043-SLLR-SLLR-1999-V-1-GUNASEKERA-AND-ANOTHER-v.-LATIFF.pdf
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Gunasekera and Another v. Latiff
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GUNASEKERA AND ANOTHER
v.LATIFF
COURT OF APPEALDE SILVA, J.,
WEERASURIYA, J.
A. NO. 895/97
C. COLOMBO NO. 15040/LFEBRUARY 2, 1999
Rei Vindicatio Action – Defendant claims to be tenant – Who should begin? CivilProcedure Code – S. 150, Evidence Ordinance S. 101, 102, 103.
The plaintiff-respondent instituted action seeking a Declaration of Title, ejectmentof the defendants and damages. The defendants claimed to be the tenants ofthe premises.
Held:
Ordinarily the plaintiff has the right to begin, but where the defendant admitsplaintiffs story and contends on some point of law or additional facts to bealleged by him, that the plaintiff is not entitled to any part of the relief, heclaims, the defendant has the right to begin.
The question as to the party who should begin the case is linked to thequestion on whom the burden of proof lies in a suit.
While S. 101 Evidence Ordinance is concerned with the duty to prove acase as a whole, viz the overall burden of proof S. 103 regulates the burden
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of proof as to a particular fact, however the devolution of the overallburden is governed by S. 102 which declares that the burden of proof lieson that person who would fail if no such evidence at all were given oneither side. When the legal title to the premises is admitted or proved tobe in the plaintiff the burden of proof is on the defendant to show he isin lawful possession – defendant must begin the case.
APPLICATION in Revision from the Order of the District Court of Colombo.
Cases referred to:
Candappa nee Bastian v. Ponnambalampillai – 1993 1 SLR 124 at 187.
Theivandran v. Ramanathan Chettiar – 1986 2 SLR 219.
Nihal Jayamanne, PC with Noorani Amerasinghe for defendant-petitioner.
S. Sivarasa, PC with N. R. Sivendran for plaintiff-respondent.
Cur. adv. vult.
March 30, 1999.
WEERASURIYA, J.
The plaintiff-respondent (hereinafter referred to as the plaintiff) byher plaint dated 28. 06. 1990, instituted action against the defendant-petitioners (hereinafter referred to as the defendants), seekinga declaration of title to the premises morefully described in theschedule to the plaint, ejectment of the defendants therefrom anddamages. The defendants in their answer sought dismissal ofthe action on the ground that they were the tenants of the premises.
On 22. 03. 1996, the case came up for trial wherein two admissionswere recorded relating to the jurisdiction and ownership of thepremises as set out in paragraphs 2 and 3 of the plaint. Thereafter,
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Gunasekera and Another v. Latiff
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the plaintiff raised 2 issues and the defendants raised 10 issues. Whenfurther trial commenced on 12.05.1997, learned counsel for theplaintiff contended that the burden lay on the defendants to beginthe case. Learned counsel for the defendants objected to this appli-cation whereupon the District Judge having directed the parties totender written submissions by his order dated 14. 10. 1997, allowedthe application of the plaintiff directing the defendants to begin 'the case. It is from the aforesaid order that this application for revisionhas been filed.
At the hearing of this application, learned President's Counselfor the defendants submitted that the District Judge had misdirectedhimself by holding that the burden lay on the defendants to beginthe case. He contended that the burden to prove the facts constitutingunlawful possession of the defendants as set out in paragraphs2 – 8 of the plaint lay with the plaintiff.
The facts and circumstances set out in the plaint to establishthe unlawful possession of the defendants were founded on thefollowing basis, namely –
that at the time the plaintiff purchased the premises fromthe original owner Abbasbhoy by deed No. 2677 dated 16.12. 1977 Panikkar Thomas Mathews was its tenant carryingon the business called Bombay Harmonium and thereafterhe attorned to the plaintiff;
That Panikkar Thomas Mathews died in 1986 and therent had been paid by the defendants falsely representingthat Thomas Mathews was still alive;
that on the death of Thomas Mathews tenancy had cometo an end.
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Paragraphs 2 and 3 of the plaint admitted by the defendantsat the commencement of the trial read as follows:
"(2) One Abbasbhoy Mulla Musajee was the original owner oftwo adjacent premises bearing assessment Nos. 122 and124 of Sea Street, Pettah, Colombo 11. The subject-matterof this action is premises No. 122, Sea Street, Pettah,Colombo 11, morefully described in schedule hereto.
(3) Upon deed No. 2677 dated 16.12.1977 attested byMr. Humza Zaheed, Notary Public, Colombo, the saidAbbasbhoy Mulla Musajee sold and transferred the saidpremises described in the schedule hereto to the plaintiffabove-named who became the absolute owner of the saidpremises No. 122, Sea Street, Colombo 11."
In terms of the provisions of section 150 of the Civil ProcedureCode, the party having the right to begin is required to state hiscase giving the substance of the facts which he proposes to establishby evidence. Ordinarily the plaintiff has the right to begin, butwhere the defendant admits plaintiffs story and contends on somepoint of law, or additional facts to be alleged by him, that theplaintiff is not entitled to any part of the relief he claims, the defendanthas the right to begin.
The question as to the party who should begin the case islinked to the question on whom the burden of proof lies in a suitor proceeding. The general rule dealing with the burden of proof iscontained in section 101 of the Evidence Ordinance which providesthat whoever desires any Court to give judgment as to anylegal right or liability dependent on the existence of facts which heasserts must prove those facts exist. This provision recognises theprinciple that a party must bear the burden of establishing the factson which he relies for the remedy he seeks.
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Section 103 of the Evidence Ordinance which makes provisionfor burden of proof as to any particular fact stipulates that burdenof proof as to any particular fact lies on that person who wishesthe Court to believe in its existence. It would be clear therefore,while section 101 is concerned with the duty to prove a case as awhole, namely, the overall burden of proof, section 103 regulatesburden of proof as to a particular fact.
However, the devolution of the overall burden is governedby section 102 which declares that the burden of proof in a suit orproceeding lies on that person who would fail if no evidence at allwere given on either side.
Learned President's Counsel for the defendants submitted that ifno evidence is led by the plaintiff to explain the circumstancesunder which he accepted rent after 1986 the plaintiff's action forejectment fails.
The admission by the defendants that the plaintiff had acquiredownership of the premises by deed No. 2677 dated 16.12.1977,attested by Humza Zaheed, Notary Public, entitles the plaintiff to obtaina declaration that he is the lawful owner of the premises in suit.
The averments in paragraph 7 of the plaint was to the effectthat on the death of Panikkar Thomas Mathews, tenancy in respectof the premises came to an end. While denying the averments inthe said paragraph, the defendants in paragraph 5 of their answeraverred that tenants of the said premises, from time to time, werethe persons who carried on the said business under the name, styleand firm of "Bombay Harmonium Company". In paragraph 6 of theanswer, the defendants also averred that the present tenants of thesaid firm are the 1st and 2nd defendants and another person bythe name of Jayapala. It is pertinent to observe that there wasreference neither to a partnership at the time P. Thomas Mathews
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attorned to the plaintiff nor to a partnership at the time of thedeath of P. Thomas Mathews or that they were subtenants or licenseesunder him at any time. It is to be noted that occupation by a subtenantor licensee of the tenant is not in law, unlawful occupation. Thestatutory protection afforded to a tenant can always be availed of byhis subtenant or licensee.
Therefore, on the basis of the material disclosed in the answer,there was no basis for a new contract of tenancy in respect of thepremises being created between the plaintiff and the defendants.
It was observed in Candappa nee Bastien v. PonnambalampillaP>at 187 as follows:
“Since title to the premises was admittedly in the plaintiff, the
burden was on the defendant to show by what right he was in
occupation of the premises
In Theivandaran v. Ramanathan Chettiai™ it was held that whenthe legal title to the premises is admitted or proved to be in theplaintiff the burden of proof is on the defendants to show he is inlawful possession.
It would be seen, therefore, that the plaintiff is entitled as theabsolute owner of the premises to the possession of such premises.If the defendants claim that they are the tenants of the premisesin suit, burden lies on them to prove that fact, and on theirfailure the plaintiff would be entitled to an order of ejectment of thedefendants from the premises in suit.
In view of the foregoing reasons, the contention of the learnedcounsel for the defendants that the burden lay with the plaintiffto begin the case is untenable.
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Learned District Judge upon a consideration of the materialbefore him had arrived at a finding that defendants must beginthe case. Having examined the admissions and totality of avermentsin the plaint and the answer, there is no reason to interfere withthe findings of the District Judge. Therefore, this application is refusedwith costs.
DE SILVA, J. – I agree.
Application dismissed.