BANDULA AND ANOTHER. V. .
KARTHEUSAPPUHAMY. ,COURT OF APPEALWUETUNGE. J.. AND S.N. SILVA J.
CANO. 571/81 (FINAL).
D C. NEGOMBO NO. 563/R.E..
Landlord and Tenant — Termination of tenancy — Canlandlord's title claim failure to terminate tenancy by notice?
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Where the defendant entered'the premises on a contract of tenancy from theorigin^ owners but. upon the- tatters demise -continued in occupation without.payment of rent to the heirs and in fact repudiated the tenancy and claimed thepremises himself, he is not entitled to^laim that a notice terminating the tenancyhe’vvas denying was essential for a successful .suit in eviction.
APPEAL from a judgment of the District Court of Negombo.
Case referred to:
Ranasinghe v. Premadharma and others (1985) 1. Sri L.R. 63A C. Goonarame Q.C: with C. Ladduwahetty for the plaintiffs — appellants.
F. C. Perefa for the defendant — respondent.
This 'action was 'instituted by the two plaintiffs against thedefendant to eject the defendant from the premises describedin the first paragraph to the annex of the plaint and to recoverdamages The cause of action of the plaintiffs was that thedefendant who entered the premises under the predecesser-in-,title of the plaintiffs continued in occupation upon the leave andlicence of the owners, that the plaintiffs terminated the leave andlicence and that the defendant is .in unlawful occupation of thepremises causing damage to the plaintiffs.. The plaintiffs soughtrelief by way of ejectment of the defendant and the recovery of•-damages. The defendant denied the cause of action and pleaded^that he was a tenant of .the premises and that the'tenancy hadnot been terminated according to law. The learned District Judgeby His judgrnent dated 24.2.1981,'held with the plaintiffs thatthey are the present owners of the premises but, held against theplaintiffs on the issue that the defendant was in occupatioh ofthe' premises upon „a leave and licence and accordinglydismissed the action with costs. The finding of the learnedDistrict’Judge'was that the defendant, was a tenant of thepremises and the tenancy was not terminated according to law.
At the hearing of this appeal. Gounsel for the ■ plaintiffs—appellants argued that .the Iparned District Judge misdirectedhimself on the evidence in holding that the defendant continuedto be in occupation of the premises'as a. tenant. Counselsubmitted that1 the learned District Judge has not considered the•following items’of evidence:—
the evidence of th^ Defendant who specifically stated inevidence-in-c"hief, that tie was the owner of the premises byvirtue of possession and denied that the plaintiffs were
document marked P3 which is a letter dated 26.3:1974sent by the defendant which shows that the. defendant wasin occupation of the premises upon leave and licence andnot as a tenant..
Counsel relied on a judgment of a Divisional Bench of theSupreme Court in the case of Ranasinghe vs. Premadharma andothers(1J where it was held that a person who.denied tenancy isnot entitled to.due notice of a termination of the tenancy…
. Counsel for the defendant conceded that ,the learned DistrictJudge has not considered the two items of evidence referred toabove but argued that documents marked D1( and D2festablisha tenancy in re.spectof the premises.
At this stage I shall briefly set put the facts relevant tojthe case.One Abraham Appuhamy was the owner of the premises and in1966 he-died leaving as his heirs, the. 1st plaintiff. Pettis*Appuhamy and Gunaratne, each of whom became entitled.to1/3 share of the-property. In 1969 Peiris Appuhamy gifted,his1 /3 share to the 2nd plaintiff. In 1975 Gunaratne transferred his1./3 share to-the 1st plaintiff Thus the; 1st plaintiff becameentitled, to 2/3 shares and the, 2nd plaintiff to 1/3 share, of thepremises,
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By -writing dated j 0.6,1.964. marked D1, the said AbrahamAppuhamy "rented out” the premises to the defendant for aperiod of five years at a monthly rental of Rs. 1.0/-. The. defendant was allowed to make improvements to the land and to. put up any; buildings- The defendant stated that he paid rent toAbraham Appuhamy as'stipulated In the document marked 'DV
i ' 1•' ..and after the. death of Abraham Appuhamy in 1966 he paid rentto Gunaratne. The 2nd plaintiff who gave evidence specificallydenied that any rent was paid tc^Gunaratne or to any of the otherco;owher$ after the death of Abraham Appuhamy.
In 1974 a complaint was made by the owners of.the premisesagainstjthe defendant to the Wattala-Mabole Conciliation Board.On 21.7.1974 the dispute was settled by the Conciliation Boardon the basis that the defendant will vacate the premises-at theend of January. 1975 and the owners will make an ex.gratiapayment of a sum of Rs. 600A to the defendant. The defendantresiled.from this settlement and the Conciliation Board issued.acertificate permitting the owners to institute action in Court.
It is clear from the evidence that the defendant entered thepremises upon a. monthly tenancy contracted with AbrahamAppuharny. The question arises whether this tenancy continuedbeyond.the life time of Abraham Appuhamy. The defendantstated that he paid rent for a certain period to Gunaratne beingone of the co-bwhers but that he did not obtain any receipts. Heproduces a document marked D2 as the only receipt he obtainedfrom Gunaratne. The plaintiffs, disputed this receipt. It appearsfrom an examination of the evidence*that the defendant had notproved that the receipt had been given by Gunaratne who died. several years before the trial. The learned District Judge too hasnot acted on .the document marked D2. The document itselfBears a date "2.28.76". It appears to be a reference to the 28thof February. 1976. If so. the receipt had been given after thedispute was referred to the Conciliation Board in 1974. It is mostunlikely that Gunaratne who made the complaint to theConciliation Board would have given a receipt to the Defendantafter the Defendant resiled from the agreement that was enteredinto. Furthermore, according to the narration of title in the plaintwhich is adopted by the learned District Judge. Gunaratna'sshare had been transferred on 30.1.T975. In thesecircumstances no reliance can be placed on the documentmarked 02 to establish that the defendant paid rent after thedeath of Abraham Appuhamy. On the contrary, the defendantclearly stated in evidence that he had not paid rent for five or sixyears.* It is irr this context that the evidence of the defendant-appellants becomes most significant'This portion of evidence isrecorded as follows:
"@® s® axS* Cf&axSafeaO t3ca> KteteeS ®G$Q® cbbJ8<sc3& q38 e©ts>03®®
toookuA Sc» BDetetd ®8© e*©«B§odtOe5D
$aa e^eo*. <?38 ®oS iBcao.*'
Therefore Counsel for the pl&intiffs-appeliants could rightlyrely„ upon the judgment of the Divisional. Bench of theSupreme Court in the case of Ranasinghe vs. Pramadharma(Supra) In that case Sharvananda. C.J. in his judgment dealtwith this matter as follows:
"How can .a person who denies the tenancy be entitled toinsist on a proper termination of the tenancy which,according to him. never existed. A Defendant cannot beallowed to deny the existence of the contract of tenancyand in the same breath claim the benefits of that contract:the doctrine of "approbate and reprobate" forbids this. Itis only when the defendant admits the contract that hecan claim the benefitsnf the contract."
On a consideration of the evidence and the law, in particular1as stated in the judgment of- the Divisional Bench of theSupreme Court, l^m of the view that’the teamed DistrictJudge was in-error when he concluded that the Plaintiff?• action should fair because the contract of. tenancy was not
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The learned Judge has rightly decided that the plaintiffs* areentitled to’ the premises as the successors of Abraham-Appuhamy. The evidence of the 2nd plaintiff that thesuccessor of Abraham Appuhamy permitted the defendant toremain on the land and at a later stage requested him to leaveis borne out by letter marked P3. This letter dated 26.3.1974was sent by the defendant to the 2nd plaintiff. There, thedefendant has clearly stated that he has not been in a positionto leave the premises because he did not find another placethat was suitable. Further, the defendant has offered fo buy
• *the premises if it was being sold by the owners. In my view thisletter puts beyond doubt the inference that the plaintiffsterminated the licence given to the defendant to occupy thepremises. Accordingly I. set d&ide the judgment and decreeentered in this case. Judgment is entered if favour of .theplaintiffs-appelrants for the ejectment of the defendant-respondent from the premises, and for the recovery of damagesas prayed for in the plaint. I allow the appeal of the plaintiffs—appellants with costs of contest and costs’in this Court.
I agree. [