PADMINI v. JAYASEELI

003-SLLR-SLLR-2004-V-3-PADMINI-v.-JAYASEELI.pdf


CA
Padmini v. Jayaseeli
(Balapatabendi, J.)
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PADMINIv
JAYASEELICOURT OF APPEAL.BALAPATABENDI, J. ANDIMMAM, J.
CA 1246/2002 (F).
DC MATUGAMA 10/13.JULY 6 AND 26, 2004.SEPTEMBER'22, 2004
Action to evict alleged licensee – Defendant claiming co-ownership – In appealtaking a different position that the alleged license was not terminated – Is itpermissible ? – Doctrine of Approbation and Reprobation.
Held:
Per Balapatabendi, J.
"it is clear that the defendant-appellant had claimed to possess the saidproperty as a co-owner against the plaintiff-respondent but not oneunder the plaintiff respondent. Therefore, I am inclined to agree that thedoctrine of “approbate and reprobate* forbids, the assertion of thedefendant-appellant,” when the defendant-appellant failed to establishthat she was a co-owner how could she now insist – on termination ofthe leave and licence – which never existed according to her."
APPEAL from the District Court of Matugama. ■
Cases referred to:.
Ponnupulle v Odoowerre Tea Company Limited – CLW Vol. LXV 20Coranelis v Urban Council Dehiwala – Mt. Lavinia, 59 NLR 158Eliyathamby v Kandiah – 47 NLR 201Ashriffv Razeek 1985 1 Sri LR 162
Muthu Nachchiya v Pathuma Nachchiya – 1899 1 NLR 21
Ranasinghe v Premawardene – 1985 1' Sri LR 63
Dr. Jayantha Almeida – Gunaratne with Dr. Mangala Ratnayake for defendant-appellant.
M. H. B. Morais with S Arachchige for plaintiff-respondent.
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Cur. adv. vult.
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[2004] 3 Sri L.R
October 18th, 2004
JAGATH BALAPATABENDI, J.The plaintiff-respondent instituted an action in the District Courtagainst the defendant-appellant seeking inter alia a declaration thatshe is a co-owner of the land morefully described in the scheduleto the plaint, for an order of ejectment of the defendant-appellantfrom the said property, and for damages as prayed for in the plaint.
The case for the plaintiff-respondent was, the defendant-appellant and her deceased husband were given leave and licenceto put up a temporary structure in the land in question in June 1982on a promise to vacate the said premises removing the temporarystructure when requested by the plaintiff-respondent. As thedefendant-appellant commenced to erect a permanent building inthe said land in August 1982 without her permission the action wasinstituted, to eject her from the said property as she was in unlawfulpossession of the land, and also sought an interim injunction toprevent her from further construction of the building.
The defendant-appellant had filed Answer, denying that she wasa licensee, and had claimed that she was in possession of the saidland for more than 10 years as a co-owner, thus had prayed for adismissal of the' action and sought a declaration that she is a co-owner of the said land.
The trial had proceeded on 13 issues raised, the' plaintiff-respondent had given evidence marking documents P1 to P.11 toestablish the devolution of title and the co-ownership, the Surveyorand another witness had given evidence in support of the plaintiff-. respondent’s case. The defendant-appellant had closed his casewithout leading any evidence to establish his case.
The Learned District Judge after trial, in his Judgment hadanswered the issues in favour of the plaintiff-respondent.
At the hearing of the appeal, firstly, it was contended by theCounsel for the Defendant-appellant, that the plaintiff-respondentcould not; have'sought an ejectment of the defendant-appellantwithout termination of the leave and license as required in law, andthe possession of the said land by the defendant-appellantbecomes unlawful only upon the date of expiry in the notice to quit,
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CA
Padmini v. Jayaseeli
(Balapatabendi, J.)
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In support of his contention he has cited the decisions of thecases Ponnupulle v Odoowerre Tea Co. Ltd.W Coranelis v TheUrban Council Dehiwela – Mt.. Laviniai2) Eliyathambi v Kandiah<3>
I am of the opinion that the decisions of the above mentionedcases were based on different facts to that of the instant case andthus not relevant.
In reply to the above issue, .the .counsel for the plaintiff-respondent contended that in the answer filed by the defendant-appellant, she had totally denied that she was in possession of thesaid land with the leave and license of the plaintiff-respondent, buthad stated that she was a co:owner of the said property and was inpossession since 1982 August (over 10 years), and constructed ahouse in the said land on the basis of her co-owned right to the saidland.
Upon the facts stated above, the Counsel for the plaintiff-respondent raised a question as follows:- “Could the defendant-appellant now take up the stance that the plaintiff-respondent hadnot duly terminated the. leave and license by giving her notice toquit, when she had totally denied that she was a licensee, and hadclaimed a co-ownership." As such “ Can the defendant-appellantapprobate and reprobate at the same time.” Even at the trial noissue had been raised in regard to the termination of the leave andlicense of the defendant-appellant.
In support of his contention the case of Ashriffv Razild4) wascited. In the case of Ashriff v Razik (supra) – “The defendantclaimed a joint tenancy with the plaintiff and alternatively that hewas the- sub-tenant under the plaintiff. He never denied tenancy.The defendant never claimed right of occupation against the
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he alleged that the plaintiff-respondent in her evidence had notspecified any date as to when the leave and license had beenterminated. The counsel drew the attention of Court to thefollowing item of evidence given by the plaintiff-respondent.
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plaintiff, whether it be in the capacity of a licensee or a sub tenant,his claim to occupy the premises was always one under theplaintiff, and not against him. Therefore the defendant was entitledto notice of the revocation of his licence.”
In the case of Muttu Natchia v Patuma Natchia (5) Browne, J.observed that “The plaint in the case sufficiently averred that thedefendant, after entering and holding, as tenant of the plaintiff, haddisclaimed to hold, of him and put him at defiance. It wasunnecessary therefore that the plaintiff, as he did should haveaverred or have sought to prove any notice to quit given by him to sothe defendant, and the defendant was not entitled to have theaction dismissed because no valid notice was given.”
In the instant case, the defendant-appellant claimed that shewas a co-owner of the said property and totally denied that she wasa licensee.. When the defendant-appellant failed to establish thatshe was a co-owner, how could she now insist on termination of theleave and license which license never existed according to her.
Thus it was obviously clear the defendant-appellant had claimedto possess the said property as a co-owner against the plaintiff-respondent but not one under the plaintiff-respondent. Therefore, I 90am inclined to agree with the contention of the Counsel for theplaintiff-respondent that the doctrine of ‘approbate and reprobate’forbids the.assertion of the defendant-appellant.
In case of Ranasinghe v PremadharmaW Sharvananda. CJ.,observed that “The rationale of the principle appears to be that adefendant cannot approbate and reprobate. In cases where thedoctrine of ‘approbation and reprobation’ applies, the personconcerned has a choice of two rights, either of which he is at libertyto adopt, but not both. Where the doctrine does apply, if the personto whom the choice belongs irrevocably and with full knowledge 100accepts one he cannot afterwards assert the other, he cannot affirmand disaffirm.”
Secondly, the counsel for the defendant-appellant contendedthat the Deed bearing No 22313 executed on 13.03.1982 markedas (,P2) on which the plaintiff-respondent based her claim for co-ownership, was not proved either by calling the Notary Public whoexecuted the deed, or at least one of the witnesses to the deed.
Padmini v. Jayaseeli
CA(Balapatabendi, J.)17
It was an admitted fact that K.Don Thepanis Appu-was a co-owner of the land described in the schedule to the plaint. The saidThepanis Appu on 14.06.1910 by the deed bearing No.342 markedas (P1) transferred a (1/2) half share to the plaintiff’s father JamisAppu. (P1 is over 30 years old).
The said Jamis Appu separated a portion of the said land andwas in possession. The said Jamis Appu died leaving as his heirsthe widow Mary Nona and two daughters plaintiff-respondent andher sister Gunaseeli.
Mary Nona’s 1/2 share devolved on the plaintiff-respondent andGunaseeli after her demise, the said' Gunaseeli (sister of theplaintiff-respondent) gifted her share by the deed (P2) to theplaintiff-respondent. Thus all the rights of Jamis Appu weredevolved on the plaintiff-respondent.
The deed (P2) is a deed of gift, by the sister of the plaintiff-respondent.. At the trial the plaintiff-respondent had identified hersister’s signature as the donor and her signature as the donee inthe deed P2. The plaintiff-respondent was a party to the deed P2.
In addition, the defendant-appellant in her Answer at paragraphSix (6) had admitted that Jamis Appu’s rights devolved on MaryNona (wife) and the two daughters the plaintiff-respondent and hersister Gunaseeli.
In view of the aforesaid reasons, it could not be said that thedeed (P2) had not been proved as alleged by the defendant-appellant.
Thirdly, the Counsel for the defendant-appellant contended thatthe Learned District Judge had failed to consider to awardcompensation for improvements effected on the land by thedefendant-appellant.
On a perusal of the Judgment of the Learned District Judge it isclear that the learned District Judge in her Judgment had correctlyreferred to the fact that there was no evidence placed before Courtas to what were the improvements effected on the land by thedefendant-appellant, and as to the quantum of compensationclaimed by the defendant-appellant: as such she was unable tomake any order on compensation.
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In the above mentioned circumstances, I am of the view that thefindings of the Learned District Judge were correct in law. Theappeal is dismissed with costs of Rs. 10,000/-.
IMAM, J. – I agree.
Appeal dismissed.
Editors Note: The Supreme Court in SC (SPLA) 289 (4) on 13th July 2005 refusedspecial leave to appeal to the Supreme Court.