( 363 )
Present: Fisher C.J. and Drieberg J.AUNERIS v. ARALIS.
266—D. C. GaUe, 23,315.
Lease—Leasee on informal writing—Notice to quit—Subsequent notariallease—Action for ejectment.
An informal lessee of land is not entitled to formal notice in thesame way as a monthly tenant before he can be evicted by a personwho has taken a subsequent notarial lease of the land.
It is sufficient if the action is brought one month after the.informal lessee has been given notice to leave.
Appeal from a judgment of the District Judge of Galle.
de Zoysa, K.C. (with Rajapakse), for first defendant, appellant.Soertsz, for plaintiff, respondent.
December 14,1928. Drieberg J.—
The respondent sued on a deed of lease of October 27, 1924, fortwo blocks of rubber land : (1) Totupolagahawatta and (2) Tembili-gahawatta for five years granted by the second defendant, the ownerof them.
On January 7, 1922, the second defendant leased them on aninformal writing 1 D 1 to the appellant for a term of four and a halfyears expiring on July 6,'1926.
1 1 Browne 77.! 3 Bnl. Bep. Gl.
3 J Cur. L. R. 22.
( 364 )
Aunerit v.A rail»
TheT spondent says that he was given possession of the first land,but that the appellant wrongfully took the coupons of it for thefirst half of 1925, and wrongfully remained in possession of thesecond land until the end of the term of 1 D 1, July, 1926.
The learned District Judge held that the appellant’s detention ofthe coupons of the first land and his possession of the second afterthe respondent’s lease was unlawful, and that the appellant wasentitled to recover damages in respect of both lands for the first halfof 1925, and in respect of the second land up to July, 1926, he gavethe respondent judgment for Rs. 462. The appellant has not shownthat this assessment of damages is not right.
The action was brought on January 10, 1926. It is quite clearthat after the execution of the lease to the respondent the latterand the second defendant made active efforts to get the land fromthe appellant—correspondence between the parties and the RubberController end the Government Agent is in evidence. From P 2it appears that on January 14, 1925, the respondent asked theRubber Controller to give him the coupons for these lands whichwere then being issued to the appellant. The respondent gotpossession of the first land, and the coupons for it were issued to himfrom July, 1925. The appellant continued to hold the second landand got coupons for it until he surrendered them when his leaseexpired in July, 1926,
The second defendant says that the appellant paid him rent fortwo years only and that on two occasions—one two months and theother one month before the lease to the respondent—he gave theappellant notice of his intended lease. His evidence that he gavethis notice has been accepted, but the Judge has not accepted hisevidence that the appellant failed to pay rent after two years. Inthe writing 1 D 1 the second defendant acknowledged the receiptof rent for the whole term of four and a half years.
Now, though it is beyond doubt that for a year before the actionwas brought the respondent and the second defendant were makingevery endeavour to secure the lands and disposses the appellant bygetting this coupons, without which the mere possession of thelands would be of comparatively little value to the appellant, andthough they ousted him from the actual possession of the first landin January, 1925, and secured the rubber coupons for it from July,1925, the appellant claims that he was not in wrongful possessionof the land after the lease to the respondent. He says that as aperson in possession on an informal and invalid lease he was inthe position of a monthly tenant and that he was entitled tocontinue in possession until his tenancy was determined by duenotice from the second defendant.
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The trial proceeded, apart from the question of damages, mainly 1928on the second issue. “ Did the first defendant receive due notice to Drieberg j.
quit ? ” and 1 take this to mean before institution of action. Mr. deZoysa relied on the decision in Bandara v. Appuhamy1 and con-tended that there was no proof of a formal notice such as a monthlytenant would be entitled to. For my part, I doubt whether alessee on an informal lease—who is not a monthly tenant by contractbut by implication or by an equitable view taken of his position torelieve him of the loss he sustains by the invalidity of a transactionto which his lessor is a party—is entitled to such notice as is requiredin a monthly tenancy by contract with all the requirements of thelaw regarding such a notice.
In Bandara v. Appuhamy (supra) the defendant, who held on theinformal lease, pleaded that he had no knowledge of the notarial leasein favour of the plaintiff, and the plaintiff did not expressly state thathe had demanded possession from the defendant. In the presentcase the plaint alleges that the appellant continued in possession inspite of the protests and representations of the plaintiff.
In my opinion it is sufficient if an action is brought against theinformal lessee a month after he has been noticed to leave. In thiscase, as I have pointed out, strong efforts were being made for a yearbefore action to get possession of the lands from the appellant, andthe action cannot fail for want of prior demand for possession.
As damages have been allowed from January 1, 1925, the appel-lant would not be liable in damages unless he had received noticea month before that date ; the correspondence regarding the couponsbegins on January 14, 1925.
The second defendant says that he gave notice on two occasionsbefore the lease. This evidence has been criticised on the groundthat he said that one notice was given in the presence of the peaceofficer, who has not supported him ; also on the ground that if as hesays he was advised by a Proctor to give notice it was unlikely thathe would not have asked the Proctor to send a formal notice. Thetrial Judge has however believed the second defendant on this pointand I cannot say that he is wrong.
The appeal is dismissed with costs.
Fisher C.J.—I agree.
' (1923) 25 N. L. R. 176.
AUNERIS v. ARALIS