1954 Present: Sansoni J.

V. VISVALINGAM, Appellant, and D. DE S. GAJAWEERA,
Respondent

 S. C. 180-C. R. Colombo, 41,956

Landlord and tenant-Merger of titles-Effect-Right of tenant to dispute landlord's title-Meaning of " landlord " in rent restriction law-Rent Restriction Act, No. 29 of 1948, ss. 13 {1) (a), 26, 27.

Plaintiff-appellant had let certain premises to the defendant-respondent on a non-notarial document. Admittedly he was not the owner of the premises. He brought the present action to have the defendant ejected on the ground that rent was in arrears. Defendant pleaded that he had purchased from the owners a portion of the premises and taken on lease the remainder and that, consequently, the capacities of landlord and tenant had become merged in him.

Held, that even assuming that the defendant had become owner of the entire premises, it was not open to him to refuse to surrender possession to his landlord. He must first give up possession, and then it would be open to him to litigate about the ownership.

Meaning of expression '" landlord" in sections 26 and 27 of the Rent Restriction Act considered.

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

H. W. Tambiah, with H. L. de Silva, for the plaintiff-appellant.

H. W. Jayewardene, Q.C., with D. R. P. Goonetilleke, for the defendant-respondent.

Cur. adv. vult.

October 13, 1954. SANSONI J.-

The plaintiff-appellant brought this action against the defendant-respondent claiming that rent was in arrears for four months. He claimed the amount due on this account and also asked for ejectment and damages. The defendant-respondent pleaded-

(1) that the plaintiff-appellant was not his landlord but only a rent collector for the owners ;

(2) that he had purchased from the owners through their attorney an undivided l/3rd share of the rented premises prior to the filing of this action, and a further 5/18th share since the filing of the action ; and that he had taken on lease from the owners the remaining 7/18th share ;

(3) that the effect of such purchase was to extinguish the contract of lease because the capacities of landlord and tenant merged in the defendant.

On the question whether the respondent was the tenant of the appellant the learned Commissioner held, in my opinion correctly, that he was. The tenancy agreement entered into between them concludes the matter. The appellant was not the owner of the premises ; he only claimed to have taken them on rent himself on an oral agreement entered into with the owner. Though section 26 of the Rent Restriction Act, No. 29 of 1948, on which the respondent's counsel relies seems to enable the owner in such a case to claim that he is the landlord of the sub-tenant, section 27 of the Act clothes the appellant also with the character of a landlord. The purpose of section 26 seems to be to create a class of statutory landlords consisting of persons who would not normally bear that character; they come into existence independently of any contracts made by them, and their tenants are also created for them by the same section.

I have heard interesting arguments urged on the second and third questions by counsel for the appellant and the respondent respectively, but I think this appeal should be decided on the law as laid down many years ago by Bonser C.J. and Withers J. in Alvar Pillai v. Karuppen [1 (1899) 4 N. L. R. 321. ].

In that case which is very similar to the present one the defendant was let into possession of the whole land in dispute by the plaintiff on a non-notarial document. When the terms of the letting expired the defend ant refused to give up possession on the ground that he had acquired title to half the land from a third party. Bonser C.J. said, " Even though the ownership of one half of this land were in the defendant himself, it would seem that by our law, having been let into possession of the whole by the plaintiff, it is not open to