TAMB1AH, J.—Kalpage v. Ounawardane
1964Present: Tambiah, J., and Sri Skanda Rajah, J.G. P. KALPAGE et al., Appellants,and L. A. GUNAWARDANE, Respondent
8. G. 41611962—D. G. Colombo, 9352jL
Rent Restriction Act—Premises owned in common—Lease of entire premises by one-co-owner—Right of the other co-owners to eject the tenant.
Where there are a number of co-owners inrespect of rent-controlled premises,,a lease of the entire premises executed by one of them does not bar the other-co-owners, in the absence of an issue on acquiescence, from having the tenant,ejected as a trespasser.
Appeal from a judgment of the District Court, Colombo.
H. W. Jayewardene, Q.G., with Nimal 8enanaydke, for the plaintiffs-appellants.
Annesley Per era, for the defendant-respondent.
July 9, 1964. Tambiah, J.—
The plaintiffs brought this action to eject the defendant from premises'.No. 46, Maligawatta Road, Colombo.
The plaintiffs, along with their sister Rita Kalpage, became entitledto the abovementioned premises in equal shares by deed No. 1889 of'16th July 1952, Rita Kalpage leased the premises to the defendanton Indenture of lease, marked PI, dated 11.6.1959. It is commonground that the Rant Restriction Act applies to these premises. Thequestion for decision is whether the plaintiffs can succeed in ejecting:the defendant from the said premises.
TAMBIAH, J.—Kalpage v. Gunawardane
Rita Kalpage as a co-owner of the said premises had the right to-lease her l/3rd share (vide Vaz. v.Haniffa1). It is also settled principleof law that a co-owner can eject a trespasser from the land, which isheld in common, without joining the other co-owners (vide Ismail mAndries 2 ; Unus Lebbe v. Zayee 3).
In Mendis v. Simion4 the view was taken that a co-owner of anundivided land is entitled to have a trespasser ejected from the wholeland. In common law, therefore, the plaintiffs can succeed in thisaction, since the defendant, insofar as the plaintiffs are concerned,,is a trespasser.
Issue No. 1 in the instant case is : “Is the defendant in wrongfuland unlawful occupation of the land and premises ? ”. Although noissue on acquiescence was framed in this case, the learned District Judgehas held that there was acquiescence on the part of the plaintiffs inallowing Rita Kalpage to lease the whole of the premises and to receivethe whole of the rent. In the absence of pleadings on the question ofacquiescence, the learned District Judge has misdirected himself inholding that the plaintiffs had acquiesced in allowing Rita Kalpageto lease the whole of the premises. By this error, the learned DistrictJudge had answered issue No. I in the negative.
Are there any statutory fetters placed on the plaintiffs to bring thisaction in the instant case ? The Rent Restriction Act only places afetter on the landlord to bring an action against his tenant. A perusalof section 13 and other relevant sections of the Act clearly shows thatthe Legislature placed restrictions on the landlord to bring an actionagainst his tenant. The Act, however, does not place an absolute baron the landlord’s rights to bring an action for ejectment. He could,for example, bring an action for ejectment with the permission of theRent Control Board. He could also bring an action on one of thegrounds set out in section 13 of the Act. As Megarry, referring to therEnglish actions dealing with Rent Restriction Acts, points out: “ TheActs do not interfere with leases and tenancy agreements more than isnecessary to carry out their purposes ; they are ‘ Acts for the protectionof tenants, and not Acts for the penalising of landlords ’ ” (Rent Actaby R. E. Megarry (8th Edition) p. 171).
Counsel for the respondent contended that the defendant, being astatutory tenant, had the right to remain in possession. The term“statutory tenant” is a convenient phrase used by judges to expressthe protection a tenant enjoys against his landlord. The RentRestriction Act does not give any protection to any statutory tenantagainst a person who is not his landlord. The Act only applies if alandlord, or a person in the position of a landlord, brings an action againsta tenant. The case of Aron Singho v. Samuel Peter 5, which was citedbefore us, can clearly be distinguished. In that case, the co-owners
(1948) 49 N. L. R. 286.3 (1893) 3 S. C. R. 56.
(1885) 7 S. C. G. p. 48.4 (1915) Balasingham's Notes of Cases 36.
s (1962) 63 N. L. R. 137.
Appiah v. Sellathurai
had leased the land to the defendant. Thereafter, the co-owners soldthe property to the plaintiff who elected to accept the defendant ashis tenant. In such circumstances, the purchaser-plaintiff would havestepped into the shoes of the landlords.
In Britto v. Heenatigala1 Gratiaen J. agreed with the contentionthat it would be quite wrong to include within the definition of a“ landlord ” any person other than the original lessor or someone whoderives his title from the original lessor. “If, therefore,” saidGratiaen J., (vide 57 N.L.R. at page 330)cc the true owner of the leasedpremises vindicates his title against the tenant’s contractual lessor, thestatutory protection which the tenant enjoyed against the lessor wouldnot be available against the true owner.”
I agree with the views expressed by Gratiaen J. in the abovementionedcase. If the law was otherwise, a co-owner who had leased the entireproperty can, acting with the collusion of the lessee, keep out the otherco-owners, and then claim title by prescription.
For these reasons, I set aside the order of the learned District Judge.Enter judgment as prayed for, with damages at Rs. 18 from 1.8.1960and with costs in the lower court. The appellant is entitled to thecosts of this appeal.
Sbi Skanda Rajah, J.—I agree.
E. G. P. KALPAGE et al., Appellants, and L. A. GUNAWARDANE, Respondent