034-NLR-NLR-V-10-ISLA-MARICAR-v.-ANDRIS-APPU.pdf
( 178 )
1907.
March 25.
Present; Mr. Justice Wood Renton.ISLA MARICAR v. ANDRIS APPU.G. R., Colombo, 2,179.
Use end occupation—Whenactionlies—Expressor implied contract
necessary.
Ad action for use aud occupation will not lie unless there hasbeen a contractual relationship, express or implied, between the
parties.
A
PPEAL from a judgment of the Commissioner of Requests(J. S. Drieberg, Esq.).
The facts are fully set out, in the judgment.
A. L. R. Atsaerappa, for the defendant, appellant. *
Koch, for the plaintiff, respondent.
Cut. adv. vult.
25th March, 1907. Wood Renton J.—
The respondent sues the appellant for two months' ground rentof a portion of land alleged to have been taken t on a parol lease(from month to month) by . the latter from the former for the pur-pose of erecting a shed upon it. The appellant denies the lease,and says that he occupies the land in question as the tenant of one-,Kuppa IJdayar Lebbe Marikar under a lease • by deed, which isput in evidence. The respondent has also a lease by deed fromEuppa Udayar Lebbe Marikar of the same land, and it appears to< me that the real dispute between the appellant and the ^respondentis as to whether a clause in that lease by which the lessor reservesthe right to “ himself ” to put up buildings on the land demisedenables him to let that right to a third party. With that question Ihave not, however, to deal now. The claim before me is a claim forrent. At the trial the following issues were settled (I substitute
( 179 )
for the sake of clearness the terms “ respondent " and “ appellant ”for “ plaintiff ” and “ defendant ”):—
Did the respondent let to the appellant the ‘ premises
referred to in the plaint?
If so, what rent is due?
Is the respondent entitled to anything, and how much, for
the use and occupation of the premises in question?
The learned Commissioner of Bequests answered the first issuein the negative. It follows, therefore, that nothing is due to therespondent by way of rent. But the learned Judge proceeded tohold that he had a good claiin for compensation for use and occu-pation, and he awarded him Bs. 16.66 on that footing. With thegreatest respect, I think that this decision is wrong.
An action for use and occupation will not lie unless there hasbeen a contractual relationship, either express or—as in the caseof a tenancy by sufferance—implied, between the parties (seeWoodfaU, Landlord and Tenant, 15th ed., p. 570, and authorities adloc cit.). In the case of Tew v. Jones (1) the defendant and anotherperson conveyed to the plaintiff an undivided moiety of severalhouses, of which they were seized as devisees in trust. Of•one of the houses the defendant had been in possession fortwenty-five years before—and he continued to occupy it after—theconveyance. There was no evidence of any express contract pftenancy between him and the plaintiff for his occupation • subsequentto the conveyance, or of any holding by him by the plaintiff'spermission. The Court of* Exchequer held that, whatever mightbe the plaintiff’s remedy in trespass, an action for use and occupationwould not lie.
I have come to the same conclusion in the present case. The find-ings of the Commissioner negative express tenancy, and there isnothing to show tenancy by sufferance. On the contrary, it is plainon the face of the record that the appellant claims to be in possessionnot under, but adversely to, the respondent. If the respondentthinks he has a -remedy in trespass or otherwise, it is open to himto try it. The appeal must be allowed with costs here and below.
I desire to add that, in my opinion, neither the English case ofHellier v. Sillox (2) nor the Ceylon case of Perera v. Fernando (3),to which Air. Eoch referred me, is any authority for the proposi-tion that an action for use and occupation will lie in the absenceof express or implied tenancy. In Hellier v. Sillox the ratiodecidendi *was that the defendant had occupied by the plaintiff’qpermission. * In Perera v. Fernando a parol lease was averred andadmitted, and the question was whether the plaintiff could recoverfor use and occupation under it.
Appeal allowed.
(1) (1844) 13 M. 4 W. 12.(2) (1850) 19*h. J. Q. B. 295. ’
Bom. (1863-1868) 83.
1907.
March 25.
WoodBbntok J.