CPC CONSOLIDATED

LEAVE AND LICENCE- EJECTMENT Plaintiff's action for ejectment of the defendant should fail for want of identification of the corpus for in a declaration of title case the plaintiff is duty bound to prove the identity of the land By plaint dated 27 October 1992, the plaintiff (presently deceased) filed action for the ejectment of the defendant (presently deceased) from the two rooms forming part of the premises bearing assessment No 65, De Waas Lane, Grandpass. As pleaded in the plaint the stance adopted was that the plaintiff let premises bearing assessment No 65/1/1, De Waas Lane, Grandpass to the defendant, at a monthly rental of Rs 25/-. In September 1979, the defendant vacated the tenanted premises and handed over peaceful possession thereof and the plaintiff as a token of gratitude and on humanitarian grounds permitted the defendant to occupy free of rent, the two rooms in premises No 65, De Waas Lane. By letter dated 8th June 1992, the plaintiff terminated as from 31st July 1992 the licence given to the defendant to occupy the said rooms. Upon the failure of the defendant to hand over vacant possession of the two rooms, the plaintiff sued the defendant in ejectment of the two rooms morefully set out in the schedule to the plaint. The substituted defendant denied the averments in the plaint and in particular the grant of licence as alleged in the plaint. In the answer, he specifically pleaded that in the year 1967 the plaintiff let the defendant all that premises bearing assessment No 65/1/1, De Waas Lane, Grandpass at a monthly rental of Rs 25/- and that the deceased defendant continued to occupy the same until the institution of the present action. The substituted defendant whilst admitting the receipt of the notice moved for a dismissal of the plaintiff's action in view of the rest of the averments contained in his answer. At the commencement of the trial, the jurisdiction of the court and the receipt of the notice terminating the licence were admitted. The matter of the dispute proceeded to trial on 14 issues of which the first three were suggested by the plaintiff and the next six by the defendant. Thereafter, the plaintiff raised three consequential issues and the defendant two such issues. The plaintiff gave evidence at the trial and closed his case reading in evidence P1 to P12. The substituted defendant gave evidence and produced documents marked as D1 to D169. The learned district judge delivered her judgment on 25.11.1996 dismissing the plaintiff's action based on the failure of the substituted plaintiff to establish the cause of action which he was required to prove. This appeal has been preferred against that judgment. Significantly in paragraph 2 of the plaint the plaintiff averred that from 10 October 1967, he let out premises No 65/1/1 De Waas Lane, Colombo 14, on a monthly rental of Rs 25/- and in paragraph 3 he stated that the defendant in September 1979 delivered vacant and peaceful possession of the said property. In paragraph 4, he further stated that he granted permission to the defendant to occupy free of rent two rooms from and out of the building bearing assessment No 65, De Waas Lane, Colombo 14. As has been rightly observed by the learned district judge undisputedly the defendant had been in occupation of 65/1/1, De Waas Lane, Colombo 14 from 10 October 1967. This position is corroborated by the several rent receipts issued by the defendant, the last receipt being numbered as D 142. The plaintiff asserted that the defendant having given up possession of 65/1/1, moved into the two rooms situated in building bearing assessment No 65. In the course of his evidence, the substituted plaintiff produced 12 documents to establish his case. The details regarding some of the documents produced by the plaintiff are as follows. P1 - Notice of termination of the licence granted to the defendant. P2 - Reply of the defendant to P1 P3 – Rent receipts dated 27 December 1991 deposited by the defendant at the Colombo Municipal Council. P4 - Rent receipts dated 5 November 1986 deposited by the defendant at the Colombo Municipal Council. P5 - Rent receipts dated 9 January 1990 deposited by the defendant at the Colombo Municipal Council. As has been observed by the learned district judge the receipts marked P3, P4 and P5 relate to 65/1, De Waas lane and not to the two rooms which form part of the building bearing assessment No 65, De Waas Lane. Further none of the extracts produced from the assessment registers show that the defendant had been in occupation of the two rooms of assessment No 65. Admittedly the plaintiff had no blood relationship whatsoever with the defendant. The learned district judge had made this observation when she drew the inference that there was no necessity for the plaintiff to have given the defendant two rooms for his occupation free of rent. The trial judge has further commented that the evidence adduced by the plaintiff neither establishes that the defendant had been ejected from the premises that was let to him originally nor has it been handed over to the plaintiff. Besides, none of the receipts produced by either party are applicable to assessment No 65. This gave rise to an utter confusion as regards the identity of the subject matter, which the plaintiff was trying to establish. With all his effort the plaintiff failed miserably to pull his case out from this state of uncertainty. This being an action for the ejectment of the defendant, based on the termination of the licence, the burden is on the plaintiff to establish the identity of the subject matter. The learned counsel for the plaintiff has contended that the learned district judge had erred when she failed to conduct an investigation on her own or in not issuing a commission under section 428 and 669 of the Civil Procedure Code, in order to resolve the dispute as to the location of premises No 65 and 65/1/1, De Waas Lane. In the absence of any application made by the plaintiff to have recourse to section 428 and 669 of the Civil Procedure Code, I am not disposed to think that the learned district judge had failed in any duty to ascertain the identity of the subject matter by issuing the commission on her own or conduct such other investigations as may be necessary to establish the identity of the tenanted premises. In the circumstances, the finding of the district judge as regards the failure to prove the identity of the subject matter is not inconsistent with the evidence led at the trial and her conclusion that the defendant is a not a licensee is also quite rationale and logical according to the factual background and the law that is applicable. Hence, I am not inclined to disagree with the findings of the learned district judge and I find that the views expressed by the district judge are exceptionally sound and quite convincing to me. Hence, this appeal merits no favourable consideration and should stand dismissed. The defendant is entitled to costs in both Courts. Judge of the court of appeal A W A Salam,J A W Abdus Salam, J. CA 1014/96F DC Colombo 7949/RE. Vidanayalage Ranjith Perera, Substituted –Plaintiff-Appellant Vs M Dayanandan, Substituted- Defendant-Respondent E R S R Coomaraswamy (Junior) for the substituted-Plaintiff-Appellant and C E de Silva for the Substituted-defendant-Respondent. Decided on : 02.12.2010 END OF JUDGMENT CA1014/96F