124-NLR-NLR-V-51-KATHIRAGAMU-et-al-Appellants-and-NADARAJAH-et-al-Respondents.pdf
516
BASNAYAKE J.—Katkirgamu v. Nadarajah
1949Present: Basnayake J.
KATHIR0AM1T et al., Appellants, and NADARAJAH et at.,Respondents
8. c. 111—C. R. Point Pedro, 1,382
Action for use and occupation—Principles underlying such action.
To found an action for use and occupation the relation of landlord and tenantmust be established. Nor oan such action be maintained against a personwho claims to occupy tho land os of right.
^,PPEAL from a judgment of the Court of Requests, Point Pedro.
C. Thiagalingam, for defendants appellants.
H. W. Tambiah, with 3. Sharvananda, for plaintiffs respondents.
Cur. adv. vult.
June 8,1949. Basnayake J.—
This is an appeal on questions of law from the judgment of theCommissioner of Requests of Point Pedro. The defendants aro theappellants and the plaintiffs are the respondents. The latter allege intheir amended plaint that the former used and occupied 30 paddies of aland called Silaikaddaithoddam belonging to the plaintiffs from July.1944, to the end of June, 1946, agreeing and undertaking to pay th<plaintiffs’ agent Thangammah, widow of Veluppillai, the sum of Re. 30(as compensation for such use and occupation. They seek to recovethe sum of Rs. 300 which they allege the defendants have failed to payThe defendants deny the allegations of the plaintiffs and ask that thaction be dismissed.
The following issues were framed at the trial—
“ 1. Did the defendants use and oocupy 30 paddies of the lancalled Silaikaddaithoddam belonging to the plaintiff from July, 1944,130.6.46?
If so, what is the reasonable compensation ?
BA8NAYAKE J.—■Kathirgamu «. Nadorayah617
Does the amended plaint disclose a cause (etc) against the
defendant f
Can the agreement referred to in the plaint be enforced in view
of section 2 of the Prevention of Frauds Ordinance ?
Ib the action correctly instituted ?
Did the 2nd defendant use and occupy this land ?”
The learned Commissioner of Requests, who has answered, in favourof the plaintiffs, all the issues except the fourth, which was not pressedby the defendant who suggested it, does not appear to have had beforehis mind the true principles applicable to an action for use and occupation.It is necessary, therefore, before I discuss the facts of the instant case,to refer to the principles underlying such an action.
The action for use and occupation is founded on some contract orpromise, express or implied1. The fact of occupation by one person ofpremises belonging to another, by permission express or implied, givesrise to a presumption that a reasonable compensation for their use hasbeen agreed upon between the partiesfi. It is essential that the defendantmust have held or occupied the premises as tenant thereof to the plaintiff:or by his permission or sufferance. There need not be an actual demiseto support this action. A mere agreement for a lease, coupled with proofof possession thereunder, is sufficient. The principle is, that if a personhave the actual use or enj oyment of land by the permission or on sufferanceof another, whether there be a demise or not, this form of action may l>emaintained to recover the agreed rent (if any) or a reasonable satisfactionfor such use and occupation. This Court has held so far back as 1864*that a landowner in this country can recover for use and occupationwithout a notarial instrument, if there has been actual use and occupation.Tho principle underlying the action appears to be the maxim “ NemoaUerivs detrimento locupletari debet All the evidence that is admissibleto prove compensation is admissible in an action for use and occupation 4.
To found the action for use and occupation the relation of landlordand tenant must be established. In the instant case there is no evidenceof the existence of that relationship between the plaintiffs and thedefendants, nor is there evidence which gives rise to a presumption ofthat relationship. One Thangammah, the mother of the second plaintiff,gave evidence in support of the case of the plaintiffs. Her evidence,wliich the learned Commissioner accepts, does not establish that theplaintiffs are entitled to maintain the action. The learned Commissionersays: “ Thangamma stated that she rented the land to both thedefendants and she sent the letter of demand to both of them. I aooepther evidence as tone, in preference to that of the 1st defendant. ” Theletter of demand D1 referred to by the learned Commissioner containedno reference to the faot that the plaintiffs are the landlord and that
1 Foa on Landlord £ Tenant, 7th Edn, p. 392.
Gibson v. Kirk, (1841) 1 Q. B. 850.
Perera v. Fernando, Ramanathan'e Reports, 1863-68, p. 83 at 86.
Perera v. Fernando, Ramanathan'e Reports, 1863-68, p. 83 <K 87.
516
BASNAYAKE J.—Katkirgamu v. Nadarajah
opinion that when the petitioner was disbarred in 1937, it was the dutyof the Registrar of this Court to have forthwith reported that fact to theInn to which the petitioner belonged. We direct that this action shouldnow be taken.
The application is dismissed with costs fixed at Rs. 105.
Nagalingam J.—I agree,
Windham J.—I agree.
Application dismissed.