035-SLLR-SLLR-1998-V-2-RATNAWEERA-v.-NANDAWATHIE-FERNANDO-AND-ANOTHER.pdf
CA
Ratnaweera v. Nandawathi Fernando and.Another
(C. V. Wigneswaran, J.)
299
RATNAWEERA
v.
NANDAWATHI FERNANDO AND ANOTHER
COURT OF APPEALWIGNESWARAN, J.
A. NO. 405/83 (F)
C. PANADURA NO. 15691SEPTEMBER 13; 1996/,
Landlord and Tenant – Subletting – Requisites – Section 10 of Rent Act.Held:
Under section TO of the: Rent Act subletting can be established if three mattersare proved:'
Sole and exclusive possession by the subtenant.
Such possession should relate to a defined portion of the premises.
Payment of rent in respect of the portion occupied'or possessed.
Neither separate occupation nor payment of rent was proved and the occupationof the 2nd defendant-respondent were explained.
APPEAL from judgment of the District Judge of Panadura;
P. A. D. Samarasekera; PC with S. Gunasekera and Parakrama Agalawatte for1st defendant-appeljarit.
N. R. M. Daluwatte, PC with Raja Bandaranayake and Jagath Jayaratne for plaintiff-respondent.
Cur. adv. vult.
February 25, 1997
C. V. WIGNESWARAN, J.
The plaintiff-respondent instituted this action against the 1st defendant-appellant and 2nd defendant-respondent for ejectment and for recoveryof arrears of rent and damages in respect of premises No. 6, DibbeddaRoad, Nalluruwa in Panadura.
300Sri Lanka Law Reports(1998) 2 Sri LR.
The case was based on two grounds, viz:
arrears of rent as from 01.12.76 and,
subletting of a portion of the premises by the 1stdefendant-appellant to the 2nd defendant-respondentwithout written consent .being obtained from the plaintiff.
The 2nd defendant-respondent left the premises around the timethis action was filed. Thereby the case proceeded against the 1stdefendant-appellant only, with permission of court.
Since rents claimed had been deposited by the 1st defendant-appellant with the Urban Council, Panadura, the plaintiff-respondentproceeded to trial only on the ground of subletting.
The plaintiff-respondent's position was that he originally rented outto the 1 st defendant-appellant on or about 01.11.1971 the then existingpremises at Rs. 65 per. month. Thereafter the plaintiff alleged thathe constructed an extension around 1973 and that portion togetherwith the original premises was let as one premises on a monthly rentalof .Rs. 75<as from 01.09.1974 to the 1st defendant-appellant.
The 1st defendant-appellant denied that a new portion wasconstructed in 1973.
It was the case of the plaintiff-respondent that he saw the 2nddefendant-respondent in occupation of a portion of the premises andhe deduced that it was the portion later put up by him and let tothe 1st defendant-appellant.
The plaintiff-respondent thereafter made a complaint to the GramaSevaka and an inquiry was held.
The 1st defendant-appellant took up the position that the 2nddefendant-respondent and his wife stayed temporarily to help themat the time the 1st defendant-appellant’s wife gave birth to a child.
The learned District Judge of Panadura by his judgment dated18.07.83 held in favour of the plaintiff-respondent. It is against thatjudgment this appeal has been preferred.
CARatnaweera v. Nandawathi Fernando and Another
(C. V. Wigneswaran, J.) '301
The learned President's Counsel appearing for the 1st defendant-appellant has taken up broadly the following matters: ■ .
Section 10 of the Rent Act stipulates that to prove sublettingthree matters must be brought put'in evidence, viz:
• (a) 'sole and exclusive possession by the subtenant,
such possession should relate to a defined portionof the premises let, and
(c) that there had been payment of rent in respect ofsuch portion (occupied or possessed. In this caseneither separate occupation nor payment of anyrent had been proved.
Adequate reasons for the occupation by the 2nd defendant-respondent and his wife had been given and thereforeno inference of subletting could arise. Decision reported in77 NLR page 403 was cited.
No evidence to support the finding of the learned DistrictJudge appears on the face of the record.
These submissions would now be examined.
Section 10 of the Rent Act, No. 7 of 1972 reads as follows:
"10 (1) For the purposes of this Act, any part of any premisesshall be deemed to have been let or sublet to any person,if, and only if, such person is in exclusive occupation, inconsideration of the payment of rent, of such part, and suchpart is a defined and separate part over which the landlordor the tenant, as the case may be, has for the time beingrelinquished his right of control; and no person shall bedeemed to be the tenant or the subtenant of any part ofany premises by reason solely of the fact that he is permittedto use a room or rooms in such premises."
There is no doubt that the law expects –
proof of exclusive occupation;
302
Sri Lanka Law Reports
(1998) 2 Sri L.R.
of a defined and separate part or portion of the premiseslet;
for which rent was paid.
The question is whether these ingredients were brought out inevidence in this case. The learned District Judge (at page 66 of theBrief) in his judgment accepted that an additional structure had beenconstructed. Then he says the 1st defendant-appellant would havewanted to have some benefit from this extra structure since he wasnot rich. Since the 1st defendant-appellant could not afford to keeptwo persons free of charge at home and feed them .the learned Judgesurmises that the 1 st defendant-appellant must have let the newly builtstructure to the 2nd defendant-respondent. Then he concludes thatsince the plaintiff came to know about the subletting the 2nd defendant-respondent might have left the premises.
Apart from the learned District Judge finding a motive or need to .sublet and concluding on the basis of such motive or need, he seemsto have not come to a firm conclusion on the evidence led beforehim that there had in fact been subletting. Since it had been acceptedthat the 2nd defendant-respondent and his wife were living at therelevant time in the house let to the 1st defendant-appellant, couplinga plausible motive or need to that fact would no doubt have createdan immediate temptation in the mind of the Judge to come to theconclusion that there had been subletting. But the law expects muchmore than mere surmises however plausible they may be. The threeingredients above-mentioned must be brought out in evidence to provesubletting. There was in this case no sufficient proof of payment ofrent to a defined portion of the premises let, over which the 2nddefendant-respondent had sole and exclusive possession. Theevidence points more to common living in the entire house based onmutual help rather than exclusive possession by the 2nd defendant-respondent of a part of the house. A number of reasons had beengiven as to why the 1st defendant-appellant called upon the 2nddefendant-respondent and his wife to stay with them. They are –
the burglary that took place in 1977 which made it unsafefor the wife of the 1st defendant-appellant to live alone whenthe husband was out;
CARatnaweera v. Nandawathi Fernando and Another
(C. V. Wigneswaran, J.);303
(ij) the birth of a child on 26.04.77 as evidenced by D3;
« .
the itinerant nature of work carried on by the 1st defendant-appellant that took him away for days from home;
the need for help to look after 1st defendant-appellant's wifeafter her confinement.
the 2nd defendant-respondent, a distant relative of the 1stdefendant-appellant, falling into difficulties at the relevant
time;
It could be asKed in retrospect as to why a servant was notemployed instead 6f . calling a distant relative with his wife. May beit could have, bfeen done. But that does not diminish the plausibilityor reasonableness of the decision of the 1st defendant-appellant tobring in the 2nd defendant-respondent and his wife to mutually helpeach other. When a reasonable explanation was given by the 1stdefendant-appellant as to the presence of the 2nd defendant-respond-ent and his wife, it was incumbent on the part Of the learnedDistrict Judge to have looked out for other facts'which were eitherin consonance with or contrary to these explanatory facts…
On an examinationof the evidence it is found that there were manyancillary facts which seemed to corroborate the explanation given bythe 1st defendant:appellant. For example –
the 2nd defendant-respondent's name had not got into thehouseholder's list of the premises in suit;
all the furniture of the 2nd defendant-respondent had notbeen transferred to the premises in suit;
the Grama Sevaka who inspected the premises consequentto a complaint made by the plaintiff-respondent did not speakof any partitioning of the premises or exclusive occupationby the 2nd defendant-respondent.
the 1st defendant-appellant had told the Grama Sevaka thatthe 2nd defendant-respondent could be sent out at any timeand also that he was a relation of his;
304
Sri Lanka Law Reports
(1998) 2 Sri LR.
even the document marked P2 which had been written tothe plaintiff-respondent by the 2nd defendant-respondent didnot mention of any payments of rent but only that 2nddefendant-respondent came to the premises for a short timeonly at the request of the 1st defendant-appellant.
All these were facts which made it just and reasonable for thelearned District Judge to have accepted the 1st defendant-appellant'sstory.
As opposed to this it is found that the plaintiff-respondent wentto the premises in suit only in 1972 and not in 1977 when the allegedsubletting had taken place, (vide page 45 of the Brief). At page 44he said that he was unaware that a child was born to 1st defendant-appellant's wife. He was even unaware that 1st defendant-appellantwas married. The question then arises how the plaintiff could haveknown or seen anything regarding the exclusive occupation of adefined portion by the 2nd defendant-respondent on payment of a rent.
The learned President's Counsel for the plaintiff-respondent hadsought to buttress the plaintiff-respondent's case by saying that noquestion was asked from the plaintiff in cross-examination as to howhe saw the 2nd defendant-respondent occupying a portion of thepremises. If asked the plaintiff-respondent would have explained, itwas argued. But it was plaintiff-respondent's obligation to prove hiscase;in' accordance with the law.. •
Thus the learned Judge should have looked for evidence whichmade certain that the 2nd defendant-respondent did occupy exclusivelyan identifiable entity, (vide 54 NLR page 572). There was no evidenceto that effect despite the Grama Sevaka visiting the premises in suit.
Clearly the learned District Judge had misdirected himself in comingto his conclusion that the 1st defendant-appellant had sublet thepremises in suit to the 2nd defendant-respondent.
The conclusion by the learned District Judge based on surmisesand suspicions is not borne out by the evidence.
I therefore set aside the judgment dated 18.07.1983. I also dismissthe plaintiff's case in the District Court of Panadura with taxed costspayable by the plaintiff-respondent to the 1st defendant-appellant bothin the original Court as well as in this Court.
Appeal allowed.