022-NLR-NLR-V-76-A.-Z.-M.-AZHAR-Appellant-and-Mrs.-S.-M.-FERNANDO-Repsondent.pdf
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Azhar v. Fernando
1968Present: de Kretser, J.
A. Z. M. AZHAR, Appellant, and Mrs. S. M. FERNANDO,Respondent
S. C. 177/67—C. R. Colombo, 90125
Rent Restriction Act, as amended by Act No. 12 of 1966—Section12 A (1) (b)—Subletting of a portion of rented premises—Burden•of proof.
Where, in an action instituted by a landlord to eject his tenanton the ground that the tenant has sublet a portion of the rentedpremises, the landlord’s evidence is sufficient to establish a primafacie case of subletting, the burden is then on the tenant to furnishevidence in rebuttal.
ApPEAL from a judgment of the Court, of Requests, Colombo.
N. S. A. Goonetilleke, with W. S. Weerasooria and M. JS. Aziz,for the defendant-appellant.
R. P. Goonetilleke, with K. Shanmugalingam, B. S. Fernando
and K. Jayasekera, for the plaintiff-respondent.
Cur. adv. vult.
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BE KRETSER, J.—Azhar v. Fernando
October 10, 1968. de Kretser, J.—
The Commissioner in this case (Mr. Jayasundera) hasaccepted the evidence of the Plaintiff Mrs. S. M. Fernando andthe tw.o witnesses Vanheer and Endoris Hamy called by her.On that evidence he has held that it is proved that the Defendanthad sub-let a portion of the premises No. 13, Daya Road,Wellawatte, of which she was the landlady and he the tenant,to one K. Sivanandan. He therefore has answered the issue No. 1in the case “ Has the defendant sub-let the premises or a portionthereof to one K. Sivanandan within the meaning of Section12A (1) (b) of the Rent Restriction Act as amened by Act No. 12of 1966 ? ” in the affirmative and given Plaintiff a decree inejectment. The Defendant has appealed, and his Counsel'ssubmission is that even accepting the correctness of the findingsof fact by the Commissioner, those facts are not sufficient toestablish there was a sub-letting.
The facts that the accepted evidence establishes are: —
That from about January 1965 there have been in thesepremises apart from the tenant, his wife, three daughters aged16, 14 and 12 respectively and two sons, all Muslims, threeTamil people, viz., K. Sivanandan, his wife and his child aged 3.
That these Tamil people were in occupation of the officeroom and the adjoining bedroom on the left hand side of thehouse as one faces the premises. This set of rooms had its ownoutside entrance. The office room was used by Sivanandan togive private tuition. The adjoining room which one entered fromthe office room also contained a karosine oil cooker.
It was Gratiaen J. who pointed out in the case reported in54 N. L. R. at Page 572 that in an action for ejectment on theground that the tenant has sub-let a portion of the leasedpremises, the essential test is whether there is evidence fromwhich one can infer that there is at least some part of thepremises over which the tenant has by agreement placed thealleged sub-tenant in exclusive occupation. The portion sub-letshould be capable of ascertainment as an identifiable entityoccupied by the sub-tenant to the exclusion of the tenant. The twopersons in this case who could speak with precision to the termson which Sivanandan and his family were in occupation of theserooms, and the nature of that occupation are obviously Sivanan-dan and the Defendant. The Defendant did not call Sivanandanwho was on his list of witnesses and aware that the allegationmade by the Plaintiff was that he had sublet his office room and
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DE KRETSER, J.—Azhar v. Fernando
bed-room to Sivanandan, made no attempt to explain thepresence of Sivanandan and his family in these premises fromJanuary 1965 on any other footing—e.g. as boarders. The positionthat he took up was that these people were never there and hehas been disbelieved on that point.
Once it is established that these people were in occupation ofthe premises, the fact that the Defendant did not contradict theallegation made that they were there as tenants, coupled withthe other facts which I have set out earlier as established appearto me not only to render the inference permissible but also almostirresistible that Sivanandan was in occupation of these roomsas a sub-tenant of the Defendant and on payment of rent to him.
The appeal is dismissed with costs.
Appeal dismissed.