February 28, 1985.
The plaintiff instituted this action against the defendant for ejectmentfrom the premises in suit and for recovery of damages. The plaintiff isthe brother of the defendant. The plaintiff, the defendant and their foursisters have admittedly been in occupation of the premises since1941. At that time their father was the tenant of the premises and thelandlord was one Vythialingam. The father died in 1951 and thereafterthe mother became the tenant. The mother too died in 1963.Thereupon it was the plaintiff who gave written notice to the landlordin terms of section 18 of the Rent Restriction Act (Chap. 274) 'to theeffect that he proposes to continue in occupation of the premises asthe tenant thereof'. It is in evidence that the defendant and his sistersconsented to the plaintiff giving notice in terms of section 18. theplaintiff being the eldest in the family. The feelings between theplaintiff and the defendant were cordial until about 1973 anddifferences appear to have arisen between the parties after themarriage of the defendant.
The case for the plaintiff was that he was the sole tenant of thepremises after the death of his mother and the defendant occupied aportion of the premises with his leave and licence. The plaintiff averredin his plaint that the defendant is falsely claiming to be a tenant underthe plaintiff and that the plaintiff by writing dated 9th May 1975 gavenotice to the defendant to quit and deliver possession of the portion ofthe premises occupied by him on or before 30th June 1975.
The defendant in his answer denied the receipt of the notice dated9th May 1975. He further averred that upon the death of their motherin 1963, the plaintiff took the tenancy for and on behalf of thedefendant and that he is accordingly entitled to continue in occupationof a portion of the premises. He also pleaded that he has paid theplaintiff Rs.30/-per month as rent since September 1963 and that inany event he is a sub-tenant of a portion of the premises and is entitledto the protection of the Rent Act No. 7 of 1972. At the trial 3 issueswere raised on behalf of the plaintiff:
Was the defendant living in a portion of the premises describedin the Schedule to the plaint with the leave and licence of theplaintiff ?
Did the plaintiff terminate the leave and licence given to thedefendant by notice dated 9.5.75 ?
If issues (1) and (2) are answered in the affirmative is theplaintiff entitled to the relief prayed for in the plaint ?
The following issues were raised on behalf of the defendant
Was the defendant residing in the premises in 1941 ?
Was the father of the plantiff and the defendant the tenant ofthe premises from 1941-1951 ?
Was the mother of the plantiff and the defendant the tenant ofthe premises from 1951-1963 ?
After the death of the mother in 1963 did the plantiff becomethe tenant of the premises at the request of the defendant andother members of the family ?
If issues 5-8 are answered in the affirmative, has thedefendant a right to reside in the premises ?
in any event is the defendant a tenant under the plantiff ?
If issue 10 is answered in the affirmative can the plaintiffmaintain this action ?
It was agreed between the parties that issues 5, 6 and 7 should beanswered in the affirmative.
After trial the District Judge answered issue (1) in the negative,issue (2) as 'not proved*, issues (8) and (9) in the affirmative. On issue
his finding was that the defendant was a sub-tenant of thepremises. The action was dismissed and the plaintiff has nowappealed against the judgment and decree.
Mr. Gunaratne, counsel for the plaintiff-appellant, submitted that thetrial Judge’s answer to issue No. (1) is incorrect and furthercontended that even if issue No. (8) is answered in the affirmative thedefendant does not acquire any.rights under section 18 of the RentRestriction Act. The defendant in his evidence admitted that theplaintiff alone gave notice to the landlord in terms of section 18 of theRent restriction Act, No. 29 of 1948 (Chap. 274). The evidenceclearly establishes the fact that the plaintiff gave notice to the landlordin terms of section 18 at the request of and with the concurrence ofthe defendant and the other members of the family. Thus the trialJudge's answer to issue (8) is correct. Does this then mean that theplaintiff and the defendant are joint tenants ?
In my view, Mr. Gunaratne is right in his submission that the only
person who can "be deemed,. to be the tenant of the
premises' is the person who is entitled and who has in fact givenwritten notice in terms of section 18 of the Rent Restriction Act to thelandlord. The fact that the defendant and the other members of thefamily in occupation of the premises gave their consent to the plaintiffgives them no fights whatsoever. It is true that the defendant had theright to give notice under section 18. But he failed to do so. Section18(4) expressly provides as to what would happen in the event ofnotice being given by more than one person. It is the Rent ControlBoard that would decide as to who would be deemed to be thetenant. Thus Mr. Gunaratne's contention that section 18 does notcontemplate a plurality of tenants is well founded. Moreover, the factthat the defendant did not give notice in terms of section 18 and heconsented to the plantiff giving notice would only mean that he hadwaived the right he had to give such notice. It was the plaintiff alonewho had complied with the provisions of section 18 and it is he alonewho would be deemed to be the tenant of the premises. I accordinglyhold that the trial Judge's answer to issue (9) is erroneous for itimplies that the plaintiff and the defendant were joint tenants of thepremises.
What then is the position of the defendant in so far as his right tooccupy the premises is concerned ? At the time the plaintiff gavenotice in terms of section 18 the defendant was already in occupationof the premises. He occupied the premises as a licensee both under. his father and his mother. Mr. Singaravelu. Counsel for thedefendant-respondent did not contend the contrary. Once the plaintiffacquired a statutory right under section 18 and the defendantcontinued to occupy the premises, it seems to me that he continuedto occupy the premises as a licensee and no more. His occupation ofthe premises was in the same capacity as it was when his parentswere the tenants. I am therefore of the view that the trial judge was inerror when he answered issue No.( 1) in the negative.
But the matter does not rest there. The trial Judge, has held that theplaintiff has failed to prove the termination of the licence. Thedefendant in his answer denied the receipt of the notice and theburden was clearly on the plaintiff to prove that the licence wasrevoked. Mr. Gunaratne did not challenge the finding of the DistrictJudge that the notice of termination of the licence has not beenproved to have been received by the defendant. Counsel's contention,however, was that the defendant having in his answer denied that hewas the licensee, was not entitled to a notice terminating the licence.He relied on the cases of Muttu Natchia at a/ v. Patuma Natchia etal(1). Sundra Ammal v. Juse Appu (2), Pedrick v. Mendis (3) andHassan v. Negaris (4), which lay down the principle that a tenant whodisclaims tenancy is not entitled to a valid notice to quit, in support ofhis submission that the defendant is not entitled to a notice revokingthe licence.
With this submission, I am afraid I cannot agree. It is very relevant tonote that in his answer the defendant whilst denying that he was alicensee under the plaintiff specifically pleaded that since the death ofhis mother he was in any event a sub-tenant under the plaintiff. Thiswas a matter that was put in issue at the trial-vide issue No.(10). Inother words, the defendant's position was that he was holding underthe plaintiff. It was not his position that he was holding adversely tothe plaintiff, in defiance of the plaintiff's rights. The principleenunciated in the cases cited by Mr. Gunaratne has no application tothe instant case, having regard to the averments in the answer and the
issues raised on behalf of the defendant. Browne J. in Muttu Natchiaet a! v. Patuma Natchia et al (supra) laid down the principle in thefollowing terms 'The plaint in this case sufficiently averred that thedefendant, after entering and holding as tenant of the plaintiff, haddisclaimed to hold of him and put him at defiance. It was unnecessarytherefore that the plaintiff, as he did, should have averred or havesought to prove any notice to quit given by him to the defendant, andthe defendant was not entitled to have the action dismissed becauseno valid notice was given*. (The emphasis is mine). It is manifest thatthe defendant in the present case has not 'disclaimed to hold of himand put him at defiance'.
This question was considered very recently by a Bench of fiveJudges of the Supreme Court in Ranasinghe v. Premadharma andAnother (5). That was a case where the plaintiff sued the defendants,her tenants, for ejectment on the ground of arrears of rent. Thedefendants based their right to occupation of the premises not on anytenancy under the plaintiff but on an independent title of their own,namely jus retentibnis. The Supreme Court held that in such a case thedefendant who denies the tenancy is not entitled to insist on atermination of the tenancy. In the course of his judgment the learnedChief Justice expressed himself thus :
"How can a person who denies the tenancy be entitled to insist ona proper termination of the tenancy which, according to him neverexisted. A defendant cannot be allowed to deny the existence of thecontract of tenancy and in the same breath claim the benefits of thatcontract; the doctrine of 'approbate and reprobate' forbids this. Itis only when the defendant admits the contract that he can claim
the benefits of the contractThe fundamental object of the
Rent Act is to give the tenant security of tenure by preventing thelandlord from evicting him without an order of court and forbiddingthe court to make an order for possession except on certain specificgrounds. That security of tenure is not to be vouched to a personwho repudiates the very basis of the Act, viz. the relationship oflandlord and tenant and who claims possession of the premises, notunder the plaintiff, but against him'. (The emphasis is mine).
In the appeal before us the defendant claimed a joint tenancy withthe plaintiff or alternatively that he was the sub-tenant under meplaintiff. He never denied tenancy- The defendant never claimed a rightof occupation against the plaintiff. Whether it be in the capacity of alicensee or a sub-tenant, his claim to occupy the premises was alwaysone under the plaintiff and not against'him. Therefore the principlerelied on by Mr. Gunaratne has no application to the instant case.
Accordingly I hold that*the District Judge rightly answered issueNo. (2) in the negative. The plaintiff's action must therefore bedismissed. The appeal fails and is dismissed with costs fixed at Rs.210.
JAMEEL J. – I agree.
Appeal dismissed.