination and he is thereforeentitled to judgment as prayed for”.
Assala Arachchie v. Gunasekera & Other (Edussuriya, J.)
This Court therefore holds that the Plaintiff – Petitionerwho admits the tenancy of the Defendants – Respondentsin his plaint must therefore prove that the tenancy wasterminated.
I may also add that the Plaintiff – Petitioner cannot convertan action for ejectment and right to possession to an action fora declaration of title when firstly he had not asked for such adeclaration and secondly merely because the ownership of thepremises in suit which was never disputed by the Defendants- Respondents was recorded as an admission.
In any event, if one examines the position as to who wouldfail if no evidence is led at all, the obvious answer is that thePlaintiff – Petitioner fails unless he leads evidence to establishthat the Defendants – Respondents are occupying the premisesin suit wrongly and unlawfully to enable Court to answerissue 1.
For the above mentioned reasons, this application torevise the order of the learned District Judge is dismissed withcosts fixed at Rs. 10,500/- as it is a frivolous application.
ASSALA ARACHCHIE V GUNASEKERA & OTHERS