006-SLLR-SLLR-2004-V-3-GUNASINGHE-v.-SAMARASUNDARA.pdf
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GUNASINGHEv
SAMARASUNDARACOURT OF APPEAL.
DISSANAYAKE, J.
SOMAWANSA, J.
CA 246/95 (F).
DC KEGALLE 4059/L. '
SEPTEMBER 11,2002.
OCTOBER 17, 2002.
DECEMBER 10, 2002.
JULY 24, 2003
Leave and license – Is notice of termination necessary? – Evidence based onprescription – Permissibility? – validity – Landlord – tenarit relationship sought
Change of scope of defence – Importance of issues – Civil Procedure Code
sections 41 and 545 – Applicability – Plea of estoppel – Evidence Ordinancesection 116 – Scope of an action by a lessor against an overholding tenantIngredients?
The petitioner-respondent instituted action seeking to evict the defendant-appellant, on the basis that the defendant-petitioner is an overholding tenant.The defendant-appellant in his answer took up the position, that he hasprescribed to the land, but in evidence he testified to the fact that, there islandlord – tenant relationship between the parties. The defendant-petitioneralso contended that section 41 and section 545 have not been complied with.
The trial Court held with the plaintiff.
Held:
The defendant-appellant despite testifying in Court with regard to the. existence of a landlord and tenant relationship, the answer and the
issues are based on the legality of the plaintiff-respondent’s action andthe acquisition of prescriptive rights of ownership.
The case enunciated by a party must reasonably accord with itspleadings. No. party can be allowed to make at the trial a casematerially different from that which he has placed on record and whichhis opponent is prepared to meet.
Once issues are framed the case which the court has to hear and' determine becomes crystallized in the issues and pleadings recede to
the background.
CA
Gunasinghe v Samarasundara
(Dissanavake. J)
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Held further,The land that is featured in the schedule has been described by metesand bounds – there is sufficient compliance with section 41.
The defendant-appellant has not elicited by cross examination of theplainfiff-respondent or by other means the value of the premises in suit,his failure to examine the plaintiff-respondent in detail on this matterhas left it to be determined only by mere surmise and conjecture – theposition that the plaintiff-respondent cannot maintain the action in viewof section 545 is untenable.
A licensee or a lessee is estopped from-denying the title of the licensoror lessor. His duty in such a case is first to restore the property to thelicensor or the lessor and then to litigate with him as to the ownership.
While the licensee persists in conduct which is fundamentallyinconsistent with a contract of tenancy or as in this case the contract ofleave and license, it amounts to repudiation of tenancy and theoccupier can be sued as a trespasser.
The plaintiff-respondent in such instances, was entitled to instituteaction against the defendant-appellant without first giving notice oftermination of the leave and license.
APPEAL from the District Court of Kegalle.
Cases referred to:Candappa v Ponnambalampillai – Bar Journal Vol 5 – Part 2 – page 3.
Hanaffi v Nallammah -1998 1 SriLR73.
Pathirana v Jayasundera- 58 NLR 169
Alvar Pillai v Karuppan – 4 NLR 321
Mary Beatrice and others v Seneviratne -1991 1 Sri LR 97 at 202.
Ruberu and Another v Wijesuriya – 1998 1 Sri LR 58
Gunasekera v Jinadasa – 1996 2 Sri LR 115 (DB) SC
Mansoor v Umma – 1984 1 Sri LR 151.
Rohan Sahabandu for 1st defendant-appellant.
Nalinda Indatissa tor plaintiff-respondent.
Cur. adv. vult.
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October 10th, 2003.
DISSANAYAKE, J.The plaintiff-respondent instituted this action seeking adeclaration of title to the land morefully described in the scheduleto the plaint, ejectment of the 1st defendant-appellant from thehouse thereon and damages.
The 1 st defendant-appellant by his answer whilst denying theaverments of the plaint, prayed for dismissal of the action.
The case proceeded to trial on 16 issues and at the conclusionof the trial, the learned District Judge by his Judgment dated 2nd ofJune 1995 granted the reliefs prayed for by the plaintiff-respondent.
It is from the aforesaid judgment that this appeal is preferred.
At the arguments of the appeal before this court, learnedcounsel appearing for the 1st defendant-appellant contended thatthe learned District Judge was in error when he entered judgmentin favour of the plaintiff-respondent. The above contention oflearned counsel for the 1st defendant-appellant was based on thegrounds that the learned District Judge has misdirected himselfwhen he failed to consider the following matters:-
the fact that no notice of termination of the leave and licensegranted by the 1st defendant-appellant by S.A. Charles Perera, theOwner.of the premises in suit, has been given.
failure on the part of plaintiff-respondent to identity the corpuswith certainty;
to evaluate the evidence in the correct perspective;
The plaintiff-respondent presented his case at the District Courton the basis that M.M.R. Fernando who was the owner of thepremises in suit, transferred the same to his father, S.A. CharlesPerera by deed of sale bearing no. 4938 of 30.11.1946 (P1). On thedeath of his father S.A. Charles Perera on 10.02.1985 leavingproperty below administrable value the said premises devoived onhis. children, the plaintiff-respondent and the 2nd to 5th defendants-respondents.
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Gunasinghe v Samarasundara
(Dissanavake, J.)
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The 1st defendant-appellant was in possession of the land as alicensee of the late S.A. Charles Perera, and was in possession ofthe old rubber plantation. Before the death of S.A. Charles Pererathe father of the plaintiff-respondent was in possession of the landand was engaged in uprooting the old rubber trees.
Since the old plantation was in the process of being uprootedfor the purpose of replanting, the hut that was used to manufacturesheet rubber, was temporally not being used by him.
On the 1 st defendant-appellant making a request to allow him to 40occupy the said hut, free of rent for the purpose of making use of itas a tailor shop by him, until the next season when rubber wastapped to' manufacture sheets, the 1st defendant-appellantundertook to restore possession to S.A. Charles Perera when itwas required for processing of rubber.
S.A. Charles Perera had renovated the hut by thatching the roofwith new cadjans and by cementing the floor. Letter P2 had beenproduced as proof of purchasing two cement bags for this purpose.
At the request of the 1st defendant-appellant, S.A. CharlesPerera had handed over the said hut to the 1 st defendant-appellant 50to occupy the said premises as a licencee free of rent.
After the death of S.A. Charles Perera the plaintiff-respondententered into possession of the land and was engaged in replantingof the land with rubber.
The plaintiff-respondent, had requested the 1st defendant-appellant to hand over the hut that had been converted into aresidence and tailoring shop of the defendant-appellant. This wasrefused by the 1st defendant-appellant. The 1st defendant-appellant had further made an application to the Kegalle RentBoard (P4) for the purpose of determination of the rent, to effect 60repairs and to deposit the rent at Galigamuwa Rent Board, withoutsuccess.
Since then, the 1st defendant-appellant had been disputing thetitle of the plaintiff-respondent and the 2nd to 5th defendant-respondents.
The 1st defendant-appellant’s position was that he hadconstructed a house, after spending about Rs. 29000/=. He had
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rented out the said premises from S.A. Charles Perera ondocument VI at a monthly rental of Rs. 5/- This rent had been paidregularly to S.A. Charles Perera. However after his demise, theplaintiff-respondent had refused to accept the rent and had soughthis eviction. His statement made to the Kegalle Police Station wasmarked V3.
It is interesting to note that the defendant-appellant despitetestifying in Court with regard to an existence of a landlord andtenant relationship, the answer filed by the defendant-appellant andissues framed by him are based on the legality of the plaintiff-respondent’s action and the acquisition of prescriptive rights ofownership in respect of the premises in suit.
It is pertinent to observe that a case enunciated by a party'mustreasonably accord with its pleadings. No party can be allowed tomake at the trial a case materially different from that which he hasplaced on record and which his opponent is prepared to meet.Candappa v PonnambalampillaiS^
Further it is settled law that once issues are frarped the casewhich the Court has to hear and determine becomes crystallized inthe issues and the pleadings recede to the background. Hanaffi vNallammai2) *
Therefore the District Court was obliged to decide on thematters that were put in issue by the parties.
The 1st defendant-appellant’s issues have been based on thequestion of maintainability of the plaintiff-respondent’s action, inview of the provisions of section 41 and 545 of the Civil ProcedureCode. Therefore it has become necessary to examine theprovisions of . section 41 and section 545 of the Civil ProcedureCode.
I set down below section 41 of the Civil Procedure Code.Section 41
When the claim made in the action is for some specific portionof land, or for some share or interest in a specific portion of land,then the portion of land must be described in the plaint so far aspossible by reference to physical metes and bounds or by
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Gunasinghe v Samarasundara
(Dissanavake. J.)
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reference to a sufficient sketch, map or plan to be appended to theplaint, and not by name only.
It is to be observed that the plaintiff-respondent had averred inparagraph 4 of the plaint, that the 1st defendant-appellant had withthe leave and license of the father of the plaintiff-respondent beenliving in the house that is situated in the land described in theschedule to the plaint. The land that is featured in the schedule hasbeen described by metes and bounds. Therefore it is manifest that 110there is sufficient compliance of section 41 of .the Civil ProcedureCode.
Let me now examine the question whether there is a breach ofsection 545 of the Civil Procedure Code. I set down section 545 ofthe Civil Procedure Code.
Section 545No person shall –
maintain any action for the recovery of any property, or°
effect transfer of any property,
movable or immovable, in Sri Lanka belonging to, or included in, 120the estate or effects of any person dying testate or intestate in orout of Sri Lanka within twenty years prior to the institution of .actionor the effecting of the transfer, unless grant of probate has beenissued in the case of a person dying testate or letters ofadministration or certificates of heirship have been issued, in thecase of a person dying intestate and leaving an estate amountingto, or exceeding, five hundred thousand rupees in value.
S. A. Charles Perera died on 10.02.1985 according to his deathcertificate produced marked P2. Therefore under section 545 of theCivil Procedure Code before the present amendment, estate of a 130deceased person which was valued more than Rs. 20000/- wasrequired to be administered.
It is to be observed that according to the testimony of theplaintiff-respondent the premises in suit which is 3 acres and 2roods in extent was purchased by his father on deed P1 for aconsideration of Rs. 6000/- in 1946. Apart from this property he hadowned a house in Kegalle.
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The plaintiff-respondent had asserted that his father diedleaving property below administrable value.
The 1st defendant-appellant who raised issue No. 12 on section 140545 of the Civil Procedure Code has not elicited by crossexamination of the plaintiff-respondent or by other means, the valueof the premises in suit in 1985. He has also failed to cross-examinethe plaintiff-respondent, in order to ascertain the nature of thehouse whether it is a small house or a palatial house that S. A.Perera allegedly owned in Kegalle, with a view to arriving at it’svalue in 1985. The 1 st defendant-appellant’s failure to examine theplaintiff-respondent in detail on this matter has left it to- bedetermined only by mere surmise and conjecture; Since it was the1st defendant-appellant who had raised issue No. 12 based on 150section 545, the burden was fairly and squarely on him to haveestablished that S. A. Charles Perera when he died was inpossession of property worth more than Rs. 20000/-.
Therefore, the contention that the plaintiff-respondent cannothave and maintain the action in view of the provisions of section 41and 545 of the Civil Procedure.Code, is untenable.
Be that, as it may, there is another important rule of law basedon estoppel applicable to cases of this nature, in which licensor andlicensee relationship occur.
This principle of estoppel is recognized by our law in section 116 160of the Evidence Ordinance, which has provided that a licensee or alessee is estopped from denying the title of the licensor or thelessor.
In Pathirana .v JayasundaraW Graetien, J. explained thisprinciple at 173 as follows:-
“The scope of an action by a lessor against an overholdinglessee for restoration and ejectment, however is different. Privity ofcontract (whether it be by original agreement or by attornment) isthe foundation of the right to relief and issues as to title areirrelevant to the proceedings. Indeed, a lessee who has entered 170into occupation is precluded from disputing his lessor’s title, until hehas first restored the property in fulfillment of his contractualobligation. The. lessee (conductor) cannot plead the exceptio
Gunasinghe v Samarasundara
(Dissanavake, J.)
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CA
dominie; although he may be able to prove easily his ownership,but he must by all means first surrender his possession and thenlitigate as to proprietorship" Voet 19.2.32.
The legal position as stated vide Voet's Commentary on thePandects translated by Percival Gane, Volume 3 Book 19.2.32,“Lessee cannot dispute lessors title though a third party can – Norcan the setting up of an exception of ownership by the lessee stay 180the restoration of the property leased even though perhaps theproof of ownership would be case for the lessee. He ought in everyevent give back the possession first and then litigate about theproprietorship.”.
In the case of Alvar Piiiaiv Karuppan <4) where, the defendant wasgiven a land on a non-notarially attested document Bonser, C. J.,observed at 322, “It is not necessary for the purpose of this case, tostate the devolution of the title, for even though the ownership of onehalf of this land was in the defendant, himself, it would seem that byour law, having.been let into possession of the whole by the plaintiff, 190it is not open to him to refuse to give up possession to his lessor atthe expiration of the lease. He must first give up possession andthen it will be open to him to litigate about the ownership."
In the case of Mary Beatrice and others v Seneviratnei5) at 202,Senanayake, J. has observed “It is opportune at this moment toquote Maasdorp, Institutes of Cape Law 4 Edition Volume 3, page248, “A lessee as already stated is not entitled to dispute hislandlord’s title and consequently he cannot refuse to give uppossession of the property at the termination of his lease on theground that he is himself the rightful owner of the same. His duty in 200such a case is first to restore the property to the lessor and then tolitigate with him as to the ownership." Also Vide Ruberu and anotherv Wijesuriya.W
Applying the above principles I am of the view that in any eventthe 1st defendant-appellant cannot dispute the title of the plaintiff-respondent and if he so desires to dispute the title of the plaintiff-respondent he must first quit the land and then dispute theproprietorship of the land.
Therefore the 1st defendant-appellant cannot take the legal
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issues provided for in section 41 and 545 of the Civil Procedure 210Code, against the plaintiff-respondent who is the heir of hislicensor.
It is significant to observe that issues No. 15 and 16 have beenraised by the 1st defendant-appellant on the question whether the■ plaintiff-respondent had established due cancellation of the leaveand license given to the 1st defendant-appellant.
It was revealed in the testimony of the plaintiff-respondent thatthe 1st defendant-appellant was requested by the plaintiff-respondent to hand over the premises in suit, which had beenrefused by him.220
.SN
The 1st defendant-appellant has denied the license of theplaintiff-respondent by claiming prescriptive title to the land in suit.
In such a situation where the licensee persists in conduct which isfundamentally inconsistent with a contract of tenancy or as in thiscase the contract of leave and license, it amounts to a repudiationof tenancy and the occupier can be sued as a trespasserGunasekera v JinadasaF) (5 Judge Bench) Vide also Mansoor vUmmaS8)
Thus it is pertinent to observe that the plaintiff-respondent wasentitled to institute this action against the 1st defendant-appellant 230without first giving notice of termination of the leave and license.
The 1st defendant-appellant in his answer had not disputed theidentity of the corpus. In paragraph 6 of the answer he hadconceded the identity of the corpus and had averred that he hadbeen in possession of the corpus for the last 26 years.
The 1 st defendant-appellant had not framed any issue disputingthe identity of the corpus. As. a matter of fact by issue No. 9 the 1stdefendant-appellant had conceded the identity of the land as“Monpolapiliya Watta” and had stated that at one stage 6.A.Charles Perera, who is the father of the plaintiff-respondent and the 2402nd to 5th defendant-respondents was it’s owner. '
Therefore I am of the view that the arguments of learnedcounsel appearing for the 1st defendant-appellant to the effect thatthe identity of the corpus had not been established cannot holdwater.
Jayawardena v Hanaweera
OA^(Amaratunaa. J.)
The learned District Judge had after evaluation and analysis ofthe evidence and considering’ the legal principles involved hadrightly entered judgment in favour of the plaintiff-respondent.
I am of the view that there is no ground for this Court tointerfere with the Judgment of the learned District Judge. The 250appeal of the 1st defendant-appellant is dismissed with costsfixed at Rs. 5000/-.
SOMAWANSA, J. — I agree.
Appeal dismissed.