016-SLLR-SLLR-1999-V-3-NAJIMDEEN-AND-OTHERS-v.-NAGESHWARI-AND-OTHERS.pdf
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Najimdeen and Others v. Nageshwari and Others
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NAJIMDEEN AND OTHERS
v.NAGESHWARI AND OTHERS
COURT OF APPEAL.
GUNAWARDANA. J.,
JAYAWICKRAMA, J.
A. NO. 512/98 (F).
C. KANDY NO. 2448/RE.
AUGUST 17. 1999.
Civil Procedure Code – S. 18 – Subletting – Application by subtenant to add a
party as a necessary party – Rent Act, S. 10 (2) – Nemo potest plus juris ad
alium transferee quam ipse Habet – Evidence Ordinance, S.116.
Held:
The 4th defendant-respondent was placed in possession by the 3rd defendant-respondent.
It is not open to the 4th defendant-respondent to show that he is as atpresent in possession under the title of any other than that of the 3rddefendant-respondent.
Even if the party is added since, the 4th defendant-respondent even atpresent is in occupation in unbroken continuation of the property whichhe had derived from or under the title of the 3rd defendant-respondent,the 4th defendant-respondent would be effectively precluded in law fromshowing that the party proposed to be added or anyone else than the3rd defendant-respondent has title or that he is holding or in possessionunder anyone else than the 3rd defendant-respondent.
“Law does nothing in vain and commands nothing in vain."
APPLICATION in Revision from the order of the District Court of Kandy.
Cases referred to:
Rubera and Another v. Wijesuriya – [1998] – 1 Sri. L.R. 58.
V. Visvalingam v. Gajaweera – 56 NLR 111.
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Reza Muzni for the plaintiff-petitioner.
A. A de Silva, PC for the 4th defendant-respondent.
Cur. adv. vult.
September 30, 1999.
GUNAWARDANA, J.
The plaintiff-petitioner had filed this action, framed as it is, on a contractof tenancy as between himself and the 1st defendant-respondent toeject the latter and the 2nd to 4th defendants-respondents – theposition averred in the plaint being that the 1st had sublet to the 2nddefendant-respondent and that the 3rd defendant-respondent who isthe husband of the 2nd defendant-respondent, in turn, had sublet tothe 4th. The plaintiff-petitioner has made this application in revisionin respect of an order dated 04. 05. 1998 whereby the learned DistrictJudge had allowed an application made by the 4th defendant-respond-ent in terms of section 18 of the Civil Procedure Code, to add NathaDevale as a necessary party.
It is also worth pointing out, in this context, that the 2nd and 3rddefendants-respondents, in their answer, had admitted that they sub-let to the 4th, which is slightly different from the position enunciatedin the plaint, ie that it was the 3rd defendant-respondent who subletto the 4th.
Thus, it is clear that the only issue that would demand considerationat the trial is as to whether the 1st defendant-respondent had, in fact,sublet to the 2nd and 3rd for if, in fact, she, ie the 1st defendant-respondent had done so, without having obtained the prior writtenconsent of the landlord, all the defendants are liable to be ejected- subleases or subtenancies being a nullity as far as the landlord,
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ie the plaintiff-petitioner is concerned. By virtue of the operation ofsection 10 (2) of the Rent Act, a subletting or sublease made by thetenant in breach of the law confers no rights on the alleged subtenant,both of whom render themselves liable to* ejectment, because thetenant, ie the 1st defendant had no right to sublet, forbidden as hewas by the law to sublet without the prior consent of the landlordin writing. The principal tenant, ie the 1st defendant-respondent cannotevade this consequence by reason of a fictitious partnership agree-ment which gives the 2nd defendant-respondent all the benefits ofa subtenancy while describing her as a partner in business (with the1st defendant-respondent) if, in fact, the agreement with respect toa partnership is fictitious. If, in truth, the first defendant had subletto the 2nd and 3rd defendants-respondents, the latter two defendantsderive no righs because the subletting without consent of the landlordwas forbidden by law and the 4th defendant too would not deriveany right from the 2nd or the 3rd for they too had none or no rightsto transmit to the 4th defendant-respondent, who, it is to be remarked,had admittedly been let into possession by the 3rd defendant-respond-ent who is the husband of the 2nd defendant-respondent or by bothof them. Nemo potest plus juris ad alium transferre quam ipse habet- which means that no one can transfer a greater right to anotherthan he himself has, and when one has no right one cannot transferany right.
It is worth pausing to note that the fact that the 4th defendant-respondent was let into occupation by the 3rd defendant-respondentis an admitted fact in the answer that had been filed by him, ie the4th defendant-respondent, whereas 2nd and 3rd defendants-respond-ents in their joint answer had stated that both of them jointly subletto the 4th. On these pleadings, a situation which may embarass theplaintiff-petitioner, at the trial, is perhaps, in the offing, and I do notwish to aggravate it by dilating on it.
Subletting, if, in fact, the 1st defendant-respondent had done so,is a nullity as far as the plaintiff-petitioner is concerned. And, as section
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116 of the Evidence Ordinance provides that neither the tenant noranyone claiming through him shall be heard to deny that, that particularlandlord had title to the property, it is open to the plaintiff-petitionerto eject all of them, that is, the tenant and subtenants, without provinghis (plaintiff-petitioner's) title. It is well to remember that after theforfeiture of the main tenancy, that is, that of the 1st defendant, hebeing the principal tenant, the subtenants have no right to be inoccupation. As explained above, if the 1st defendant-respondent hadsublet the premises, such subletting works a forfeiture of the tenancyand the tenant and all those holding under him are liable to be ejectedas trespressers. It is to avoid that consequence, that the 4th defendant-respondent sought to prove, by means of adding the Natha Devale,that –
3rd defendant-respondent had no title to the relevant premisesin question to give the 4th defendant-respondent a validtenancy in respect of the same;
the 4th defendant-respondent, now, that is, as at present,is in occupation of the premises in suit, not under the titleof the 3rd defendant-respondent but under that of NathaDevale.
It is beyond all controversy that, in law, the 4th defendant – isestopped from proving or showing either of the two facts designated(a) and (b) above, because the 4th defendant-respondent havingadmittedly come into possession of the relevant premises or havingobtained the benefit of possession thereof from the 3rd defendant-respondent is just as much precluded or shut out from denying the3rd defendant's title as he (the 4th defendant-respondent) is fromdenying that he is in possession, as at present, under the title of the3rd defendant. For example, if the tenant had been placed in pos-session by X and now seeks to prove that he (the tenant) is nowin occupation or possession under Y or under Y's – title that is alsoa way of challenging X's title – which a tenant is not entitled in law
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to do without first surrendering possession of the premises to X underwhose title he entered into possession.
As explained in my own judgment in Ruberu and Another v.Wijesooriyct1> the fact that the tenant received the benefit of possessionfrom the landlord is, perforce, an admission by tenant of the fact thatlandlord had title to the premises. In any event, it is wholly unnecessaryfor the landlord to have title to the premises to give the same onrent and if authority for that proposition be needed it is found inVisvalingam v. Gajaweera(2) where Sansoni, J. held that the ownerhimself need not be the landlord. As explained in Ruberu's case(supra), if the tenant desires to deny the title of landlord or that heis not now in possession under the title of the person who let himinto possession, that being exactly what the 4th defendant-respondentis now seeking to do, the tenant must first vacate and surrenderpossession of the premises to the person or persons who originallyplaced him in occupation – the person who placed the 4th defendant-respondent in possession of the premises in suit, as explained above,being admittedly the 2nd and 3rd or the 3rd defendant-respondentalone. But, on the pleadings and on the admissions made by thelearned President's Counsel for the 4th defendant-respondent at thehearing before us, the 4th defendant-respondent had been continu-ously in possession as from the date, that is, from the date that he,ie the 4th defendant-respondent, was let into possession by the 3rddefendant-respondent, and had never surrendered possession to thelatter, since then.
So that even if Natha Devale is added as a party, since, admittedly,the 4th defendant-respondent, even as at present, is in occupationin unbroken continuation of the possession which he had initiallyderived from or under the title of the 3rd defendant-respondent- he (the 4th defendant-respondent) would be effectively pre-cluded in law from showing that Natha Devala or anyone elsethan 3rd defendant-respondent has title or that he is holding or
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in possession under anyone else than 3rd defendant-respondent.That being so, it would be futile to add Natha Devale as a partyto the action because, so far as I know, law requires nothingto be done that is to no purpose. Law does nothing in vain; andcommands nothing in vain. And, still less would law permit anythingto be proved which if proved would be irrelevant as expressed in themaxim "Non potest probari quod probatum non relevant'. The factsthat Natha Devale is the owner of the premises in question, and thatthe 4th defendant-respondent is presently paying rent to the NathaDevale, assuming that those facts are established, and are true, arewholly irrelevant if not for any other reason than that they, ie thosefacts, cannot in law, be made use of by the Court, as explained above,to hold that it is open to the 4th defendant-respondent to challengethe title of the 3rd defendant-respondent or to show that the 4thdefendant-respondent is not in possession under the title of the 3rddefendant-respondent.
To sum up, so far as I can see, the central point, being also thesolitary point, that arises for consideration is as to whether the 1stdefendant had, in fact, sublet to the 2nd as averred in'the plaint. Alittle confusion can arise on the pleadings in consequence of theaverment in the plaint that the 1st sublet only to 2nd defendant-respondent whereas the 2nd and 3rd defendants-respondents in theirjoint answer had stated that they both sublet to the 4th defendant-respondent who, in his answer, had stated that it was from the 3rddefendant-respondent that he obtained possession. It is probable thatthe 3rd defendant-respondent, being the husband of the 2nd defend-ant-respondent, was also holding under or by virtue of the right ofthe 2nd defendant and that he (the 3rd defendant) had sublet, if infact, he had done so, to the 4th – not in his own right or in defianceof the right of the 2nd defendant-respondent but as someone actingon behalf of the 2nd defendant-respondent who was his wife. Thesituation has to be realistically appreciated.
IN ANY EVENT, HAVING ADMITTEDLY COME INTO POSSES-SION, WHICH POSSESSION THE 4TH DEFENDANT-RESPONDENT
CANajimdeen and Others v. Nageshwari and Others
(Gunawardana, J.)129
IS STILL HOLDING OR RETAINS, IT IS NOT OPEN TO THE 4THDEFENDANT-RESPONDENT TO SHOW THAT HE IS, AS ATPRESENT, IN POSSESSION UNDER THE TITLE OF ANYONE OTHERTHAN THAT OF THE 3RD DEFENDANT-RESPONDENT. IT IS WELLTO REMEMBER THAT IN HIS OWN ANSWER, AS POINTED OUTABOVE, THE 4TH DEFENDANT-RESPONDENT HAS ADMITTEDTHAT – HE WAS PLACED IN POSSESSION BY THE 3RD DEFEND-ANT-RESPONDENT – ALTHOUGH THE 2ND AND 3RD DEFEND-ANTS-RESPONDENTS HAD, IN THEIR JOINT ANSWER, DIVERGEDA LITTLE, AND HAD STATED THAT IT WAS BOTH OF THEM WHOSUBLET TO THE 4TH DEFENDANT-RESPONDENT.
Any how, one must not forget that the point that arises on thisapplication before us, as at this stage, is not whether the 1st – 4thdefendants-respondents are liable to be ejected on the facts set outin the plaint at the instance of the plaintiff-petitioner, but as to whetherNatha Devale can be added as a necessary party under section 18of the Civil Procedure Code at the instance of the 4th defendant-respondent. I have no choice but to answer that question in thenegative, that is to say, that Natha Devale cannot be so added. Theorder of the learned District Judge dated 04. 05. 1998 directing theaddition of Natha Devale is as wrong as wrong can be and is herebyvacated.
JAYAWICKRAMA, J. – I agree.
Application allowed.