081-NLR-NLR-V-73-K.-P.-PUNCHINONA-Appellant-and-HENDRICK-PERERA-Respondent.pdf
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YVIJAYATILAKE, J.—Punchinona v. Pcrcra
Present . Wljayalilake, J.K.P. PUNCHINONA, Appellant, and T. HENDRICK PERERA,
Respondent
S. C. 119/67—C. R. Colombo, 8S705/R.B.
Landlord and tenant—Suit for rent and ejectment on ground of attornment by defendantas tenant of plaintiff—Burden of proof.
IVhero a lessee of a threlling-houso sues the occupant for arrears of rent andejectment on the ground that the latter hod attorned to him as tenant uponthe execution of tho deed of lease, the burden i9 on the-plaintiff to establishthat there had been a contract of tenancy between the defendant and theplaintiff's lessor and that the defendant attorned to tho plaintiff as tenant.
Obiter : It is now a well established principle that a tenant who remains inoccupation with notico of tho purchaser’s election to recognise him as a tenantmay legitimately bo regarded as having attorned to tho purchaser so as toestablish privity of contract between them.
Appeal from a judgmont of the Court of Requests, Colombo.
J.W. Subasingke, with T. H. N. Richards, for the defondant-appollant.
O. 12. Rodrigo, for the plaintiff-respondent.
Cur. ado. vult.
October 10, 1968. Wijayattlakf, J.—
In this case the plaintiff sued the defendant for ejectment from premisesNo. 667, Madiwela Road, and for i.ho recovery of arrears of rent. Aftertrial the learned Commissioner hold that tho plaintiff is not entitled to adecree of ejectment. However, ha hold that the plaintiff is entitled torent at Rs. 15 from February 1963 till the end of January 1965.
The principal question in this case is whether there was a contract oftenancy between tho defendant and tho plaintiff’s lessor and if so whethortho defendant has attorned to tho plaintiff. Admittedly, ono K. Dharma-dasa Fernando is tho owner of ths promises in question. According tothe plaintiff tho defendant was in occupation of these premisos as atenant of tho said Fernando on the basis of a monthly tenancy and thoplaintiff by deed No. 306 of Sth February 1963 (P 1) had taken a lease ofthose premises from Fomando for a period of two j-ears. Thereafter on4th March 1963 his proctor by letter (P 2) had informed the defendantof the lease and requested her to remit to tho plaintiff tho lessee on (P 1)all rents from February 1963 at Its. 15 per month. Dcspito this lottorno rent whatever had boon paid by tho defendant and on Sth February1964 nearly an year Iator, by letter (P3) t-Iio plaintiff’s proctor had givonher notice to quit and deliver possession on 31st May, 1964. In her answer
W1JAYATILAKE, J.—Punrhinona u. Perera
431
tho dofondant admitted the receipt of notice (P 3) and at tho commence-ment of the trial her counsel had referred to (P 2) and tho plaintiff hadbcon allowed to amond tho plaint. The proctor who wrote those twolottcrs has also given cvidonco.
Tho position of the defondant is that 6ho is tho mistress of tho saidFomando who is tho owner of theso pre-misos and ho had put her in posses-sion of the premises somotime in October, I960, undertaking to executea deed of transfer in her favour and si.ico thon sho has been in possessionof theso promises vt do minus. Sho denies that there was any contract oftenancy with the said Fornando.
Tho plaintiff in his evidence has stated that after the deed of lease wasattested he had gone along with the lessor and told the defendant to paytho rent to him nnd sho had agreed to do so. Howover, it. is noteworthythat tho plaintiff has failed to call his lessor in support. Apart from thoplaintiff’s proctor tho only witnoss ca.'.lcd by tho plaintiff was one Daya-nanda who has spoken to his paying rent in rospoct of another houso inthis samo garden to tho plaintiff. Howevor, ho has failod to produceany receipts in support. Furthormoie ho has spoken to a period aftertho oxpiry of tho loaso (PI).
Learned counsel for the plaintiff relies strongly on tho letter (P 2) as thedefendant had failed to send any communication to tho contrary. It isevident that the defendant had ignored the lettor (P 2) of 4th March, 1963and tho plaintiff appears to havo slept over his rights if any for noarly oneyear till ho thought of sonding tho cpiit notieo on 8th February, 1964.
I should think that his conduct in this situation points to the truth oftho defendant’s version. It is also significant that tho original plaint inthis caso was on tho basis that the plaintiff let out tho promises inquostionto the defendant direct and there was no reforcnco to the lease. Thoplaint was amended only after this caino up for trial on tho production of(P 2) by counsel for the defendant.
Mr. Subasingho, loarned counsol for tho appellant, has submitted that-ovon if it is assumed that the do fond ant was a tonant of tho plaintiff’slossor the plaintiff has failod to provo an attornment. He relies on thofollowing cases:—Wijo.yaralne v. Ilcndrick l, Aronolis v- MohideenPilchai 3, Vkkuwa v. Fernando 3, Rajapakse v. Coorcuj *.
On the other hand Mr. Rodrigo, loarnod counsel for the respondent,relios on tho principle that when leased promises have been sold by thelandlord, the tenant who receives notieo of tho purchaser's oloction torccogniso him as tenant is not cntitl.nl to deny his attornment to thepurchaser if he continues to be in occupation without informing thopurchaser that he does not elect to attorn to him.- Ho relics on tho
•(/S35) 3 A*. L. H. J5S.
3 Dal A*. O. 133.
» [1036) 3S X. L. R. 125.
' * 11924) 2 Times of Ceylon 309.
432WTJAYATTLAKE, J.—Punchinona v. Perera
following casos ::—Saba path ip ilia i a. Jlamvpillai1, Charles Perera v. deCo-sta2, de Aluis v. Perera3, Silva a. Silva*. Sco also tho caso of Zackaryav. Benedicts.
Thus it.would scom that it is now a well established principle that atenant who remains in occupation with notice of the purchaser's electionto rccogniso him as a tenant may legitimately bo regarded as havinguttornod to tho purchaser so as to establish privity of contract hotwee-nthem.
In tho instant case silcnco on tho part of tho defendant on tho rceoiptof letter (P 2) may bo recognised as an attornment although sho in factdid not pay any rent at all. Bo that as it may, m my opinion, tho plain-tiff has failod in tho present caso to provo that tho defendant wasatenautof. tho plaintiff’s lessor at any stago. Tho host, evidence would have boonthat of the lessor himself who had boon summoned as a witness but thoplaintiff failed to call him. I do not think thoro was a burdon. on thodefendant.
On a scrutiny of tho facts in this caso it is evident that tho story as .related by the dofendant is the more likely, although sho was not truthfulwhen sho was questioned about tho receipt of (P 2). The defendant has. very boldly pleaded in hor answer that tho owner of thoso promises waskeeping hor as his mistress. Despite this allegation the owner has failodto controvert, it by supporting tho plaintiff’s caso. Tho conclusion isirresistible that ho has sought to get rid of an amatorial problom he hascreated for himself by executing tho leas© (P2) in favour of tho plaintiff,and thereby adopted this circuitous method of ousting this woman.
In my opinion this action on the basis of an attornment in respoct of amonthly tenancy is cloarly misconceived. I would accordingly allowtho appeal. I vacate the order of tho learned Commissioner and dismisstho plaintiff’s action with costs. Tho dofendant shall be ontilled to thoCosts of appeal.
Appeal allowed.
* {1956) 58 N. Ij. It. 367.a {1951) 52 N. L.R. 433 at 445
» (1955) 57 N. L.R. 283.* (1913) 16 N. L. R. 315.
* {1950) 53 N. Ij. R. 311.