042-SLLR-SLLR-1995-2-MARTIN-SINGHO-AND-TWO-OTHERS-V.-NADNA-PEIRIS-AND-TWO-OTHERS.pdf
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Wickremaratne v. Samarawickrema and Others (S. N. Silva, J.)
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MARTIN SINGHO AND TWO OTHERS
v.
NANDA PEIRIS AND TWO OTHERS
COURT OF APPEALS. N. SILVA J.
R. RANARAJA, J.
A. 1221/88
C. MT. LAVINIA 11044/PDECEMBER 14, 1994.
Partition Law 21 of 1977 – S. 52(2) 48(1) – Delivery of possession – Tenant -Protection under Rent Act 7 of 1972 – S. 14(1) – Best test of establishing Tenancy.
Court allowed the application of the Original 1st Respondent for delivery ofpossession of Lot 1, by ejecting the Petitioners, who unsuccessfully claimedTenancy Rights to the Houses standing thereon. No affidavits in support or RentReceipts were filed by the Petitioners.
Held:
A contract of Tenancy need not be in writing; the parties must be agreed onthe identity of the premises, the period of Tenancy and the Rent Payable.
The best test of establishing Tenancy is proof of payment of Rent and the bestevidence of payment of Rent is Rent Receipts.
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[1995] 2 Sri LR.
S. 52(2) read with S. 48(1) of the Partition Law and S. 14(1) of the Rent Actrequired Court to determine-
whether the petitioners had entered into occupation of the premises asTenants prior to the date of the Final Decree.
whether they were entitled to continue in occupation of the premises asTenants under the original 1st Respondent.
The Petitioners had failed to satisfy Court of the matters aforesaid.
Case referred to:
Jayawardane v. Wanigasekera -1985 1 SLR 125.
AN APPLICATION in Revision from the Order of the District Court of Mt. Lavinia.
P. A D. Samarasekera, P.C., with G. L Geethananda for Petitioners.
J.de Almeida Gunaratne for Respondents.
January 10,1995.
RANARAJA, J.
This is an application in revision from the order of the DistrictJudge dated 4.11.88. By that order court allowed the application ofthe original 1st respondent for delivery of possession of lot 1 in finalpartition plan No. 2196 dated 9.1.78, prepared by H. A. Peiris,licensed Surveyor, by ejecting the petitioners, who unsuccessfullyclaimed tenancy rights to the houses standing thereon. On 1.11.94learned President’s Counsel for the petitioners conceded that he wasnot challenging the interlocutory decree, final decree and otherproceedings in the case, except the order dated 4.11.88.Accordingly both counsel have confined their written submissions tothe legality and propriety of that order.
When notice of the application of the 1st respondent for delivery ofpossession was served on the petitioners, each filed objectionsseparately. The objections of the 1st and 2nd petitioners, which arealmost identical, state that they are the lawful tenants of the premisesNos. 62/26 and 62/24 respectively, and are protected by theprovisions of the Rent Act. The 3rd petitioner in his objections hasaverred that the surveyor who prepared the preliminary plan, hadreported to court that he was a tenant of one of the houses, whichfact it is alleged, was accepted by the plaintiff and was furthercorroborated by the evidence of one of plaintiff’s witnessesSugathapala, at the trial. He too claimed the protection of the Rent
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Martin Singho and Two Others v. Nanda Peirisand Two Others (Ranaraja. J.)
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Act. No affidavits in support of their objections were filed by any ofthe petitioners. Thus, it was left to the District Judge to act only on theevidence placed before him at the inquiry.
Section 52(2) read with section 48(1) of the Partition Law andsection 14(1) of the Rent Act, required court to determine (1) whetherthe petitioners had entered into occupation of the premises astenants prior to the date of the final decree and (2) whether they wereentitled to continue in occupation of the premises as tenants underthe original 1st respondent Rosalin Fonseka, who was allotted the lotin which the relevant houses stood. If the petitioners succeeded insatisfying court of the two matters aforesaid, the application of the 1strespondent had to be dismissed, as section 14(1) of the Rent Actmakes provision for the tenants of residential premises to continue assuch, under any co-owner who has been allotted the relevantpremises in the final decree.
Although a contract of monthly tenancy need not be in writing, theparties must be agreed on the identity of the premises, the period ofthe tenancy and the rent payable. The 1st and 2nd petitioners claimto have commenced the tenancy under the 2nd respondent SardielPeiris alias Victor Peiris, who was the husband of the original 1strespondent. However, the report of the surveyor who prepared thepreliminary plan, on which learned President’s Counsel placed muchreliance, discloses that these two petitioners have in fact claimed tohave built the houses which they were in occupation of, with theconsent of the plaintiff in the case, namely Walter Perera. In theirobjections they also claimed to have become tenants of the premisesin 1951 and 1956 respectively, but in their evidence at the inquiry,they stated their tenancies commenced in 1953. The 1st petitionerhas given his address as no. 62/27, whereas he claims tenancy rightsin premises 62/26. Similarly, the 2nd petitioner’s wife, who gaveevidence on his behalf, has given her address as 62/24, whereas herevidence is that her son had deposited rents with the rent controlboard for premises 62/27. If these were errors in the proceedings, nosteps have been taken to correct them. Whilst the 1st petitionerclaimed to have paid a monthly rent of Rs. 1-/- and the 2ndpetitioner’s wife stated that her husband originally paid a sum ofRs. 51- per month, which was subsequently increased to Rs. 7/- andRs. 10/-, neither could produce any receipts in proof of payment. Thereason given being, that the 2nd respondent never issued receipts.Both stated that the 2nd respondent refused to accept rents someyears before the application for writ of possession was made. The 1st
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petitioner admitted he did not pay any rent thereafter, while the 2ndpetitioner’s wife’s evidence is that her son deposited the rents withthe board. That too, after the final decree. The 2nd petitioner hashowever failed to produce any receipts for such payments with theapplication to this court. In view of the unsatisfactory nature of theevidence led on behalf of both the 1st and 2nd petitioners in thelower court, the District Judge cannot be blamed for the conclusionhe reached that the 1st and 2nd petitioners failed to establishtenancy rights to the relevant premises.
The 3rd petitioner failed to lead any evidence at the inquiry. Thereis no record of any application being made, to lead any evidence onhis behalf after he belatedly appeared in Court on the date of inquiry.The averment in his objections that he claimed tenancy rights beforethe surveyor is not borne out by the surveyor’s report. He has failed tofile a copy of the proceedings where the plaintiff allegedly admittedhis tenancy or the evidence of Sugathapala, who he says, testified tothe fact that he was a tenant. His position in this court, that it was hisgrandfather Alwis Costa who was the tenant and it is his rights that henow claims by succession, is entirely contradictory to his position inthe lower court.
Learned President’s Counsel has submitted that the District Judgehas not given the petitioners a fair hearing by refusing certaindocuments to be marked and a witness being called to giveevidence. It appears that the documents and the witness would havesupported the fact that the petitioners were in occupation of certainpremises on the relevant lot. Even if this evidence was available, itwould not have established the fact that the petitioners were inoccupation as tenants, especially in view of the evidence of the 1stpetitioner that, when they were ordered to vacate the land belongingto the hospital, the 2nd respondent invited them to live on the land tobe partitioned.
As observed by the District Judge, the petitioners have failed toproduce any documentary evidence in proof of their tenancy. Thebest test of establishing tenancy is proof of payment of rent, and thebest evidence of payment of rent is rent receipts, (see Jayawardenev. Wanigasekera (1)). We see no reason to interfere with the order ofthe District Judge. The application is dismissed but without costs.
S. N. SILVA, J. -1 agree.
Application dismissed.