( 156 )
Present: Schneider A.J. and Loos A.J.
BUULTJENS v. CAROLIS APPU.
45—D. G. Matara, 8,467.
fnformal lease—Is lessee to be treated as a trespasser} Monthly tenancy—
Ordinance No. 7 of 1840, s. 8.
By an informal writing which did not comply with the require*merits of section 2 of Ordinance No. 7 of 1840, the plaintiff leasedto the defendant one hundred and fifty coconut trees for a periodof one year, and also granted him permission to put up a hut tobe used as a tavern.
Held, that the defendant, who was in possession, muBt be treatedas a lessee “for a period not exceeding one month ’’ and not as s■ trespasser, and that the plaintiff was not entitled to institute anaction for ejectment against the defendant until the contract olmonthly tenancy was terminated by a month's notice.
rJ1HE facts appear from the judgment.
Bawa K.G. (with him Keuneman), for defendant, appellant.
G. Koch, for plaintiff, respondent.
June 17, 1919. Schneider A.J.—
Prom the plaint, owing to its prolixity, it is not quite possible toiunderstand clearly what was the position which the plaintiff meant;to assume in regard to what is called an “ informal lease ” which;she had granted to the defendant. In her plaint she states that;she informally leased to the defendant one hundred and fifty coconut;trees, standing on an estate called Silverdale, for the purpose of drawingtoddy for a period of one year, and also granted him permission toput up a “ hut ” to be used as a tavern and that she received theconsideration in full. She alleged that the defendant coupledseventy-seven trees of those which she had actually leased,and wrongfully coupled seventy-three trees which were notleased. In respect of the trees wrongfully coupled she claimedBs. 865.08 as damages. She prayed for an injunction restrainingthe defendant from tapping any trees at all; that the informal leasebe declared of no force or effect in law; and that the defendant beejected from the land. I was at first inclined to regard her plaintas indicating that the plaintiff was willing to abide by the termsof what is called the informal lease, that is, that the defendant wasentitled to the possession of the one hundred and fifty trees leased,but on appeal her counsel took up the position that as the leasewas informal, it was therefore invalid in law; that the defendantwas not entitled to be in possession at all; and that the plaintiff’saction, must be regarded as one against a wrongful trespasser.
( 157 ,
This must have been the position taken up on behalf of the plaintiffat the trial in the District Court also, because the learned DistriotJudge has decided the case having only considered the informalityof the agreement. The defendant in his answer pleaded that,in pursuance of the agreement between him and the plaintiff, heexpended Es. 600 in coupling the trees preparatory to tappingthem. He claimed this sum of Bs. 600, add a further sum of Bs. 50per day as damages sustained by him by reason of the defendantobtaining the injunction and restraining him from possessing thetrees or tapping them. He also pleaded that as the plaintiff hasstood by and permitted him to incur expense in coupling the treeswhich he had coupled, that she was estopped from pleading theOrdinance No. 7 of 1840. The parties went to trial upon six issues.No evidence was called. The learned District Judge after hearingargument made order that the plaintiff do refund the amountadvanced by the defendant, and that the defendant be ejected forth-with from the land where the coconut trees leased were standing.The defendant has appealed, and -the plaintiff has also raised certainobjections to the decree. As the fact is that there was no lease ofthe coconut trees and of the “ hut ” for the tavern by a formalwriting in conformity with the provisions of section 2 of OrdinanceNo. 7 of 1840, the defendant must be regarded as a lessee “ fora period not exceeding one month ” of the one hundred and fiftycoconut trees and of the “ hut, ” according to the provisions ofsection 2. This being so, the defendant cannot be treated as atrespasser until the contract of the monthly tenancy is terminatedby due notice, that is, by a month’s notice in terms of the law. Itis a fact that no such notice was given.
Therefore, the plaintiff was not entitled to institute this actionfor ejectment, and the defendant is entitled to remain in possessionof what was leased to him until his contract with the plaintiff isterminated legally, that is', by due notice. As the trial already hadwas in regard to the class of the plaintiff for ejectment, I directthat she should pay all the defendant’s costs of that trial. Heraction them reduces itself to one for damages, for the wrongfulcoupling of seventy-three trees not included in the lease,- and aninjunction restraining the defendant. On part of the defendantthe claim is reduced to one for damages caused by the wrongfulact of the plaintiff in restraining him by injunction from possessingand enjoying what was leased to him upon the footing of a monthlytenancy. I would remit the case for trial of the issues which ariseupon this aspect- of the case. The cost of the trial of such issueswill be in the discretion of the District Judge. „
The defendant will have the costs of this appeal.
I agree to the order proposed.
BUULTJENS v. CAROLIS APPU