113-NLR-NLR-V-58-D.-B.-S.-PERERA-Appellant-and-D.D-LIYANAGAMA-et-al.-Respondents.pdf
1956Present ; K. D. de Silva, J.
B. S. BERERA, Appellant, and D. D. LIYANAGAMAel al., Rcsjiotidenls
S. C. 121—C. R. Colombo, 59,331
Landlord and tenant—Partnership—Can it be a tenant ?—Trespasser who claims tobe tenant.—Suit against him by landlord—Jurisdiction oj Court oj Jicqueststo hear case.
If n Inntiloril is aware, before )to Jets J>is premises to n tenant, that o partner-ship business is to bo carried on in the premises by tho tenant- and certain otherpersons, no contract of tenancy arises between the landlord and the partnersunless it is agreed between tho landlord and tho partners that t-r.o latter aroto .bo the tenants. Although tlie partners in their individual capacity canenter into a contract of tenancy, a partnership as such cannot do so.
Where an owner of premises sues a trespasser for ejectment and damagesand tho defendant, without disputing tho plaintiff's titlo to tho property,contends that ho is tho lawful tenant of tho plaintiff, tho jurisdiction of thoCourt to try the ease does not depend on the valuo of tho premises.
A.jTAPPEAL from a Judgment of tho Court of Requests, Colombo.
Vernon Wijetunge, with D. R. P. Goonelilleke, for tho plaintiff-appellant.
A. G. de Silva, for tho defendants-respondents.
Cur. adv. vitlt.
December 20, 195G. de Silva, J.—
In this action the plaintiff sought to eject the two defendants frompremises No. 11S4, Cotta Road, Weliknda, and to recover from, themdamages for wrongful occupation of the same on the ground that theywere trespassfers. Admittedly, the premises in question belong to theplaintiff. On February 1, 1949, one Charles Liyanagama a brother ofthe defendants became the monthly tenant of these premises under theplaintiff at a rental of Rs. 23 per month. Charles Liyanagama con-ducted a provision store and a bakery business in these premises and theadjacent premises bearing No. 2 which too he had taken on rent from theplaintiff. He continued to pay rent to the plaintiff until his death whichevent took place in March, 1955. After his death the defendants whoclaimed to be partners of the business carried on by their deceased brotherremained in occupation of the premises. They offered to pay rent tothe plaintiff which he refused to accept. However, he accepted paymentoh the basis of damages from them at the rate of Rs. 23 per month upto the ehd of November, 1955. He instituted this action on October 13,1956/" The defendants in their answer while admitting that their de-ceased brother Charles Liyanagama was the tenant of the plaintiff averred
that lie had taken the premises in question on rent “ for the purpose ofthe business known as ‘Sri Bamya Hotel & Stores’ of which the de-fendants are partners. ” They also stated that the plaintiff was awarethat they were carrying on that business since April, 1953. Their positionwas that the partnership was the tenant of the premises under the plain-tiff. They also contended that the Court had no jurisdiction to entertaintJxis action inasmuch as the subject matter of this action exceeded Rs. 300in value. It was conceded that the receipts for payment of rent werealways issued in the name of Charles Liyanagama. The business carriedon in these jiremises was registered on 6tli April, 1953, under the BusinessXaines Registration Ordinance—vide certificate Dl'. Acccording tothis certificate the business was carried on by Charles Liyanagaina andhis three brothers two of whom arc the defendants. Although thebusiness was registered in the year 1953 the plaintiff admitted that abusiness was carried on in the premises from 1949 and that there was aname-board bearing the words “Sri Ramya Hotel & Stores-”. He,however, stated that it was only after the institution of this case that hodiscovered that the business had been registered in 1953. The learnedCommissioner held that the defendants had established that this businesswas carried on in these premises by the four brothers as partners fromthe year 1949 and that “ in the ordinary course of things during thislong period of time the landlord should have become aware that thebusiness on these premises was carried on by a partnership, though onepartner paid rent as a tenant. ” He proceeded to state further “ in thatevent he has accepted the relationship that the partnership was thetenant though the rent was paid by one partner. ” He also expresseda view that if a partner paid rent in his name as a tenant and even if thepartnership was not disclosed to the landlord the hitter on the death of. the tenant cannot treat the surviving partners as trespassers but hemust accept them as tenants. I am unable to agree with this view. Thetenancy arises from a contractual relationship existing between thelandlord and tenant. Even if the landlord is aware before he let hispremises to the tenant that a partnership business was to be carried onin the premises by the person taking on the premises on rent and othersno contract of tenancy arises between the landlord and the partnersunless it was agreed between the landlord and the partners that thelatter were to be the tenants. The 1st defendant stated that evenduring the lifetime of Charles Liyanagaina he (1st defendant) paid therent to the plaintiff and asked for receipts in the name of the partnershipbut the plaintiff continued to issue receipts in the name of Charles Liyana-garaa. This is clear proof that the plaintiff was unwilling to acceptany* persons other than Charles Liyanagaina as his tenant. The learnedCommissioner was wrong in holding that the partnership was a tenantbecause a partnership is not a “ legal persona ”. Although the partnersin their individual capacity can enter into ca contract yet a partnershipas such cannot do so. Therefore on the death of Charles Liyanagainathe contract of tenancy ceased to exist and the plaintiff is entitled totreat, the other partners who remained in occupation of the premisesas trespassers. The question of jurisdiction raised by the defendantsis not free from some difficulty. The 1st defendant stated that the
premises in question, gito jvorth Rs. 10,000. That evidence stands un-contradicted. It was contended therefore on behalf of the defendantsthat the Court of Requests had no jurisdiction to entertain this action.On the other hand the plaintiff's title to the property was not disputed.What the defendants contended was that they were the lawful tenantsof the plaintiff. The issue that had to be decided therefore was whetheror not a contract of tenancy existed between the plaintiff and the defen-dants. That was a question which a Court of Requests was entitled toadjudicate upon. I would accordingly hold that the Court of Requestshad jurisdiction. I would therefore allow the appeal and enter judg-ment for plaintiff as prayed for with costs provided that the damageswould bo recoverable only from 1st December, 1955 as the plaintiff hasreceived p:iyment up to the end of November, 1955. The plaintiff wouldbe entitled to the costs of this appeal.
Appeal allowed.