REGINALD FERNANDO v. PABILINHAMY AND OTHERS (SUBSTITUTED)

005-SLLR-SLLR-2005-V-1-REGINALD-FERNANDO-v.-PABILINHAMY-AND-OTHERS-SUBSTITUTED.pdf


SCReginald Fernando31
vs Pabilinahamy and others (substituted)
REGINALD FERNANDOvs
PABILINAHAMY AND OTHERS (SUBSTITUTED)
SUPREME COURTBANDARANAYAKE, J.
DE SILVA, J. ANDJAYASINGHE, J.
S. C. APPEAL NO. 156/97
A. APPEAL, NO. 363/91 (F)
C. NEGOMBO NO. 3746/L
10th FEBRUARY, 30th MARCH AND 1 st APRIL, 2004
Occupation of land by licensee – Right of licensee to occupy the land aftertermination of the license – Right of licensor to eject licensee – Claim of licenseeto prescriptive title of the land.
The plaintiff – appellant (“the plaintiff”) instituted action against the originaldefendant (“the defendant”) for ejectment from a cajan shed where thedefendant and his father had resided for four decades. The evidence provedthat the defendant’s father J was the carter under the plaintiff’s father. After thedeath of J the defendant continued to reside in the shed as a licensee.
On 22.03.1981 the plaintiff had the land surveyed by a surveyor ; and on06.01.1987 sent a letter to the defendant through an attorney-at-law callingupon the defendant to hand over the vacant possession of the shed which asper the said letter the defendant had been occupying as a licensee. Thedefendant failed to reply that letter without good reason for the default. Thedefendant also falsely claimed not to have been aware of the survey of theland. In the meantime the plaintiff had been regularly collecting the produce ofthe land.
The defendant claimed prescriptive title to the land. The District Judge gavejudgment for the plaintiff. This was reversed by the Court of Appeal.
Held:
The defendant failed to establish prescriptive title to the land as required bysection 3 of the Prescription Ordinance.
The Court of Appeal failed to consider all the relevant evidence.
32Sri Lanka Law Repons(2005) l Sri L. R.
Where the plaintiff (licensor) established that the defendant was a licensee,the plaintiff is entitled to take steps for ejectment of the defendant whether ornot the plaintiff was the owner of the land.
Per Bandaranayake, J.
‘The Court of Appeal erred in holding that the District Court had entered judgmentin favour of the plaintiff in the absence of sufficient evidence to prove that theplaintiff was either the owner or that the defendant, was his licensee”
Cases referred to:
Fernando v Wijesooriya 48 NLR 320
De Alwis v Perera 52 NLR 433
APPEAL from the judgment of the Court of Aoppeal.
Romesh de Silva, P.C. with Sunil Coorav and Sugalh Caldera for plaintiff-appellant
K.S. Tilakaratne for substituted defendants-respondents.
Cur.adv.vull
July 15,2004
SHIRANI BANDARANAYAKE. J.This is an appeal from the judgment of the Court of Appeal dated06.05.1997. By that judgment the Court of Appeal set aside the judgmentof the District Court of Negombo dated 01.08.1991 and dismissed theplaintiff-respondent-appellant’s (hereinafter referred to as the plaintiff) action.The plaintiff appealed to this Court where Special Leave to Appeal wasgranted on the following questions :
did the Court of Appeal misdirect itself by rejecting the adverse inferencedrawn by the learned District Judge from the failure of the defendantto reply the notice to quit produced marked P3 ;
■ did the Court of Appeal misdirect itself on the primary facts by holding
that the learned District Judge had determind that the deed producedmarked P1 did not refer to the land in dispute ;
SCReginald Fernando33
i/s Pabilinahamy and others (substituted) (Bandaranayake, J)
did the Court of Appeal err by failing to take into account the correctinference which can be drawn from the acquiescence of the defendantin the survey of the land in 1981 which was effected at the instance ofthe plaintiff;
did the Court of Appeal err in rejecting the plan produced marked P2inasmuch as it had been read in evidence at the conclusion of theplaintiff’s case without objection by the defendant;
, 5. did the Court of Appeal err in not property evaluating the evidence ledby the plaintiff to establish the fact that the plaintiff had appropriatedthe produce of the said land ;
did the Court of Appeal misdirect itself by failing to properly evaluatethe evidence led by the plaintiff to establish possession of the land byhim ;
did the Court of Appeal misdirect itself by failing to take into accountthe proper inference to be drawn on the evidence led on behalf of theplaintiff, which clearly established that the defendant and hispredecessors had been placed in possession by the plaintiff and hispredecessors in title on the latter’s leave and license.
The facts in this appeal, albeit brief, are as follows
The plaintiff filed action against the defendant-appellant-respondent, nowdeceased and substituted (hereinafter referred to as the defendant) on thebasis that it was with the leave and license of the plaintiff that the defendantwas in occupation of the thatched house which is described in the scheduleto the plaint. The defendant by his answer denied this position taken bythe plaintiff and claimed title to the land by prescriptive possession. TheDistrict Court of Negombo held that the defendant was occupying thethatched house with the leave and license of the plaintiff and the issueswere answered in favour of the plaintiff. The Court of Appeal set aside thejudgment of the District Court of Negombo, dismissed the plaintiff's actionand allowed the defendant’s appeal.
It is not disputed that although Special Leave to Appeal was granted onseveral questions of law, the main matter in issue is “whether the Court ofAppeal erred in holding that the District Court has entered judgment infavour of the plaintiff in the absence of sufficient evidence to prove that hewas either the owner or that the defendant was his licensee”.
34Sri Lanka Law Reports(2005) t Sri L. R.
Learned Counsel for the defendant strenuously argued that the defendantand his previous generations of family had undisturbed and uninterruptedpossession and they had been living in the land in question for well overfour decades. The defendant therefore vehemently denied the fact that hehad entered the house in question with the leave and license of the plaintiffand contended that he had acquired prescriptive title to the land, which isa defined portion, by having for over four generations undisturbed anduninterrupted possession.
The plaintiff, as referred to earlier, had filed action against the defendanton the ground that the latter had entered the land in question on leave andlicense of the plaintiff. In support of his position the plaintiff had calledthree witnesses, namely the Grama Niladhari of the area, one SolomonAppuhamy, who was a neighbour for 53 years and one Jamis Appuhamy,who used to pluck coconuts of the estate. The plaintiff had stated in hisevidence that the defendant’s father was a carter who served his father.The carter was thus permitted to remain in the land as his licensee andthat on his death the defendant, being the son of the carter, became theplaintiff’s licensee. The Grama Niladhari had stated in his evidence thatthe plaintiff used to visit the land, pluck coconuts once a month and takeall the produce. He specifically stated that there had been no objectionfrom the defendant. Solomon Appuhamy, who had been a neighbour forover 5 decades, stated in his evidence that the plaintiff took all the prjoduceof the land. Moreover he emphasised the fact that the defendant’s fatherwas the carter of the plaintiff’s father and thereby came into occupationwith leave and license of the plaintiff’s father. Jamis Appuhamy, givingevidence had stated that he had been plucking accounts in the land inquestion dating from 1948 until 1983 on the instructions of the plaintiff andthat all the produce was given to him.
The defendant had not called any one to give evidence on his behalf andas opposed to the plaintiff’s evidence the only evidence was that of thedefendant.
The plaintiff it is to be noted, had not produced any evidence either oralor written, to show that the defendant had entered the land and had occupiedthe house in question with the leave and license of the plaintiff. Nevertheless,on 06.01.1987, the plaintiff had sent a quit notice through his Attorney-at-
SCReginald Fernando35
t/s Pabilinahamy and others (substituted)(Bandaranayake, J)
Law to the defendant, informing him that he has to hand over the vacantpossession of the cadjan hut on or before 28.02.1987 (P3). The defendant,though claimed that he has a prescriptive right to the land, waited withoutreplying the notice to quit.
Admittedly, the defendant has not produced any document to showthat he is the owner of the land and the house in question. As referred toearlier his position is that he has prescriptive right to the land. In such asituation the behaviour of a normal person would be to reply the notice toquit querying the plaintiff’s right to send him a notice to quit and denyingthat he was the licensee of the plaintiff. However, it is an admitted fact thatthe defendant, after receiving the notice to quit took no action to reply theplaintiff. In his reply to the question as to the reason for not replying thenotice to quit, the defendant stated that he was not aware that it is necessaryto reply such a letter. The notice to quit, which is reproduced below, waswritten in simple language which could be understood easily by any averageperson (P3).

36Sri Lanka Law Reports(2005) J Sri L. R.
Notwithstanding the above, the behaviour of the defendant with regardto the surveying of the land, also has brought in a situation where thedefendant has portrayed himself as a person who cannot be believed.According to the plaintiff the land in question was surveyed by SurveyorT.S.S. Fernando on 22.03.1981. On this issue the defendant took up theposition that he was not aware of such a surveying being carried out as heand his family were in Kataragama at the point of time of the survey. Thedefendant contended that he became aware of.the surveying only after theinstant case was instituted in 1987, approximately after six years of thesurveying was carried out. When the defendant gave evidence on29.11.1990, (at pg. 119) he has stated as follows :

Considering the evidence given by the defendant, it appears that eitherthe defendant was not aware that the land he was in occupation wassurveyed until 1987 or that although he was aware that he did not think itis necessary to make inquiries on such surveying. Both these positionsappear to question the credibility of the defendant. It is unbelievable to beheard to say that in a village of this country one would not be aware of asurvey that was carried out in the absence of the owner or the licensee fora period of 6 years. Further the behaviour of the defendant in not takingany steps when he became aware of the surveying in my view would beinexplicable.
On a consideration of the totality of the aforementioned circumstancesand evidence and on a balance of probability I am inclined to accept the

However, on 19.07.1990, he had taken a different stance and stated asfollows (pg. 109)
SCReginald Fernando37
i/s Pabilinahamy and' others (substituted)Bandaranayake, J)
position taken by the plaintiff that the defendant came into the land inquestion with the leave and license of the plaintiff.
The defendant further took up to position that he has prescribed to theproperty. The legal position which governs prescription for immovableproperty is contained in Section 3 of Ordinance, No. 22 of 1871. In fact inFernandov. Wijesooriya.i'), Canekeratne, J., stated that,
“The whole law of prescription is to be found in Ordinance, No. 22 of1871”
Section 3 of Ordinance, No. 22 of 1871, as amended by Ordinance, No.2 of 1889 states as follows :
“Proof of the undisturbed and uninterrupted possession by a defendantin any action, or by those under whom he claims of lands or immovableproperty, by a title adverse to or independent of that of the claimant orplaintiff in such action (that is to say, a possession unaccompanied bypayment of rent or produce, or performance of service or duty, or by anyother act by the possessor from which an acknowledgment of a rightexisting in another person would be faulty and naturally be inferred) for tenyears previous to the bringing of such action, shall entitle the defendant toa decree in his favour with costs ..
Although the defendant is claiming prescriptive rights on the property inquestion, he has not demonstrated as to the date when he began hisadverse possession and how such adverse possession commenced.Without adducing any evidence as to the date of commencement of adversepossession, the defendant will not be in a position to make a claim onprescription to the property in question. Accordingly, the defendant hasnot established the requirement of uninterrupted and undisturbedpossession which are explicitly adverted to in Section 3 of the PrescriptionOrdinance. In such circumstances it is quite apparent that the petitionercannot base any claim on prescription.
On a consideration of the totality of the evidence and the circumstancesof this case, it is clear that the learned District Judge has correctly analysedthe evidence given by the plaintiff, defendant as well as the witnessessummoned by the plaintiff and has carefully considered the submissions
3SSri Lanka Law Reports(2005) ! Sri L. R.
made on defendant’s entry to the property in question on leave and licenseof the plaintiff as well as the defendant’s claim on prescription. Therefore itwould not be correct for the Court of Appeal to come to the conclusionwhere it is stated by the learned Judge that,
‘The main ground on which the learned District Judge has held infavour of the plaintiff is that the defendant failed to reply notice to quitdated 06.01.1987 (P3) sent by the Attorney-at-Law to the defendant."
The judgment of the Court of Appeal further stated that,
“.. .the mere fact that the defendant failed to reply P3 does not entitlethe plaintiff to judgment prayed for.”
It is to be noted that the position taken up by the Court of Appeal is notcorrect as on an examination of the judgment of the District Court it isextremely clear that the failure to reply the notice to quit was only one of •the aspects taken into consideration by the learned District Judge.
There is one other aspect, which I wish to pursue before I depart fromthis judgment. Learned President’s Counsel for the plaintiff submitted thatin a case where action has been instituted on the basis of leave andlicense and/or landlord and tenant and if the plaintiff proves that he is thelicensor and/or the landlord and that the defendant is his licensee and/ortenant, the plaintiff is entitled to ejectment notwithstanding the fact that heis not the owner of the premises.
A long line of cases had considered this matter and the ruling by themajority decision in de Alwis v Perera(2) has been consistently followed insubsequent decisions. Discussing the question of lack of any ius in re’inthe landlord, Prof. G. L. Peiris (Landlord and Tenant, Lake House Publisherspg. 215-223) states that 'no real right in the premises need be claimed bythe landlord’.
In de Alwisv Perera (Supra) the premises belonged to the plaintiff’s wifeand it was let to the defendant on the basis of a monthly tenancy by herhusband. Accordingly the principal parties to the contract were the plaintiffas landlord and the defendant as tenant. It is to be noted that as far as the
SCReginald Fernando39
vs Pabilinahamy and others (substituted)(Bandaranayake, J)
■ tenancy and the tenant was concerned, all his dealings were with theplaintiff.
Gratiaen, J. referring to the plaintiff stated that,
“He was the original landlord under the contract of tenancy, and hisright under the common law to claim ejectment has been clearlyestablished. The fact that he was not the owner of the premises isirrelevant, because his rights are founded on contract and not onownership.”
In the circumstances, the plaintiff as the licensor and/or the landlord isentitled to eject the defendant who is his licensee from the premises inquestion..
Considering the totality of the evidence and circumstances before thisCourt the main question in issue is answered in the affirmative and readsas follows:
“Yes.
The Court of Appeal erred in holding that the District Court hasentered judgment in favour of the plaintiff in the absence ofsufficient evidence to prove that he was either the owner or thatthe defendant was his licensee.”
For the aforementioned reasons, the appeal is allowed, the judgment ofthe Court of Appeal dated 06.05.1997 is set aside and the judgment of theDistrict Court of Negombo dated 01.08.1991 is affirmed.'
In all the circumstances of this case, there will be no costs.
J. A. N. DE SILVA J. – I agree.JAYASINGHE J.-1 agree.
Appeal allowed.