056-SLLR-SLLR-2004-V-3-AYUPALA-v.-PUBLIC-TRUSTEE-OF-SRI-LANKA.pdf
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AYUPALAv
PUBLIC TRUSTEE OF SRI LANKACOURT OF APPEALSOMAWANSA. J.
EKANAYAKE. J.
CA 429/96 (F).
JULY 29. 2004.
SEPTEMBER 15,2004OCTOBER 15. 2004
Land Development Ordinance – Permit holder – Right to bring a vindicatoryaction to eject trespasser – Permit holder dies – Is the land an asset in the Estatewhen the permit holder dies 7 – Last will – Do the normal laws of successionapply ? – Is the lessee the owner during the period of the lease? – State LandOrdinance Section 2. – No distinction between short and long leases.
The plaintiff-respondent claiming that he is lessee of the State land sought to evictthe 1st defendant-appellant and the 2nd defendant-respondent from the land inquestion on the basis they are trespassers, and sought a declaration of title to theland. The 1 st and 2nd defendants took up the position that they were in possessionof the premises with the leave and licence of one S from 1977 and paid all ratesand taxes. The 3rd defendant-respondent intervened and claimed that he too wasin possession from 1977 with the leave and licence of the plaintiff-respondent. ThePublic Trustee was substituted in the room of the deceased plaintiff-respondent asthe Public Trustee has been granted limited probate in respect of the estate of thedeceased plaintiff-respondent. The land and the building has been included in thelast will of the lessee. The District Court held with the plaintiff.
Held:
Permit holders under the Land Development Ordinance has beenconferred with a sufficient interest in the land to bring a vindicatory actionto eject any third party who is a trespasser and to recover damage forwrongful occupation.
Land held on a permit under the Land Development Ordinance cannot bethe asset in the estate when the permit holder dies. The land remains Stateland and on the death of the permit holder it devolves in the manner set outin the Ordinance and the permit holder is not free to dispose of it by last willand will not devolve according to the normal rules of succession.
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Ayupala v Public Trustee of Sri Lanka
(Andrew Somawansa, J.)
375
A lessee under a valid lease from the owner is dominus or owner for theterm of the lease. He is the owner during that time against all the world.The distinction between short and long leases is not recognised as partof the law of Sri Lanka.
AN APPEAL from the judgment of the District Court of Anuradhapura.
Cases referred to:
C.A. No. 201/95 (Rev) D.C. Anuradhapura No. 846/T (distinguished)
Palisena v Perera 56 NLR 407
Hinni Appuhamy v Kumarasinghe et all 59 NLR 566
Bandara v Appuhamy 25 NLR 171
Ukkuwa v Fernando 38 N 125
Ukku Amma et all v Jema 51 NLR 254
Canon v Fernando et all (1933) 35 NLR 352
Abdul Azeez v Abdul Rahiman 1909 1 Current Law Reports 271
Daya Guruge for the 1 st defendant-appellant.
Sunil Cooray or the substituted-plaintiff-respondent.
Cur.adv.vult.
November 5, 2004ANDREW SOMAWANSA, J.
The plaintiff-respondent instituted the instant action in theDistrict Court of Anuradhapura seeking a declaration of title to theland and premises described in the schedule to the plaint,ejectment of the 1st defendant-appellant and 2nd defendant-respondent from the aforesaid property in suit and damages.
The pleaded case for the plaintiff-respondent was that heobtained a long term lease (99 years) of the aforesaid State land interms of Section 2 of the State Land Ordinance for the purpose ofconstructing buildings. The said lease granted to the plaintiff-respondent by the President of Sri Lanka in terms of Section 2 ofthe State Land Ordinance dated 03.08.1989 is marked P1, that heconstructed a house on the said land, that on or about July 1991the 1st defendant-appellant and the 2nd defendant-respondentwithout any manner of right, title or interest to the land in suitforcibly came into occupation of the house constructed by theplaintiff-respondent on the said land and continued to be inoccupation without the consent of the plaintiff-respondent therebycausing damages at the rate of Rs. 2000/- per month.
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The 1st defendant-appellant and the 2nd defendant-respondentwhile denying the aforesaid averments took up the position thatthey were in possession of the premises in suit with the leave andlicence of one K.T. Somaratne de Silva from year 1977, that havingpaid all assessment taxes and other payments they were inpossession of the said building for over 12 years and that therebythey have acquired prescriptive rights to the said building. Furtherthey averred that if the plaintiff-respondent had any cause of action,it was against the aforesaid K.T. Somaratne de Silva and notagainst them. In the premises, they prayed for a dismissal of actionof the plaintiff-respondent and a declaration that they were entitledto the house and the land in suit.
The 3rd defendant-respondent intervened in this action andpleaded that he was in possession of the land and premises in suitas from March 1977 with leave and licence of the plaintiff-respondent, that the plaintiff-respondent and his sister DayawathiPremaratne entered into an agreement with him to sell theaforesaid property to him for a sum of Rs.45,000/- and he tookpossession thereof and spent a sum of Fts.63,912 and 82 cents onimprovements to the house and property and claimed the said sumas a claim in reconvention. Further that the plaintiff-respondent andthe said Dayawathi Premaratne undertook to sign all documentstransferring the property in suit to him on acceptance of a grantfrom the State and that he permitted the husband of the 1stdefendant-appellant to occupy the premises and on his death thewidow and the sons the 1st defendant-appellant and the 2nddefendant-respondent are in possession thereof. In the premises,he prayed for a dismissal of the plaintiff-respondent's action, adeclaration that he is entitled to the premises in suit and in thealternative damages in a sum of Rs.500,000 and a sum ofRs.63,998/82 as compensation for improvements.
At the trial 21 issues were settled between the parties and at theconclusion of the trial, the learned District Judge by his judgmentdated 13.03.96 held with the plaintiff-respondent. It is from the saidjudgment that the 1st defendant-appellant has lodged this appeal.
At the hearing of this appeal counsel for the 1st defendant-appellant contended that the plaintiff-respondent's action ismisconceived in law and is not maintainable. He submitted that the
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land in suit being State land continues to be State land and thelessee cannot obtain a declaration from Court that he is the legaltitle holder of the land for the lessee continues to be a lessee andhas no title. For this proposition of law he has cited the decision ofRanarajah, J in C.A. Application No. 201/95 (Revisionp). Hefurther submits that in the instant case the Public Trusteeintervened in the appeal on the basis that the land and the buildingis included in the Last Will of the lessee R.L. Chandrasekera.
It is to be noted that on an application made by the PublicTrustee to be substituted in the room of the deceased plaintiff-respondent, for the reason that as per document marked P2 limitedprobate in respect of the estate of the deceased plaintiff-respondent has been issued to the Public Trustee.
As for the submission that the plaintiff-respondent's action ismisconceived in law and not maintainable is without any merit. Forit is well settled law and recognized by our Courts that a valid leaseis a pro tanto alienation of the land leased and the lessee has aright to bring a vindicatory action to eject any trespasser andrecover damages for wrongful occupation, it is to be noted thatvalidity of grant marked P1 not being assailed there is no disputethat the plaintiff-respondent is the grantee under the said grantmarked P1. At this point, it is pertinent to note that our Courtsaccepted the position that a lessee who had never had possessionis entitled to sue even his lessor or any third party to have his rightsas lessee declared and to have the lessor or such third partyejected from the leased property.
It is of interest to note that even permit holders under the LandDevelopment Ordinance has been conferred with a sufficientinterest in land to bring a vindicatory action to eject any third partywho is a trespasser and to recover damages for wrongfuloccupation as was held in Palisena v Perera<2>. That being so alessee who has greater rights conferred on him by the lease iscertainly entitled to have his rights as a lessee declared and tohave the defendant-appellant ejected. In the case of Palisena vPerera (supra) the facts were:
“On 24th January 1947 the Government Agent of
Sabaragamuwa Province issued in favour of the plaintiff a
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permit under the provisions of the Land DevelopmentOrdinance (Cap. 320), in respect of certain allotments ofCrown land. The plaintiff has sued the defendant, whom healleges to be a trespasser on the land, for ejectment and forconsequential relief. The defendant raised a number ofdefences to this claim, including a plea that in any event a“permit holder" under the Ordinance was not entitled, asagainst a third party, to the relief of the kind asked for. Thecase went to trial on a number of issues, but after aconsiderable volume of evidence had been led, the learnedDistrict Judge decided the action against the plaintiff on theground that the plaint did not, in his opinion, disclose a remedyagainst the defendant. The basis of the decision was that “ apermit holder is only a licensee who is entitled to possess theland with the leave and licence of the Crown and at the willand pleasure of the Crown" and was therefore “not entitled toask for a possessory decree or to ask that a (third party inpossession) be ejected from the land".
Gratiaen J. held that,
"the Judge has misunderstood the scope of the remedy askedfor by the plaintiff and failed to appreciate the nature of a permitholder's rights under the Land Development Ordinance. Thiswas not a possessory action in which a person complaining ofdispossession can in certain circumstances, without proof of histitle; obtain a decree for the ejectment of a person who hasdispossessed him otherwise than by due process of law. This isa vindicatory action in which a person claims to be entitled toexclusive enjoyment of the land in dispute, and asks that, onproof of that title, he be placed in possession against an allegedtrespasser".
"It is very clear from the language of the Ordinance that of theparticular permit P1 issued to the plaintiff that a permit holder whohas complied with the conditions of his permit enjoys, during theperiod for which the permit is valid, a sufficient title which he canvindicate against a trespasser in civil proceedings. The fact thatthe alleged trespasser has prevented him from even entering uponthe land does not afford a defence to the action; it serves only toincrease the necessity for early judicial intervention"
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Ayupala v Public Trustee of Sri Lanka
(Andrew Somawansa. J.)
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Though the judgment of Dr. Ranarajah, J cited by the counselfor the 1st defendant-appellant is a judgment of a single Judge ofthis Court and is not binding on us, I have no reason to disagreewith Dr. Ranarajah, J for what was decided in that case is that theland held on a permit under the Land Development Ordinancecannot be an asset in the estate when the permit holder dies. Thisis for the reason that the land remains the State land and on thedeath of the permit holder it devolves in the manner set out in theLand Development Ordinance and the permit holder is not free todispose of it by Last Will and will not devolve according to the rulesof intestate succession. In that case the learned district Judge hadexcluded the land given on the permit but held that the buildingshould be included in the inventory. Dr. Ranarajah, J. held that:
"/ am of the view that since the land granted on a permitcontinues to be Crown land, any buildings put up by thedeceased on the land granted on the permit cannot beincluded in the inventory of the testamentary case.Accordingly, I set aside the order of the learned District Judgedated 22.09.95 in respect of the building and direct that thesaid building should be excluded from the inventory filed in thecase"
It is to be seen that Dr. Ranarajah, J. has not held that the permitholder will not be entitled to bring a vindicatory action to eject anytrespasser. In any event, Dr. Ranarajah, J's judgment has noapplication to the facts of the instant action.
In the case of Hinniappuhamyv Kumarasinghe etal.p) the factswere:
"This was an action for ejectment and damages. The field insuit, in extent of 13 acres and 16 perches, belonged to N.S.Doole on whose death it devolved on her three children, viz..,the added defendant, and N.B. and N.S. Thalip. The addeddefendant became the administrator of his mother's estateon 27th March 1952. Six days later, he gave to the defendanta non-notarial writing purporting to lease the field in suit for aperiod of four years upon the condition that the defendantshould asweddumise the premise and give the addeddefendant one eighth share of the produce as rent. On 4th
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May 1953, N.B. and N.S. Thalip gave a notarial lease of thefield to the plaintiff for a period of six years commencing from1st September 1953. He instituted this action for the ejectmentof the defendant and damages, alleging that he had beenplaced in possession of the property and the defendant hadejected him. the defendant denied the right of the plaintiff toeject him or claim damages".
After trial the learned District Judge dismissed the plaintiff'saction on the basis that the plaintiff had not obtained vacantpossession from his lessors, that the defendant is not a trespasserbut a monthly tenant and cannot be ousted by his own lessorwithout due notice to quit, it was held in that case:
"A person in possession of immovable property under a non-notarial "lease" may be sued in ejectment by a subsequentlessee of the property on a duly executed notarial lease. Insuch a case, the defendant is not entitled to claim that he is amonthly tenant of his lessor and that he must be given duenotice to quit before action can be instituted against him".
L.W. de Silva, AJ who delivered the judgment in that casedeclined to follow the decisions in Bandara v Appuhamy<4) andUkkuwa v Fernando® but opted to follow the decision Ukku Ammaet al v Jema et af® wherein the Court took the view that a personholding a notarial lease is entitled during his term to the legalremedies of an owner possessor. In that case the head note reads:
"A lessee under a notarial lease who has not been put inpossession of the property leased can bring an action againstthird parties in possession of the property and compel them tosurrender possession to him without making the lessorsparties to the action. The distinction between short and longleases is not part of the law of Ceylon".
Per Wijewardena, CJ at 256:
"I see no reason for drawing a distinction in Ceylon betweenshort leases and long leases spoken of by text book writers,when we are considering the question whether a lessee hasrights against third parties. All that we have to consider iswhether the lease is duly executed according to law. If a lease
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for any period exceeding a month is notarially attested itshould be regarded as giving “a species of ownership in land"(Lee: Introduction to Roman Dutch Law, fourth edition, page161), and vesting in the lessee proprietary rights which couldbe enforced between third parties. If the lessee is dulyregistered, it is entitled to prevail even against those claimingtitle from the lessor under deeds executed prior to the leasebut registered subsequently. Therefore, I would respectfullyadopt the views expressed by the Judges in Canon vFernando et ad). Though the applicant's counsel attempted todistinguish it on the ground that the lease considered in thatcase was for a period of over ten years, it is clear from thejudgments that the distinction between short and long leaseswas not recognized as part of the law of Ceylon".
Pulle, J agreed with Wijewardena, CJ and both adopted theviews expressed by Court in Canon v Fernando (supra) wherein itwas decided that:
"A notarially executed lease of land creates a real right in theland and a duly registered mortgage of the leasehold interestis an effective and an affordable charge into whosoever'spossession that interest may pass".
In that case Garvin, ACJ at 359 and Maartensz, AJ at 365 tookthe view that:
“A lessee under a valid lease from the owner is dominus orowner for the term of the lease, he is the owner for the term ofthe lease. He is the owner during that time against all theworld".
In fact they followed the view taken by Hutchinson, CJ in AbdulAzeezv Abdul Rahimani&) wherein Hutchinson, CJ made the aboveobservation.
In the instant action there is no dispute as to the lease grantedto the plaintiff-respondent and no issues settled in this point. In factthe 1st defendant-appellant or the other defendants have notchallenged the validity of this grant marked P1 made in favour ofthe plaintiff-respondent whereby the plaintiff-respondent is given 99year lease. In the circumstances in view of the settled law on this
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point as aforesaid the 1st defendant-appellant cannot succeed inthis appeal.
For the foregoing reasons, I see no basis to interfere with thejudgment of the learned District Judge. Accordingly the appealstands dismissed with costs fixed at Rs. 5000/-.
EKANAYAKE, J.- I agree.
Appeal dismissed.