WIMALA PERERA V. KALYANI SRIYALATHA

WIMALA PERERA V. KALYANI SRIYALATHA

SUPREME COURT
SHIRANEE TILAKAWARDANE, J.,
SRIPAVAN, J. AND
IMAM, J.
S.C. APPEAL NO. 51/2010
S.C.H.C.C.A.L.A. NO. 45/2010
WP/HCCA/COL/76/2002 (F)
D.C. COLOMBO NO. 8884/RE
MARCH 4TH, 2011

Landlord and Tenant - Tenant disputes landlords title - Refusual to give up possession of the property at the termination of the lease on theground that the tenant acquired certain rights to the Property.

On or about 1st September 1996, the Plaintiff Appellant had purportedly granted the Respondent leave and license to occupy the premises in suit. By letter dated 30th September 1997 the said leave and license was terminated and the Respondent was directed to hand over vacant possession of the said premises. The Appellant claimed that the Respondent failed to hand over the premises on the due date and has remained in wrongful occupation, causing damages.

The Plaintiff Appellant instituted action in the District Court and after hearing the parties the learned District Judge dismissed Appellant's action with costs. The Appellant appealed against the judgment of the District Court to the High Court. The High Court by its judgment dated 12.01.2010 dismissed the appeal of the Appellant, and thereafter leave to appeal was granted by the Supreme Court against the dismissal of the appeal.

Held:

(1) A lessee is not entitled to dispute his landlord's title by refusing to give up possession of the property at the termination of his lease on the ground that he acquired certain rights to the property

subsequent to him becoming the lessee and during the period of tenancy.

Per Shiranee Tilakaward ane. J. -

"He must first give up possession and then litigate about the ownership he alleges."

Cases referred to:

(1) R. W. Pathirana v. R. E. de S. Jouasundcro. 58 NLR 169

(2) Alvar Pillai v. Karuppan- 4 NLR 32 J

(3) Visvalingam v. D. De S. Gajaweera - S() NLR 11

(4) W. M. J. Bandara v. J. Piuasena - 77 NLR 102

(5) Muthukuda v. Surnanaurathie - 4 NLR 321

(6) Noorbhai v. Karuppari Chetty - (1925) 27 NLR 325

APPEAL from the Judgment of the Civil Appellate High Court of the Western Province, Colombo.

Edward Ahanqama for the substituted Plaintiff - Appellant .- Petitioners

Rauindra Anmuurathna with D. L. W. Somadasa for the Defendant - Respondent - Respondent.

Cur.adu.vult.

July 18th 2011
TILAKAWARDANE, J.

    Special Leave to Appeal was granted to the Substituted Plaintiff - Appellant - Petitioner (hereinafter referred to as the Appellant) on 15th October 2010 on the following question of law:

1. Did the High Court err in law by entirely failing to consider the vital admissions made by the Defendant -

Respondent - Respondent (hereinafter referred to as the Respondent) in her statement to the Grandpass Police (marked as P3 and annexed to the annexed Record)?

2. Did the High Court err in law by determining that the Respondent had proved on a balance of the probabilities that she was a tenant of Matilda Gomez to the premises bearing Assessment No: 147, Devos Lane, Grandpass Road Colombo 14, from May 1995 and that such premises had been transferred to her by the said Matilda Gomes in 1998 by the deed marked VI?

3. Has the High Court erred by deciding on the title to the premises in suit in light of the fact that this is an action for ejectment of an over-holding licensee, where the title of the Appellant to the premises in suit is irrelevant and the title to the respondent to the premises is not a defence to the action.

4. Has the High Court erred in law by holding that Section 116 of the Evidence Ordinance does not apply to this case merely because the Respondent has completely denied being a licensee of the AppeJlant and further denied that the Appellant has Prescriptive Title to the premises in suit?

5. Is the judgment of the High Court not fairly based on the totality of the evidence led in this action, particularly t

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