he alleged that the plaintiff-respondent in her evidence had notspecified any date as to when the leave and license had beenterminated. The counsel drew the attention of Court to thefollowing item of evidence given by the plaintiff-respondent.
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plaintiff, whether it be in the capacity of a licensee or a sub tenant,his claim to occupy the premises was always one under theplaintiff, and not against him. Therefore the defendant was entitledto notice of the revocation of his licence.”
In the case of Muttu Natchia v Patuma Natchia (5) Browne, J.observed that “The plaint in the case sufficiently averred that thedefendant, after entering and holding, as tenant of the plaintiff, haddisclaimed to hold, of him and put him at defiance. It wasunnecessary therefore that the plaintiff, as he did should haveaverred or have sought to prove any notice to quit given by him to sothe defendant, and the defendant was not entitled to have theaction dismissed because no valid notice was given.”
In the instant case, the defendant-appellant claimed that shewas a co-owner of the said property and totally denied that she wasa licensee.. When the defendant-appellant failed to establish thatshe was a co-owner, how could she now insist on termination of theleave and license which license never existed according to her.
Thus it was obviously clear the defendant-appellant had claimedto possess the said property as a co-owner against the plaintiff-respondent but not one under the plaintiff-respondent. Therefore, I 90am inclined to agree with the contention of the Counsel for theplaintiff-respondent that the doctrine of ‘approbate and reprobate’forbids the.assertion of the defendant-appellant.
In case of Ranasinghe v PremadharmaW Sharvananda. CJ.,observed that “The rationale of the principle appears to be that adefendant cannot approbate and reprobate. In cases where thedoctrine of ‘approbation and reprobation’ applies, the personconcerned has a choice of two rights, either of which he is at libertyto adopt, but not both. Where the doctrine does apply, if the personto whom the choice belongs irrevocably and with full knowledge 100accepts one he cannot afterwards assert the other, he cannot affirmand disaffirm.”
Secondly, the counsel for the defendant-appellant contendedthat the Deed bearing No 22313 executed on 13.03.1982 markedas (,P2) on which the plaintiff-respondent based her claim for co-ownership, was not proved either by calling the Notary Public whoexecuted the deed, or at least one of the witnesses to the deed.
Padmini v. Jayaseeli
CA(Balapatabendi, J.)17
It was an admitted fact that K.Don Thepanis Appu-was a co-owner of the land described in the schedule to the plaint. The saidThepanis Appu on 14.06.1910 by the deed bearing No.342 markedas (P1) transferred a (1/2) half share to the plaintiff’s father JamisAppu. (P1 is over 30 years old).
The said Jamis Appu separated a portion of the said land andwas in possession. The said Jamis Appu died leaving as his heirsthe widow Mary Nona and two daughters plaintiff-respondent andher sister Gunaseeli.
Mary Nona’s 1/2 share devolved on the plaintiff-respondent andGunaseeli after her demise, the said' Gunaseeli (sister of theplaintiff-respondent) gifted her share by the deed (P2) to theplaintiff-respondent. Thus all the rights of Jamis Appu weredevolved on the plaintiff-respondent.
The deed (P2) is a deed of gift, by the sister of the plaintiff-respondent.. At the trial the plaintiff-respondent had identified hersister’s signature as the donor and her signature as the donee inthe deed P2. The plaintiff-respondent was a party to the deed P2.
In addition, the defendant-appellant in her Answer at paragraphSix (6) had admitted that Jamis Appu’s rights devolved on MaryNona (wife) and the two daughters the plaintiff-respondent and hersister Gunaseeli.
In view of the aforesaid reasons, it could not be said that thedeed (P2) had not been proved as alleged by the defendant-appellant.
Thirdly, the Counsel for the defendant-appellant contended thatthe Learned District Judge had failed to consider to awardcompensation for improvements effected on the land by thedefendant-appellant.
On a perusal of the Judgment of the Learned District Judge it isclear that the learned District Judge in her Judgment had correctlyreferred to the fact that there was no evidence placed before Courtas to what were the improvements effected on the land by thedefendant-appellant, and as to the quantum of compensationclaimed by the defendant-appellant: as such she was unable tomake any order on compensation.
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In the above mentioned circumstances, I am of the view that thefindings of the Learned District Judge were correct in law. Theappeal is dismissed with costs of Rs. 10,000/-.
IMAM, J. – I agree.
Appeal dismissed.
Editors Note: The Supreme Court in SC (SPLA) 289 (4) on 13th July 2005 refusedspecial leave to appeal to the Supreme Court.