013-SLLR-SLLR-1985-V1-WAHAB-v.-JAYAH.pdf
WAHAB
v.
JAYAH
COURT OF APPEAL.
B. E DE SILVA. J. AND BANDARANAYAKE, J.
S.C. IC.A.) 30/76.
M.C. KANDY 152/RE.
JANUARY 11,1985.
Landlord fnd tenant – Rent and ejectment – Vesting of premises under the Ceiling onHousing Property Law No. 1 of 1973, Sections 8. 10. 11 (1) and 15 (2} – Agreementto sell- Does it amount to a disposal of the premises ?
The plaintiff sued his tenant the defendant on the ground of arrears of rent. Thedefendant pleaded that the premises had vested in the Commissioner of NationalHousing. After trial the Judge held that the defendant was in arrears of rent but as thepremises were vested in the Commissioner of National Housing, the plaintiff could notmaintain this action for ejectment of the defendant.
Under section 10 of the Ceiling on Housing Property Law any person who owns anyhouse in excess of die permitted number of houses may within 12 months from thatdate dispose of the houses with notice to the Commissioner unless the tenant hadmade an application with simultaneous notice to the owner for the purchase of suchhouse.
The defendant had made no application to purchase the premises in suit within thestatutory period and the plaintiff claimed he disposed of the property prior to thematerial date. But the deed claimed to be a disposition of the property was. anagreement to sell the premises for Rs. 30,000 subject to certain conditions. Such adeed is not a deed disposing of the premises. Hence the premises by operation of lawautomatically vested in the Commissioner of National Housing. No vesting order assuch was necessary.
Cases referred to:
Carter v. Carter [1896] 1 Chancery Division 62, 67.
Visvalingam v. Gajaweera (1954) 56 NLR 111.
Tiltekaratna v. Coomarasingham (1926) 28 NLR 186.
APPEAL from judgment of the District Court of Kandy.
H. L. de Silva. P.C. with M. S. M. Nazeem for the plaintiff-appellant.
S. C. B. Walgampaya for the defendant-respondent.
Cur. adv. vult
February 15. 1985.
B. E. DE SILVA, J.
The plaintiff-appellant has filed this appeal from the judgment of the•learned Additional District Judge dismissing the appellant's action forejectment of the defendant from the premises in suit.
The appellant filed this action for the ejectment of the defendantfrom the premises in suit alleging that the defendant was in arrears ofrent in violation of the provisions of the Rent Act.
The defendant filed answer and pleaded that the appellant hadreceived rent in excess of the authorised rent and giving credit to thedefendant for such excess payments. There was a sum of Rs. 100due as arrears of rent. The defendant further pleaded that thepremises in suit had vested in the Commissioner of National Housingfrom the 13th of January, 1974 and under the provisions of theCeiling on Housing Property Law No. 1 of 1973 and that the appellantcannot maintain this action for ejectment of the defendant from thesaid premises.
After trial the learned Additional District Judge held that thedefendant was in arrears of rent in a sum of Rs. 1000 and that theappellant was entitled to recover the said sum as arrears. In regard tothe plaintiff's claim for ejectment the learned Additional District Judgeheld that the premises in suit had vested in the Commissioner ofNational Housing and that the plaintiff cannot maintain this action forthe ejectment of the defendant.
At the trial evidence was l,ed by the appellant and defendant onmatters relevant to the issues in this case. At the hearing of this appealthe defendant did not challenge the findings of the learned AdditionalDistrict Judge that the defendant was in arrears of rent.
The main matter that was.urged in appeal by the appellant waswhether the learned Additional District Judge had erred in holding thatthe premises in suit vested in the Commissioner of National Housingand that the appellant was not entitled to maintain this action for theejectment otthe defendant.
The appellant's case was that the Ceiling on Housing Property LawNo. 1 of 1973 came into operation on 13.1.73. Under Section 8 ofthe said Law the appellant made a statutory declaration P 1 dated4 4.73 which included the premises in suit as a house owned by theappellant in excess of the permitted number of houses which theappellant did not propose to retain. Under section 10 of the said Lawany person who owns any house in excess of the permitted numbermay within 12 months from that date dispose of such house withnotice to the Commissioner unless the tenant has made an applicationwith simultaneous notice to the owner for the purchase of such house.
It was the case of the appellant that he did dispose of the saidhouse on 10.1.74 prior to the material date 13.1.74 by deed ofagreement P 2 which was executed by his wife as owner and that theCommissioner was duly informed by P 3 dated 14.2.74. Thedefendant had made no application to purchase the said house withinthe statutory period or at any time, although the appellant gave thedefendant the option to purchase the premises by P 6 dated 4.4.73.
The Commissioner had considered P 1 and upon the receipt of P 3he issued a vesting order P 4 dated 23.5.74. P 4 contains a list ofhouses which have vested by operation of law on the Commissionerand does not contain the premises in suit. The evidence of the officerfrom the Department of National Housing was that the premises in suithad not vested in the Commissioner.
The appellant referred to the principles set out in the decision inCarter v. Carter (1). The appellant submitted that upon P 2 he haddisposed his interests in the premises in suit, within the meaning ofsection 10 of the Ceiling on Housing Property Law and that thepremises had not vested in the Commissioner of National Housing.P 2 is an agreement entered into by the appellant with one Velu to sellthe premises to the latter subject to the conditions set out in P 2.Upon P 2 the plaintiff had agreed to sell the premises to Velu for a sumof Rs. 30,000 and the purchaser Velu had to pay a sum of Rs. 2000as an advance on the date of the execution of the agreement?Therefore the purchaser had to pay a sum of Rs. 2000 per year for aperiod of 14 years commencing from the 1 st day of January, 1975and the last payment to be made on the 1 st of January, 1989. Upon adefault on the part of the purchaser of any one payment asaforementioned he loses his right to purchase the premises and hewas requested to yield up possession to the vendor.
The purpose of the Ceiling on Housing Property Law was to see thatno person owns any house in excess of the permitted number ofhouses after 14.1.74. The question does arise whether by theagreement P 2 the appellant had disposed of the premises in suitwitfiin the meaning of section 10 of the Law. Section 10 providesthus :
“Where, on the date of commencement of this Law, any personowns any house in excess of the permitted number of houses, suchperson may, if such person is an individual, within a period of twleve
months from such datedispose of such
house with notice to the Commissioner unless the tenant of suchhouse or any person who may under section 36 of the Rent Act No.7 of 1972, succeed to the tenancy of such house, has madeapplication with simultaneous notice to the owner for the purchaseof such house'.
It would be relevant to consider the provisions of section 10 as set outin the Sinhala Law which reads thus :
’•* SJtto qadftca Get (oaatdtqto<J od ACbo O&&O0 GfcBaed 0 oft aflwad
qQftft a«aeti gDOdoeo. e aGnaad q©66d Mi IS73 quo 7«&d q© otMd SO
to todto otof fl ftfigood AOaa 8<(S qggtfto to aft qqduft tod O dEhoa ftftS qAfttoOd ^pft«<ftd «a>fts>9d&d<a> «to fgQSd ftdcd od gwroid to ycaoA (wd 60 ftae KOOd afltoS^tfd qqftot etod «mfta>0dOdiaK} (qft{ e
ftCotto Mds qdo.’
I am unable to hold that upon the agreement P 2 relied upon by theappellant that the latter had disposed of the premises in suit within themeaning of section 10 of the Ceiling on Housing Property Law. If thepremises had not been disposed of before 13th January, 1974 byvirtue of section 11 the premises vest in the Commissioner of NationalHousing. Section 11(1) provides thus
'Any house owned by any person in excess of the permittednumber of houses which has not been disposed of within the periodwithin which such person may dispose of such house in accordance, with the provisions of section 10 shall on the termination of suchperiod vest in the Commissioner’.
There is no need for a vesting order if the premises had not beendisposed of under section 10. It automatically vests in theCommissioner of National Housing under section 11 (1). In thecircumstances the premises had vested in the Commissioner ofNational Housing.
It was submitted on behalf of the appellant that the defendant hadentered, the premises as appellant’s tenant and in the circumstanceshe must first give up possession and it was only then that it was opento him to litigate in regard to title. In support of this submissionreliance was placed on the decision in Visvalingam v. D. de S.Gajaweera (2).The common law principle that a tenant who entered*into premises as a tenant cannot without giving up possession disputethe title of the landlord is not applicable in this case as a statuteoverrides the common law. Section 15 (2) of the Ceiling on HousingProperty Law provides thus :
'Where any house is vested in the Commissioner-under this Law,the Commissioner shall have absolute title to such house and freefrom all encumbrances, and such vesting shall be final andconclusive for all purposes against all persons whomsoever,whatever right or interest they have or claim to have to or in, suchhouse".
The defendant in the instant case can plead as an answer tolandlord's claim for ejectment that the landlord's title has beensuperseded by title paramount and there has been an eviction by titleparamount in this case. Vide Tillekaratne v. Coomarastngham (3). Inthe circumstances of this case the appellant is not entitled to maintainthis action for the ejectment of the defendant. The judgment of thelearned Additional District Judge .is affirmed and the appeal isdismissed with costs.
BANDARANAYAKE. J. -1 agreeAppeal dismissed.