074-NLR-NLR-V-55-JUSTIN-FERNANDO-et-al.-Appellant-and-ABDUL-RAHUMAN-Respondent.pdf
GRATIAEN J.—Justin Fernando v. Abdul Rahuman
276
1953Present: Gratiaen J. and K. D. de Silva J.
JUSTIN FERNANDO et al., Appellants, and ABDULRAHUMAN, Respondent
S. C. 95—D. C. Colombo, 6,375l
Landlord and tenant—Sub-letting—Sub-tenant's possession is not that of a trespasser.
A sub-tenant cannot be said, to be in wrongful occupation of tbe leased pre-mises if the landlord, after obtaining a decree of ejectment against the tenant,,has since revived the contract of tenancy by continuing regularly to receiverent from the tenant. In such a case, a rei vindicatio action cannot beinstituted by the landlord against the sub-tenant.
PPEAE from a judgment of the District Court, Colombo.
H. W. Jayewardene, with D. R. P. Goonetilleke, for the defendantsappellants.
H. V. Perera, Q.C., with C. Renganathan, for the plaintiff respondent.
Cur. adv. vult.
October 12, 1953. Gratiaen J.—
This is a rei vindicatio action instituted by the plaintiff, who is theadmitted owner of- premises No. 97, Chatham Street, Colomb.o, againstthe defendants whom he alleges to have been in wrongful occupationsince 31st July, 1945.
276
GR ATIAE N J.—Juslin Fernando v. Abdul Rahuman
It is common ground that the plaintiff had originally let these premises,together 'with the adjoining premises Nos. 93 and 95, Chatham Street,to a man named Robert Silva ■who, 'while personally occupying Nos. 93and 95, had lawfully sub-let premises No. 97 to the 1st defendant.
The plaintiff terminated the original contract of tenancy betweenhimself and Robert Silva in respect of all these premises with effectfrom 31st July, 1945, and in due course sued him for ejectment in anaction to which the 1st defendant was not a party. On 13th May, 1946,a consent decree was entered of record whereby Robert Silva (a) waspermitted to continue in occupation of premises Nos. 93 and 95 uponcertain conditions with which we are not concerned in these proceedings,and (6) was to be ejected from premises No. 97. It follows that on 13thMay, 1946, the 1st defendant’s right to continue in occupation as a sub-tenant ceased, and that he therefore became liable to eviction by theplaintiff in properly constituted proceedings—Ibrahim Saibo v. Mansoor l.
The present action was thereafter instituted by the plaintiff on 27thSeptember, 1951, and it is manifest that the 1st defendant and hisservant the 2nd defendant would have had no defence to the plaintiff’sclaim unless they could establish that, by reason of events occurring since13th May, 1946, their rights of occupation (which had‘become extinguish-ed on that date) have subsequently revived. The learned District Judgetook the view that no such events had taken place, and accordinglyentered judgment for the plaintiff as prayed for.
It seems to me that, upon the unqualified admissions which the plain-tiff has himself made in the course of his evidence at the trial, he hadno cause of action against the defendants at the time when these pro-ceedings were instituted. He conceded, for instance, that, althoughhe had obtained a decree to eject Robert Silva from No. 97, ChathamStreet, he continued regularly thereafter to receive rent from him inxespect of these very premises. “ As far as I was concerned ” he said,
even after the decree was entered, I looked upon Robert Silva as mytenant and the person responsible for my rents for the premises Nos. 93,•95 and 97 ”. It has also been established beyond doubt that, in the sameway, the 1st defendant continued to pay the rents due by him to RobertSilva in terms of their subsisting contract of sub-tenancy.
Upon these facts, it is perfectly apparent that the 1st defendant wasnot in wrongful occupation of the premises at the time when these pro-ceedings commenced. The plaintiff must be held, at some stage or other,to have renewed, as between himself and Robert Silva, the contractualrelationship of landlord and tenant in respect of the premises, and the1st defendant’s occupation (as a sub-tenant under Robert Silva) was-therefore not that of a trespasser at any relevant date. I wouldtherefore set aside the judgment under appeal and dismiss the plaintiff’saction with costs both here and in the Court below.
RL. D. de {?ILVA J.—I agree.
(1953) 54 N. L. R. 217.
Appeal allowed.