055-SLLR-SLLR-2002-3-PREMATHILAKE-v.-A.-I.-PERERA.pdf
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Premathilake v. A. I. Perera
393
PREMATHILAKE
v.
A. I. PERERA
COURT OF APPEALUDALAGAMA, JCA NO. 636/93 (F)
DC MT. LAVINIA NO. 2161/REJULY 22, 2002
Rent Act, No. 7 of 1972 – Tenancy denied – Agreement to sell – Claim onprescriptive title – Contract of tenancy – Standard of proof – Balance of probability- Evidence Ordinance, section 101 – Notice to quit – Absence of a repudiationof the contents – Is it fatal? – Prevention of Frauds Ordinance, section 2.
The plaintiff-respondent instituted action seeking to eject the defendant-appellantfrom the premises in question. The defendant-appellant while denying tenancyprayed that he be declared entitled to the premises on the basis of prescriptivetitle.
Held :
The agreement to sell, being a non-notarial document it contravenesthe provisions of section 2 of the Prevention of Frauds Ordinance and istherefore invalid.
A notice to quit is a condition precedent to a successful action for ejectment.The absence of a repudiation of the contents considered together with theaverments in the pleadings and the evidence of the plaintiff-respondentunder oath are adequate to come to a finding that the plaintiff-respondenthad a valid contract of tenancy with the defendant-appellant.
Standard of proof to establish the contract of tenancy is on a balance ofprobability. On a preponderance of evidence led at the trial, the trial courthas come to a finding on a balance of probability that a contract of tenancyexisted.
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When the defendant-appellant entered the premises as a tenant he isprecluded from claiming the premises for himself.
APPEAL from the judgment of the District Court of Mt. Lavinia.
Case referred to:
1. Bandula v. Carthelis Appuhamy – (1988) 2 Sri LR 114.
Rohan Sahabandu for defendant-appellant.
A. K. Premadasa, PC, with C. E. de Silva for plaintiff-respondent.
Cur. adv. vult.
August 30, 2002UDALAGAMA, J.
The plaintiff-respondent instituted DC Mt. Lavinia case No. 2161/REseeking, inter alia, to eject the appellant from the premises morefullydescribed in the schedule to the plaint, to recover arrears of rent anddamages.
The defendant-appellant while denying tenancy moved that he bedeclared entitled to the premises on the basis of prescriptive title. Thedefendant-appellant also claimed compensation for the improvementsaggregating to a sum of Rs. 161,800 and the right to a jus retentionis.
The case went to trial on 3 issues suggested by the plaintiff-
respondent and 7 issues suggested by the defendant-appellant.Subsequent to the leading of evidence, at the conclusion of the trial
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the learned District Judge having called for written submissions, videhis judgment dated 07. 09. 1993, pronounced judgment for theplaintiff as prayed for in the plaint.
Aggrieved, the defendant-appellant appeals therefrom.
Although by his petition of appeal, vide paragraph 11 (d), theappellant, inter alia, sought to canvass the judgment on the basis thatthe learned District Judge failed to consider the evidence led at thetrial to establish the appellant’s independent and adverse possessionof the premises, the subject-matter of this action, the learned counsel 20for the appellant, however, before this court, conceded the fact of theinability on the part of the appellant to have established prescriptivetitle. The learned counsel’s argument before this court appeared tobe, that the mere failure of the appellant to have proved prescriptivetitle was not a ground per se to enter judgment for the plaintiff-respondent. He urged this court to set aside the impugned judgmenton the basis that the plaintiff-respondent had failed to adduce evidenceto substantiate the existence of a valid tenancy, in particular the arrearsof rent. Learned counsel for the appellant referred this court to theprovisions of section 101 of the Evidence Ordinance in respect of the 30burden of proof and urged this court to consider the failure on thepart of the plaintiff-respondent to prove that the defendant-appellantin fact was the former tenant and that a valid tenancy existed betweenthe parties.
It was the submission on behalf of the appellant that no rentreceipts were produced in evidence and that the plaintiff-respondentfailed to fulfil her admitted burden to prove a tenancy.
The basis on which the defendant-appellant seeks to resist tenancyis that he came into occupation of the premises, the subject-matter
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of this action, in the year 1968, on the understanding that the latter «>would redeem the admittedly existing mortgages that bound thepremises. Even though the defendant-appellant sought to substantiatethe above averment by producing V2 to establish an agreement tosell, I am inclined to the view, as clearly held by the learned DistrictJudge, that V2 being apparently a non-notarial document that samecontravenes the provisions of section 2 of the Prevention of FraudsOrdinance, and therefore invalid. In the circumstances I am alsoinclined to the view that the defendant-appellant is not entitled to claimthat a valid agreement existed for the purported sale of the premises,the subject-matter of this action, by the plaintiff-respondent to the 50appellant on V2 referred to above, and that the latter’s claim wastherefore correctly rejected.
The appellant appears to have led evidence to establish the factthat he had sublet the premises without objection from the landlord,namely the plaintiff-respondent thereby attempting to prove title byprescriptive possession. However, I would not delve on that aspectof the matter as stated earlier since the learned counsel for theappellant stated in this court that he would not pursue the right ofthe defendant-appellant in the matter of prescriptive title. Accordingly,the only matter left for determination by this court appears to be 60confined to the question as to whether the learned District Judge didin fact on a preponderance of evidence led at the trial come to afinding on a balance of probability as to whether a contract of tenancyexisted between the plaintiff-respondent and the defendant-appellantas landlord and tenant, respectively.
Although the learned counsel for the defendantrappellant strenu-ously argued that it was in fact not so, I would venture to disagree,inter alia, on the following ground. Admittedly, the defendant-appellant’soccupation of the premises, the subject-matter of this action, began
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with the payment of Rs. 1,000 which sum appears to have been paid 70on 02. 11. 1967 (V2). Although the learned counsel for the defendant-appellant maintains that this above sum was paid as an advanceagainst the purchase price of the premises, the learned District Judgein the course of his judgment had come to a finding of fact on aconsideration of the evidence led at the trial notwithstanding the denialof the signature on V2 by the plaintiff-respondent that the latter hadaccepted the sum stated therein as an advance against rent. Thelearned District Judge had importantly considered the fact that thedefendant-appellant being a lawyer that he had not denied receipt ofthe document, marked 72. Accordingly, the learned District Judge had 80come to a finding based on the contents of the said document, P2,and also on the fact that P2 was not denied or the contents thereinrefuted by the defendant-appellant, that there did in fact exist acontract of tenancy as between the plaintiff-respondent and thedefendant-appellant on the basis of landlord and tenant, respectively.
It is manifest that the defendant-appellant had not responded toP2 and importantly not denied the contents therein wherebyunambiguosly the defendant-appellant was referred to as the tenantof the plaintiff-respondent in respect of the premises, the subject-matterof this action.go
In the circumstances I am inclined to agree with learned DistrictJudge that in the absence of repudiation of the contents of P2 orin the absence of reasonable ground to explain the failure on the partof defendant-appellant to respond to the aforesaid P2 that it wasreasonable to come to a finding that the arrangement that existedbetween the plaintiff-respondent and the defendant-appellant inrespect of the premises, the subject-matter of this action, was in facta contract of tenancy.
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It is also my view that the standard of proof to establish theexistence of a contract of tenancy as in the instant case is on a balanceof probability and considered together with the other evidence led atthe trial, the above finding is relevant and adequate to arrive at sucha determination.
In the course of the submissions of the learned counsel for thedefendant-appellant, he was heard to say, that the fact of the inabilityon the part of the defendant-appellant to establish a title based onprescription was by itself inadequate to enter judgment for the plaintiff-respondent which I recall was the crux of the learned counsel'sargument. It was also the argument of the learned counsel for thedefendant-appellant that the plaintiff-respondent failed to prove arrears noof rent. Considering the same document P2 referred to above, by itscontents there appears to be a demand from the defendant-appellant,arrears of rent for 3 months or more from 01. 01. 1978 at the rateof Rs. 100 per month. As also stated earlier there was for someunexplained reason, no response from the defendant-appellant to thisdemand. In the circumstances also considering the fact that thedefendant-appellant was himself admittedly a lawyer, I am unable tofault the learned District Judge's finding that the denial by thedefendant-appellant of a tenancy was untenable. The amount asstated in P2 referred to above which went unchallenged specified therent legally due to the plaintiff-respondent as arrears of rent. Thiscontention of the learned counsel for the defendant-appellant that theamount paid on P2 was an advance against the purchase of thepremises had been rejected by the learned District Judge on the basisthat such document not being notarially executed is contrary to theprovisions of section 2 of the Prevention of Frauds Ordinance whichI would, hold as stated earlier, to be correct notwithstanding thepurported signature of the plaintiff-respondent appearing thereon. Iwould reiterate the fact that P2 referred to above admittedly received
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by the defendant-appellant unequivocally repeated the submissions as 130contained in the pleadings and as deposed to by the plaintiff-respondent in evidence that the plaintiff-respondent was the landordof the premises, the subject-matter of the action, and that thedefendant-appellant occupied same as her tenant and that thedefendant-appellant was in arrears of rent and thereby contravenedsection 22 (1) (a) of the Rent Act, No. 7 of 1972. A notice to quitis a condition precedent to a successful action for ejectment. Theabsence of a repudiation of the contents in P2 considered togetherwith the averments in the pleadings and the evidence of the plaintiff-respondent at the trial under oath are in my view adequate to come 140to a finding that the plaintiff-respondent had a valid contract oftenancy with the defendant-appellant. It was also admitted that theplaintiff-respondent did also pay rates in respect of the premisesto the local body which matter too corroborates the fact that theplaintiff-respondent was the landlord.
In the circumstances I would reject the argument of the learnedcounsel for the defendant-appellant that the plaintiff-respondent failedto prove her case, inter alia, as to arrears of rent and further, rejectthe argument that the learned District Judge entered judgment for theplaintiff purely on the basis of the failure on the part of the defendant- 150appellant to prove prescriptive title.
In any event the initial occupation of the premises by the defendant-appellant was obviously as a tenant prior to the purported agreementto transfer became effective, which agreement in any event was invalid.
I would also hold that when the defendant-appellant entered thepremises as a tenant, he is precluded from claiming the premisesfor himself – (Bandu v. Carthelis Appuhamy).
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In the matter of compensation for improvements, this matter hadnot been canvassed in this court. I would, accordingly, not ventureto deal with that aspect of the matter. In any event there appearsto be a dearth of evidence as to a specific claim to compensation.
For the aforesaid reasons there appears to be no reason todisturb the findings of the learned District Judge and this appealis dismissed with costs.
Appeal dismissed.
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