1934 Present: Dalton S.P.J

SUNDRA AMMAL v. JUSEY APPU.

10-C. R. Colombo, 92,115.

    Landlord and tenant-Landlord's title disclaimed-Notice to quit not necessary.

A tenant who disclaims to hold of his landlord is not entitled to have the action dismissed for want of a valid notice to quit.

APPEAL from an order of the Commissioner of Requests, Colombo.

N. E. Weerasooria, for plaintiff, appellant.

P. Tiyagarajah, for defendant, respondent.

October 5, 1934. DALTON S.P.J.-

This is an appeal arising out of a summary proceeding under the Small Tenements Ordinance, No. 11 of 1882.

The person claiming as landlord in this case is a woman, stated to be old, and a Brahmin, whose business is done for her by her grandson. She duly authorized these proceedings, and an affidavit by her grandson Ramanatha Kurukkal was filed, stating that he, on or about June 15, 1932, let the premises, No. 40, Captain's Gardens, Colombo, to Jusey Appu, the alleged tenant, at a monthly rental of Rs. 2.50 a month He further alleged that on September 1 he gave the tenant notice to quit on September 30 and deliver up possession.

In reply Jusey Appu filed an affidavit denying he was the tenant of the landlord here. He pleaded that in or about the year 1911 the then owners of the land, one Seeni Ayar and other co-owners, gave him permission to build the tenement No. 40, and that he had lived in it since then without paying any rent. He claimed that he had since 1911 acquired a prescriptive title to the tenement, and presumably to the land on which it stands. He admitted he had paid taxes to the Municipality through the landlord's husband, Kailasanatha Kurukkal, who had died some time in 1932.

Issues were then framed:-

(1) Was due notice to quit given?

(2) Was there a tenancy?

and evidence was led.

Ramanatha Kurukkal gave evidence alleging, the premises in question belonged to his grandfather Kailasanatha Kurukkal, who had let them about 1918 or 1920 to Jusey Appu with his wife's consent. During that time he stated the tenant paid Rs. 4.50 a month. The Grandfather died some time in the year 1932, and the witness states his grandmother sent for Jusey Appu and the latter agreed to continue the tenancy under her at the rate of Rs. 2.50 a month, paying rent that became due up to July 1, 1933. Thereafter he paid no rent and notice was given him. The witness could produce no receipt books.

An Inspector of the Assessor's Department of the Municipality was called to state he had assessed the premises, and an objection was made to the assessment of tenement No. 40 by the landlord here as owner. He went to the premises and found it was worth Rs. 2.50 a month, but took no statement from the tenant. Another "witness was called, who denied the truth of Jusey Appu's allegation in his affidavit that he had lived in this tenement since 1911. At the time of the riots in 1915 he stated that Jusey Appu lived in another garden. He corroborates Ramanatha Kurukkal on this point.

At the close of the case, and at the end of the judgment dismissing the claim, the Commissioner granted an application made by the land lord's proctor to produce the title deed of Kailasanatha Kurukkal for the premises. This deed (P 2) is dated July 30, 1928, and is a conveyance to Kailasanatha Kurukkal by the Chairman of the Colombo Municipality. Why the Commissioner allowed it to be produced and accepted it at that Stage is not stated. It is suggested he may have had some doubt as to the correctness of his judgment on seeing the document.

For the defence Jusey Appu gave evidence, repeating the statements made in his affidavit. He denied he had paid rent at any time to anyone. He did not call any of the persons who he said had authorized him to put up the tenement in 1911, although he said one of them was still alive and in Court at the time he was giving evidence. He called in fact no witnesses at all except his w