1919.    Present: Schneider A.J. and Loos A.J.

BUULTJENS v. CAROLIS APPU.

 45-D. C. Matara, 8,467.

informal   lease-Is   lessee   to   be   treated   as   a   trespasser?   Monthly   tenancy-Ordinance   No.   7   of   1840,   s.   2.

By an informal writing which did not comply with the require­ments of section 2 of Ordinance No. 7 of 1840, the plaintiff leased to the defendant one hundred and fifty coconut trees for a period of one year, and also granted him permission to put np a hut to be used as a tavern.      '

Held, that the defendant, who was in possession, must be treated as a lessee " for a period not exceeding one month" and not as a trespasser, and that the plaintiff was not entitled to institute an action for ejectment against the defendant until the contract of monthly tenancy was terminated by a month's notice.

THE facts appear from the judgment.

Bawa K.C. (with him Keuneman), for defendant, appellant.

G. Koch, for plaintiff, respondent.

June 17, 1919.   Schneider A.J.- 

From the plaint, owing to its prolixity, it is not quite possible to understand clearly what was the position which the plaintiff meant to assume in regard to what is called an " informal lease " which she had granted to the defendant. In her plaint she states that she informally leased to the defendant one hundred and fifty coconut trees, standing on an estate called Silverdale, for the purpose of drawing toddy for a period of one year, and also granted him permission to put up a " hut " to be used as a tavern and that she received the consideration in full. She alleged that the defendant coupled seventy-seven trees of those which she had actually leased, and wrongfully coupled seventy-three trees which were not leased. In respect of the trees wrongfully coupled she claimed Rs. 365.08 as damages. She prayed for an injunction restraining the defendant from tapping any trees at all; that the informal lease be declared of no force or effect in law; and that the defendant be ejected from the land. I was at first inclined to regard her plaint as indicating that the plaintiff was willing to abide by the terms of what is called the informal lease, that is, that the defendant was entitled to the possession of the one hundred and fifty trees leased, but on appeal her counsel took up the position that as the lease was informal, it was therefore invalid in law; that the defendant was not entitled to be in possession at all; and that the plaintiff's action, must   be   regarded   as   one   against   a   wrongful   trespasser.

This must have been the position taken up on behalf of the plaintiff at the trial in the District Court also, because the learned District Judge has decided the case having only considered the informality of the agreement. The defendant in his answer pleaded that, in pursuance of the agreement between him and the plaintiff, he expended Rs. 600 in coupling the trees preparatory to tapping them. He claimed this sum of Rs. 600, and a further sum of Rs. 50 per day as damages sustained by him by reason of the defendant obtaining the injunction and restraining him from possessing the trees or tapping them. He also pleaded that as the plaintiff has stood by and permitted him to incur expense in coupling the trees which he had coupled, that she was estopped from pleading the Ordinance No. 7 of 1840. The parties went to trial upon six issues. No evidence was called. The learned District Judge after hearing argument made order that the plaintiff do refund the amount advanced by the defendant, and that the defendant be ejected forth­with from the land where the coconut trees leased were, standing. The defendant has appealed, and the plaintiff has also raised certain objections to the decree. As the fact is that there was no lease of the coconut trees and of the " hut " for the tavern by a formal writing in conformity with the provisions of section 2 of Ordi