v.WANiGASEKERA ANO OTHERS
COURT OF APPEAL,
SENEVIRATNE, J. (PRESIDENT) AND MOONEMALLE. J.
DC. KANDY 878/REJANUARY 16 AND 18,1988.
Landlord ana tanant – Rant and ejectment – Teal of monthly tenancy – Licensee
The original plaintiff was the trustee of the Sadhechara Bauddhe Kuiangana Samithiyawhich owned premises No. 07, Peradentya Road, Kandy, whore Dhemma classes wereconducted on Saturdays and Sundays end community religious observances on Pgyedays- The plaintiff permitted one Nihai Jayawardane the son of the defendant toconduct tuition classes on the days of the week excepl Saturdays. Sundays and PoyaDays. Nihal Jayawardena had paid Rs. 900 through the defendant which plaintiffclaimed was for effecting certain repairs to the building. Nihal Jayawardena died andthereafter the defendant entered into occupation of the premises and refused to vacatethem. The plaintiff sued the defendant for ejectment. The defendant claimed he was thetenant of the premises relying on the payment of Rs. 900 and certain monthly paymentsSf R$. 150 and the electricity and water bills.
The best test for establishing a tenancy is proof of the payment of rent. The bestevidence of the payment of rent is the rent receipts. The absence of rent receipts,however could be explained where the landlord refuses to issue receipts. Complete andeffectual control over the premises is also relevant.
In the absence of rent receipts the payment of the Rs. 900 is referable to the settlementof expenses on account of repairs and the payment of Rs. 150 monthly is explainableas being for the use of the furniture and the payment of electricity and water dues as apayment for electricity and water facilities being made available to the students, did notmake the transaction a tenancy. The defendant was only a licensee and was liable to beejected.
APPEAL from judgment of the District Court of Kandy.
E. R. S. R. Coomaraswamy, P. C.. with S. C. B. Watgamparya, Rohan da Aiwis andGamini Jayasinghe for defendant-appellant.
A. C. Gooneratne, Q.C., with M. Salwature for substituted plaintiff-respondents.
Cur. adv vu/t.
February 22, 1985.
The plaintiff sought the ejectment of the defendant from premisesNo. 97, Peradeniya Road, Kandy, and for damages. The plaintiff’scase was that he was the.trustee of the Sadhachara BauddhaKulangana Samithiya which owned the said premises. Dhammaclasses are conducted in these premises on Saturdays and Sundays,.and community religious observances are carried out on Poya days,and meetings of the Samithiya are also held there. The plaintiff statedthat he had permitted one Nihal Jayawardena. the son of thedefendant to conduct tuition classes in these premises during theweek except on Saturdays. Sundays and Poya days. For certainrepairs to be done in the premises for the purpose of conducting theclasses. Nihal Jayawardena had sent him Rs. 900 through thedefendant. Sometime before the institution of this action. Nihal
Jayawardena died. The plaintiff alleges that thereafter the defendantentered into unlawful occupation of the premises and refused tovacate the same. The plaintiff then instituted this action.
The defendant, on the other hand, denied that there was anyarrangement between the plaintiff and Nihal Jayawardena in respect ofthese premises. His position was that the plaintiff gave the premiseson rent to him on a monthly rental of Rs. 150. He also stated that hehad deposited with the plaintiff a sum of Rs. 900 being six monthsrent. He claimed that he was the tenant of the premises and wasentitled to the protection of the Rent Act.
The only issue raised in this action was whether the defendant wasthe monthly tenant of the plaintiff in respect of the premises in suit. Inthe course of the judgment, the learned District Judge dismantled theissue into two component issues which are as follows :
Was it the defendant who was the other party to whateverarrangement there was with the plaintiff in respect of thedisputed premises ?
If so, was that arrangement a contract of tenancy eligible for theprotection under the Rent Restriction laws of the country.
The learned District Judge answered issue (a) in favour of thedefendant and issue (b) in favour of the plaintiff, and entered judgmentfor the ejectment of the defendant from the said premises. This appealis from that judgment./
Learned President's Counsel on behalf of the defendant submittedthat the defendant had discharged the burden of proving that he was atenant of these premises, and that the learned District Judge by faultyreasoning held otherwise. He submitted that the reasons given by thelearned District Judge for his findings could not be sustained as theywere based on speculation. He further submitted that no documentwere produced by the plaintiff which contradicted the defendant'scase.
Learned Queen's Counsel on behalf of the plaintiff submitted thatthe. learned District Judge delivered a well considered and reasonedout judgment, and that the inferences drawn by him were from thedocuments produced at the trial.
There is no dispute that the burden rested on the defendant toestablish that he was the tenant of the premises in suit. It has beenaccepted by the learned District Judge that the defendant hadtendered to the plaintiff a cheque for Rs. 900 dated 24.12.70 (D 2)and a cheque (D 3) for Rs. 150 in his favour. Both these sums hadbeaen credited to the plaintiff's bank account. D 1 is theacknowledgment by the plaintiff of the recepit of Rs. 900. The learnedDistrict Judge has also accepted the position that a monthly sum ofRs. 150 was paid by the defendant to the plaintiff. The mere fact thatthe defendant had deposited a sum of Rs. 900 with the plaintiff andalso paid him Rs. 150 monthly does not lead to the necessaryinference that the Rs. 900 was a deposit of six months' rent and thepayment of Rs. 150 a month was payment of monthly rent in respectof the premises in suit.
The-best test for establishing a tenancy is proof of the payment ofrent. The best evidence of the payment of rent is the rent receipts. Inthe present action no receipts were produced where there is areference to payment of rent. The absence of rent receipts howevercould be explained where the landlord refuses to issue receipts to thetenant. In the present case there is no evidence that the defendanthad asked the plaintiff for rent receipts and that the plaintiff refused toissue them. Had this payment of Rs. 900 been a deposit of sixmonths' rent, the defendant could have obtained a receipt to thateffect. The acknowledgment D 1 was written in the presence of thedefendant. Even with regard to the issue of the cheque P 3 there isnothing to show that it was for payment of rent. According to thedefendant the plaintiff had wanted him to make the monthly paymentsis cash. Such payments are not supported by any rent receipts. Then,the defendant stated that the plaintiff wanted him to pay Rs. 1,000 tothe watcher who was leaving, and to set off that amount against rent.Even in this instance there are no rent receipts. There was nothing toprevent the defendant from , obtaining from the plaintiff rent receiptsfor these payments. The only evidence the defendant relied on toprove that payments made by him to the plaintiff were for rent inrespect of the premises in suit are D 1, D 2, D 3, D 4 a a cheque forRs. 50, D4 b a cheque for Rs. 150 which was returned to thedefendant, and the ipse dixit of the defendant. In my view,- thisevidence i? not sufficient to establish that the payment of Rs. 900 wasa deposit for six months' rent, and that the other payments made bythe defendant to the plaintiff were for rent in respect of these
premises. The learned District Judge in considering the evidence ofthe plaintiff addressed his mind to the fact that the plaintiff was ninetyyears old when he gave evidence. He at no stage rejected theplaintiff's evidence as false. The plaintiff's position was that thedeposit made by Nihal Jayawardena was for certain alterations to thepremises for the purpose of holding the tuition classes but the learnedDistrict Judge thought that the deposit was taken as a precaution forpossible damage to the premises, furniture and other equipment. Thenhe was of the view that the Rs. 150 monthly payment was for the useof the furniture in the premises, and that this monthly levy of Rs. 150did not convert mere occupancy to one of tenancy. I see no reason todisagree with these findings.
Regarding the question as to who had complete and effectualcontrol over the premises, it is of note that neither the defendant noranyone on his behalf resided in the premises. But the Society had itswatcher residing in the premises who was obviously there to look afterthe entire premises. The Society had its office in the premises whereits registers and other office requirements were stored. It is anadmitted fact that the defendant was given the use of the Society'sfurniture which were used on Saturdays and Sundays for DhammaClasses.
The Society conducted Dhamma Classes on Saturdays andSundays. Sermons were preached on Poya days, and religiousmeetings were held on special occasions. The tuition classes of thedefendant were held only during week days. According to thedefendant, after he began the tutory, his son joined him. Thereafter hehanded over the running of the tutory to his son. The tuition classeswere evidently conducted in the evenings after 4 p.m. particularlybecause Nihal Jayawardena was a Government teacher attached tothe Kandy Convent and had his free time only in the evenings afterschool hours. Even pupils attending .school were free to attend thetuition classes only after school hours. Thus, the use of the premisesfor holding tuition classes would only be for a few hours on each of the*five days of the week. The electricity and water bills were naturally paidby the defendant as these facilities were available to the studentsattending the tuition classes.
According to the defendant, when he took these premises on rent,he permitted the Society the- use of these premises for its religiousactivities. Now,, the primary object of the Society purchasing these
premises was evidently to have its headquarters there, and also tohold Dhamma Classes and conduct other religious activities there.Thus, it is highly improbable that this Society would surrender its rightsof occupation of the only building it owned to a tenant whosepermission had to be obtained to conduct its own religious affairs. On£ consideration of the totality of the evidence, it appears to me that itwas the plaintiff and not the defendant who had exclusive andeffective control of these premises. In my view, the plaintiff hasallowed the defendant the mere use of the premises during the weekdays when it is not used by the Society. The evidence led in this caseproved that the defendant is nothing more than a mere licensee of theplaintiff. The mere payment of Rs. 150 monthly by a licensee to thelicenser does not convert the status of a licensee to that of a tenant.
On a consideration of the totality of the evidence both oral anddocumentary, I hold that the learned District Judge's finding that thedefendant is a licensee of the plantiff who is not entitled to theprotection of the Rent Act is correct. I see no reason to disturb thatfinding. The judgment and decree entered in this case are affirmed. Idismiss the appeal with costs.
SENEVIRATNE, J.-l agree.
-JAYAWARDENA v. WANIGASEKERA AND OTHERS