147-NLR-NLR-V-55-M.-U.-M.-SAMEEM-et-al.-Appellants-and-W.-W.-DEP-Respondent.pdf
Sameem v. Dep
523
1954Present: Pulle J. and Swan J.
M. U. M. SAMEEM et al., Appellants, and W. W. DEP, Respondent8. C. 316—D. C. Colombo, 5,896jL
.* *
Possessory action—Right of a tenant to bring it-—Test of possessio civilis—Limits of itsapplicability—Prescription Ordinance (Cap. 55), s. 4—-Rent Restriction A.ct,
A contractual or statutory tenant who has been forcibly ousted from his pre-mises, is entitled to maintain a possessory suit against the person dispossessinghim.
As against a spoliator the person dispossessed need not prove possessio civilisto be restored to possession.
A.^PEAIj from a judgment of the District Court, Colombo.
.» _
Sir Lolita Rajapalcse, Q.C., with E. R. S. R. Coomaraswamy and E. B.Vannitamby, for the defendants appellants.
Sir TJkwatte Jayasundera, Q.C., with Ivor Misso and S. Rodrigo, for theplaintiff respondent.
(1927) 1 K. B. 8 26.
Cur. adv. vult.
524
PTJXjLE J.—Sameem v. Dep
(i
May 10, 1954. Ptjxxjs J.—
This is an appeal in which the principal parties concerned are theplaintiff and the second defendant. There are three other defendantswho are brothers of whom the first defendant is the son-in-law of thesecond. Judgment has been entered for the plaintiff declaring himentitled to the possession of premises No. 323; Main Street, Coldmbo, forejectment and damages.
The whole case, so far as the evidence goes, turns on a simple issue offact, namely, whether on November 29, 1949, the plaintiff as the, ten antof the Public Trustee was in occupation of the premises in question andwhether he was forcibly dispossessed by the defendants or whether'the2nd defendant was in occupation as a sub-tenant under the plaintiff.The evidence both oral and documentary has covered a large area. Ithas been carefully considered by the learned trial Judge and it wouldunduly lengthen this judgment if all the submissions made to us on thefinding of fact are subjected to a further analysis. On the whole weagree with the verdict of the trial Judge that the evidence in support ofthe plaintiff’s case is overwhelming. It suffices to deal with two pointsstressed at the argument.°* *"c
The defendants produced the promissory notes D1 and D2 datedrespectively 15th March, 1947 and 1st May, 1947, granted by the 1st and2nd defendants to two chettiyars. In these notes the address of themakers is given as No. 323, Main Street. Reliance was placed on thisaddress in support of the defendant’s case that they were carrying onbusiness at the premises in their own right as early as 1947. The payeeon the second note was one A. P. R. P. L. Palaniappa Chettiyar. Akanakapulle of the payee calling himself A. P. R. P. L. PalaniappaChettiyar gave evidence to the effect that he used to recover monies dueon 1)2 at No. 323. Complaint is made that his evidence has been viewedwith suspicion because he did not disclose himself specifically as the clerkto the firm of the payee. I cannot say that the Judge was wrong inputting himself on his guard against a witness who appeared to identifyhimself as the payee on the note, whereas he was only a clerk. But apartfrom this the learned Judge has carefully analysed the evidence of thiswitness and satisfied himself that the address in D2 and the fact that thewitness may occasionally have seen the 2nd defendant at No. 3(23 couldbe explained in a manner consistent with the evidence called for theplaintiff.
It has been strongly urged that a letter D7 of 19th December, 1947,addressed in connection with a criminal matter to the Inspector- Generalof Police by the 2nd defendant in which he stated that he was carrying onbusiness at No. 323 should have been accepted by the Jud^e as confirma-tion of the 2nd defendant’s evidence and that, further, the theory onwhich the letter is accounted for by the Judge is unsatisfactory. I
I think that the way in which the Judge has dealt with D2 and D7must be looked at in the general context of his judgment. He had form-ed a very favourable view of a number of independent witnesses called
3?ULLE J.—Sameein v. Dep
525
,)
to support the plaintiff on the crucial issue whether prior to 29th Novem-ber, 1949, the plaintiff carried on business at No. 323. Unless it could besaid that and D7 completely undermined the evidence of all thesewitnesses the Judge was justified in formulating a theory to explain D2and D7, although in the case of 1)7 the theory may not commend itselfas the true reason as to why the 2nd defendant said he was carrying onbusiness^at No. 323, if in fact, according to Mariampillai, the represent-atives of Millers Limited and the Public Trustee, Inspector Weerasooriyaof the Pettah Police, Police Sergeant Piyadasa and the watcher Ramasamy&nd also according to a number of documents, the sole owner of thebusiness was the plaintiff.
IA my opinion it would be entirely unjustifiable to disturb the findingof fact in favour of the plaintiff that he being the occupier of premisesNo. 323 was forcibly ousted by the defendants.
There remains to be decided whether the submission is goodthat the plaintiff cannot maintain the action because he was only amonthly tenant. The argument was on these lines. The plaintiff in hisplaint asked for a possessory decree. Such a decree could only be passedin favour pf a person hawing a possessio civilis but as the plaintiff wasa monthly tenant and not a notarial lessee he was not entitled to main-tain the action. No plea was taken in the answer that the action in theform in which it was instituted did not lie. As far as the issues go it wasraised whether the plaintiff could maintain the action, if the court foundthat the 2nd defendant was a sub-tenant of the plaintiff. The point oflaw raised at the argument in appeal was consequently not dealt with inthe judgment.
A large number of authorities have been cited on behalf of both partiesand I do not propose to deal with everyone of them. Cases like TJkkuAmma et al. v. Jema et al?- can be distinguished on the ground thatthey were not possessory actions contemplated by section 4 of the Pre-scription Ordinance (Cap. 55). If possessio civilis is the rigid test I do notfind it easy to follow how a usufructuary mortgagee whose possessionterminates on thA payment of the principal debt has been given the rightto institute a possessory suit. Vide Banda v. Hendrick et al.2. Inthis case Wood-Renton J. cites with approval a dictum of Bonser C.J.in Changarapillai v. Chelliah3 that the possessory action is a mostbeneficia? one whose operation the Court should seek to enlarge ratherthan to narrow. On a parity of reasoning I should say that a tenant wholike the plaintiff is protected by the Rent Restriction Act has a large bene-ficial interest in the property in the sense that, if he performs what maybe called the statutory covenants, he has rights of occupation and en-joyment which in his life time could only be brought to an end by thesurrender of oefiupation to his landlord or eviction by legal process and theremedy of a possessory suit should be extended to vindicate these rights.
It seems to me that as against a spoliator the person dispossessed neednot prove possessio civilis to be restored to possession. Wille 'on Landlord
1 (1949) 51 N. L. R. 2£4.2 (1907) 1 A. G. R. 81.
(1903) 5 N. L. R. 270.
526
PTTL1E J.—Sameem v. Dep
4'*
and Tenant states in Chapter XV, “ If the landlord ejects the tenanteither forcibly or illicitly he commits an act of spoliation against thetenant and the tenant is entitled to a mandament v&n spolie ororder replacing him in occupation or possession of the premisesimmediately and before the landlord can take any further legal steps and as apreliminary to any inquiry or investigation into the merits of the case. ”
A fortiori the remedy should he available against a stranger.
Dealing with the character of possession to justify a mandament vanspolie Professor R. W. Lee states in the Introduction to Roman-Dutcl?Law, 1946 ed. p. 165,«
“ It is given not merely to the possessor in the strictest sense, but ,to atrustee or lessee and to any other person who holds by lawful title ‘ withthe intention of securing some benefit for himself as against the owner,such as a borrower, and, perhaps, to any other person in actual control.”In my opinion occupation of a property by a contractual or statutorytenant is to hold it by lawful title. The case of Meyer v. Glendinning 1cited by Professor Lee is interesting. There a racehorse trainer succeededin obtaining a spoliation order against-the owner who having entrustedsome horses to the trainer removed them from the stables without noticeto and consent of the trainer. While on the subject of mandament vanspolie I should add that in Goonewardene v. Pereira* approved in Silvav. Appuhamy5 Bonser C.J. said that he was not prepared to assentto the proposition that where there is an ouster by violence of the personwho is possessor of the property, anything more was required to be provedby him than that he was in possession and that he was violently ousted.In those circumstances the plaintiff did not have to prove possession for ayear and a day.-
To the facts of this case I would apply the words of Bnchanan A.C.J.in Wilsnachy. Van der Westhuizen and Uaak 4 in which a licensee under alocal authority of a house was evicted by the respondents who purportedto have obtained a title deed in their favour.
‘ ‘ The whole foundation of the rule for the restoration property takenpossession of in this way is, that a spoliator is not entitled to take thelaw into his own hands, and a person who takes the law into his ownhands must restore the property and establish his right thereto in apeaceable manner or in a court of law. ”
On the findings of fact there was not the vestige of a right in thedefendants to have taken possession of the premises.
The appeal fails and should be dismissed with costs.
Swan J.—I agree.
Appeal dismissed.
(1939) C. P. D. 84.(1902) 5 N. L. R. 320.
(1912) r5 N. L. R. 297.(1907) S. C. 600.