012-NLR-NLR-V-77-W.-M.-J.-BANDARA-Appellant-and-J.-PIYASENA-Respondent.pdf
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WIJAYATILAKE, J.—Bandara v. Piyasena
Present: Wijayatilake, J., Wijesundera, J., and Ismail, J.W. M. J. BANDARA, Appellant, and J. PIYASENA, RespondentS.C. 427/68 (F)—D. C. Ratnapura, 6647
Lessor and lessee—Termination of the lease—Whether the lessee candispute the lessor’s title and refuse to restore possession of theleased property.
A lessee is not entitled to dispute his landlord’s title. Consequentlyhe cannot refuse to give up possession of the property at thetermination of his lease on the ground that he acquired certainrights to the property subsequent to his becoming the lessee andduring the period of the lease. His duty in such a case is firstto restore the property to the lessor and then litigate with him as tothe ownership.
A.PPEAL. from a judgment of the District Court, Ratnapura.
K.D. P. Wickremesinghe, for the plaintiff-appellant.
D. C. Amerasinghe, for the defendant-respondent.
January 31, 1974. Wijayatilake, J.—
Learned Counsel for the appellant submits that the learnedDistrict Judge has clearly held that the house in the premisesin suit was the house taken by the defendant on the lease bondP4 of 5.12.1960. The question does arise as to whether theplaintiff can maintain this action for ejectment of the defendant.The defendant has sought to resist the claim of the plaintiff onthe footing of certain interests in this land which he hasacquired on a deed of 10.5.1962 during the period of the lease.The District Judge observes that as the defendant is a co-ownerof this land, the plaintiff is not entitled to maintain this actionagainst the defendant for a declaration of title to a buildingput up by him in the common property.
Dr. Wickremesinghe has drawn our attention to MaasdorpBook III page 216, where he observes that a lessee is not entitledto dispute his landlord’s title and consequently he cannot refuseto give up possession of the property at the termination of hislease on the ground that he is himself the rightful owner of thesaid property. His duty in such a case is first to restore theproperty to the lessor and then litigate with him as to theownership. (See also Voet 19 Tit. 2 Section 32) where it hasbeen set out that the setting up of any defence of ownershipof the lessee cannot stay the restoration of the property leased,even though, perhaps, the proof of ownership cannot be easyfor the lessee. He ought in every event to give back possessionfirst and then litigate about the proprietorship.
Dionis v. William Singho
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In the light of these principles which are not questioned byMr. Amerasinghe, learned Counsel for the respondent, we areof the view that there is a merit in the submissions made byDr. Wickremesinghe that the District Judge was in error inholding that the plaintiff cannot maintain this action againstthe defendant, since the defendant had acquired certain rightson 10.5.1962 subsequent to his becoming a lessee and during theperiod of the lease.
We would accordingly enter judgment for the plaintiff asprayed for. The plaintiff shall be entitled to the costs of actionand of this appeal.
Wijesundera, J.—I agree.
Ismail, J.—I agree.
Appeal allowed.