001-SLLR-SLLR-1985-V2-ABDUL-CADER-v.-NAGARATNAM.pdf
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Abdul Coder v. Nagaratnam
;
ABDULCADER
v.NAGARATNAM
COURT OF APPEAL.
H. A. G. DE SILVA, J. AND SIVA SELLIAH, J.
S.C. 248/72 (F) – D. C. JAFFNA L 3362.
FEBRUARY 11 AND 13, 1985.
Landlord and tenant – Tenant 's manager continuing in occupation after tenant has leftthe premises, on contract of tenancy with co-owner of landlord – Can such person beevicted on decree obtained against former tenant ? Civil Procedure Code, s. 328,
Abdul Cader had rented the premises in suit to one Mrs. Sinniahpillai. Her Manager oneNagaratnam was carrying-on her business in the premises but from 1964 Nagaratnamregistered the business in his own name and in 1967 he obtained thd tenancy of thepremises from one Careem Hadjiar a co-owner of the premises and brother of AbdulCader. By then Mrs. Sinniahpillai had left the premises. Abdul Cader sued Mrs.Sinniahpillai in ejectment and, having obtained decree against her of consent, hadNagaratnam evicted in execution of this decree. Nagaratnam in the presentproceedings under section 328 of the Civil Procedure Code sought restoration topossession.
The main questions were whether Nagaratnam's possession was bona fide andwhether he was in possession in his own right as tenant at the material time. AbdulCader contended that Nagaratnam was Mrs. Sinniahpillai's agent and having come intooccupation in that capacity cannot now claim to be in possession in a different capacity.Further as Careem Hadjiar had acquiesced in the letting of the premises by Abdul Caderhe could not in law have created a tenancy with Nagaratnam.
Held –
Mrs. Sinniahpillai had abandoned the premises and in the changed circumstancesNagaratnam was entitled to obtain the tenancy for himself.
A co-owner has the right to lease out his share and this gives the lessee the right topossess and his possession is therefore a bona fide possession.
The question of estoppel by acquiescence was not raised in the District Courtproceedings and cannot be raised now.
Under s. 328 of the Civil Procedure Code all that had to be established was that thepossession of the disputant was bona fide on his own account or on account of someperson other than the judgment-debtor and that he was not a party to the action inwhich the decree was passed.
{N.8. Section 328 referred to in this decision was as it stood before the passage ofLaw No. 20 of 1977.)»
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Sri Lanka Law Repons
[1985] 2 SriL.R.
Cases referred to:
Vaz v Haniffa (1948). 49 NLR 286
Vanderlan v. Varperian (1940) 41 NLR 547, 550.
<3) Thamboo v. Annammah {1934) 36 NLR 330, 333.
Kalpage v. Gunawardane (1964) 66 NLR 302.
Ranasmghev. Marikar (1970) 73 NLR 361, 371.
Ranasmghe v. Premadharma & Eminona [ 1985] 1 SLR 63.
Kandasamy v. Gnanasekeram S.C. 60/82 S.C Min. of 16 6.1983.
Rosahamy v. Diago (1898) 3 NLR 203
Ratnayakev. Rodrigo (1915) 3 Bal. N.C. 68
APPEAL from the District Court of Jaffna.
Faiz Mustapha with N. M. Saheed. for defendant-appellant
H. L, de Silva, P C. with K. Kanag-lswaran and S Mahenthiran for plaintiff-respondent.
Cur. adv. vuh
March 29, 1985.
SIVA SELLIAH, J.
This is an appeal by the defendant-appellant from the judgment of thelearned District Judge of Jaffna dated 13.12.71 in case No. D.C.Jaffna L* 3362 ordering that the plaintiff be restored to the possessionof the premises from which he was ejected on 28.7.68 in execution of -the decree m case No. 3268 L and awarding costs to the plaintiff.
The facts material for the determination of this appeal are asfollows :
The defendant (Abdul Cader) sued one Mrs. Sinniahpillai for arrearsof rent, damages and ejectment in case No. 3268 L on 5.5.68. Onconsent motion P14C in which defendant (hereinafter referred to asAbdul Cader) waived arrears of rent and damages and Mrs.Sinniahpillai consented to judgment in ejectment, decree was enteredaccordingly. Thereafter Abdul Cader took out writ and the plaintiff(hereinafter referred to as Nagaratnam) was ejected on 28.7.68.Nagaratnam thereafter filed the necessary papers for restoration ofpossession and the matter was duly inquired into, culminating in thewdgment dated 13.12.71 ordering that Nagaratnam be restored topossession. Nagaratnam has contended that although prior to 1967
AbdulCader v..Nagaratnam (Siva Selliah, J.)
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he was carrying on business in the premises.as Manager, and thebusiness was registered in his own name from 1964 (PI) the tenantof the premises was Mrs. Sinniahpillai. Nevertheless after May 1961Mrs. Sinniahpillai ceased to be interested in the business and wasresident in Colombo and as from 1967 bv P2-P5 and P13 he(Nagaratnam) paid all arrears and rents to Abdul Cader's brother"Careem Hadjiar who was a co-owner of the property and obtainedtenancy from him (Careem Hadjiar); and that P13, and P2-P5 showthat as from October 1967 Nagaratnam in fact possessed thepremises in his own right at the relevant time at which he was ejected
as tenant of Careem Hadjiar and could thus not be evicted from thepremises as he came within the ambit of section 328 of the CivilProcedure Code. Abdul Cader on the other hand contended thatNagaratnam was an agent of Mrs. Sinniahpillai and did not comewithin the scope of section 328 of the Civil Procedure Code andtherefore was properly ejected. The learned District Judge has verycarefully considered the rival contentions, the facts and the lawapplicable and concluded that the plaintiff came within the scope ofsection 328 and has held that Abdul Cader has chosen a short cut toeject Nagaratnam from the premises, that at the time the actionagainst Abdul Cader's tenant was filed Nagaratnam was already inoccupation as tenant of another co-owner and that Nagaratnam wasforcibly ejected in spite of h'is protests and ordered restoration ofpossession.
It now becomes necessary to examine the provisions of section 328of the Civil Procedure Code (Chapter 101) which states as follows :
*328(1) If any person other than the judgment-debtor is
dispossessed of any property in execution of a decree, and suchperson disputes the. right of the decree-holder to dispossess him ofsuch property under the decree, on the ground that the propertywas bona fide in his possession on his own account or on accountof some person other than the judgment-debtor, and that it was notcomprised in. the decree, or that, if it was comprised in the decree,lie was hot a party to the action in which the decree was passed, hemay apply to the court by petition stating his grounds of dispute,
If after examining the applicant..the court shall proceed to
investigate the matter in dispute…-.*
In hearing an application under the section the court shall confineitself to the grounds of dispute above specified.
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Sri Lanka Law Reports
[1985] 2 SriL.fi.
It is manifest from a consideration of these provisions, thatNagaratnam had to establish that the property was bona fide in hispossession on his own account or on account of some person otherthan the judgment-debtor and that he was not a party to the action inwhich the decree was passed. The defendant-appellant has alleged inhis petition of appeal that the plaintiff-respondent was the agent of histenant Mrs. Sinniahpillai, that he was a trespasser and that he thuscould be ejected on the decree,
It is relevant at this stage to mention that Abdul Cader had filedaction in D C. Jaffna L/1602 in 1962 against the tenant Mrs.Sinniahpillai on the ground of arrears of rent and got judgment whichwas however set aside in appeal by the Supreme Court by P10 on4.6.67. Thereafter Abdul Cader filed action against the tenant Mrs.Sinniahpillai and Nagaratnam in case No. L 3255 on 27.4.68 forejectment on. the ground of arrears and subletting but chose not topursue the said action which was abated only on 11.1.69. He alsofiled action L 3268 a few days after the institution of action L 3255 on
against the tenant Mrs. Sinniahpillai only and obtained aconsent decree on 14.7.68 which the plaintiff-respondent allegedwas a collusive decree by virtue of which Nagaratnam was ejected. Ithas also transpired that from 1961-1967 the tenant was not inoccupation and it was Nagaratnam who carried on the business in thesaid premises and indeed conducted the appeal in L 1602. During thisperiod no rents were paid and Abdul Cader was fully aware of the factthat Nagaratnam was in occupation and carried on business there.Nagaratnam has also admitted that prior to 1967 the tenant was Mrs.Sinniahpillai. Nagaratnam sensing danger had offered to becomethe tenant of Abdul Cader who however wanted key money in Rs.
and was prosecuted but acquitted in the Magistrate’s Court;negotiations by Nagaratnam to secure tenancy from Abdul Caderfailed. It is evident that the tenant Mrs. Sinniahpillai had not paid rentfrom May 1961 nor been in occupation as she was resident inColombo. Nagaratnam thereafter offered the rents due for thepremises to Abdul Cader's brother Careem Hadjiar who was aco-owner of the premises and paid him arrears and monthly rents andbecame a tenant under him as documents P13 & P2-P5 establish. It isthus evident from all this that it has been a battle of strategies with thelandlord Abdul Cader seeking to evict Nagaratnam on the consentpdecree entered in L 3268 with Mrs. Sinniahpillai to which theplaintiff-respondent was not a party and not by prosecuting action No.
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Abdul Cader v. Nagaratnam (Siva Selliah, J.)
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3255 filed against Mrs. Sinniahpillai and Nagaratnam (her agent) forarrears and subletting of the premises, which has led the learnedDistrict Judge to observe in his judgment that 'clearly the defendanthad chosen a short cut to eject the plaintiff-respondent from thepremises.' On the other hand the plaintiff-respondent had obtained atenancy from a co-owner of the premises the brother of the defendantby paying all arrears of rent and the monthly rent prior to institution ofaction L 3268 and certainly before judgment for ejectment andexecution of writ in the said case. P13 and P2-P5 establish that allarrears up to end of September 1967 and rents for November,December and January were thus paid. The plaintiff-respondentNagaratnam was thus able to establish that he was in bona fidepossession of the premises on his own account and could not havebeen ejected and the learned District Judge accordingly ordered thathe be restored to possession.
The learned counsel for the defendant-appellant Abdul Cader in thiscase, has strenuously contended that the learned District Judge haserred in holding that there was a letting of the premises by CareemHadjiar to the plaintiff-respondent of the premises, that as a matter oflaw he was not so entitled to let the premises to theplaintiff-respondent, that although the defendant-appellant could havesued the plaintiff-respondent as a trespasser he had not done so butchosen a short cut by ejecting him under a decree obtained againstMrs. Sinniahpillai to which he was not a party, and that the learnedDistrict Judge had misdirected'himself by the fact that Mrs.Sinniahpillai was not occupying the premises.
These contentions must be viewed in the light of the scope andambit of section 328 of the Civil Procedure Code set out above. Whatthe plaintiff-respondent Nagaratnam had to show was that theproperty was bona fide in his possession on his own account and thathe did not possess it as an agent of the tenant Mrs. Sinniahpillai. In hispetition dated 5.8.68 seeking restoration after ejectment in para 5(d)the plaintiff has stated "that the said land'and premises were bona fidein the petitioner's possession on his own account as a tenant underthe said Careem Hadjiar and that the petitioner was not a party to theabove action in which the decree was passed and therefore that hecould not be dispossessed." The learned District Judge after inquiryby his order has held on the facts that the fact the plaintiff hadobtained tenancy from Careem Hadjiar in October 1967 is supportedby P13 and P2-P5 and is further supported by the evidence of
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Sri Lanka Law Reports
[1985] 2 Sri X.ff.
advocate Thuraiyappa's evidence which he had no hesitation inaccepting. I see no reason to disturb his findings on the question offact. The learned District Judge has also found that althoughdefendant Abdul Cader had filed case No. L 3255 against Mrs.Sinniahpilliai and the plaintiff-respondent for arrears and sub-letting,that he had abandoned that action and a few days later had filed theinstant action and obtained decree against' Mrs. Sinniahpillai andejected the plaintiff-respondent who was not a party. As far as thecounsel's submission-that Careem Hadjiar had no right in law to so letthe premises as a co-owner is concerned the District Judge has held‘at the worst therefore Careem Hadjiar had the right to lease his onethird share of the premises to the plaintiff and has relied on the casethird share of the premises to the.plaintiff and has relied on the caseof Vaz v. Haniffa {1). This receives further support from the cases ofVanderlart v. Vanderlart (2) and Thamboo v. Annammah (3). Thus if aco-owner had the right to lease out his share of the premises thetenant certainly must have the right to possess and his possession istherefore a bona fide possession. The contentions therefore ofdefendant-appellant that the co-owner could not let the premises oreven his own share and that plaintiff's possession was not bona fide orthat he had no right to possession accordingly must fail.
It was contended by learned' counsel for plaintiff that the co-ownerCareem Hadjiar had acquiesced in the contract of tenancy of AbdulCader with Mrs. Sinniahpillai and therefore Nagaratnam could notcreate a tenancy with Careem Hadjiar. It must be borne in mind thatthe evidence established that no rents were collected by Abdul Caderbetween 1961 – 1967 and that Mrs. Sinniahpillai was not inoccupation of the premises during this time but was resident inColombo. Nor was any evidence led regarding acquiescence byCareem Hadjiar of the tenancy between Abdul Cader and Mrs.Sinniahpillai. Indeed no issue was raised on this point before theDistrict Judge and although Careem Hadjiar was cross-examined not asingle question was put to him in cross-examination regarding suchacquiescence on his part. This Court will accordingly not interfere on aquestion which was never before the District Judge but is trotted outfor the first time in the Court of Appeal. In Gunawardene v. Kalpage (4)Tambiah, J. stated that in the absence of pleadings on acquiescencethe District judge had misdirected himself in holding that the•co-owner had acquiesced in one of the co-owners leasing the whole ofthe premises. Further if indeed in the circumstances Nagaratnam
CAAbdul Cader v. Nagaratnam (Siva SeHiah, J.)7
created a tenancy with only Careem Hadjiar without the consent of theother co-owners he did so at his own peril (Ranasinghe v. Marikar (5)per H N. G. Fernando, J.)
The learned counsel further contended that Nagaratnam havingbeen an agent of Mrs. Sinniahpillai prior to 1967 could not thereaftertake up a different position of being a tenant. He quoted the cases ofRanasinghe v. Premadharma & Eminona (6) and the case ofKandasamy v. Gnanasekeram (7) for the proposition that a partycannot approbate and reprobate at the same time. What was held inthese cases is easily distinguishable for Sharvananda CJ has in theformer case stated 'Hence a defendant who denies tenancy cannotconsistently claim the benefit of the tenancy which the Rent Actprovides.' And that he cannot blow hot and cold. Thus in a dulyconstituted action a party cannot take up two positions. In the instantcase however, once Mrs. Sinniahpillai had abandoned her tenancytaking up residence in Colombo and not paying rents, Nagaratnamsensed danger to himself and found in another co-owner a readysolution -to his problem and accordingly paid all arrears and rents tohim and thus at any rate for the time being solved his problem. Thusthere was a change of circumstances and it was not a case of
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approbating and reprobating at the same time or blowing hot and coldas contended by learned counsel; it was Nagaratnam's consistentposition even then that he at the relevant time was a tenant underanother co-owner Careem Hadjiar. The District Judge has consideredthis position when he has stated that "equally it was open to thedefendant to have sued the plaintiff for ejectment as a trespasser(Kalpage v. Gunawardane (supra)). But he has not chosen to do so. It
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is certainly not open to the defendant to sue the tenant whom he hadput in possession and who to defendant's own knowledge had longsince ceased to occupy the premises and under colour of the decree inthat case eject a tenant to whom another co-owner had rented theco-owned property. It makes no difference that such tenant wasearlier in occupation of the premises as sub-tenant or agent of thedefendant's own tenant. What matters is that at the time the actionagainst the defendant's tenant was filed the plaintiff was already inoccupation as the tenant of another co-owner and the defendant's,tenant was no longer in occupation of it.
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Sri Lanka Law Repons
[1985] 2 Sri LR.
Thus as was held in the case of Rosahamy v. Diago (8) by Bonser,
J. the investigation in an application under section 328 should belimited to the question as to whether the plaintiff is entitled torestoration to possession of the property claimed by him. The onlyquestion is the right to possession. This* decision was followed byWood Renton ACJ in Ratnayake v. Rodrigo (9). In the instant case thusthe bona fide possession of the plaintiff Nagaratnam is clearlyestablished and no estoppel operates as contended by counsel. It isalso established that he was holding under Careem Hadjiar and notunder Mrs. Sinniahpillai. The plaintiff Nagqfatnam thus clearly comeswithin the ambit of section 328 of the Civil Procedure Code and thelearned District Judge was right in making order that plaintiff berestored to possession. For these reasons the several contentions ofthe learned counsel for defendant-appellant must fail and the appeal isaccordingly dismissed with costs.
A. G. DE SILVA, J.- I agree.
Appeal dismissed.