BABY NONA vs SAMON

063-SLLR-SLLR-2005-V-2-BABY-NONA-vs-SAMON.pdf


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Sri Lanka Law Reports
(2005) 2 Sri L R.
BABY NONAVSSAMONCOURT OF APPEALDISSANAYAKE, J.
SOMAWANSA, J.
A. NO. 997/98(F)
C. HAMBANTOTA 1273/LDECEMBER 12, 2003.
Leasehold rights — Heir succeeding to the leasehold rights of deceased -Evidence Ordinance Section 3 — Failure of defendant to adduce evidence tocontradict – New factor — Duty of a party to give evidence – Can the Lessee -dispute Lessors rights ? – Is there a duty to restore property to Lessor first andthen to litigate ? – Licensee – Trespasser – Termination of Leave and License ?Can a cause of action be based by a Lessor or Licensor against an overholding lessee or licensee- Privities of contract – Rule of Estoppel.
CABabyNona vs Samon363
(Dissanayake J.)
The plaintiff appellant sought a declaration that there exists a contract oftenancy between her and the UDA in respect of certain premises and that thesub tenancy claimed by the defendant is at an end.
The defendant denied the averments in the plaint. It was the position of theplaintiff that the plaintiff being the mother of one “N" to whom the UDA hadleased out the boutique, became entitled to the leasehold rights of “N”, afterhis death, and that the defendant who had been and employee of “N” hadrefused to vacate the premises first claiming a sub tenancy from “N” andsubsequently stating that the premises have been sold to him by R, the trialcourt dismissed the action.
HELD
The defendant respondent did neither give evidence nor call witnesseson his behalf.
It is the bounden duty of a party who personally knows the whole of thecircumstances to go into the witness box to dispel the suspicionsattaching to case, failure would be the strongest possiblecircumstances going to discredit the truth of his case.
Under the rule of estoppel a cause of action can be based by a lessoror licensor against an over holding tenant.
Lessee cannot dispute lessors title. He ought to give back thepossession first and then litigate about the proprietorship.
By his conduct in refusing to accept the rights of the lessor and handoverpossession to the plaintiff appellant he had repudiated the license —No necessity to give notice of termination of license.
Per Dissanayake, J.
“the defendant respondent who was a licensee of “N" had become the
licensee of the plaintiff by operation of law — there is a privity of contract
between the plaintiff and the defendant.”
APPEAL from the judgment of the District Court of Hambantota.
Cases referred to :
Edrick Silva vs. Chandradasa Silva 70 NLR 169
Pathirana vs. Jayasundera 58 NLR 169
Alvar Pillai vs. Karuppan 4 NLR 324
Mary Beatrice and Others vs. Seneviratne 1997 1 Sri LR 197
Ruberu and another vs. Wijesuriya 1998 1 Sri LR 58
Gunasekera vs. Jinadasa 1996 2 Sri LR 115 S. C. (DB)
Rohan Sahabandu with Athula Perera for the 1st plaintiff appellantWijedasa Rajapakse, P. C. with R. Dissanayake for defendant respondent.
Cur. adv.vult.
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December 12,2003DISSANAYAKE, J.
The plaintiff-appellant instituted this action, seeking a declaration
that there exists a contract of tenancy between the plaintiff-appellantand U. D. A., in respect of premises No. 91 morefully described inschedule to the plaint.
that the sub-tenancy claimed by the defendant-respondent is at anend and further seeking.
the eviction of the defendant-respondent and damages.
The defendant-respondent by his answer whist denying the avermentsin the plaint prayed for dismissal of the action.
The case proceeded to trial on 12 issues and at the conclusion of thetrial, the learned District Judge by his judgement dismissed the plaintiff -appellant’s action.
It is from the aforesaid judgment that this appeal is preferred.
Learned counsel who appeared for the plaintiff-appellant contended thatthe learned District Judge had erred in dismissing the action, on the groundthat the learned District Judge had failed to embark on a proper evaluationand an analysis of the evidence.
The claim of the plaintiff-appellant was based as mother and heir ofW. A. Nandasena to whom the Urban Development Authority had leasedout boutique bearing No. 91 at Sella Kataragama in 1981. She claimedthat on the death of Nandasena she had become entitled to the leaseholdrights of the premises in suit.
It was her position that the defendant-respondent who had been anemployee of her late son Nandasena had refused to vacate the premisesin suit, at first claiming a sub tenancy from Nandasena. Subsequently thedefendant-respondent had changed his stance and had claimed that thepremises in suit has been sold to him by Nandasena and had offeredRs. 5,000 to the plaintiff-appellant stating that it was the balance purchaseprice.
CA
Baby Nona vs Samon
(Dissanayake J)
365
This claim of the defendant-respondent was rejected by the plaintiff-appellant. The plaintiff-appellant sought the assistance of the local policeand had made a complaint dated 03.12.1991 (P7) to gain possession ofthe premises in suit.
In the course of the investigations conducted by the police, the defendant-respondent had made a statement to the police which too is dated03.12.1991 (P8), wherein he had stated that he had first obtained a leaseof the premises from Nandasena on payment Rs. 1,000 per month asrental.
He had further stated in his statement to the police that subsequent tothe death of Nandasena he had purchased the premises in suit from hisfather for a sum of Rs. 50,000 out of which there was a balance sum ofRs. 5,000 to be settled. The defendant-respondent had claimed that hewas in possession of necessary documents to prove his claim.
The defendant-respondent’s answer filed in this case was devoid of anyof the aforesaid facts. He merely had stated that he was in possession ofthe premises in suit and that the plaintiff-appellant had no right to institutethe present action. The defendant-respondent did neither give evidence incourt nor call witnesses on his behalf, to at least explain the basis onwhich he happened to be in possession of the premises in suit. Thedefendant-respondent had not refuted the matters stated by the plaintiff-appellant in her police statement (P7). His answer did not contain any ofthe matters that were in his statement to the police (P8).
It is pertinent to refer to the observations of H. N. G. Fernando, J (as HisLordship then was) at 174 of the case of Edrick Silva Vs ChandradasaSilva<1) He observed :
“But where the plaintiff has in a civil case led evidence sufficient inlaw to prove a factum probandum, the failure of the defendant to adduceevidence which contradicts it adds a new factor in favour of the plaintiff.There is then an additional ‘matter before the court.”, which the definitionin Section 3 of the Evidence Ordinance requires the court to take intoaccount, namely, that the evidence; led by the plaintiff is uncontradicted”.
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It is also relevant to refer to the commentary made by Professor Monirin his book ‘Principles and Digest of the Law of Evidence.’ 4th edition atpage 692 under the heading “Presumption where a party does not go intothe witness box.” He states; u A party runs a great risk if he does notenter into the witness box and himself give evidence in his case uponfacts which are directly-in his knowledge and which relate to the mattersin controversy. It is the bounden duty of a party who personally knows thewhole of the circumstances of the case to go into the witness box, todispel the suspicions attaching to his case, and if he, being present incourt, fails to do so, his non-appearance as a witness would be thestrongest possible circumstance going to discredit the truth of his case,where a party whose evidence is material does not go into the witness boxand give evidence, the presumption is that he has abstained from givingevidence by reason of the fact that truth is on the opposite side and thecourt is entitled to infer everything against him.”
Although it is seen that the aforesaid observations of Professor Monirhave been made with regard to presumptions that arise in a criminal action.However in my view the same principles are valid in respect of evidence ina civil action too where the standard of proof is less stringent as they aredecided on balance of probabilities and not beyond reasonable doubt likein a criminal action.
It is to be observed that the evidence of the plaintiff-appellant to theeffect that the defendant-appellant entered into possession of the premisesin suit, at the beginning as an employee of her late son Nandasena isuncontroverted by the defendant-respondent.
If is interesting to note that the defendant-respondent after having enteredinto the premises in suit as a licensee of Nandasena is now seeking tochallenge the right of Nandasena's mother to claim the boutique in dispute,claiming that he had purchased same from Nandasena’s father afterNandasena’s death. These matters were revealed in his statement to theKataragama police made by him on 03.12.1991 (P8).
It transpired in the evidence that Nandasena had died unmarried andissueless and three of his brothers too had died. The plaintiff-appellantwho is his mother is undoubtedly an heir of Nandasena on whom the
CA
Baby Nona vs Sam on
(Dissanayake J)
367
majority of shares would devolve. And as such heir she is entitled to allleasehold rights of Nandasena, in respect of the property in suit. Being anheir of Nandasena she contended that she steps into the shoes ofNandasena.
It is of significance to observe that the defendant-respondent who wasthe licensee of Nandasena had become the licencee of the plaintiff-appellantby operation of law. Therefore it appears that there is privity of contractbetween the plaintiff-appellant and the defendant-respondent.
Under the rule of estoppel recognized by our common law, a cause ofaction can be based by a lessor or licensor against an overholding lesseeor licensee.
It is relevant to refer to the observations of Gratien J at 173, in the caseof Pathiranavs Jayasundara(2} n this regard. At 173 Gratien J observed :-
‘The scope of an action by a lessor against an overholding lessee forrestoration and ejectment however is different. Privity of Contract (whetherit be by original agreement or by attornment) is the foundation of theright to relief and issues as to title are irrelevant to the proceedings.Indeed, a lessee who has entered into occupation is precluded fromdisputing his lessor’s title, until he has first restored the property infulfillment of his contractual; obligation. The lessee (conductor) cannotplead the exceptio doming although he may be able easily to prove hisown ownership, but he must by all means first surrender his possessionand then litigate as to proprietorship” Vote 19.2.32.
Both these forms of action referred to are no doubt designed to securethe same primary relief, namely, the recovery of property. But the cause ofaction in one case is the violation of the plaintiff’s rights of ownership, inthe other it is the breach of the lessees contractual obligation.
The legal position as stated vide, Voet, Commentary on the Pandectstranslated by Percival Gane, Volume 3 Book 19.2.32, “Lessee cannotdispute lessors title though a third party can-Nor can the setting up of anexception of ownership by the lessee stay the restoration of the propertyleased even though perhaps the proof of ownership would be the case for
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the lessee. He ought in every event give back the possession first andthen litigate about the proprietorship.”
In the case of Alvar Pillai Vs Karuppari2) where, the defendant wasgiven a land on a non-notarially attested document Bonser C. J., observedat 322,
“It is not necessary for the purpose of this case, to state the devolutionof the title, for even though the ownership of one half of this land were inthe defendant, himself, it would seem that by our law having been let intopossession of the whole by the plaintiff. It is not open to him to refuse togive up possession and then it will be open to him to litigate about theownership.”
In the case of Mary Beatrice and others Vs Seneviratne[i), at 202,Senanayake, J has observed.
“It is opportune of this moment to quote Maasdorp, Institutes of Cape,Law, 4th Edition Volume 3, page 248, “A lessee as already stated isnot entitled to dispute his landlord’s title and consequently he cannotrefuse to give up possession of the property at the termination of his leaseon the ground that he is himself rightful owner of the same. His duty insuch a case is first to restore the property to the lessor and then to litigatewith him as to the ownership.” Also Vide Ruberu and another VsWijesuriya.(5)
The action of the plaintiff-appellant is not one based on declaration oftitle. It is based on the contract of leave and license.
Witness Piyadasa, another son of the plaintiff-appellant asserted to thefact of sending a letter through an Attorney-at-Law by the plaintiff-appellantgiving notice of termination of the license to the defendant-respondent.
The defendant-respondent had failed to contravert the matters thattranspired in the evidence of the plaintiff-appellant and her witnesses sincehe had neither given evidence nor adduced evidence on his behalf. Therefore
CA
Baby Nona vs Samon
(Dissanayake J)
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it is to be observed that on a balance of probabilities those matters havebeen established by the plaintiff-appellant.
Then, there arises the question whether the plaintiff-appellant had lawfullyterminated the leave and license given to the defendant-respondent.
It is of significance to observe that in any event by his conduct in refusingto accept the rights of the licensor and hand over possession to the plaintiff-appellant he had repudiated the license. It appears that by such conducthe had ceased to be a licensee and had become a trespasser. Thus thereis no necessity in law to give notice termination of such license.Gunasekara Vs Jinadasa(6).
The defendant-respondent is estopped from denying the rights of theplaintiff-appellant. He must first quit the premises in suit and thereafterlitigate to establish his rights by way of another action.
It is to be observed that the learned District Judge had failed to embarkon a proper analysis and evaluation of evidence. Furtherit is to be observedthat the learned District Judge has erred in concluding that no rights devolvedon the plaintiff-appellant on the death of Nandasena.
I set aside the judgment of the learned District Judge and direct him toenter judgment in favour of the plaintiff-appellant as prayed for in the plaint.
The appeal of the plaintiff-appellant is allowed with costs fixed atRs. 5,000.
SOMAWANSA, J.—I agree.
appeal Allowed.