016-SLLR-SLLR-1994-V2-HETTIARACHCHI-V.-HETTIARACHCHI.pdf
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Sri Lanka Law Reports
[1994] 2 Sri L.R.
HETTIARACHCHI
v.
HETTIARACHCHI
SUPREME COURT.
G. P. S. DE SILVA, C.J.
KULATUNGA, J. ANDWADUGODAPITIYA, J.
S.C. APPEAL 58/94.
C.A. NO. 446/92 (F).
D C. MT. LAVINIA NO. 2618/RE.
SEPTEMBER 21, OCTOBER 21 AND NOVEMBER 25, 1994.
Landlord and tenant – Residential premises occupied by owner and let out after01 January 1980 – Proof of ownership – Rent Act. section 2(4)(c).
Where exemption from the Rent Act is claimed on the basis of section 2(4)(c) ofthe Rent Act the onus is on the plaintiff to prove,
that the premises were residential premises,
that the plaintiff was in occupation of the premises on 1st January, 1980,
that the plaintiff was in occupation of the premises on 01 January 1980 inthe capacity of owner.
Proof of ownership need not necessarily be only by due proof of title deed. Oraltestimony which is not challenged and extracts from Assessment Registers aresufficient. The section is concerned with the nature of the occupation and thequestion of title is irrelevant.
APPEAL from judgment of Court of Appeal.
P. A. D. Samarasekera P.C. with Jayantha de Almeida Gunaratne for the plaintiff-appellant.
Faiz Musthapha P.C. with Sanjeewa Jayawardene for defendant-respondent.
Cur. adv. vult.
December 15, 1994.
P. S. DE SILVA, C J.
The plaintiff instituted these proceedings inter alia for theejectment of this tenant, the defendant, from premises No. 78, DevalaRoad, Nugegoda. TTie case for the plaintiff was that the Rent Act (as
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amended) did not apply to the premises by reason of the provisionsof section 2(4)(c). Section 2{4)(c) reads thus:
“So long as this Act is in operation in any area, the provisions of
this Act shall apply to all premises in that area, other than –
residential premises occupied by the owner on January 1,1980, and let on or after that date.”
It is thus seen that the onus was on the plaintiff to establish (i) thatthe premises were residential premises; (ii) that he (the plaintiff) wasin occupation of the premises on 1st January 1980 and that thepremises were let on or after 1st January 1980; (iii) that the plaintiffwas in occupation of the premises on 1st January 1980 in thecapacity of owner. At the trial (i) above was recorded as anadmission. It was also not disputed that the premises were let to thedefendant after 1st January 1980. The clear finding of the DistrictJudge was that the plaintiff was in occupation of the premises on 1stJanuary 1980; this finding was amply supported by the oral anddocumentary evidence and was not seriously contested in appeal.The District Judge, however, dismissed the plaintiff’s action on theground that he had failed to prove that his occupation of thepremises as on 1st January 1980 was in his capacity as owner. Theplaintiff's appeal to the Court of Appeal was unsuccessful; the Courtof Appeal affirmed the finding of the District Judge that there was noproof that the plaintiff was the owner of the premises as on 1stJanuary 1980. Hence the plaintiff’s appeal to this Court.
At the trial, the plaintiff sought to prove ownership of the premisesby producing the deed of transfer No. 1568 dated 20.6.64 andattested by W. Rajasingham, Notary Public (PB). The deed P8 wasadmitted subject to proof. It is common ground that the plaintiff failedto prove the due execution of the deed as required by the provisionsof the Evidence Ordinance (Sections 68 and 69).
Mr. Musthapha for the defendant-respondent strenuouslycontended (1) that an essential basis of the plaintiff's claim that theRent Act did not apply to the premises in suit was that the plaintiff
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was the owner of the premises; (2) that the deed P8 upon which hepurported to base his claim of ownership remained unproved.
In considering the submissions of Mr. Musthapha it seems to methat it is intensely relevant to note that this is a tenancy action. It is nota rei vindicatio action which is an action founded on ownership.There was the unchallenged qral evidence of the plaintiff that he wasthe owner of the premises as on 1st January 1980. It was not evensuggested that the plaintiff was not the owner of the premises or thatsomeone else was the owner. In short, there was no suggestion thatthe plaintiff was making a false claim as owner. There was nothing tocontradict the plaintiff’s assertion in his evidence that he was theowner of the premises on the relevant date. Besides, the plaintiffmarked in evidence entries in the Assessment Registers (Pi 9 andP20) where his name appears as the owner. This is an item ofevidence which tends to support the plaintiff’s unchallenged anduncontradicted oral evidence that he was the owner of the premiseson the relevant date.
Turning now to the wording in section 2(4)(c) of the Rent Act, itseems to me that the distinction drawn is between premisesoccupied by the owner as on 1st January iyau,“and'premises whichhad been let to a tenant on the said gate, as submitted byMr. Samarasekera for the plaintiff-appellant. Mr. Samarasekera rightlystressed that the section is concerned with the nature of theoccupation and the question of title is irrelevant. The present action isbased on a contract of tenancy and the plainitff is seeking to ejectthe defendant whose occupation of the premises is admittedly as atenant.
On a consideration of the matters set out above, I hold that theevidence on record is sufficient to establish the fact that the plaintiffwas the owner of the premises for the purpose of section 2(4)(c) ofthe Rent Act, notwithstanding the failure to prove the deed or transferP8. I accordingly allow the appeal, set aside the judgment of theDistrict Court and of the Court of Appeal and direct that decree beentered for the ejectment of the defendant as prayed for in the plaint.I further direct writ of ejectment not to issue till 31st December 1995.The plaintiff will be entitled to take out writ of ejectment and to be
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placed in possession of the premises in suit after 31st December1995. The defendant must pay the plaintiff a sum of Rs. 750/- ascosts of appeal.
KULATUNGA, J. -1 agreeWADUGODAPITIYA, J. -1 agree.
Appeal allowed.