SILVA et al v. KUMARIHAMY

095-NLR-NLR-V-25-SILVA-et-al-v.-KUMARIHAMY.pdf


( 449 )
Present: Porter J. and J&yew&rdene A.J.SILVA et al v. KTJMARIHAMY.
135—*D. C. Ratnapura, 3,681.
Lease of land to owner—Is possession by lessee possession of thelessor ?—Prescription—Evidence Ordinance9 s. 116—Estoppel–Res judicata.
A lease to an owner of his own property is not valid in law, and aperson who possess his own property under a lease from anotherdoes not possess under or on behalf of that other-
Semble, section 116 of the Evidence Ordinance, 1895, appliesonly to cas& in which the owner-lessee is let into possession by thelessor, and does not extend to cases in which the owner-lessee takeson lease a property of which he is already in possession.
In April, 1911, the defendant leased for nine yearn to M lot X,and the boundaries in the deed of lease included an adjoining blockY, of which M was owner. In 1919, on the termination of the lease,the heirs of M were prepared to surrender the lot leased exclusiveof Y. The defendant brought an action against the fourth plain-tiff (the widow of M) for rent and ejectment.
The Court held in July, 1921, that under the terms of the leasethe fourth plaintiff was bound to give up possession, and thedefendant was placed in possession in November, 1921. InSeptember, 1921, plaintiffs, who were the widow (fourth plaintiff)and children of M, instituted the present action for declaration oftitle. The defendant pleaded prescription claiming the possessionby his lessee from April, 1911, to September, 1921, as his possession.
Held, that defendant had not acquired title by prescription, andthat the fourth plaintiff was not barred by the decree in the formeraction from asserting her title to one-half of the lot.
'jpHE facts are set out in the judgment.
W. Jayewardene, K.G. (with him Soertsz), for defendant-appellant.—The old case was between the same parties andoperates as res judicata, and the same matter cannot be reagitatedbetween the same parties. Martenis was lessee under the defend-ant’s predecessor in title of this lot now in dispute, and Martenis’possession is possession which accrued to the benefit of the defend-ants. A lessee cannot plead the exceptio domini (Voet 19, 2, 32).This principle of the Roman-Dutch law is embodied in section 116of the Evidence Ordinance.
Andanandan (with him R. C. Fonseka), for plaintiffs-respon-dents.—The finding of the District Judge in both cases shows thatMartenis was never let into possession of lot 1 by the defendant.
33-xxv.12(60)29
1928.
( 460 )
1928.
Silva v.Kwnari-hamy
The inclusion of lot 1 within the boundaries recited in the deed oflease was an obvious mistake, and therefore Martenis cannot besaid to he a tenant of the defendant’s predecessor. Martenis was inpossession by virtue of his own right.
The case reported in 3 Bal. 115 is expressly in point, and is bindingon the Court. ' The old tenancy case was wrongly decided, andcannot operate as res judicata, 33 Mad. 102; 39 Cal. 848. Atenant may always show that his conduct was due to mistake orignorance of fact. Caspersz on Estoppel, section 241.
Jayewardene, in reply.
Cur. ado. mil.
October 19, 1923. Jayewabdene A.J.—
In this case the plaintiffs, as the heirs of one Martenis de Silva,sue the defendant to be declared entitled to a piece of land calledAluliaddegodawatta. The fourth plaintiff, the widow, also claimscompensation for a house built by her on the land. The defendantdenies the title of the plaintiffs, and claims the land as a part of aland called Bandarawatta. He also alleges that he leased this pieceof land along with the rest of Bandarawatta to Martenis in the year1911 for nine years, and that he has acquired a title by prescriptionto the land through his lessee Martenis and his heirs. The learnedDistrict Judge has decreed the claim of the plaintiffs, and thedefendant appeals, We have no hesitation in agreeing with thelearned Judge that the paper title to the land in dispute is in theplaintiffs, but the question of prescription raises a difficulty. Theland Bandarawatta is admittedly the property of the defendant, andthe land leased to Martenis as Bandarawatta is depicted in the planHo. 100 filed in the case, and is shaped like a. shield. A portion tothe north, about a rood in extent, is cut off from the rest of the landby the high road from Ratnapura to Pelmadulla. The portionclaimed by the plaintiffs which they call Aluliaddegodawatta * is inthis northern block, and is marked lot No. 1 and tinted blue. Onthe east and west of it are lands belonging to the defendant whichhe says are parts of Bandarawatta. The correct northern andeastern boundaries as given in the lease of Bandarawatta, whichextended beyond the road, included within them the land indispute—lot No. 1. Possession under the lease continued for thefull term, that is, till 1919, and at the termination of the leasethe plaintiffs were prepared to surrender all the land includedwithin the boundaries except their land Aluliaddegodawatta (lotNo. 1). Thereupon, the defendant brought an action in February,1920, against the fourth plaintiff as the heir of Martenis for eject-ment, rent, and damages. He alleged that after the death ofMartenis, the fourth plaintiff continued to act on the lease, and paidrent up till October, 1920. In her answer the fourth plaintiffdenied all the allegations in the plaint, and that, she ever paid rent.
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and sets up a title to the land Aluliaddegodaw&tta in dispute in thisease. Several issues were framed, but the most important oneswere : (1) Did defendant’s husband take the portion now in disputeon lease from plaintiff ? (2) If so, is defendant estopped fromdenying plaintiffs’ claim ? The District judge after trial foundthat although the portion in dispute was included within theboundaries given in the lease of 1911, it was reoognized and possessedas a distinct and separate land, known by the name Aluliaddegoda-watta, and that the defendant never acknowledged plaintiffs’ right toit. He decided both issues in the negative. On appeal this judgmentwas set aside, and in the course of its judgment this Court said :—
“ The first issue appears to have raised the question as to whetherthere was a lease; and the second, if so, was the defendantestopped from denying the plaintiffs’ claim. The fifthissue raised the question whether even if a lease had beenexecuted it had been acted upon. With regard to thefirst issue, the learned Judge has found that there was alease, P 1. It would seem that by the terms of the lease. the lessees covenanted to deliver up possession at theexpiration of the term. The learned Judge has foundthat the land dealt with under the lease is the landplaintiffs seek to eject the defendant from. The learnedJudge then proceeded to deal with evidence relating to thedefendant’s assertion that she was entitled independentlyto lot No. 1. No issue was raised on this point, and theevidence is not relevant. Under the terms of the leasethe lessees were bound to give up possession to thelessor, and the defendant claims to be the heir to herhusband. No question of title after that finding could begone into in this action. I would accordingly allow theappeal, and give judgment for plaintiffs as prayed for,except in regard to damages which counsel for the appel-lant does not press.”
This judgment was delivered on July 13, 1921, and the fourthplaintiff was ejected and the lessor placed in possession on November29, 1921. In the meantime, on September 30, 1921, the plaintiffsinstituted the present action for a declaration of title. On thatdate the lease had been in operation for over ten years. Thedefendant alleges that whatever title Martenis and his heirs, theplaintiffs, may have had to the land has been extinguished by theland having been possessed by his lessee, which he claims as posses-sion on his behalf for over the prescriptive period of ten years, Thelearned Judge, in the course of his judgment, says :—
I am of firm opinion that this planting agreement (that is, thelease of 1911) was a ruse to secure this Naboth’s vineyardof lot (1), a very desirable trading site, part of which (lotsB and C) have been previously encroached by the Bandaras..
1988*
Jaybwab.-
DEHB A. X
Silva v.Kumari-httmy
( 452 )
1928,
JayhwAn-navra A. J.
SUva v,Ktmari-Aomy
“ I do not think that Martenis ever contemplated the leasing oflot (1)—the lot in dispute—which was already planted andpossessed by him, or that he ever paid rent in respect of it.”He also held that the plaintiffs and their predecessors in titlealways possessed the lot in dispute and gave judgment for plaintiffsas prayed for.'
It is contended for the defendant that this judgment is wrong,and that in view of the jugment of this Court in the previous caseit is no longer possible to say that Martenis never took Hie lot indispute on lease, or that he never paid rent in respect of it. Thejudgment of this Court in the previous case is, no doubt, res judicataon certain points, for instance, it can no longer be contested by thefourth plaintiff, who alone was a party to that action, that lot No, 1was never included in the lease. I do not think the plea .ofestoppel can be extended to cover any other issues or the issue oftitle Arising between the parties. This estoppel does not bind thefirst three plaintiffs who are also heirs of Martenis, but were notparties to the previous action. However that may be, lot No. 1undoubtedly formed part of the land leased to Martenis, and ifMartenis and his successors in title possessed the land over theprescriptive period, is the lessor entitled to establish a claim byprescriptive possession through his lessee, who is proved to be theowner of the land. The period of possession by the lessee and hisheirs is, according to the defendant, between April 26, 1911, thedate of the lease, and September 30,1921, the date of the institutionof the action—a period of over ten years.
To establish a title by prescription, there must be actual possessionby a person as of right by himself or by persons deriving title fromhim, such as a lessee, licensee, servant, or other agent. The^possession of the latter is in law the possession of the lessor or owner.But according to the Roman-Dutch law, differing from the Englishlaw and the Indian law on the point where the lessee is the owner,this principle does not apply. Voet (41, 3, 17) stating the modesin which usucapio or prescription might be interrupted (usurpatio)says :—
Continuationi possessionis opponitur usurpatio, quce est interruptiopossessionis et usucapionis, sic ut actio domino competensper earn perpetuetur. Et vel naturalis vel civilis est. Iliarursus vel nobis volentibus, vel invitis fit. Volentibus nobiscontingit interruptio, si rent derelinquamus, aut alii tradamusanimo amittendce possessionis. Quin into, si is, qui rentalienam usucapere cceperat, eandem domino ex causa vendi-tionis, locationis, aut pignoris, aliave sintili tradiderit,usucapionem, interrumpi placuit (licet alias locando autpignori dando rent extraneo non amittamus earn possessionem,
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qam ad tisucapiontm necessaria est, quamdiu per editoremant conductorem possidelur). Cum enim neque emtio nequeconductio neque pignus rei suae consistere possit, ideoqueusucapiens non intelligatur possessionem retinmsse percorpus domini, que neque ex emtionis neque ex conductionisneque ex pignoris titulo rem suam tenefepoterai, aut usuca-pientis possessioni ministerium prcebere, et tamen usucapiensnaluralem dimiserit possessionem, ac in dominum transtu-lerit; absurdum esset, illam domini possessionem contrasemet ipsum ad usucapimdum alter i} rem domino vendentivel locanti, prodesse.
1988.
Jatbwab-
DENI AtJ.
Silva v.Kumart*homy
Burge, in his Commentaries (original – ed., vol. 3, p. 22), adopts,the law as laid down by Voet which is derived from the Roman law.He says:—
“ Opposed to the continuation of possession is usurpalio, as it iscalled by the civil'law writers, or the interruption of thepossession. Its effect is to save to the owner his com-petent right of action.
“ The usurpalio may be either natural or actual, or it may be onlycivil or constructive.
4‘ The natural or actual usurpation takes place with or withoutour consent.
" It is said to take place with our consent when we either abandonthe property, or deliver it to another with the intentionof relinquishing the possession.
4* If the property, in respect of which the person had commencedthe usucapio, should be delivered by him on sale, or lease,or pledge to its owner, the usucapio is interrupted. Butif he had leased or pledged it to a stranger, that possessionwhich was necessary for usucapio would not be lost, solong'as it was in the possession of the tenant or creditor,because it would be absurd to suppose the possessorholding under any other title than that of owner, andleast of all to hold the possession so as to create inanother a title adverse to himself.”
Pothier, in his Treatise on Prescription (p. 393), says :—
4t It is beyond doubt that the possessor of a thing who gives it toanyone who is not the owner by way of lease, deposit, orloan continues to possess it and prescription^ runs in hisfavour. For a lessee, tenant, depository, or borrower holds,a thing only for and in the name of him from whom it wasreceived and the latter possesses by them.”
tm.
Ja.YE WAR-DEN f; A.J.
Stive* v,Kumari*homy
( 464 )
Savigny, in his well-known work on Possession (Bk. //., sectfofep. 207), says :—
“ The following, oases have been improperly considered asexceptions to the rule that the tenant only possesses in thename of the owner : First, where the tenant is, at the sametime, o'Amel’ of the subject which previously had beenin another person’s possession, it is true that the previouspossession then ceases. But the reason of this merelyis, that in such case no contract or demise is recognized;that is, therefore, no exception to the rule, but a clearexample of it.”
These authorities go to show that under our law a lease to anowner of his own property is not valid in law (see also Voet 19, 2, 4{Berwick’s Translation, p. 201), and Maasdorp, vol. 3, chapter 17tp. 199), and that a person who possesses his own property under alease from another does not possess unde^ or on behalf of thatother. The English law, as I said, is different. Thus in William v.Pott1 it was held—
“ That possession of an agent is possession of the principal;and the principal may acquire a possessory title to realestate by receiving the rents for twenty years throughan agent, although that agent is the person really entitledto the estate.”
And Lord Romilly, M.R., said:—
“ 1 am satisfied that this was an adverse possession the wholetime. In the first place, I am of opinion that the posses*sion of the agent is the possession of the principal, andthat in this case the Rev. Walter Jones Williams could nothave made an entry as long as he was in the position ofagent for his mother, and that he was not in possession ofand could not get into possession, or'make any entry forthat purpose, without first resigning his position as heragent; and that he must have written to his mother,saying : * The property is mine ; I claim the rents, and Ishall apply the rents for my own purposes ’; and there-upon he' might have made an entry, and so would havealtered the position of principal and agent.”
The law in India is similar to that in England. In the Secretaryof State for India v. Krishnamoni Gupta? the Privy Councilobserved:—
“ It may at first sight seem singular that parties should be barredby lapse of time during which they were in physicalpossession and estopped from disputing the title of theGovernment. But there is no doubt that the .posses-sion of the tenant is in law the possession of the landlord
1 (1871) 12 L. R, Eg. Cases 149.8 (1902) 29 Cal 518 at 534.
( 455 )
or superior proprietor, and it can make no differencewhether the tenant he one who might claim adversely tohis landlord or not. Indeed, in such a case, it may bethought that the adverse character of the possession isplaced beyond controversy.” See also Krishnadixit v.Baddizit.1
The principle laid down in the Roman-Dutch law was adopted byLascelles C.J. and Wendt J. in Fernando v. Menika,2 although theauthorities were not referred to. In the course of his judgmentLascelles C. J. said :—
“ It is admitted that the plaintiffs’ paper title is a good one, but •it is said that, inasmuch as the possession of the tenantis the possession of the landlord, the plaintiff by possessingunder the lease for fifteen years has prescribed as againsthimself in favour of his landlord, the defendant. It istrue that for the purpose of acquiring title by prescrip-tion, possession by the tenant is sometimes equivalentto possession by the landlord ; and encroachment, forexample, made by the tenant would enure to thelandlord’s benefit. But the condition of adverse posses-sion must first be satisfied.- The plaintiff, in the firstinstance, entered by virtue of his conveyance. Can it besaid that when he took the lease in 1888 the character ofthe possession of his own land changed; and that. hethen began to possess his own land on behalf of his land-lord adversely to himself ? ”
d think we ought to follow this judgment, as it is consistent withthe principles of the Roman-Dutch law. In this view the first,second, and third plaintiffs are clearly entitled to prove their title,and as the learned District/ Judge has found that they have provedtheir title, they must be declared entitled to half the land.
As regards the other half which is claimed by the widow, wehave to consider the effect of the previous judgment in connectionwith the facts; The District Judge has found that no rent wasever paid for this piece of land, so that until the decision of thatcase she never admitted the right of the defendant. In fact shesays she never heard of the lease til] she was sued on it. She wasin undisturbed possession of the land on a title which has been heldsuperior to that of the defendant. In these circumstances, canit be said that she or Martenis was in possession of the land underthe lease as tenant of the defendant, or that the effect of thejudgment of this Court is to make her a tenant for the whole termof the lease ? I do not think so. What that case decided wasthat the portion of land in dispute was included in the land leased,and that she was bound to surrender the* land to the defendant
*(1913) 38 Bom. 53.
1928,4
Jaybwab*DSNB A.J.
Silva v.Kumari*
homy
* (1906) 3 Bal . 115.
( 456 )
ms.
Jaybwab-DBNB A.J.
Silva t>.Kwnari’hamy
in terms of the lease and to pay damages. As I said that decision isres judicata on the question whether the land in dispute was part ofthe land leased to Martenis, and the question of title was left to bedecided in another action. If it had been proved that she hadpaid rent for the land or had otherwise acknowledged the title ofthe defendant, her position might have been different. She is notbarred by that decision or by lapse of time from raising thequestion of title in this case. She is compelled to admit that theland in question was leased to her husband. Notwithstandingsuch admission, she is entitled to assert that her possession was notadverse to her own rights as owner. She was undisturbed in herpossession, and there was no occasion for her to bring an action toestablish her title. I think that until the decision of the SupremeCourt in that case, she had no cause of action against the defendant.The cause of action arose when it was declared that she should, beejected from the land. She then promptly brought this action. Ona consideration of all the circumstances of the case, it is impossibleto say, on the authorities I have cited, that she had conferred onthe defendant a prescriptive title by her own possession. Sheshould be declared entitled to the other half of the land.
Before concluding, I may point out that it might be legitimatelyasked how the above-stated principle of the Roman-Dutch law canbe reconciled with another well-known principle of the same lawon which the appellant’s Counsel strongly insisted that a lesseecannot plead the exceptio domini. Voet (19, 2, 32) says that therestitution of a thing hired cannot be delayed by the conductorpleading the exceptio domini, although he might be able Easily toprove his own ownership, but he must by all means first surrenderthe possession and then litigate as to the proprietorship. Or, asMaasdorp puts it—
“A lessee is not entitled to dispute his landlord’s title, andconsequently he cannot refuse to give up possession of theproperty at the termination of the lease, on the ground thathe himself is the rightful owner of the same. His duty insuch a case is first to restore the, property to the lessor,and then to litigate with him as to the ownership.”
This principle has always prevailed in Ceylon, and it is embodiedas a part of the law of estoppel in section 116 of the EvidenceOrdinance, which is as follows :—
" No tenant of immovable property, or person claiming throughsuch tenant, shall, during the continuance of the tenancy,be permitted to deny that the landlord of such tenant had,at the beginning of such tenancy, a title to such movableproperty ; and no person who came upon any immovableproperty by the license of the person in possession thereofshall be permitted to deny that such person had a title tosuch possession at the time when such license was. given.”
( 457 )
These two principles appear to be contradictory of each other.For where the lessee is the owner, if the lease to him is null andvoid, he ought to be entitled to establish the invalidity* of thelease when sued by the lessor in ejectment. But the lessee in such' a case is said to be debarred from pleading the exceptio domini.Schorer in his Notes to Orotius appears to have noticed this in-consistency, and says :—
“ Grotius lays down, upon the authority of the law referred to byGroenewegen, that a hiring of one’s own property, con-cluded in ignorance, is null and void ; and so it is, but thelessee will be bound first to restore possession, and then tolitigate with respect to the ownership, and this is the caseeven though the lessee may be able to prove the owner-ship quite easily.” See Nathan's Law of South Africa,vol. II., section 900.
This difficulty may be overcome if we restrict the estoppel tocases in which the owner-lessee is let into possession by the lessor,and do not extend it to cases in which the owner-lessee takes onlease a properly of which he is already in possession. This is tosome extent supported by the passage from Voet (47, 3, 17) wherehe speaks of the interruption of the.lessor’s possession, implyingthereby that at the time the owner-lessee took the lease, the lessorwas in possession and in course of acquiring a title by prescription.This difference is well marked in the English law, where the generalprinciple that a tenant is estopped frCm disputing his landlord’stitle is thus stated :—
" A tenant whilst in possession is estopped from disputing thatat the time he received possession, the landlord from whomhe received it had a good title to the premises. A tenantis not estopped from disputing the title of a person fromwhom he did not actually reeeive possession of the pre-mises.” See Everest and Strode's Law of Estoppel, 2nded., pp. 209 and 275.
It has been suggested in India that section 116 of the Indian.Evidence Act, which is identical with section 116 of our EvidenceOrdinance, applies only to cases where the tenant has been let intopossession by the landlord (Loll Mahomed v. Kallanus1). Section116 has been held not to be exhaustive of the law of estoppel asbetween* landlord and tenant, and the estoppel continues notonly during the continuance of the lease, but till possession issurrendered (Bhaiganta v. Eimmal2), and not withstanding thissection the tenant can prove that the landlord’s title has expired,or that he has been evicted by title paramount {Ameer AM and Wood-roffe's Law of Evidence, 6th ed., p. £00, and Coder v. Eamidu3). There
1 {1884) 11 Cat. 519.3 (1916) 24 Cal. L. J. 103.
3 (1921) 23 N. L. R. 91.
1928.
Jaybjwab.
DENIS A.J.
Silva v.Kumari-hamy
( 458 )
1928.
Javbwab- •DBKB A.J.
Silva v .Kutnari-homy
is good reason forvoreating such an estoppel where the landlord hassurrendered his own possession to the tenant, but the reason for asimilar estoppel where the tenant continues a possession w hich "hehad before the lease is not so obvious. In the present case, ifthe law is as I have stated, the fourth plaintiff should have beenafforded an opportunity of constesting the lessor’s title in theprevious action, as Martenis was not let into possession by thedefendant, but was in possession in his own right at the date of thelease. But she was held not entitled to do this, as by the veryterms of the lease the lessee had expressly agreed to surrenderpossession at the termination of the lease. Hence she was directedto surrender possession, and bring a separate action to decide thequestion of title.
The appeal is dismissed, with costs.
Porter J.—I have had the opportunity of reading the judgmentof my brother Jayewardene in this appeal, with which I entirelyagree.
Appeal dismissed.
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