034-NLR-NLR-V-55-M.-A.-PONNIAH-Appellant-and-R-SELLAN-Respondent.pdf
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Panniah v. SeUan
Present : Nagalingam A.C.J.
M. A. PONNIAH, Appellant, and R. SELL APT, RespondentS. C. 20—C. R. Anuradhapura, 4,792
Jurisdiction—Trespass by licensee—Action in ejectment—Valuation thereof—Testto be applied—Evidence Ordinance, s. 116—Courts Ordinance, s. 75.
The value -which should be placed on an action in ejectment instituted by anemployer against an overstaying servant or licensee in respect of premiseswhich the latter had been permitted to occupy free of rent is only a nominalvalue, and not the value of the premises ; if, however, the servant was givena month’s notice to quit the premises, the value would be a reasonable amountpayable for the use and occupation of the premises.
“ The principle that a tenant cannot deny his landlord’s title extends to thecase of a person coming in by permission as a mere lodger, a servant or 'otherlicensee.”
^AlPPEAL from a judgment of the Court of Requests, Anuradhapura.
S. J. V. Chelvanayakam, Q.C., with J. C. Thurairatnam, for theplaintiff appellant.1
E. R. S. R. Coomaraswamy, for the defendant respondent.
Cur. adv. null.
(1934) A. I. R. Nagpur 83.
(1950) A. I. R. Orissa 220.
XAGALTNGAM A.C.J.—Ponniah v. Sellan
m
October 2, 1953. Nagalistgam A.C.J.—
What is the proper test to be applied for the valuation of an actioninstituted by an employer to eject his caretaker or watcher of propertyfrom a building permitted to be occupied by the latter during the periodof his employment, free of rent, is the problem that arises fordetermination in this case.
The facts are not in dispute. The plaintiff-appellant employed thedefendant-respondent as his caretaker of certain lands on a monthlysalary of Rs. 50. On these lands stood a house, a room in which wasmade available for the occupation of the defendants The defendant'semployment was terminated in early April but the defendant refusedto vacate the room. The plaintiff thereupon caused his Proctors tosend the defendant a formal letter on 23rd April noticing him to quitand deliver possession of the room on or before 31st May, 1952. Thedefendant failed to quit the premises and the plaintiff instituted thisaction in August, 1952. In the plaint, after setting out the relevantfacts as stated above, the plaintiff averred not only that he continuedto suffer damages at the rate of Rs. 5 a month from the date on whichthe defendant was asked to quit but also proceeded to value the house.The value he set on the house was Rs. 250.
The plaintiff has brought all the trouble on himself by valuing thehouse. The defendant denied that the house was worth only Rs. 250and alleged that it was worth more than Rs. 4,000, and that the Courttherefore had no jurisdiction to entertain the action.
Although all the issues that arose between the parties were raisedin the case and evidence given by the plaintiff, no evidence was led onbehalf of the defendant, but the action was dismissed on the groundthat the Court had no jurisdiction inasmuch as the value of the housewas over Rs. 300.
A servant is neither a monthly tenant nor a tenant at will. A monthlytenant, as is well known, is one whose tenancy runs from month to monthunless previously determined. A tenant at will is a person whosetenancy could be determined at the will of the landlord without anyprevious notice being given to him ; but both in the case of a monthlytenant and a tenant at will it is important to bear in mind that thefoundation of the relationship is based upon an agreement as to theamount of rent payable. It is therefore manifest that a servant who ispermitted to occupy a room or house during the period of his employ-ment by his employer free of rent is not entitled to regard himself eitheras a monthly tenant or' as a tenant at will. It is to be noted that thenotice given by the plaintiff was one which was appropriate, to a caseof a monthly tenancy.
The point that arises is, if a servant is neither a monthly tenant nora tenant at will, then does he on termination of his services become atrespasser of the apartment in his occupation ? Learned Counsel forthe respondent contended that he was in the fullest sense of the term atrespasser and that the action against such a person to eject would haveto be valued on the basis of the capital value of the premises occupied.
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NAGA'LINGAM A.C.J.—Pbmviah v. Sellttn
Neither legal precedent nor even the view of any text-book writer wascited in support of the contention. I do not think the preposition issound.
A servant cannot deny the title of the employer to the apartment ofwhich he was placed in possession by the employer. From the earliesttimes the view has prevailed that in such circumstances the servant isestopped from questioning the title of the employer.
In Doe v. Baytup 1 the principle was laid down that where a personhad entered property by leave of the party in possession, such personcould not defend an action in ejectment by putting in issue the title,but was bound to deliver up possession of the premises before he couldbe permitted to contest the title. I have, however, not been able tofind any Roman Dutch Law proposition in regard to the position of aservant or licensee nor has counsel been able to assist me in this respect,although a very similar principle underlies the doctrine of exceptio dominiin the Roman Dutch Law relating to Landlord and Tenant. But it isunnecessary to investigate the position of the Roman Dutch Law, forsection 116 of the Evidence Ordinance expressly enacts the law in thesense in which Doe v. Baytup (supra) has been decided. The section notonly creates an estoppel as between landlord and tenant but goes furtherand provides :
“ And no person who came upon any immovable property by thelicence of the person in possession thereof shall be permitted to denythat such person had the title to such possession at the time whensuch licence was given.”
The defendant therefore cannot be permitted to deny the plaintiff’stitle to the land. In fact the defendant does not in his answer set uptitle to the room occupied by him, nor did he place any oral evidencefrom which even an inference could be drawn that he claimed title toor that he disputed the title of the plaintiff; but on a false issue arisingupon the pleadings as to what is the value of the house the case has beendecided. In an unreported judgment of this Court 2 E. W. JayawardeneA.J. said :
“ A watcher is usually a monthly paid servant employed by theowner to protect the land and its produce. He can be in no betterposition than a monthly tenant or a tenant-at-will. He is a merelicensee. The principle that a tenant cannot deny his landlord’s titleextends to the case of a person coming in by permission as a merelodger, a servant or other licensee.”
Obviously the value of the house is not the test for determining thejurisdiction of the Court. What, then, is the test to be applied ? Inthe case of a monthly tenant the test is the monthly rent, in the case ofan yearly tenant the yearly rent, and in the case of a weekly tenant theweekly rent. But here there is no rent as such and the duration of theoccupation is not for any definite term but for an indeterminate periodwhich could b‘e terminated without previous notice, as stated earlier.
{1835) 3 Ad. c& El. 188.
S. G. 18)0. R. Colombo 49968, S. C. .Min. 1.7.30.
Stephen Fernando v. James Fernando
119
Could it then be said that no value should be placed on the rightclaimed by the employer to eject the servant from the premises occupiedby bim because there is no agreement as to rent or even because theperiod of occupation is indeterminate? I should say only a nominalvalue should be placed on such right. But it is unnecessary to decidethat question for the purposes of this case, for the plaintiff has signifiedby his conduct his willingness to treat the defendant as one who is entitledto occupy the premises at least for a month. In such a case althoughthere was no rent fixed, the value of the right would be a reasonableamount payable for the use and occupation of the premises. Theplaintiff fixes the amount at Its. 5 per mensem and claims it by way ofdamages for the period the defendant has remained in possession ofthe premises after termination of his occupation.
The test of valuation of the action would therefore he the value ofsuch right, namely Rs. 5 plus the damages claimed up to the date of theinstitution of action, all of which amount to less than Rs. 300. TheCourt of Requests, therefore, has jurisdiction. Issue 5 is irrelevant andneed not be answered, but issues 1, 2 and 3 must be answered in favourof the plaintiff, and issue 4 in regard to damages at Rs. 5 per mensem.
I would therefore set aside the judgment of the learned Commissionerand enter judgment for plaintiff as prayed for with costs both of appealand of the lower Court.
Appeal allowed.