034-SLLR-SLLR-2004-V-3-VADIVEL-v.-KAMALANATHAN.pdf
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VADIVELv
KAMALANATHANCOURT OF APPEALDISSANAYAKE, J.
C.A. 406/98 (F)
DC BATTICALOA 4246/LDECEMBER 3, 15, 2003FEBRUARY 2, 2004
Leave and licence – Occupation – Coercion by Police to accept money as rentand issue receipts – Contract of tenancy created? – Consent of partiesnecessary ? – Constitution Art 24 – Court proceedings in the North and EastLanguage?
The original defendant-appellant entered to property as a licensee. Theplaintiff-respondent wanted the property back, and sought the assistance ofthe Police who had given the defendant three months time to vacate. Howeverthe plaintiff-respondent was coerced by the Police to accept money as rentand issue receipts. The original defendant claimed tenancy. The District Courtheld with the plaintiff-respondent.
Held (1) Consent is a necessary element in every contract, and if theparties are not agreeable, whether about the nature of thetransaction, or about the price or some other point there is nocompleted contract.
Mere acceptance of rents does not create a tenancy, it is manifestthat for a contract of tenancy to exist consent of parties is one ofthe essential elements.
Payments of money and issue of receipts have been only as aresult of coercion by the Police. The attendant circumstances donot indicate that there had been already a tenancy agreement orat least that a tenancy agreement had been created by the saidacts.
Vadivel v Kamalanathan
(Nimal Dissanayake, J.)
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Per Dissanayake, J.,
“In terms of Article 24 of the Constitution Tamil language being a nationallanguage and is the language in Court procedure in the North/EastProvince, the answer filed in Tamil in the District Court of Batticaloa is theone that has to be considered and not the English translation".
APPEAL from the judgment of the District Court of Batticaloa.
Cases referred to:-
Fernando v Samaraweera – 52 NLR 278
Perera v Magi Nona Hamine – 77 CLW 68
Kurukulasuriya v Ranmenika – 1990 – 1 Sri LR 331
Sivagnanda v Bishop of Kandy – 55 NLR 132
Ninjam v Musthapa – 1981 – 1 Sri LR 58 at 63 and 64.
Sunil Cooray for defendant-appellant.
V. Puvitharan for plaintiff-respondent.
Cur. adv. vult.
March 12, 2004DISSANAYAKE, J.
This is an appeal from the judgment of the learned district judge 01of Batticaloa entering judgment in favour of the plaintiff-respondentin an action for declaration of title and ejectment of the defendant-appellant, on the ground that he is a trespasser in unlawfuloccupation, however the defendant-appellant claimed tenancy.
It was the position of the plaintiff-respondent that he was seizedand possessed of or otherwise lawfully entitled to the propertymorefuily described in the schedule to the plaint under and byvirtue of deed No. 6647 dated 18.01.1936 (PI). The land in suit wasa bare piece of land.
The defendant-appellant had requested the plaintiff-respondent 10to permit him to occupy the said land for one year and to set up asmall boutique in the premises to which the plaintiff-respondent hadagreed.
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The original defendant had entered the property in suit on 25thof June 1987 as a licensee and had put up a temporary boutiqueand had started to occupy the land in suit with the leave and licenceof the plaintiff-respondent.
At the end of one year, the plaintiff-respondent had requestedthe original defendant to hand back the property. The originaldefendant had refused to hand back the said property and is in 20unlawful occupation of the property since 26.06.1988, causingdamages in a sum of Rs. 7500/- and continuing damages of Rs.100/- per month.
The plaintiff-respondent had sent a letter demanding that theoriginal defendant handover the property in suit, which request hadbeen not heeded by the original defendant. The plaintiff-respondenthad sought the assistance of the Batticaloa Police by way of acomplaint made by him.
The original defendant was given 3 months time to vacate theland by the Police, however he continued to occupy the land, 30regardless. Hence the plaintiff-respondent had to seek his legalremedy by way of this action.
Under cross-examination, it was suggested that the premiseshad been given to the original defendant on rent and not by way ofleave and licence as contended by him in his evidence. Theplaintiff-respondent was confronted with 2 receipts one dated23.10. 93 for Rs. 2000/- (D2) and the other dated 15.11.93 for Rs.1500/- (D1) on which he is purported to have accepted moneysfrom the original defendant as rent from June 1989.
The plaintiff-respondent admitted to having given the 2 receipts, 40but stated that they were given because he was coerced by 2police officers by the name of Soundrarajah and Shanmugarasa ofthe Batticaloa Police Station to issue the said receipts.
Explaining the circumstances under which he placed hissignature on the said documents, he stated that he had soughtassistance of the Police to eject the original defendant, because hehad refused to vacate the land in suit. The 2 police officersconcerned had forced him to accept Rs.3500/- and issue receiptsD1 and D2 to the original defendant. They had done so in the guise
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of helping the plaintiff-respondent in regaining his land. Further ithas been told by these 2 officers that if he did not accept the saidmoney, he will have no proof that the land belonged to him.
The plaintiff-respondent had instituted this action in 1994.Explaining the delay in coming to Court, he had said that he hadsuffered from ruhmatic illness and had been bed riden for sometime. He had instituted this action, no sooner he was able to walkabout with assistance of another, after medical treatment. Hestated that he was assisted by another to attend Court even on theday his evidence was recorded.
The original defendant in paragraph 3 of the answer whih is inTamil at page 39 of the brief, had admitted the plaintiff-respondent’sposition that he entered the premises with leave and licence of theplaintiff. However it is further stated in paragraph 3 that after havingentered with the leave and licence the contract of tenancy wascreated.
However it appears that the English translation paragraph 3 iscompletely different. It states that the original defendant denies thathe went into occupation of the property in suit with leave andlicence.
It is to be observed that in terms of article 24 of the constitutionTamil Inguage being a national language and is the language inCourt proceedings in the North, East province. Hence the answerfiled in Tamil is the one that has to be considered as the answertendered by the original defendant and not the English translations.
In view of the admission made in the answer and in evidence bythe original plaintiff that he had entered the premises in suit with theleave and licence of the plaintiff-respondent, which is the plaintiff-respondent’s case, the burden of establishing the tenancyagreement fell fairly and squarely on the original defendant.
Therefore it was incumbent on the original defendant toestablish that:-
he had entered into an agreement with the plaintiff-respondent.
that the alleged agreement was governed by the Rent Act.
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It is interesting to note that the original defendant had failed toproduce any evidence to prove that the premises in suit wasgoverned by the Rent Act.
The original defendant relied heavily on the purported tworeceipt D1 and D2 issued by the plaintiff-respondent, to establishtenancy.90
The plaintiff-respondent who was a feeble old woman past her60th year emphatically stated that at the Batticaloa Police Stationshe was forced to issue the said 2 receipts and was coerced toaccept the money. She had named the 2 Police officers whocoerced her to do so.
The original defendant too in his evidence had admitted that themoney was given at the Police Station on the direction of the policeofficers. He stated that initially she refused to accept the money buthad subsequently had accepted the money because police officerSoundararajan had wanted her to accept same. He further stated 100that the receipts were given because she was forced by the policeto do so.
The original defendant in his evidence in chief stated that theaforesaid moneys were paid at the police station after the institutionof the action. He stated when he requested that he be issued withreceipts it was police officer Soundararajan who had promised tosee that receipts are issued.
He went on the state further that out of Rs. 2500/- after paymentof Rs. 1500/- to the plaintiff-respondent he had paid the balancesum to police officer Soundararajan. He further conceded that the iforeceipts were written by a police officer by the name of Arul.
The aforesaid evidence of the original defendant clearlydemonstrates that whatever payments that have been made, wereall made at the police station. And they had been made not inpursuance of any tenancy agreement but were done at the instanceof the said 2 police officers. Payments of money and the issue ofreceipts have been issued only as a result of some coercion by thepolice.
Thus it is manifest that the aforesaid manner in which the moneyhad been paid and receipts obtained and the attendant 120
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circumstances do not indicate that there had been already atenancy agreement or at least that tenancy agreement had beencreated by the said acts.
At this stage it is pertinent to refer to the work. “The law ofproperty in Sri Lanka” Volume Two (landlord and tenant) byprofessor G.L. Pieris at page 43 under sub heading 11 in chaper 3dealing with “Essential elements of the contract." , essentialcharacteristics of the contract states:
“Van der Lineden enumerates the essential characteristics of thecontract of letting and hiring as follows:-130
a thing capable to being let on hire.
the assurance of the lessee or the hirer of the definite useor enjoyment of the property for a limited period. '
a definite rent or hire payable generally in money, althoughsometimes part of the rent is paid in produce.
The mutual consent of the lessor and lesseeThe
parties to the contract must of course be capable ofcontracting their consent must be freely given, and thepurpose of the contract must not be illegal.
Under sub heading 111, “Reality of consent” at page 46 it is uo
stated “” Consent is a necessary element in every
contract, and if the parties are not agreed – whether about thenature of the transaction, or about the price or on some other pointthere is no completed contract.”
Therefore it is manifest that for a contract of tenancy to existconsent of parties is one of the essential elements.
It is settled law that mere acceptance of rents does not createany tenancy. Vide Fernando v Samaraweera C) Perera v MagiNona Hamine <2) Kurukulasuriya v Ranmenika <3) Sivagnonda vBishop of Kandy (4> and Ninjam v Musthapa (5) at 63 and 64.150
There is unequivocal evidence in this case to establish that, allthe payment of rents had been made at the Batticaola PoliceStation, under the direction of the Police, and under coercion of 2police officers the plaintiff-respondent was forced to accept themoney and issue receitpts D1 and D2.
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Therefore I am of the view that the original defendant has failedto establish that there was a contact of tenancy between him andthe plaintiff-respondent and as such he was protected by the RentAct.
The evidence reveals that the original defendant has entered 160the premises in suit with the leave and licence of the plaintiff-respondent. Subsequently the original defendant had refused tohand back the possession of the premises in suit.
Since the original defendant had sought to challenge theaforesaid leave and licence and had taken a different stand, he hasthereby challenged the rights of the plaintiff-respondent. Thereforethe original defendant had forgone his right to have notice oftermination of licence sent by the plaintiff-respondent. Thereforethe plaintiff-respondent was entitled to have and maintain thisaction.170
The learned District Judge has rightly entered judgment infavour of the plaintiff-respondent.
There is no basis to interfere with the judgment of the learneddistrict judge.
The appeal of the substituted-defendant-appellant is dismissedwith costs fixed at Rs. 5000/-.
Appeal dismissed.