006-NLR-NLR-V-50-FERNANDO-Appellant-and-MARSHALL-Respondent.pdf
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B AS NTAYAKE J.—Fernando v. Marshall.
1948Present : Basnayake 3.
FERNANDO, Appellant, and MARSHALL, Respondent.8. C. 80—C. B. Colombo, 2,985.
Landlord and tenant—Payment of rent—Payee not person who put tenantinto possession—Estoppel.
Where a person receiving payment of rent from a tenant is not theperson who put him into possession but someone claiming title as.his assignee or successor, the mere fact of payment of rent without moreis not conclusive and. does not estop the tenant from disputing thepayee’s title and explaining the payment.
PPEAL from a judgment of the Commissioner of Requests, Colombo..
B. Wikramanayake, with O. Thomas, for plaintiff, appellant.
P. Malalgoda, with C. S. Bandunu, for defendant, respondent.
Cur. adv. vult.
March 17, 1948. Basnayake J.—
The appellant, one H. P. Fernando, instituted this action against therespondent with a view to have him ejected from premises No. 72, AlstonPlace in Slave Island. The learned Commissioner of Requests dismissedthe appellant’s action and the present appeal is from that decision.
It appears from the evidence of the appellant that one Mrs. Wijesekereis the owner of premises No. 72 and twenty-eight other houses in AlstonPlace. Of these twenty-eight the appellant occupies one—No. 86,Alston Place—-wherein he maintains a hotel. The respondent, who isalso a proprietor of a hotel in some other part of Slave Island, usespremises No. 72 to house his bakery. The appellant wants the premisesfor the same purpose in order that he may make the bread requiredfor his hotel.
One Ramasamy Chettiar had obtained the right to collect the rentsof all Mrs. Wijesekere’s houses in Alston Place. It was during thecurrency of Ramasamy Chettiar’s contract that the respondent cameinto occupation of premises No. 72. The date, period, or the terms ofthe arrangement with Ramasamy Chettiar do not appear from the evi-dence. After some time one S. C. Fernando obtained the rights ofRamasamy Chettiar, but the nature of the arrangement does not appearin evidence. Eater one W. D. Simon appears to have taken the placeof S. C. Fernando. Here again the exact status of Simon in relationto Mrs. Wijesekere, the ow^er, is not known. But it appears that be
BA8NAYAKE J.—Fernando «. Marshall.
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instituted G. R. Colombo Case No. 93,602 in 1944, to have the respondentejected from premises No. 72. That action was dismissed on July 27of that year and the respondent continued in occupation of the premises.In May 1946, the appellant obtained the rights of Simon the unsuccessfulplaintiff in C. R. Colombo Case 93,602 which he describes as a sub-lease.On the strength of this he seeks to eject the respondent as he requiresthe premises for the purposes of his trade or business. He claims tocome within the ambit of section 8 (c) of the Rent Restriction Ordinance,No. 60 of 1942.
If the appellant establishes that he is the landlord of the premisesin respect of which he brings this action and if he satisfies the Courtthat they are reasonably required for the purpose of his trade or businesshe is entitled to succeed. The expression “ landlord ” as defined in theOrdinance means the person for the time being entitled to receive therent of the premises in respect of which the action is brought. In thiscase the appellant’s evidence of his right to receive the rent is vagueand unsatisfactory. He has not produced any document whatsoeverto support his claim that he holds a sub-lease from Simon and his oralevidence does not relieve the uncertainty as to his rights. In his exami-nation-in-chief he gives no evidence as to his right to receive the rent.In re-examination he says “ The owner of the premises is Mrs. Wijesekere.She originally leased out the premises to one Ramasamy Chettiar.Defendant came into occupation of the premises under RamasamyChettiar. After Ramasamy Chettiar, S. C. Fernando had taken it andsub-leased it to Simon and after Simon I had taken it as a sub-leasefrom Simon ”. In answer to a question by the Commissioner he says“ I took the lease from S. C. Fernando of Norris Road ”.
The respondent alleges in his answer that the appellant is the “ billcollector ” of Simon who unsuccessfully attempted to eject him from thepremises in 1944, and puts the appellant to the proof of his right. Heavers “ the defendant is unaware of the actual interest of the plaintiffin the said premises or that the plaintiff holds an advance of Rs. 105in his hands of the defendant and puts the plaintiff to the proof thereof ”.The appellant had the opportunity of producing his instrument of leaseand proving his claim. He has failed to do so and cannot thereforesucceed.
The question whether the respondent is estopped from adopting theattitude he has taken up in his answer has not been raised in the lowercourt and need not therefore be discussed here. However, as there isevidence that the respondent paid rent to the appellant I wish to addthat where, as in this ease, the person receiving the payment is not theperson who let the payer into possession, but someone who is claimingtitle as his assignee or successor, the mere fact of paying money as andfor rent without more is not conclusive and does not estop the payerfrom afterwards disputing the payee’s title and leading evidence toexplain the payment or payments made by him.
The appeal is dismissed with costs.
Appeal dismissed.