022-SLLR-SLLR-1994-V2-KHAN-V.-JAYMAN.pdf
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Khan v. Jayman
233
KHAN
v.
JAYMAN
SUPREME COURT.
G. P. S. DE SILVA, C J.
KULATUNGA, J, ANDWADUGODAPITIYA, J.
S.C. APPEAL NO. 38/95.
A. APPEAL NO. 827/81(F).
C. COLOMBO NO. 2904/ZL.
AUGUST 25, SEPTEMBER 7 AND 29.1993.
Landlord and Tenant – Licencee – Vindicatory suit – Burden of proof – CivilProcedure Code, sections 121 and 175(2) proviso – Secondary evidence -Evidence Ordinance, sections 65, 66, 109.
The plaintiff sued the defendant for declaration of title, eviction of the defendantand damages. The plaintiff claimed that the defendant who was his cousin waspermitted to occupy the premises in suit and was a licencee. The defendantclaimed he was tenant and that his tenancy was protected by the Rent Act. Thedefendant produced a letter wherein the plaintiff had said "I shall . . . bring thehouse rent receipts" which defendant claimed was in response to his demand forreceipts. The plaintiff stated that receipts referred to were in respect of anothertransaction relating to another house.
Held:
1. The defendant did not list the letter by which he claims to have demanded rentreceipts as required by S.121 of the Civil Procedure Code. Under the proviso toS.175(2) of the Code it could have been produced in cross-examination thoughnot listed. If the letter could not be produced as it was in the plaintiff's possession,secondary evidence thereof could have been produced under s. 65 of theEvidence Ordinance after giving notice to the plaintiff under s. 66 to produce theoriginal. The District Judge allowed secondary evidence by way of oral testimonyof the contents of the document in breach of the express prohibition against suchprocedure contained in s. 66. The District Judge criticized the failure of theplaintiff to produce the original of defendant's letter when the burden of producinglegal evidence of his own letter was on the defendant whether such evidence wasintended to “prove" the tenancy or for “showing" that the parties had been actingas landlord and tenant within the meaning of s. 109 of the Evidence Ordinance.Defendant also admitted making a false statement to the Police in connection withanother incident. Defendant had failed to show that he and plaintiff had acted astenant and landlord.
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2. The plaintiff was the owner and had established the factum probandum,namely the licence and its termination and was entitled to judgment. Thedefendant had failed to prove a better title.
Case referred to:
1. Pessona v. Babonchi Bass 49 N.L.R. 442,444.
Appeal from judgment of Court of Appeal.
Faiz Musthapha, P.C. with S. Mahenthiran for appellant.
L. P. Wettasinghe for respondent.
Cur. adv. vult.
October 12.1993.
KULATUNGA, J.
The plaintiff sued the defendant for ejectment from premises No. 6.Lillie Street, Colombo 2, more fully described in the schedule to theplaint and for damages. In his plaint the plaintiff states that he residedin the premises in suit from 1963, as a tenant; that in 1974 he becameits owner, having purchased it from his landlord on Deed No. 478 dated29.05.74 (P4); that the defendant is a cousin of the plaintiff and abachelor, and a travelling salesman whom the plaintiff permitted tooccupy a room in the said premises, whenever he was in Colombo;that the plaintiff had a business in Bandarawela and resided there onaccount of his business; and that while he was away on such business,the plaintiff expected the defendant to look after the said premises.
The plaint alleges that on or about 04.02.1976, the defendant (whowas only a licensee) brought his mother and sisters to the premisesin suit whereupon the plaintiff requested him to leave the same;instead, he was forcibly staying there on a false claim of tenancy. Inthe premises, the plaintiff prayed for ejectment and damages and forvacant possession of the premises.
The defendant filed answer stating that in or about November,1971 the plaintiff gave him the premises on a monthly tenancy at arental of Rs. 200/- per mensem after recovering an advance ofRs. 5000/-; that after 09.02.76 the plaintiff attempted to forcibly ejecthim and his family from the premises whereupon he made acomplaint to the police, that he was in lawful occupation thereof as a
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protected tenant under the Rent Act and hence no cause of actionhad accrued to the plaintiff to sue him.
After trial, the learned District Judge held that from February, 1976the defendant was in occupation of the premises against the wishesof the plaintiff but that the plaintiff had failed to establish that thedefendant's occupation of the premises was by leave and licence,even though the evidence was insufficient to establish a tenancy; andhence dismissed the plaintiff’s action. The Judge held that as theplaintiff had failed to establish that the respondent was a licensee, itwas unnecessary to answer the issue on tenancy. After anunsuccessful appeal to the Court of Appeal, the plaintiff now appealsto this Court.
The plaintiff did not pray for a declaration of title or raise an issueon ownership, presumably because no challenge to his ownershipwas anticipated. Indeed the defendant's answer did not deny theplaintiff's title. At the trial, the plaintiff established his title and thedefendant in his evidence admitted the plaintiff's title to the premisesin suit. This action is, therefore, a vindicatory action i.e. an actionfounded on ownership. Maasdorp’s Institutes of South African LawVol. II Eighth Edition page 70 commenting on the right of an owner torecover possession of his property states –
"The plaintiff’s ownership in the thing is the very essence ofsuch an action and will have to be both alleged and proved…"
He also states –
"… The ownership of a thing consists in the exclusive rights of
possessionand in the absence of any
agreement or other legal restriction to the contrary, it entitles theowner to claim possession from any one who cannot set up abetter title to it and warn him off the property, and eject himfrom it*.
This Court granted leave to appeal limited to one question, namelywhere title of the plaintiff to the premises in suit is admitted, whetherin the circumstances of this case there is a burden on the defendantto prove by what right he is in occupation of the premises. In anyevent, has the defendant discharged that burden 7
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Learned Counsel for the plaintiff-appellant submitted that althoughthe District Judge had not answered the issue on tenancy, thedefendant's claim to have been a tenant of these premises standsdiscredited by his own evidence and he has dearly failed to establishthat claim; and that in the circumstances, once he admitted theplaintiff's title, the burden was on him to establish a superior title tothe property. He has failed to discharge this burden and hence theplaintiff is entitled to judgment.
Learned Counsel for the defendant-respondent submitted that hewould not question the principle of common law applicable to theowner's right to recover possession of his property from a person inunlawful possession. In such a case the factum probandum isownership. However, in this case the plaintiff claimed to havepermitted the defendant to occupy the premises in suit by leave andlicence. Hence the factum probandum is the licence; and the burdenis on the plaintiff to prove the licence and its termination. If theevidence leaves the matter in doubt, the plaintiff must fail. Counseladded that even if the burden is on the defendant, it would suffice, inview of s.109 of the Evidence Ordinance, for the defendant to have"shown” that the parties have been acting as landlord and tenant inwhich event, the burden of proving that there was no suchrelationship is on the plaintiff; that on the facts of this case, thedefendant has "shown" the existence of a tenancy and the plaintiffhas failed to rebut it. The word "shown" in s.109 of the EvidenceOrdinance is not synonymous with the word "prove" and connotes alesser degree of legal proof. Pessona v. Babonchi Baasw. On thisground too, the plaintiff must fail.
In considering the above submissions in the light of the facts, itmay perhaps be appropriate to first consider the defendant's claim ofa tenancy. There is no documentary evidence of a tenancyagreement in respect of the premises in suit. The defendant,however, produced a letter dated 05.08.73 sent to him by the plaintiff(V3) where the plaintiff has said “I shall . . . bring the house rentreceipts". V3 is a reply to a letter sent by the defendant and the majorpart of it explains the efforts made by the plaintiff to recover for thedefendant certain monies from a man in Batticaloa. It does notidentify the premises in respect of which the plaintiff promised tobring house rent receipts. The defendant said in evidence that sincehe took the house on rent in 1971, the plaintiff did not issue receipts
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for rents paid; but in view of the new rent laws, he thought it desirableto insist on receipts and hence wrote a letter demanding receipts towhich he received the reply V3.
By way of explanation of the reference to rent receipts in V3, theplaintiff said that his father had rented out a house in Bandarawela;that the landlord of that house was living in Singapore and the rentswere collected in his behalf by the post-mistress Bandarawela whoissued rent receipts. After some time, the landlord's wife who lived inPanadura objected to the post-mistress collecting the rents anddesired to peruse the receipts which had already been issued. Thoseare the receipts which are referred to in V3. They were given to thedefendant to be handed over to the landlord's wife.
The defendant did not list the letter by which he claims to havedemanded rent receipts, as required by s.121 of the Civil ProcedureCode. In view of the proviso to s.175(2) of the Code, there was,however, no bar against producing it in cross-examination though itwas not listed. If the letter could not be produced as it was in theplaintiff's possession then, secondary evidence thereof had to beproduced under s. 65 of the Evidence Ordinance after giving noticeto the plaintiff under s. 66 to produce the original. Presumably, nosuch notice was given but the District Judge permitted the defendantto give secondary evidence by way of oral testimony of the contentsof the document, in breach of the express prohibition against suchprocedure contained in s. 66. That section provides that notice toproduce a document may be dispensed with in certain cases. I am ofthe opinion that this was not such a case.
Having irregularly permitted secondary evidence of the document,the District Judge proceeded to comment adversely on the failure ofthe plaintiff to produce the original and the Court of Appeal allegedthat the plaintiff thereby attempted to suppress evidence of thetenancy. I hold that such criticism of the plaintiff’s conduct was notjustified, for the reason that the burden of producing legal evidenceof his own letter in proof of the alleged tenancy was on thedefendant, whether such evidence was intended to "prove'' thetenancy or for "showing” that the parties had been acting as landlordand tenant within the meaning of s.109 of the Evidence Ordinance.
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The available evidence supports the allegation that the defendantattempted to set out a tenancy claim only as late as 1975-1976. Therelevant items of evidence are as follows:-
The file maintained by the Insurance Corporation in respectof the defendant’s insurance policy shows that he applied forthe policy in or about December, 1969 (P16). At that time hegave his address as 9/24, Muhandiram Lane, Colombo 12.In 1970 the address was changed as Nagalagam Street,Colombo 12. It was only on 07.01.75 that he gave the premisesin suit as his new address.
The defendant's name has been entered in the electoralregister as a resident of the premises in suit only from 1975onwards (D17, D18 and D19).
The house holders' list maintained by the Food Departmentshows that his name has been entered as the chief householder of the said premises only in 1976 (P17). Prior to that, itwas the plaintiff who appears as the chief house holder.
It was on 20,02.76 that the defendant made a statement tothe police (P5) wherein he said that he had been a tenant of thepremises in suit from 1971. It is relevant to note that in P5 thedefendant also said that from December, 1975 the plaintiff hadbeen asking him to quit the house. Defendant’s witness Steven{Janatha Committee member) had accompanied the defendantto the Police Station on that occasion. Steven says that prior to1976 he had seen the defendant in the premises in suit but hedoes not speak to having known the defendant as a tenantduring that period.
We next have the document P15 viz. the defendant's complaintdated 03.09.74 which he made to the Grandpass Police giving hisresidence as No. 37, Nagalagam Street, Totalanga. He says that hewas boarded in a room of that house where he kept his belongings;that on 29.08.74 when he returned from work, he found his suit caseforced opened and his belongings including his clothings, wristwatch, an umbrella, insurance policy and a ring stolen. His driverAriyapala’s savings pass books were also missing. He suspected
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Premasiri and Indrasena who used to loiter there to have beenconcerned in the theft. In cross examination, the defendant admittedthat P15 is a false statement and that he made it solely to help hisdriver who was residing at No. 37, Nagalagam Street, where hehimself resided, before shifting to the premises in suit.
Thus the available evidence shows that the defendant is a self-confessed liar; and on a consideration of the totality of the evidence, Icannot agree that the District Judge was left in doubt as to whichversion is true. The defendant's claim of tenancy was whollydiscredited and the District Judge ought to have answered the issueon tenancy in the negative. Further, on the available evidence, itcannot be said that the defendant has even “shown" that the partieshad been acting as landlord and tenant within the ambit of s.109.That section has no application to this case.
We are, therefore, left with the fact that the plaintiff is the owner ofthe premises in suit and his uncontroverted evidence that thedefendant occupied a room by leave and licence. Admittedly, thatlicence was terminated by the end of 1975. The plaintiff has thusestablished the factum probandum namely, the licence and itstermination and he is, therefore, entitled to judgment as prayed for.
Learned Counsel for the defendant-respondent also submitted thatin view of the fact that this was not a case of the plaintiff suing asowner simpliciter and in the absence of an issue on ownership, thedefendant would not have known the case he had to meet and wasprejudiced in his defence. I cannot agree. As stated early in hisjudgment, the plaintiff pleaded his ownership and clearly set out hiscase, including the fact that the defendant was in occupation of aroom of the premises in suit by leave and licence. The defendant tooset out his case in unambiguous terms viz. that he was a protectedtenant from 1971. In the end, the plaintiff proved his case whilst thedefendant failed to establish a better title to the property. As such, thequestion of prejudice does not arise.
For the foregoing reasons, I allow the appeal, set aside thejudgments of District Judge and the Court of Appeal and enterjudgment for the plaintiff as prayed for, for ejectment and damages
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together with legal interest on the aggregate from 13.12.1981, untilpayment in full. The plaintiff will also be entitled to costs in a sum ofRs. 8500/- (Rupees Eight Thousand Five Hundred) as costs of appealhere and in the Court of Appeal, in addition to the costs of action inthe District Court.
G. P. S. DE SILVA, CJ. -1 agree.
WADUGODAPmYA, J. -1 agree.
Appeal allowed.