Kathirgamar v. Iyer.
1946Present : de Silva 3.
KATHIRGAMAR, Appellant, and IYER, Respondent.
77—C. B. Point Pedro, 277.
Lease—Clause for cancellation in case of damage done to the property leased—Cutting tender leaves of palmyrah trees—Sufficiency as ground forcancellation.
A lease provided that in the event of any damage or mischief beingdone to the leased property the lessor would have the right to cancelthe lease. The lessor claimed that by cutting tender palmyreh leavesonce in every two months for. two years the lessee had caused damageto the trees. He had, however, not made any complaint or taken anyaction prior to the institution of action.
Held, that the evidence was insufficient to show that there had heenany damage which would entitle the lessor to set aside the lease.
DE SILVA J.—Kathirgamar v. Iyer.
PPEAL from a judgment of the- Commissioner of Requests, PointPedro.
II. W. Thanibiah, for the defendant, appellant.
P.Navaratnarajah, for the plaintiff, respondent.
June 11, 1946. de Silva J.—
This is an appeal by the defendant against the decree of the Courtof Requests setting aside a lease for a term of nine years from September 1,1939.
The lease provides that in the event of any damage or mischief beingdone to the property the lessor will have the right to cancel the leaseand re-enter into possession. It also provides that the lessee shall keepthe fences properly repaired during the term of the lease and if he doesso the lessor will forego the rent for the last year.
The lease is in Tamil. The parties are not agreed upon with regardto the actual terms of the lease ; so that three translations have beenput in, one by the plaintiff, one by the defendant and the other by theInterpreter Mudaliyar. All three translations agree that the failureto repair the fences did not entitle the lessor to forfeit of the lease.
The evidence of the plaintiff shows that the defendant did not fencethe property after he took the lease and also that he cut tender palmyrahleaves once in every two months. The cutting of the tender palmyrah. leaves is said to be prejudicial to the trees. This is the only act of damagerelied upon by the plaintiff to have the lease forfeited.
The evidence is in my opinion totally insufficient to show that thedamage caused is of such a nature as to entitle the plaintiff to set asidethe lease. According to him the cutting of the palmyrah leaves hasbeen going on for two years but he had at no time made a complaintabout this to any officer or taken any action before this case wasinstituted.
I am of opinion that the evidence does not show that there has beenany damage which would entitle the plaintiff to set aside the lease.
I accordingly allow the appeal and dismiss the plaintiff’s action withcosts. The appellant is entitled to the costs of appeal.
KATHIRGAMAR, Appellant, and IYER , Respondent