047-NLR-NLR-V-03-WAMBECK-v.-LE-MESURIER.pdf
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WAMBECK v. LE MESUREER.
C. B., Batticaloa, 4,325.
1808.March 7.
Landlord and tenant—Lease—Agreement by letter to lease land for aterm of years—Ordinance No. 7 of 1840—Effect of entering intopossession of land on an informal lease.
A tenant entering into possession of land, under a written leasevoid in law, thereupon becomes tenant from month to month uponthe terms of the writing as far as they are applicable to and notinconsistent with a monthly tenancy; and so long as the relationof landlord and tenant exists in fact, the tenant is bound to pay therent to his lessor.
Where A expecting to acquire legal title to land agreed by letterto execute a valid lease oh his acquiring title in favour of B, andplaced him in possession of the land ; but on acquiring title soughtto eject B on the ground that the lease was void under OrdinanceNo. 7 of 1840,—Held, that A was bound to execute the lease, andthat if B was not willing to accept it, he must quit the land, payingrent for the use and occupation of the land during the termalready occupied by him.
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N this case plaintiff and another person were the executorsof the estate of the original owner of the land in question,
and the plaintiff, in anticipation of acquiring title in himself, agreedto execute a valid lease of the land to the defendant by a letter,which ran as follows :—“ I agree to lease to you the strip of land“ between my store and the market premises at Koddaimunai for“ five years from the 20th April, 1896, at Rs. 10 per month, and to“ sign the formal lease directly the transfer t<7 myself is completed.“ I also agree to indemnify you against all loss should the lease“ not be completed and should you be ousted within the period“ above specified.”
The defendant replied to the above in the following terms :—“ I have yours of this date, and will lease the land on the terms“ agreed upon by you. Please have all my machinery, &c.,“ removed to it as soon as possible.”
When the transfer referred to in plaintiff’s letter was executedin his favour, he gave notice to the defendant to quit the land anddeliver over to him the possession thereof.
The defendant refused to do this, and the plaintiff brought thepresent action, claiming a sum of Rs. 63‘41 as compensation to himfor the occupation of the land by the defendant, to recover possessionof the land and have the defendant ejected, and damages continuinguntil the land is delivered to plaintiff.
The defendant denied his entry on the land as plaintiff’stenant, the plaintiff’s right to eject him, and the plaintiff havingsustained any damage, and stated that he was ready and willing to
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1898.March 1.
pay a sum of Rs. 10 a month during a period of five years asrent for the use and. occupation of the land to such person or personsas were legally entitled to demand the same. He also denied asmatter of law the jurisdiction of the Court as a Court of Requeststo hear the case, inasmuch as the value of the land was aboveRs. 300.
The Commissioner held that the plaintiff, having the control ofthe land as executor of the deceased owner, agreed to give to thedefendant a lease of the land for five years as soon as he himselfobtained title to the land, and the defendant agreed to take thelease and pay Rs. 10 per month when the lease was given, but nolease was given ; that defendant did not enter on the land as plain-tiff’s tenant, but he entered on the promise that he was. to be giventhe lease, and he was entitled to hold it till the promise is fulfilled.He, however, dismissed the plaintiff’s action, as the value of theland was stated by the plaintiff in his evidence to be betweenRs. 300 and Rs. 500, and this took the question out of the jurisdic-tion of his Court, and he could not therefore order the deliveryof the land.
The plaintiff appealed.
Sampayo, for appellant.
Van Langenberg, for respondent.
7th March, 1898. Lawbie, J.—
The plaintiff by letter agreed to lease to the defendant a plot ofland for five years from the 20th April, 1896, at Rs. 10 a month,and to sign a formal lease directly a transfer to him was completed.He also agreed to indemnify the defendant against all loss should thelease not be completed and should he be ousted within the period'above specified.
The defendant replied, “ I have yours of this date, and will lease“ the land on the terms agreed upon by you. Please have all my“ machinery, &c., removed to it as soon as possible.”
The defendant entered into possession.
On the 12th November, 1896, the plaintiff’s proctor wrote to thedefendant:—
“ I am instructed by Mr. Wambeck to give you notice that“ he requires you on the 31st December, 1896, to quit and deliver
“up possession of all that piece of landnow in your
“ possession, and held by you as Mr. Wambeck’s tenant. Please‘‘ also note that in case of any refusal or neglect on your part
to comply with this an action of ejectment will be commenced
against you without delay.”
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The defendant refused to quit. This action was instituted on28th March, 1897, praying for compensation at the rate of Rs. 10a month for use and occupation of the premises from 20tb Aprilto 31st December, 1896, and for damages at Bs. 10 a month sincethat date and for ejectment.
In his answer the defendant denied his lessor’s title, and declaredthat he was willing to pay the rent for five years to any one legallyentitled to demand it.
By our Ordinance No. 7 of 1840 the informal contract of lease hasno force or avail in law, but on the authority of Doe v. Rigg,Bell and Clayton v. Blakey (2 Smith’s L. G., 110-1191, and C. B.,Batticaloa, 3,318 (Qrenier’s Report, 1873, p. 16), and Perera v.Fernando (Rdmandthan’s Report, 1864, p. 83), I am of the opinionthat a tenant entering into possession under a lease void in lawthereupon becomes tenant from month to month upon the terms ofthe writing as far as they are applicable to and not inconsistentwith a monthly tenancy, and that so long as the relation of land-lord and tenant did in fact exist, the tenant was bound to pay therent to his lessor. I give judgment for Rs. 10 a month for useand occupation.
With regard to ejectment, the plaintiff said in the witness boxthat the transfer to him of the land had been completed. Theplaintiff is bound to give a lease. If the defendant will not accepta lease he must quit the land.
I adjourn the hearing of this appeal for one month. The plaintiffis also given the opportunity of informing the Court whether he isor is not willing now to grant lease of the premises for five yearsfrom 20th April, 1896, at Rs. 10 a month.
In his evidence the defendant said he had removed his machineryfrom the land ; it may be that he does not want to get a lease,that he is willing to give the land up. I give him the opportunityof stating whether he wishes to get a lease or is content to give uppossession.
1898.March 7.
IiAWBXE, J.
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