067-NLR-NLR-V-70-H.-MARGARET-NONA-Appellant-and-A.-H.-M.-BAZEER-Respondent.pdf
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Margaret Nona v. Bazeer
1967Present:Siva Supramaniam, J.H. MARGARET NONA, Appellant, and A. H. M. BAZEER,RespondentS. C. 18/1966—C. R. Colombo, 895o8/RE
Landlord and tenant—Eviction of landlord by title paramount Quantum of evidence
Estoppel of tenant—Scope—Evidence Ordinance, s. 116—Protection of BentRestriction Act—Burden of proof.
A lessee sublet the leased premises to a person who was already a tenantunder the owner at the time of the commencement of the lease. After hisrights under the lease bond had come to an end and the sub-tenant had beenasked by the owner to pay rent to a third person, the lessee instituted thepresent action for recovery of arrears of rent and for the ejectment of tin-subtenant.
Held, that the lessee was entitled to judgment for arrears of rent till the dateof the termination of the lease but not to an order of ejectment of the sub-tenant.In such a ease, the lessee has been evicted by title paramount, and the provisions
SIVA SURRAMANIAM, J.—Margaret Nona v. Bazeer
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of section 116 of the Evidence Ordinance are not applicable. If he relies onthe protection of the Rent Restriction Act, the burden is on him to provethat the leasehold rights are still available to him despite the expiration of theperiod specified in the lease bond.
Appeal from a judgment of the Court of Requests, Colombo.
E. R. S. R. Coomaraswamy, with C. Chakradaran, for the plaintiff-appellant.
V. Thillainathan, for the defendant-respondent.
Cur. adv. wit.
August 22, 1967. Siva Sctpramaniam, J.—
The facts which give rise to this appeal may be shortly statedas follows :—
Certain Ghouse Mohammed who has been adjudged a lunatic was theowner of premises No. 75, Maligakande Road, which consisted of a largenumber of tenements which had been consolidated for purposes of assess-ment by the Colombo Municipality in terms of s. 233 (1) of the MunicipalCouncils Ordinance. One Marikkar who had been appointed manager ofthe lunatic’s estate by the District Court leased the said premises to theplaintiff Margaret Nona for a period of three years by a notarially attestedindenture of lease D6. In terms of D6 the period of lease commenced on1.12.1961 and ended on 30.11.1964. The plaintiff was however placed inpossession on 1.9.1961—three months before the date of commencementof the lease set out in D6. Prior to 1961, the premises had been leasedout by Marikkar to other persons, for a period of three years at a time.
Since 1955, the defendant had been in occupation as a tenant oftenement No. 49, which formed part of the consolidated premises, payingrent to the lessee for the time being. On 30.8.1961, the defendant wasinstructed by Marikkar by letter D7 to pay the rent from 1.9.1961 to theplaintiff Margaret Nona. Thereafter the defendant entered into aninformal tenancy agreement PI with the plaintiff, thereby attorningtenancy to the plaintiff. On 29.6.1964 by letter D8 Marikkar informedthe defendant that the plaintiff’s lease would expire on 31.8.1964 andinstructed him to pay the rent thereafter to one Gamini who had beengranted a lease for 3 years commencing from 1.9.1964. This instructionwas again confirmed by letter D9 dated 17.8.1964. In accordance withthose instructions the defendant paid the rent to Gamini after 1.9.1964.The view that the plaintiff’s lease would expire on 31.8.1964 was erroneoussince under D6, the lease was valid till 30.11.1964.
The defendant ceased to pay rent to the plaintiff after May 1964. Theplaintiff, by letter dated 20.8.1964, terminated the tenancy and noticedthe defendant to quit the premises and deliver vacant possession thereofto her on 1.11.1964. On 15.12.1964, the plaintiff instituted this action
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for recovery of arrears of rent and damages and for the ejectment of thedefendant. On the footing that the tenement in question was subjectto the Rent Restriction Act, the prayer for ejectment was based on theground that the defendant was in arrears of rent for a period of overthree months after it became due.
The learned Commissioner of Requests gave judgment in favour of theplaintiff for arrears of rent till 30.11.1964 but dismissed the prayer forejectment on the ground that the plaintiff’s rights as a landlord came toan end on 30.11.1964 and she could not thereafter seek to eject thedefendant. The defendant stated in evidence that in view of the letters D8and D9 received by him from Marikkar he feared eviction if he did notcomply with the instructions contained therein and consequently paid therent to Gamini with effect from 1.9.1964. Nevertheless, as was rightlyheld by the learned Commissioner, he was liable to pay rent to the plaintifftill 30.11.1964.
The only question that arises for determination on this appeal iswhether the plaintiff was entitled to a decree for ejectment against thedefendant in view of the finding that the defendant was in arrears of rentfor a period of more than three months after it became due. It is arguedon behalf of the appellant that the defendant, being a tenant, is estoppedfrom denying the plaintiff’s title and the plaintiff is entitled to a decree forejectment, although her rights under the lease bond D6 may have come toan end. There was no issue raised in the case in regard to whether theplaintiff’s rights as a lessee subsisted, despite the expiration of the periodspecified in the bond, by reason of the operation of the Rent RestrictionAct or for any other reason. Since the annual value of the consolidatedpremises which formed the subject of the lease was more than Rs. 8,000(as evidenced by documents P4, P5 and P6), the Rent Restriction Actwould have had no application to the said consolidated premises. Inany event, the onus was on the plaintiff to prove that the leasehold rightswere still available to her after 30.11.1964, in view of the followingexpress stipulations contained in the lease bond D6 :—
(a) “ The said lessor does hereby, let, lease and
demise unto the said lesseethe
premises fully described in the schedule . . . …. To hold the said premisesfor
and during the term or period of three
years commencing from 1st December 1961 …”
(6) “ The said lessee …. shall and will at thetermination of this lease peaceably quitand surrender the said premises unto thesaid lessor . . . . ”
On the evidence led, the plaintiff failed to discharge that burden. Exfacie therefore, on the date on which this action was instituted, theplaintiff had no rights under the lease bond in respect of the premisesin question.
SIVA SUPRAMANIAM, J.—Margaret Nona v. Bazeer
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The question, then, is whether the defendant is precluded by s. 116 ofthe Evidence Ordinance or by any other provision of law from denyingthe plaintiff’s right to eject him from the premises. The relevant portionof s. 116 of the Evidence Ordinance is as follows :—
“No tenant of immovable property,
shall during the continuance of thetenancy, be permitted to deny that thelandlord of such tenant had, at thebeginning of the tenancy, a title to suchimmovable property ;”
There is nothing in this section which precludes a tenant from showingthat the landlord has lost his title subsequent to the commencement ofthe tenancy. In Coder v. Hamidu 1, Garvin A.J. (as he then was) said :
“ It is sound law that a lessee cannot refuse to pay rent on the groundthat the lessor had no title to the premises leased at the date of lease.It is equally good law, however, that he may prove that since thetenancy commenced the landlord’s title has expired and that he has beenevicted by title paramount.”
This passage was cited with approval by Jayewardene A.J. in Tilleka-ratne v. Coomarasingham 2. At page 189 the learned Judge proceeded tostate :
“ Actual physical dispossession is not necessary, but the evictionmay be constructive or symbolic. A threat of eviction is sufficient,and if the tenant in consequence of such threat attorns to the claimant,he can set this up as or by way of defence to an action for rent,subject to his proving his evictor’s title. ”
Learned Counsel for the appellant, however, argued, relying on the caseof Visvalingam v. Oajaweera3, that the defendant should first give uppossession and then it would be open to him to litigate about theplaintiff's right to the premises. In that case, the plaintiff who was not theowner of the premises, let the same to the defendant on a non-notarialdocument. He instituted an action to eject the defendant on theground that rent was in arrears. The defendant pleaded that he hadpurchased from the owners a portion of the premises and taken on leasethe remainder and that, consequently, the capacities of landlord andtenant had become merged in him. Sansoni J. (as he then was) heldthat even assuming that the defendant had become the owner of the entirepremises it was not open to him to refuse to surrender possession to hislandlord. The learned Judge, after citing with approval the followingpassage from the judgment of Bonser C.J. in a similar case (Alvar Pillai v.Karupjpan 4) :—“ Even though the ownership of one half of this landwere in the defendant himself it would seem that by our law, having beenlet into possession of the whole by the plaintiff, it is not open to him torefuse to give up possession to his lessor at the expiration of his lease.
1 (1921) 23 N. L. R. 91 at p. 92.* (1951) 56 N. L. R. 111.
* (1926) 28 N. L. R. 186 at p. 188.* (1899) 4 N. L. R. 321.
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He must first give up possession, and then it will be open to him to litigateabout the ownership ”, proceeded to state that the defence of eviction bytitle paramount is however available to a tenant under our law, and thatthe eviction may be constructive or symbolic. On the facts of the casebefore him he said:“ But there is no question of eviction by title para-
mount in this case, since the respondent’s position is not that he has beenasked to pay rent to a third person under threat of eviction. The res-pondent is bluntly disputing his landlord’s title and he has refused to payrent on the ground that he has acquired title to a share of the premiseswhich he took on rent. He cannot be permitted to do this so long as heremains in possession That decision cannot assist the appellant as thefacts in the instant case disclosed a threat of eviction of the defendant bya paramount title holder. It has also to be borne in mind that the plain-tiff at no stage let the defendant into possession of the premises but thedefendant was already in possession for many years before he attornedtenancy to the plaintiff at the instance of Marikkar, the plaintiff’s lessor.The plaintiff would have been entitled to institute an action for ejectmentof the defendant during the pendency of the lease, but not thereafter.This action was instituted on 15th December 1964, after the expiry of thelease. The learned Commissioner was therefore right in refusing to grantthe plaintiff’s prayer for ejectment of the defendant from the premises inquestion.
I dismiss the appeal with costs.
Appeal dismissed.