021-NLR-NLR-V-70-M.-ARNOLIS-PERERA-and-another-Appellants-and-M.-DAVID-PERERA-and-others-Respo.pdf
Amolis Perera v. David Perera
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1967Present: T. S. Fernando, J., Abeyesundere, J.,and Siva Supramaniam, J.M. ARNOLIS PERERA and another, Appellants, andM. DAVID PERERA and others, Respondents
S. C. 438 of 1962—D. C. Gampaha, 8891/L
Lease of Grown land—Renewal of it after expiry—Requirement of prescribed form—Acceptance of rent without due execution of a new lease—Effect—Crown LandsOrdinance {Cap. 454), ss. 8 {!), 96, 110.
Section 8(1) of the Crown hands Ordinance debars the disposition of Crownland except by an instrument of disposition executed in the prescribedmanner.
Accordingly, where a lease of Crown land in favour of certain co-lesseesexpires after the Crown Lands Ordinance came into operation, acceptance ofrent by the Crown thereafter, without a renewal of the lease executed inthe prescribed manner, cannot confer on the co-lessees any legal title whichmay form the basis of an action between them for declaration of title to theproperty.
Appeal from a judgment of the District Court, Gampaha.
Colvin JR. de Silva, with D. S. Wijeioardene and Nihal Jayavnckrama,for the defendants-appellants.
Eric S. Ameresinghe, with W. D. Gunasekera, for the plaintiffs-respondents.*
Cur. adv. mill..
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T. S. FERNANDO, J.—Amolis Perera v. David Perera
…. _ .. _ •
July 19, 1967. T. S. Fernando, J.—
The four plaintiffs who are children of one Issan Appu instituted thisaction on the 3rd November 1960 against their brother the 1st defendantand a man who claimed to be the latter’s tenant seeking from the DistrictCourt (a) a declaration that they are entitled to the possession of aboutique bearing No. 49 (formerly No. 42) standing on a land described inSchedule “ A ” to the plaint and depicted in Surveyor-General’s OfficeLease plan No. 1100 of 6th December, 1912. By an amendment oftheir plaint, the plaintiffs alleged that the boutique was at all timesmaterial to the action in the possession and enjoyment of the 3rd and4th plaintiffs, while renewals of a lease of the land on which the boutiquestands were obtained nominally in favour of the 1st and 2nd plaintiffsbut for the benefit of the 3rd and 4th plaintiffs. They amended theprayer accordingly seeking a declaration of entitlement to possessionin favour of the plaintiffs ,or any [of them as may be determined bycourt-.
The defendants who sought the dismissal of the action took up theposition that the 1st and 2nd plaintiffs and the 1st defendant areco-lessees of the land on which boutique No. 49 stands.
The District Court granted a decree declaring the 3rd and 4th plaintiffsentitled (i) to possession of boutique No. 49 and of the Crown allotmentsNos. 4271 and 4270, (ii) to have the defendants ejected therefrom, and(iii) to damages fixed at Us. 40 per mensem.
On PI, Issan Appu, the original lessee of the Crown, obtained on lease,for a period of fifty years commencing on 1st July 1904 and ending on30th June 1954, the allotment (in extent 3’59 perches) depicted in planNo. 1100 referred to above and as contemplated in the covenants inPart IV of P 1 erected the boutique then described as boutique No. 42.Issan Appu died in 1932 leaving a last will by which his three sons (the1st and 2nd plaintiffs and the 1st defendant) became entitled to beregarded as lessees of the lot depicted in plan No. 1100. There werecertain other lots of which they similarly became co-lessees. In 1943the 1st and 2nd plaintiffs and the 1st defendant entered into a deed ofexchange P5, according to which they distributed the enjoyment of theseveral Crown lots their father had leased from the Crown. On the samedate that P5 was executed they gifted by P6 to their two unmarriedsisters, the 3rd and 4th plaintiffs, the enjoyment, for the remainingperiod of their father’s lease PI, i.e., until 30th June 1954, of lot No. 4271(depicted in the afore-mentioned plan No. 1100) and lot No. 4270 withboutique No. 42. The 3rd and 4th plaintiffs appear to have enjoyedthe receipt of rents of boutique No. 42 till 30th June 1954.
T. S. FERNANDO, J.—Arnolis Perera v. David Perera
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Some three years elapsed after the date of expiry of PI before theofficers of the Crown gave their mind to the question of the renewal ofthe lease or the receipt of rent in respect of the land. Rents were receivedin 1957 in respect of the lot in question. The 1st and 2nd plaintiffsand the 1st defendant appear to have paid in money by way of rent,the 1st and 2nd plaintiffs paying in two-thirds of the rent to the officeof the D. R. 0. and the 1st defendant a one-third to the Village Headman.The learned trial judge has held that only the payments made to theoffice of the D. R. 0. can be treated as valid and has doubted the bona-fides of the action of the Village Headman in purporting to accept moneyby way of rent. It is unnecessary to examine the evidence on thequestion of payment of money in this way as rent in respect of arenewal of the lease because we are satisfied that no attention has beenpaid in the District Court to the imperative requirements of the lawgoverning the grant of leases of Crown land at the relevant time, i.e.,from 1st July 1954 and thereafter.
The question that was agitated in the District Court was whether the1st and 2nd plaintiffs (on behalf, as they claimed, of the 3rd and 4thplaintiffs) had the right to be treated as the persons in whose favour thelease of the land was renewed or whether the 1st and 2nd plaintiffs andthe 1st defendant had all been regarded as co-lessees of the land. Therewas no examination of the legality of the claim of any of the contendingparties to be lessees. It appears to have been assumed in the courtbelow that payment of money by way of rent amounted to a continuationof the lease to the persons who paid or on whose behalf such money waspaid. Nor was there any consideration by the learned judge of thequestion whether the suit instituted by the plaintiffs was none otherthan a possessory suit. If it was a possessory suit, there is no doubt itwas filed after the period of prescription had elapsed. It must, however,be mentioned that in the notes of argument of counsel appearing on thebrief there is a reference to an argument raised by the 1st defendant’scounsel to this effect, although it is right to add that no issue was raisedin respect of this point throughout the trial.
In regard to the claim of the parties to be Crown lessees, we have totake note of the fact that, even before the date of expiry of PI, the CrownLands Ordinance (Cap. 454) had come into operation on 1st September1949. Section 8 (1) of that Ordinance enacted as follows :—
“ Every disposition of Crown land under this Ordinance must be
effected by an instrument of disposition executed in such manner as
may be prescribed. ”
Section 96 enables regulations to be made in respect of leases of Crownland and the forms required for making such leases, and section 110defines an “ instrument of disposition ” as including any instrument ordocument whereby a lease relating to Crown land is effected. A fresh
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T. S. FERNANDO, J.—Arnolis Perera v. David Ptrera
lease after the expiry of PI on 30th June 1954 had, therefore, unques-tionably to be effected by an instrument of disposition within the meaningof the Crown Lands Ordinance, and no receipt acknowledging rent,even if it had been issued by the proper officer of Government, was alegal substitute therefor.
The resulting position then is that no valid lease has been grantedsince 30th June 1954 in respect of the land on which boutique No. 49stands, and, notwithstanding the payment and acceptance of money aarent, the argument of plaintiffs’ counsel that the plaintiffs have a right toa recognition of a contractual right entered into with the Crown cannotbe upheld.
Faced with the position that there is no valid lease in favour of any ofthe plaintiffs after the expiry of Pi, Mr. Ameresinghe argued that at theleast the plaintiffs must be treated as tenants of the Crown from monthto month. He sought to gain some support for his contention in certaindecisions of this Court relating to the rights of a lessee under anon-notarial lease, but he had to concede that the latest decision of thisCourt on this very point, viz., Hinniappuhamy v. Kumarasinghe1, is againsthis argument. In that case two judges of this Court, after referring toprevious conflicting decisions on the point, set out lucidly their reasonsfor preferring to follow the line of decisions which does not regardMr. Ameresinghe’s contention with favour. Having given my mind to thedecisions referred to in Hinniappuhamy’s case (supra), I would respect-fully follow the ruling in this case and apply it in the interpretation ofsection 8 (1) of the Crown Lands Ordinance. That section means, inmy opinion, nothing less than that no disposition of Crown land can beeffected except by an instrument of disposition executed in the prescribedmanner. In this view of the matter, even if the receipts which theplaintiffs can point to as having been obtained by them in 1957have been issued, as the trial judge has found, by the officer ordinarilyauthorised by the Government to collect its rents, they cannot maintainthe action they instituted in the absence of an instrument of dispositionin their favour. Alternatively, if the action they have institutedis construed, as it must be, as a possessory action, it must again failas not having been instituted within a year of dispossession as requiredby section 4 of the Prescription Ordinance (Cap. C8).
The appeal is therefore allowed, and the plaintiffs’ action is dismissedwith costs in both Courts.
Abeyestjndere, J.—I agree.
Siva Supramaniam, J.—I agree.
Appeal allowed.
1 (1957) 59 N. L. R. 566.