053-SLLR-SLLR-2003-V-2-MAJUBUDEEN-AND-OTHERS-v.-SIMON-PERERA.pdf
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Majubudeen and others v Simon Perera
(Edirisuriva. J.)■
341
MAJUBUDEEN AND OTHERSv
SIMON PERERA
COURT OF APPEALFERNANDO, J. ANDEDIRISURIYA, J.
CA 829/92 (F)
D.C. AVISSAWELLA 16623/LMAY 19,2003
JUNE .4 AND 16, 2003 ANDJULY 4, 2003
Rei vindicatio action – Action by a lessor against over holding lessee forrestoration and ejectment – Difference – Importance of proving title -Statutory tenant – Rent Act, No 7 of 1972 – Estoppel – Privity of contract -Evidence Ordinance, section 116.
The plaintiff-appellants instituted action seeking a declaration of title to a cer-tain land together with two boutique rooms and ejectment' of the defendant-respondent from same. The plaintiff-appellant averred that the said boutiquerooms were leased to the defendant for 3 years and that after the expiry of theperiod, the defendant-respondent continued to be in possession.
The defendant-respondent in his last amended answer averred that after theexpiry of the period in the lease bond he became a statutory tenant. In his ear-lier answer he claimed that he had acquired prescriptive rights by adverse pos-session. The trial court dismissed the plaintiff-appellant's action.
On Appeal
Held:
Privity of contract is the foundation of the right to relief in an action bya lessor against an overholding lessee for restoration and ejectmentand issues as to title are irrelevant. A lessee who has entered into occu-pation is precluded from disputing his lessor's title until he has firstrestored the property in fulfilment of his contractual obligations.
The plaintiff who claims qua landlord to eject his tenant in occupation,must establish that privity of contract between himself and the tenantexists at the relevant date, and if it does exist the tenant is precludedby provisions of section 116 of the Evidence Ordinance from disputingthe plaintiff's title to the premises.
APPEAL from the Judgment of the District Court of Avissawella.
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[2003] 2 Sri L.R
Case referred to:
Pararajasekaram v C. Vijayaratnam – 76 NLR 470 at 472
Pathirana v Jayasundera – 58 NLR 159 at 172
De Alwis v Perera – 52 NLR 433 at 447
Gunasekera vJinadasa- (1996) 2 Sri LR 115 (DB)
David Silva v Madanayake – 69 NLR 396
Hemasiri Withanachchi for plaintiff-appellant.
Lakshman Perera for defendant-respondent.
Cur. adv. vult.
July 31,2003EDIRISURIYA, J.
The plaintiffs in this case filed action for declaration of title for 01the allotment of land called “Linadamulle Kella" together with bou-tique rooms bearing no. 122 and 124, ejectment of the defendant-respondent and damages.
The plaintiffs-appellants both in their original plaint and theamended plaint averred that they inherited the said land from theirfather. They also averred that by Indenture (Lease) No. 477 dated28.03.1969 the said boutique rooms were leased to the defendant-respondent for three years. The plaintiffs-appellants further averredthat after the expiry of the said lease the defendant-respondent 10continued to be in possession of the said boutique rooms as alicensee of the plaintiffs-appellants, that he commenced disputingthe rights of the plaintiffs-appellants to the said premises; that thedefendant-respondent claimed ownership to the said land andbuildings; that he is unlawfully occupying the said land and build-ing. The defendant-respondent filed answers denying the plaintiffstitle. He has stated that the said Indenture (Lease) was obtainedby undue influence and fraud; that he had acquired rights to theland in dispute by a deed dated 24.04.1969; that he had acquiredprescriptive rights by adverse possession; that a partition action 20No. 15389/P is pending in the District Court.
In the last amended answer the defendant has taken up anadditional position that after the expiry of the Lease Bond of 472 he
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Majubudeen and others v Simon Perera
(Edirisuriva. J.)
343
became a statutory tenant and therefore he was protected by theprovisions of the Rent act.
At the trial following admissions were recorded,
Lease of the property by Indenture No. 472 dated28.03.1969.
Situation of the property is in an area governed by the
provisions of the Rent Act.30
Proceedings and the Judgment in Ruwanwelle RuralCourt Case No. 1930.
At the trial the defendant raised the following issues:
Is the premises in suit governed by the provisions, of the RentAct?
Did the defendant who was the lessee become the statutorytenant after the expiry of the Lease No. 472?
If the above issue is answered in the affirmative can the plain-
tiffs have and maintain this action as presently constituted with-out terminating the defendant’s tenancy?40
If the answer is yes to one or more of above issues are the plain-tiffs entitled to the reliefs prayed for?
The plaintiffs raised the following issues:
Did the defendant before and after this action was instituted
Dispute the plaintiff’s rights to the premises in disputeand claim to be the owner of the said premises?
If so is the defendant entitled to the protection of theRent Act?
(a) If the defendant has disputed the rights of the plaintiffs
on the basis that he is the owner of the premises in dis- sopute is he entitled to receive notice in terms of the RentAct?
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(b) If so are the plaintiffs entitled without notice to insti-tute action for ejectment of the defendant?
If one or more of the above 5,6 issues are answered in favourthe plaintiffs are they entitled to the reliefs prayed for in theplaint?
Neither the plaintiffs nor the defendant led evidence at thetrial. However the plaintiffs closed their case producing P1 (a copyof the plaint in case No. 15398/P), P2 (the preliminary plan No. 853 60filed in the said case), P3 (the report attached to the said plan), P4(Deed No. 472 referred to in admission number one), P5 (the pro-ceedings and the Judgment in the Ruwanwella Rural Court CaseNo. 1390).
The learned District Judge has expressed the view that theplaintiffs in this case have not proved their title to the premises insuit. He has also expressed the view that in the admissions record-ed the defendant has not admitted that the premises in suit belongsto the plaintiffs.
The learned trial judge goes on to say that in a case where the 70plaintiffs are seeking a declaration of title the burden of proof is onthem to show that they are entitled to the premises in suit.
Having referred to the submission made on behalf of the plain-tiffs that since the defendant has admitted the lease agreement thedefendant is estopped from denying the plaintiffs’ title and thereforethere is no burden of proof on the plaintiffs to prove their title hestates that he is bound to follow the decision of JusticeWeeramantry in Pararajasekaram v Vijayaratnam1^ at 472.
In the above case His Lordship Justice Weeramantry hasobserved that estoppel of any variety may afford a defence against 80the enforcement of otherwise enforceable rights but it cannot cre-ate a cause of action. In other words it may only be used as a shieldand not as a sword. It is clear what Weeramantry, J. has dealt withabove is promissory estoppel which is not an issue before us.
However the learned District Judge in my opinion has failed toapply the legal principle that privity of contract is the foundation ofthe right to relief in an action by a lessor against an over holdinglessee for restoration and ejectment.
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Gratiaen, J. in Pathirana v. Jayasundare (2) at 172 states thus:“I agree. In a rei vindicatio action proper the owner of immovableproperty is entitled, on proof of his title, to a decree in his favour forthe recovery of the property and for the ejectment of the person inwrongful occupation.” “The plaintiff’s ownership of the thing is of thevery essence of the action. Maasdorp’s Institutes (7th Ed.) Vol.2,96”.
“The scope of on action by a lessor against an overholdinglessee for restoration and ejectment, however, is different. Privity ofcontract (whether it be by original agreement or by attornment) isthe foundation of the right to relief and issues as to title are irrele-vant to the proceedings. Indeed, a lessee who has entered intooccupation is precluded from disputing his lessor’s title until he hasfirst restored the property in fulfilment of his contractual obligation.”
He states that the lessee (conductor) cannot plead the excep-tio dominii, although he may be able easily to prove his own own-ership, but he must by all means first surrender his possession andthen litigate as to proprietorship. He further states that both theseforms of action referred to are no doubt designed to secure thesame primary relief, namely, the recovery of property. But the causeof action in one case is the violation of the plaintiff’s rights of own-ership, in the other it is the breach of the lessee’s contractual oblig-ation; that a decree for a declaration of title may, of course, beobtained by way of additional relief either in a rei vindication actionproper (which is in truth an action in rem) or in a lessor’s actionagainst his overholding tenant (which is an action in personam).But in the former case, the declaration is based on proof of owner-ship; in the latter, on proof of the contractual relationship which for-bids a denial that the lessor is the true owner.
Also in de Alwis v Perera (3) at 447 he states that whether theplaintiff who claims qua landlord to eject the tenant in occupationbe the tenant’s original landlord or a subsequent purchaser or alessee of the premises, his right to a decree for ejectment is in thefirst instance regulated by the principles of the common law affect-ing the relationship of landlord and tenant, and in accordance withthose principles, he must in every case establish that privity of con-tract between himself and the tenant exists at the relevant date andthat if privity of contract does exist between the plaintiff and the ten-
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ant, the latter is precluded by the provisions of section 116 of theEvidence Ordinance from disputing the plaintiff’s title to the premis-es.
In the instant case there is no doubt that the defendant has 130disputed the plaintiff's title. In his 2nd amended answer too hestates that he filed case No. 15389/P in the District Court claimingrights in the subject matter of the.action.
It is useful to consider how Mark Fernando, J. has examinedthe law with regard to a person who is in unlawful occupation of arented premises. In the Divisional Bench case of Gunasekara vJinadasaW the plaintiff-respondent-appellant was granted specialleave to appeal to the Supreme Court on the question whether ten-ant who is notified by his Landlord and the Landlord’s successor intitle that the rented premises had been transferred and that the 140rent should be paid to the transferee but who ignores that requestand continues to deposit rent to the credit of the landlord (with theauthorized person) is in law the tenant of the transferee and isliable to be ejected only upon a properly constituted.tenancy action.
In this case Mark Fernando, J. at page 122 says. “It seems to methat while it is legitimate initially to infer attornment from continuedoccupation thus establishing privity of contract between the par-ties, another principle of the law of contract comes into play in suchcircumstances to which the presumption of attornment must some-times yield. When the occupier persists in conduct which is funda- 150mentally inconsistent with a contract of tenancy and amounts to arepudiation of that presumed contract, the transferee has the optioneither to treat the tenancy as subsisting and to sue for arreas of rentand ejectment as in David Silva v Madanayake(S) (supra) or toaccept the occupier’s repudiation of the tenancy, and to proceedagainst him as a trespasser.”
He goes on to say “This interpretation commends itself to meas being consistent also with equity and fairness. The Court mustnot apply the presumption of attornment as a trap for the transfer-ee, allowing the occupier who fails to fulfill the obligations of a ten- 160ant, if sued on the tenancy, to disclaim tenancy and assert that hecan only be sued for ejectment and damages in a vindicatoryaction; but if faced with an action based on title, to claim that not-withstanding his conduct he is a tenant and can only be sued in a
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Majubudeen and others v Simon Perera
(Edirisuriya, J.) •
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tenancy action. Since it is the occupier’s conduct which gives riseto such uncertainty equitable considerations confirm the optionwhich the law of contract gives to the transferee.”
It is noted that in the instant case the defendant has taken upan additional position that after the expiry of the said lease hebecame a statutory tenant and therefore he was protected by theprovisions of the Rent Act.
The other facts support the contention of the counsel for theplaintiffs-appellants that the defendant-respondent is disputing thetitle of the plaintiffs and are in unlawful occupation of the premisesin suit. Following the authorities cited above I hold that the defen-dant is in unlawful occupation of the said premises.
Accordingly I set aside the judgement of the learned DistrictJudge and grant the reliefs prayed for in the amended plaint, Iorder no costs.
FERNANDO, J.- I agree
Appeal allowed.
Editor’s Note: The Supreme Court in SC Spl A 205/03 on 23.6.04 refused specialleave to appeal to the Supreme Court.
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