Sri Lanka Law Reports
[1999] 3 Sri LR.
Thus, the plaintiff had given evidence that he was the owner ofthe premises in suit and that he was not the owner of any other house.The defendant had not disputed the ownership of the plaintiff. In anyevent she had admitted tenancy under him. No evidence had beenled to show that the plaintiff owned any other residential premises.Thus, the plaintiffs evidence stood unchallenged.
It was the contention of Mr. Premadasa, President's Counselappearing for the defendant-respondant, that the deed by which theplaintiff-appellant became owner was not submitted to Court. Therewas no need for the plaintiff to produce such deed and prove histitle since his title was never disputed. In any event the productionof such deed was not going to prove whether the plaintiff owned anyother house or not, unless the deed on the face of it referred to anotherhouse. The only relevant matter to be considered under section22 (1A) was whether the landlord was the owner of more thanone residential premises.
The uncontradicted oral testimony that the plaintiff was the ownerof the residential premises in suit and that he owned no other resi-dential premises should have been accepted as sufficient by thelearned Additional District Judge. If it was the contention of thedefendant-respondent that the plaintiff-appellant did not own the premisesin suit, the cross-examination should have brought this matter intofocus and the plaintiff-appellant could then have produced his deed.Or else if it was the contention of the defendant-respondent that theplaintiff-appellant owned more than one house then the burden wascast on the defendant-respondent to prove such a fact in the lightof the plaintiff-appellant giving evidence that he owned no otherresidential premises. The plaintiff-appellant could not have proved thenegative.
In any event it must be remembered that section 22 (1A) is onlyconcerned about the plaintiff owning more than one residential premisesand not the absolute ownership of the premises in suit. There wasno need on his part to file title deeds and prove title to the single
Sumanasekare v. Peiris (Wigneswaran, J.)
house he allegedly owned. Suppose the deed was filed it would nothave been open for a defendant, for example, to start questioningthe title of the plaintiff picking some titular irregularity in the deed.Therefore, it would be wrong to insist on the production of a deedin proof of title though if filed it would have been convenient to Court.
Mr. Premadasa's contention was that section 22 (1A) was theoutcome of enlightened social legislation and that it only applied toowner landlords and therefore an owner landlord should prove hisownership. One would prefer to say that section 22 (1A) of the RentAct debarred a landlord owning more than one residential premisesfrom filing action rather than say that the section expected a singlehouse landlord to prove his title to his sole residential premises tofile an action under it. It is not the character of the landlord's ownershipof the premises in suit that is relevant but whether he owned morethan one residential premises. Thus, the non-production of the deedin favour of the plaintiff-appellant could not have been held againstthe plaintiff-appellant by the learned Additional District Judge.
In Sulaiman v. Aboobacker<3) it was held that a landlord who wasa life-interest holder or a tenant having a subtenant with the consentof the landlord or a co-owner is entitled to maintain an action forejectment even though he may not own a house.
In F. J. Hettiarachchi v. Siri Hettiarachchf41 His Lordship ChiefJustice G. P. S. de Silva held that in cases where the nature ofoccupation was relevant the question of title was irrelevant.
Therefore, the learned Additional District Judge in the absence ofany proof that the plaintiff-appellant owned more than one residentialpremises should have answered issue No. 2 in favour of the plaintiff-appellant.
The other argument of Mr. Premadasa revolves around issueNo. 6 and the learned Additional District Judge holding that theingredients of section 22 (7) were not proved. As pointed out by
Sri Lanka Law Reports
[1999] 3 Sri LR.
Mr. Samarasekera, President's Counsel apearing for the plaintiff-appellant, no defence to the action had been taken at any stageof the trial based on section 22 (7).
The relevant portion of section 22 (7) of the Rent Act is as follows:
"Notwithstanding anything in the preceding provisions of thissection, no action or proceedings for the ejectment of the tenantof any premises referred to in subsection (1) or subsection (2) (i)shall be instituted – (a) . . .
where the landlord is the owner of not more than oneresidential premises, on the ground that (i) such premises arereasonably required for occupation as a residence for the landlordor for any member of the family of the landlord; or . . .
Whether the ownership of such premises was acquired by thelandlord, on a date subsequent to the specified date, by purchaseor by inheritance or gift other than inheritance or gift from a parentor spouse who had acquired ownership of such premises on a dateprior to the specified date."
The pith and substance of the finding by the learned AdditionalDistrict Judge was that the failure to tender the deed in favour ofthe plaintiff raised doubts as to whether the plaintiff acquired thepremises in suit by inheritance or gift from a parent who had acquiredownership of such premises on a date prior to the specified date."Specified date" has been defined in section 22 (7) as the date onwhich the tenant came into occupation of the premises in suit. Thequestions and answers earlier referred to, during examination in chief,cross-examination and re-examination of the plaintiff-appellant, verydefinitely brought out the fact that the plaintiff-appellant received thepremises in suit from his father who was the original landlord of thedefendant-respondent. If this fact was to be challenged the defendant-respondent should have set up a defence under section 22 (7) andraised an issue. At no stage was this matter raised by the defendant.
Sumanasekare v. Peiris (Wigneswaran, J.)
If it was raised then the deed could have been produced as docu-mentary proof of the plaintiff receiving the premises in suit from hisfather. Having failed to do so it would be improper to argue that theplaintiff did not prove the ingredients of section 22 (7). Section 22(7) is not a provision to be proved by the plaintiff. It is a defenceto be taken up by a defendant. If the case falls under the bar setout in section 22 (7) the plaintiff would not be able to have and maintainan action. The defence in this case never referred to the plaintiff beingaffected by the bar set out in section 22 (7). Only the learned AdditionalDistrict Judge had thought it fit to refer to it. That too despite theevidence of the plaintiff that he obtained the premises in suit fromhis father on a date subsequent to the specified date. It was not allegedthat the plaintiff was a purchaser over the head of the tenant. Since,the plaintiff had said that he received the premises in suit from hisfather and that the father was still living there was no question ofinheritance from the father. The evidence before the Additional DistrictJudge was that the father who was the original landlord had donated(or gifted or written in favour of) the son the premises in suit. In thelight of this evidence and due to the failure of the defendant to raisean issue under section 22 (7) there was no reason as to why thelearned Additional District Judge should have entertained doubts withregard to the plaintiff's right to file this action. He may have beentaken up by the argument that the plaintiff-appellant claimed inher-itance from his father while admitting that his father was still alive.This predilection was brought about by the learned President's Counsel,who appeared for the defendant both in the original Court as wellas the Court of Appeal, making much out of the answer of the plaintiffat page 39 as follows: ‘tocoeS eOt® §es»' This answer should havebeen taken in context or further questions should have been posedby the learned Additional District Judge to clarify matters. In fact, thenext two questions by Court, and answer, given by the plaintiff tothose questions explained his first answer. He admitted that his fatherwas living and that the father gave the property to him by a deed.Therefore, there was no confusion with regard to the phrase ’Boxes)e&® §a» It simply meant that the property "came from my father".No questions were posed by the defence to contradict this position.
Sri Lanka Law Reports
(1999/ 3 Sri LR.
Therefore, the learned Additional District Judge on the basis that therewas uncontradicted evidence that the plaintiff had received the premisesin suit from his parent after the specified date should have found himfalling within the exception to the bar under section 22 (7) andaccordingly answered the issues.
We. therefore, find that issues 2. 6, 8 and 9 have not been properlyanswered. They should have been answered as follows:
Yes; since section 22 (1) (bb) only contemplates the dateon which the defendant first came into occupation as atenant.
Accordingly, we set aside the order dated 26. 10. 1984 deliveredby the Additional District Judge, Colombo and enter judgment forplaintiff as prayed for with costs in the original Court.
We allow the appeal but parties shall bear their own costs of appeal.
WEERASEKERA, J. – I agree.
Appeal allowed.