MARY BEATRICE AND OTHERS
COURT OF APPEAL.
D C. NEGOMBO 778/RESEPTEMBER 10. 1996.
Lease – Expiry of the period – License – Lessee cannot dispute lessors Title – FteiVindicatio Action.
The plaintiff-respondent instituted action to eject the original defendant from thehouse in question. It was the position of the plaintiff that the house was leased outto the original defendant’s husband by a Deed of lease (P6) and on his death, thewidow and children were permitted to reside in the house. The original defendantdied after the institution of the action. The substituted defendants-appellantsdenied the Deed of lease, and claimed title to the premises by prescription. TheDistrict Court held with the plaintiff, On appeal –
The leases (P5 and P6) were established and proved. The defendants areestopped from asserting title in view of the fact that the substituted defendants’father had acquiesced in the rights of the plaintiff as owner of the subject matter.The predecessor of the defendants was the lessee of the thatched house only, ifhe had any claim or title to the land and the trees there was no necessity for themto enter into P5 and P6.
Even assuming that the defendant had become owner of the entire premises,it was not open to him to refuse to surrender possession. He must first give uppossession and then it would be open to him to litigate about the ownership.
The defendants are not entitled to dispute the title of the plaintiff. The plaintiffneed not institute an action in rem.
APPEAL from the judgment of the District Court of Negombo.
Cases referred to:
Visvalingam v. Gajaweera 56 N.L.R. 111-
Alvar Pillar v. Karuppan 4 N.L.R. 321.
Senanayake v. Peter da Silva – 1986 2 S.L.R. 405, 412.
Hameed alias Abdul Rahuman v. Weerasinghe and Others. – 1989 1
Queen v. Leathern (H.L.) 1901 al 495.
A. K. Premadasa, P.C., with C.E. de Silva for Substituled-defendants-appellants.
P. A. D. Samarasekera. PC., with K. S. Gunawardaneior plaintiff-respondents.
Cur. adv. vutt.
December 03, 1996SENANAYAKE, J.
This is an appeal from the judgment of the learned District Judgeof Negombo. The plaintiff-respondent (hereinafter referred to as theplaintiff) instituted this action on 18.09.1979 against WarnakulasuriyaAgnes Fernando the original defendant (the mother of thesubstituted-defendants-appellants) to eject the defendant and othersfrom the house described in the schedule to the plaint and alsoclaiming a sum of Rs. 60/- as damages from 1st August 1969 untilvacant possession is restored to the plaintiff.
The defendant, Agnes Fernando was present to Court on04.12.1979 and a proxy was filed and though three dates weregranted to file answer it was not filed. Thereafter, the plaintiff'sAttorney-at-Law had filed papers for substituting the defendants-appellants as the original defendant, Agnes Fernando had died.
The plaintiff in her amended plaint stated that she became entitledto the land by P-1 deed No. 9177 of 1959 being a Deed of Gift fromher mother. Her mother by P-2 a Deed of Lease No. 4253 dated06.02.1951 granted a lease for a period of 1 year and by P-3 a Deedof Lease No. 4755 of 1954 granted a lease for a five year periodcommencing from 19.05.1954 to Justina, the subject of the lease wasonly the thatched house standing there on, Justina’s son, Paul hadcome to live in this house with his family and Justina had to leave thehouse due to differences that she had with her son’s family.Thereafter, the plaintiff had leased out the thatched house standingon the Eastern half portion by lease bond 5825 dated 20.04.1960marked P-4 to Paul and subsequently by lease No. 14448 dated16.09.1961 (P-5) the plaintiff gave a lease of the thatched house for 1year commencing from 16.09.1961 and at the expiry of the lease, shegave a fresh lease on 03.04.1965 to Paul. The said Paul died in 1966and on his death his widow Agnes Fernando and the childrencontinued to live in the thatched house during the unexpired periodof the lease after the expiry of the terms of the lease P-6, the plaintiffpermitted Agnes Fernando and her children to live in the house oncompassionate grounds as she had no other place to go. Theplaintiff's version was till 09.08.1988 the plaintiff and on her behalf hermother got the produce of the coconut trees situated in the Easternportion of the land which the substituted defendants were disputing.
The substituted-defendants-appellants (hereinafter referred to asthe defendants) in their first answer dated 10.03.1981 admittedresidence in the said premises, but denied the deed of lease P-6 anddenied that they were occupying the house described in theschedule to the plaint with the plaintiff’s approval and permission.That after the expiry of the terms in P-6 which ended in 1967 that theyhad over 10 years title by prescription and denied that their grandmother Justina Fernando and their father Don Paul had taken leasesfrom time and they were 4 orphan children and had no place to go ifthey were evicted and prayed that plaintiff's action be dismissed inthe alternative that they be given the house standing on the premisestogether a portion of the land.
The defendants amended the answer on 30.07.1981 and deniedP-6 and stated that their father, their mother and the defendants hadpossessed the house and the land described in the schedule to theplaint adversely and independently for over 10 years preceding theaction and acquired title by prescription, that they had constructed ahouse worth Rs. 3000/- and planted 10 Coconut trees and certainother specified plantation worth Rs. 2000/-. That the plaintiff had notgiven due notice to terminate the license. During the course of theevidence, it transpired that the thatched house had collapsed andthe defendants were occupying the kitchen and extended the kitchenand the plaintiff filed an amended plaint on 13.12.1984 seekingeviction of the defendants from the said kitchen and the landdescribed in the schedule to the amended plaint.
The contention of the learned Counsel for the defendants wassolely that the plaintiff could not maintain this action as the plaintiffhad not filed a rei vindicate action for declaration that she was theowner of the property. His submission was that in view of the answerfiled by the defendant that they were in possession of the land andhad acquired prescriptive title and as there was a denial that theywere overholding licences of the plaintiff. There was no evidence toestablish that Paul or Agnes Fernando shed the character of a lesseeand they had given up possession and was contesting theproprietorship of the plaintiff or did so at any stage. On the otherhand after the expiry of the terms in P-6 Agnes Fernando and herchildren (the defendants) were occupying the house with leave andlicense. His contention was since there was a denial of title theplaintiff cannot maintain this action as presently constituted.
The leases were established and especially P-5 and P-6 the leasebonds between the plaintiff and Don Paul was proved by calling theplaintiff and the Notary who attested them. The lessee Don Paul thedefendants' father had admitted the title of the plaintiff and byentering into P-6 after an expiry of three years of P-5 clearly establishthat Don Paul entering into further two years lease commencing fromMay 1965 only for the thatched house situated in the land describedin the schedule to the plaint cannot deny the title of plaintiff. Thedefendants are estopped from asserting title in view of thedefendants father Paul had acquiesced the rights of the plaintiff asowner of the subject matter in dispute. If Paul was asserting title therewas no necessity to enter into lease P-6 when there was nosubsisting lease for a period of nearly three years.
The legal position as stated vide Voet commentary on thePandects Translated by Percival Gane Volume 3 Book 19.2:32“Lessee cannot dispute lessors title though third party can – Norcan the setting up of an exception of ownership by the lesseestay this restoration of the property leased even though perhapsthe proof of ownership would be ease for the lessee. He ought inevery event to give back the possession first and then litigateabout the proprietorship”.
The evidence of the plaintiff was that after the death of the lessee,Don Paul during the pendency of the lease P-6 her thatched houseand after the expiry of the period, she gave permission to AgnesFernando and the children to occupy the house and at no stage theyhad disputed to the coconut trees in the eastern portion of the land tillApril 1985. It was common ground that the thatched house hadcollapsed during the pendency of the action and the defendants hadoccupied the cadjan kitchen which adjoined the thatched house andenlarged it and occupied it. The defendant, Mary Malkanthieadmitted that there was no fence to divide the eastern portion withthe western portion (vide page 261 of the record). Subsequently, shestated the fence was removed after Don Paul's death in 1966 by theplaintiff, (vide page 262) But no complaint was made to any person inauthority about this misdemeanour.
The contention of the learned Counsel for the appellant that theplaintiff cannot maintain this action has no merit. As to proceduresection 35 of Code of Civil Procedure permits the joinder of certainforms of relief in an action one could file an action in personam or anaction in rem. One based on a privity of contract on a lease againstan over holding tenant and the other for declaration based on proofof ownership. In the case of a former a lessee he is not entitled in lawto litigate about the proprietorship without first handing overpossession. In this case, Don Paul, the predecessor of thedefendants was the lessee of the thatched house only situated in theeastern half. If Don Paul had any claim or title to the land and thetrees there was no necessity for him to enter to P5 and P6. There wasno independent evidence to indicate after the death of Don Paul the
original defendant, Agnes Fernando was possessing adverselyagainst the interest of the plaintiff. In fact there was not even a denialto the two letters sent to her by the plaintiff’s Attorney-at-Law whenthe original defendant, Agnes was an overholding licensee whoselicensee to remain had been terminated by P7 and P9. VideVisvalingam v. Gajaweera*’> – Where the Court held that evenassuming that the defendant had become owner of the entirepremises, it was not open to him to refuse to surrender possession tohis landlord. He must first give up possession and then it would beopen to him to litigate about the ownership – The facts of the instantcase stand on a stronger premise – Here the defendants,predecessor, Don Paul had taken only the thatched house on leaseand after the expiry of the terms of the lease. Agnes Fernando, theoriginal defendants and her minor children was permitted to occupywith permission of the plaintiff. There was no evidence to prove thatAgnes Fernando and her children were possessing the houseadversely to the right of the plaintiff.
The Case of Alvar Pillar v. Karuppan™ where the defendant wasgiven a land on a non notarially attested document. Bonser, C.J.,observed at page 322 "It is not necessary for the purpose of thiscase to state the devolution of the title, for even though theownership of one half of this land were in the defendant himself,it would seem that by our law having been let into possession ofthe whole by the plaintiff. It is not open to him to refuse to giveup possession to his lessor at the expiration of his lease. Hemust first give up possession and then it will be open to him tolitigate about the ownership". In my opinion the defendant has nodefense to this action. He must give up possession to the plaintiffalso vide Senanayake v. Peter de Silva™.
It is opportune at this moment to quote Maasdorf, Institutes ofCape Law 4th Edition Volume 3 page 248 “A lessee as alreadystated is not entitled to dispute his landlord’s title andconsequently he cannot refuse to give up possession of theproperty at the termination of his lease on the ground that he ishimself the rightful owner of the same. His duty in such a case isfirst to restore the property to the lessor and then to litigate with himas to the ownership."
I am of the view, that the defendants original answer andsubsequent answer are inconsistent. The defendants are not entitledto dispute the title of the plaintiff. The plaintiff need not institute anaction in rent and he could maintain this action on the amendedplaint as instituted. The learned Counsel for the appellant relied onthe authority of Hameed alias Abdul Rahuman v. Weerasinghe andOthers™. I am of the view this authority has no relevance to the factsof this instant case. I am surprised that a senior counsel of such wideexperience relying on an authority which has no bearing to the factsof the instant case.
It is appropriate to quote Lord Halsbury's observation in the caseof Queen v. Leathern151 “that every judgment must be read asapplicable to the particular facts proved or assumed to beproved since the generality of the expressions which may befound they are not intended to the expositions of the whole lawbut governed and qualified by the particular facts of the case inwhich such expressions are to be found. The other is that a caseis only an authority for what it actually decides. I entirely denythat it can be quoted for a proposition that may seem to followlogically from it. Such a mode of reasoning assumes that the lawis necessarily a logical code, whereas every lawyer mustacknowledge that the law is not always, logical at all”.
It is my view, that the learned District Judge had come to adetermination on question of fact. He had preferred to accept theevidence of the plaintiff and her witnesses to that of the defendants.The learned counsel for the appellants did not submit that thedetermination was contrary to the evidence nor that it was perverse.In the circumstances, this Court has no reason to interfere with thejudgment. I affirm the judgment and decree and dismiss the appealwith costs fixed at Rs, 5,250/-.
EDUSSURIYA, J. -1 agree.
MARY BEATRICE AND OTHERS v. SENEVIRATNE