Sri Lanka Law Reports
119821 1 S.L.R
SUPREME COURTBenjamin Pereravsr
S.C. Appeal 78181 – C.A. Appeal 92173 – CA (LA) 73181 – C.R
Licence to occupy – continuing cause of action after notice to quit.
The Appellant had been in occupation of premises No. 457/3 NcgomboRoad. Wattala for many years under Respondent’s sister. In the meantimethe Appellant constructed a house on the same premises and went intooccupation of it.
In 1943 Respondent purchased the land on which Appellant hadconstructed 'the house, from his sister. On 20.7.63 the appellant acknowledgedin writing the respondent’s ownership of the premises and stated that he(Appellant) was in occupation of the premises free of rent with thepermission of the Respondent. On 26.2.67 Respondent gave notice toAppellant to vacate the premises by 31.3.67. Appellant did not vacatethe premises ami Respondent filed action praying for ejectment anddamages from 1.4.67. This action was dismissed on 27.3.72.
Respondent then issued another Notice demanding vacant possessionof premises on 30.4.72. Appellant did not comply.
Held 1. Appellant’s continuing occupation of the premises after noticedated 26.2.67 gives rise to a continuing cause of action. He isan ovcrholding liccnccc and not a trespasser. He cannot denythe title of his landlord.and occupation for any length of timewill not give him title.
2. The second notice including statement that Respondent “hadpermitted you to occupy free of rent” was a valid notice.
ApPLAL from Judgment of the Court of Appeal.
Argued on:Decided on:
Samarakoon, Q.C., C.J., Ratwatte, J., andVictor Perera. J.
G. N. Jacoleyn Seneviratne with
for the Defendant-Appellant.
S. Amerasinghe. Senior Attorney withD.R.P. Goonetillakefor thePlaintiff-Respondent.
4th March, 1982
19th March, 1982
SCPerera v. Gunawardcna (Samarakoon, C.J.)215
The Court of Appeal has granted the Appellant leave .to -appealto this Court on the following question of law:-
“ Whether after tenancy-has been terminated by-.notice-severalyears ago the continuance of the; occupation of the premisesby the Defendant was as a tenant, or as a trespasser andwhether the. second notice on thc.:basis that.-lic- was .a .tenantwas a valid one.
The Appellant (tenant.referred to above) had been in.occupationof premises No. 457/3, Negombo Road, Wattala. .for many yearsunder the Respondent’s sister. He had in the meantime constructeda house on .the land and was .residing in it. In 1943 the Respondentpurchased, these premises-from*;his sister. On the 20th July 1965 theAppellant gave the Respondent a writing P2 whereby he acknowledgedthe Respondent’s ownership of the premises and stated that hc> wasin occupation of the premises free of rent with the Respondent'spermission. On the 26th February. 1967. by a writing D2 theRespondent gave the appellant notice to vacate the .premises at theexpiration of the 31st day of March 1967. The Appellant did notcomply and the Respondent instituted action No. 2067/ED on the16th November, 1970, praying for the ejectment of the Appellantand for damages from 1st April. 1967. This action proved abortivedue to the want of a certificate from the Chairman of the ConciliationBoard of Wattala. The action was not maintainable and was thereforedismissed on the 27th March, 1972. The Respondent then noticedthe Appellant to quit and deliver vacant possession of the premisesat the end of the 30th day of April, 1972. (D3). The Appellantreplied that he was in occupation of the premises in his own rightand therefore refused to comply with the request in D3. Hence thisaction which was instituted in the Court of Requests on the 12thOctober 1972.
The plaint in this case states in paragraph 2 thereof that theAppellant was in occupation “with the leave and licence” of theRespondent free of rent. “Leave'and licence” is only an intensifiedform of acquiescence” per PereiHa J. in Mohamadu vs. Rabun (3G.A.C. at 80). It merely shows the character and the nature of theoccupation arid is indicative of the fact that the occupation is neither
Sri Lanka Law Reports
11982) 1 S.L.R
wrongful nor unlawful. A person who occupies a house free of rentby the sufferance of the owner is in law a tenant at will. Rex v.y.John Collett (1823 Russ & Ry 498) It lasts as long “as the lessorshould be willing” (Voet XIX 2 : 9). Such a tenancy is terminableat the will of the Landlord (ibid). Under our law however in sucha tenancy the tenant cannot be turned out “neck and crop." Hemust be given reasonable notice (Tambiah: Landlord and Tenantpage 32). When such a notice expires it is the duty of the tenantto deliver possession of the premises to the Landlord. This is animplied term of the contract Willc “Landlord and Tenant in SouthAfrica” (Edn 4 p. 167). Alvar Pillai vs. Karuppan (4 N.L.R. 321 at322). Jinks vs. Edwards (156 E.R. Exchequer 1045) and “if heremains in occupation of the property he is said to ‘hold over' ”and is liable in damages to the Landlord, in addition to ejectmentunder order of Court.” (Wille ibid p. 257). The action is one bythe Landlord against the overholding tenant for ejectment andrestoration based on a breach of contract. “Privity of contract is thefoundation of the right to relief” per Gratiacn J. in Pathirana vs.Jayasundera (58 N.L.R. 169 at 17.3).
It has been argued that the Appellant in this case was a trespasserat the time of the action and not a licensee. He is neither — he isan overholding licensee. Trespass, if it can be called that, is on theoccupation and not on the ownership. He cannot in law deny thetitle he Landlord and thereby acquire title to the property. Norcan his physical occupation as an overholding licensee for any lengthof lime give him title to the property. His continuing occupationgives rise to a continuing cause of action. I therefore cannot agreewith the contention that the cause of action arose on the expiry ofthe notice D2 and was thereafter prescribed in 3 years in terms ofsection 10 of the Prescription Ordinance.
The next question is whether the notice D3 is a valid notice. Thefirst paragraph of it reads thus –
“We are instructed by our client Mr. R.A. Gunawardena of No.24 Station Road, Wattala that he had permitted you to occupyfree of rent premises No. 457/3 Negombo Road, Wattala. Ourclient requires vacant possession of the said premises."
The words relied on arc “had permitted you to occupy.” This
Perera v. Gunawardena (Samarakoon, C.J.)
refers to some past period of time and is consistent with a referenceto the period anterior to 1st April 1967 (D2). It is then a perfectlyinnocuous statement relating to the history of the occupation. Thesecond para of D3 is a request to vacate the premises. It is thesecond request to the Appellant and comes at a time when l^e is anoverholding licensee. It creates no legal complications. It merely givesthe overholding licensee a second opportunity to deliver possession.The only person who suffers by relying on D3 is the Respondenthimself as he now restricts his damages to a period commencing 1stMay. 1972, whereas if he relied on D2 his claim for damages wouldhave commenced from 1st April. 1967.
For the above reasons 1 hold that the Appellant's continuedoccupation of the premises after the notice D2 was in breach ofcontract constituting him an overholding licensee and that the noticeD3 was a valid one. 1 therefore dismiss the appeal with costs.
Rat watte, J. — I agree.
Victor Perera, J. — I agree.
Benjamin Perera Vs. Gunawardena