Sameem, M.U.M. V. Dep. W.W.

1954 Present: Pulle J. and Swan J.

M. U. M. SAMEEM et al., Appellants, and W. W. DEP, Respondent

S. C. 316-D. C. Colombo, 5,896/L
 

Possessory action-Right of a tenant to bring it-Test of possessio civilis-Limits of its applicability-Prescription Ordinance (Cap. 55), s. 4-Rent Restriction Act.

A contractual or statutory tenant who has been forcibly ousted from his premises is entitled to maintain a possessory suit against the person dispossessing him.

As against a spoliator the person dispossessed need not prove possessio civilis to be restored to possession.

APPEAL from a judgment of the District Court, Colombo.

Sir Lalita Rajapakse, Q. C., with E. R. S. R. Coomaraswamy and E. B. Vannitamby, for the defendants appellants.

Sir Ukwatte Jayasundera, Q .C., with Ivor Misso and S. Rodrigo, for the plaintiff respondent.

Cur. adv. vult.

May 10, 1954. PULLE J.-

This is an appeal in which the principal parties concerned are the plaintiff and the second defendant. There are three other defendants who are brothers of whom the first defendant is the son-in-law of the second. Judgment has been entered for the plaintiff declaring him entitled to the possession of premises No. 323, Main Street, Colombo, for ejectment and damages.

The whole case, so far as the evidence goes, tarns on a simple issue of fact, namely, whether on November 29, 1949, the plaintiff as the tenant of the Public Trustee was in occupation of the premises in question and whether he was forcibly dispossessed by the defendants or whether the 2nd defendant was in occupation as a sub-tenant under the plaintiff. The evidence both oral and documentary has covered a large area. It has been carefully considered by the learned trial Judge and it would unduly lengthen this judgment if all the submissions made to us on the finding of fact are subjected to a further analysis. On the whole we agree with the verdict of the trial Judge that the evidence in support of the plaintiff's case is overwhelming. It suffices to deal with two points stressed at the argument.

The defendants produced the promissory notes Dl and D2 dated respectively 15th March, 1947 and 1st May, 1947, granted by the 1st and 2nd defendants to two chettiyars. In these notes the address of the makers is given as No. 323, Main Street. Reliance was placed on this address in support of the defendant's case that they were carrying on business at the premises in their own right as early as 1947. The payee on the second note was" one A. P. R. P. L. Palaniappa Chettiyar. A kanakapulle of the payee calling himself A. P. R. P. L. Palaniappa Chettiyar gave evidence to the effect that he used to recover monies due on D2 at No. 323. Complaint is made that his evidence has been viewed with suspicion because he did not disclose himself specifically as the clerk to the firm of the payee. I cannot say that the Judge was wrong in putting himself on his guard against a witness who appeared to identify himself as the payee on the note, whereas he was only a clerk. But apart from this the learned Judge has carefully analysed the evidence of this witness and satisfied himself that the address in D2 and the fact that the witness may occasionally have seen the 2nd defendant at No. 323 could be explained in a manner consistent with the evidence called for the plaintiff.

It has been strongly urged that a letter D7 of 19th December, 1947, addressed in connection with a criminal matter to the Inspector-General of Police by the 2nd defendant in which he stated that he was carrying on business at No. 323 should have been accepted by the Judge as confirmation of the 2nd defendant's evidence and that, further, the theory on which the letter is accounted for by the Judge is unsatisfactory.

I think that the way in which the Judge has dealt with D2 and D7 must be looked at in the general context of his judgment. He had formed a very favourable view of a nu

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