1951 Present : Jayetileke C.J., Nagalingam J. and Gratiaen J.

DE ALWIS, Appellant, and PERERA,  Respondent

S. C. 7 C. R. Colombo, 27,027

Rent Restriction Act, No. 29 of 1948-Landlord not owner of premises let-"His right to avail himself of provisions of section 13 (1) (c)-Meaning of " landlord "- Is jus in re a necessary ingredient ?-Sections 13 1 (c), 26, 27-Evidence Ordinance (Cap. 11), s. 116.

Plaintiff let certain premises to defendant on the basis of a monthly tenancy and placed the latter in possession thereof. The premises belonged,, in fact to the plaintiff's wife and were let on her behalf, but the defendant was not aware of that fact and the contract of tenancy was, according to the evidence, one entered into by the plaintiff in his personal capacity as the landlord and; the defendant as the tenant.

In action brought by the plaintiff under section 13 (1) (c) of the Rent Restriction Act to eject the defendant on the ground that he " reasonably required " the premises in order to carry on a trade or business-

Held, that the plaintiff was entitled to maintain the action although he was not the owner of the premises.

Quaere, whether a person who obtains a notarial lease, for a term of years, of premises which are already in the occupation of the lessor's monthly tenant can avail himself of the provisions of section 13 (1) (c) of the Rent Restriction-Act in order to eject the tenant, when possession has not been delivered by the lessor to the lessee but the tenant has been paying his monthly rents to the lessee subsequent to the lease.

Hameed v. Anamalay (1946) 47 N. L. R. 558, discussed.

Per JAYETILEKE C .J.-" I am of opinion that the plaintiff is entitled to maintain the action although he does not have a real right in the property ".

Per NAGALINGAM J.-" I am therefore of opinion that in section 13 (1) proviso (c) of the Act the term ' landlord ' must be interpreted as meaning one who in addition to receiving the rent has a jus in re in respect of the demised) premises ". Vide Hameed v. Anamalay.

Per GRATIAEN J.-" In my opinion the extended definition given to the term " landlord " in Hameed's case was not legitimate ".

APPEAL from a judgment of the Court of requests, Colombo.

This appeal was reserved for adjudication by a Divisional Bench on as reference made by Gratiaen J.

H .W. Jayewardene, with D. R .P. Goonetilleke, for the plaintiff appellant.-

The plaintiff sought to eject defendant on the ground that he reasonably required the premises for his occupation for the purpose of carrying on his business. The trial judge followed the decision in Hameed v. Anamalay,1[(1946) 47 N. L. R. 558.] and dismissed the action as plaintiff was not the owner of the premises. Defendant admitted the tenancy and the parties went to trial on five issues. There was no issue on the right of the plaintiff to bring this action. Section 27 of the Rent Restriction Act, No. 29 of 1948, defines the term " landlord ". Plaintiff comes under the definition of section 27 and he is suing under section 13 (c). The judgment in Hameed v. Anamalay should be limited to the facts of that

particular case. Eights under the common law are not affected by the Rent Restriction Act- Maroof v. Leaff 1[(1944) 46 N. L. R. 25.]. As to what a real right is see Wille: Landlord and Tenant, 3rd ed., pp. 14, 126.

E. B. Wikramanayake, K.C., with A. M. Charavanamuttu, for the defendant respondent.-Hameed v. Anamalay 2[(1946) 47 N. L. R. 558.] cannot be limited to the facts of that particular case. The decision must be either approved or over-ruled. A " landlord " for the purpose of section 13 (1) must not only be a person who is entitled to recover rent but also one who has a " jus in re in regard to the premises. There is no evidence in the present case that plaintiff had possession. He had no " jus in re ". As to what a " jus in re " is see Bell's Legal Dictionary, p. 303.

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