004-SLLR-SLLR-1999-V-1-WIJETUNGE-v.-THANGARAJAH.pdf
CA
Wijetunge v. Thangarajah
53
WIJETUNGE
v.THANGARAJAH
COURT OF APPEALISMAIL, J. (P/CA)
TILAKAWARDANE, J.
A. NO. 248/98 (LG)
C. NEGOMBO NO. 5235/LDECEMBER 9, 1998
Rei Vindicatio – Title admitted – Ejectment resisted on the ground of lawfuloccupation and tenancy – Right to begin the case?
Held:
In a Vindicatory action when the legal title to the premises is admitted-the burden of proof is on the defendant to show that he is in lawfuloccupation.
The trial Judge erred in holding that the burden of proving that thedefendant is in wrongful and unlawful possession is on the plaintiff.
The defendant would have to begin her case.
APPLICATION for leave to Appeal – Leave been granted.
Cases referred to:
Theivandran v. Ramanathan Chettiar – 1986 2SLR 219 at 222.
Beebi Johara v. Warusavitharana – 1998 3 SLR 9.
Candappa nee Bastian v. Ponnambatam Pillai – 1993 1 SLR 184 at 187.
Gamini Jayasinghe for plaintiff-petitionerK. S. Rathnavei for defendant-respondent.
Cur. adv. vult.
54
Sri Lanka Law Reports
[1999] 1 Sri LR.
January 18, 1999.
ISMAIL, J. (P/CA)
The plaintiff-petitioner was granted leave to appeal from the order ofthe District Judge dated 7.10.98 by which the plaintiff-petitioner hasbeen directed to begin her case and establish that she is entitledto the relief prayed for in the plaint.
The plaintiff-petitioner by her plaint dated 15.2.96 prayed fordeclaration of title to the land and premises the subject-matter of theaction, damages for wrongful occupation from 16.11.94 and for theejectment of the defendant-respondent from the said premises.
The defendant by her amended answer dated 3.4.98 pleaded,interalia that the plaint did not reveal a cause of action, that she hasbeen in occupation of the premises as a tenant for a period of over30 years and that she is entitled to the protection of the Rent Act.
At the commencement of the trial on 14.9.98, as it was admittedthat the plaintiff-petitioner is the owner of the premises in suit, theissue suggested on behalf of the plaintiff-petitioner was as to whethershe was therefore entitled to the relief for declaration of title andejectment as set out in paragraphs (a) & (b) of the prayer to theplaint. It is to be noted that the plaintiff-petitioner did not raise anissue in respect of damages as prayed for in the plaint.
The defendant-respondent then suggested the following issuesnumbered 2 to 5.
Is the property described in the plaint covered by the provisionsof the Rent Act, No. 7 of 1972?
Is the defendant the tenant of the said premises?
Does the plaint disclose a cause of action?
If any one or more of the above issues are answered in favourof the defendant, is the plaintiff entitled to maintain this action?
CA
Wijetunge v. Thangarajah (Ismail, J. P/CA)
55
The counsel for the plaintiff-petitioner then adverted to thepleadings, the admission recorded and the issues raised and submittedthat in a rei vindicatio action where legal title is admitted but wherethe ejectment is resisted on the ground of lawful occupation, theburden of proving tenancy shift to the defendant together with theconsequential right to begin the case.
The trial judge in his order dated 7.10.98 has rejected this con-tention. Taking into consideration also the denial by the defendantof a cause of action accruing to the plaintiff, he has held that in theabsence of an admission in this regard, the burden of proving wrongfuloccupation of the premises by the defendant is on the plaintiff whohad to establish her right to the relief sought by her.
However, it has been consistently held that in a vindicatory actionwhen the legal title to the premises is admitted, the burden of proofis on the defendant to show that he is in lawful occupation. Sharvananda,J. in Theivandran v. Ramanathan Chettia/<'* at 222 stated as follows:
"In a vindicatory action the claimant need merely prove two facts;namely, that he is the owner of the thing and that the thing towhich he is entitled to possession by virtue of his ownership isin the possession of the defendant. Basing his claim on his ownership,which entitles him to possession, he may sue for the ejectmentof any person in possession of it without his consent. Hence, whenthe legal title to the premises is admitted or proved to be in theplaintiff, the burden of proof is on the defendant to show that heis lawful possession".
This statement was quoted with approval by G. P. S. de Silva,CJ. in Beebi Johora v. Warusavithana,i2) see also Candappa neeBastian v. Ponnambalam PillaP> at 187 where G. P. S. de Silva, CJ.stated as follows:
"Since title to the premises was admittedly in the plaintiff, theburden is on the defendant to show by what right he was inoccupation of the premises."
56
Sri Lanka Law Reports
11999] 1 Sri LR.
In view of the authorities referred to above, since the title to thepremises was admittedly in the plaintiff, the trial judge erredin holding that the burden of proving that the defendant is in wrongfuland unlawful possession of the premises is on the plaintiff. The issuesuggested by the defendant as to whether the plaint discloses a causeof action also place the burden of proof on the plaintiff and requirehim to begin the case.
We, therefore, hold that the defendant would have to begin hercase. The order of the District Judge dated 7.10.98 is set aside.
The appeal is allowed but without costs.
SHIRANEE TILAKAWARDANE, J. – I agree.Appeal allowed.