The difference between ‘watcher’ and tenant | Daily News

The difference between ‘watcher’ and tenant

This case concerns an appeal (Nelum v. Kadija Umma - SLR - 187, Vol 3 of 2005 [2005] LKCA 48; (2005) 3 Sri LR 187 (June 17, 2005)) in the Court of Appeal from a judgement in the District Court in which it was held that the plaintiff in a case that among other things sought ejectment, was entitled to such ejectment of certain persons occupying a property. The issue under consideration was whether those who were sought to be ejected were tenants in the property or were living there as licensees. If as tenants, they would have accrued certain rights, but if they were living as licensees they had no such rights, and would have to vacate immediately.

The Court of Appeal judgement states:

“This is an appeal preferred by the Defendant - Appellant (hereinafter sometimes referred to as "the Defendant") against the judgement of the learned Additional District Judge of Kurunegala dated 22.02.1995 moving to set aside the same and for a dismissal of the Plaintiff's action.”

The plaintiff’s position in the District Court was that the land occupied by the current Appellant in the Court of Appeal, had been occupied by the appellant and the appellant’s kin as licensees of the owner of the land in order to look after the land, and not as tenants. However the appellant had claimed she and her father before her were indeed tenants.

The case record states:

“It was contended by the plaintiff (vide Paragraph 4 of the Plaint) that said Rusheed the late husband of the plaintiff, by writing entered into on 13.11.1963 with the 1st defendant, permitted the 1st defendant to occupy the house standing thereon without any payment of rent but on the undertaking that the vacant possession would be handed over when requested by the said Rasheed and his heirs. Despite the requests made by the plaintiff the defendants continued to be in unlawful possession of the same disputing plaintiff's rights and causing damage as averred in the plaint”.

The appellant who was a defendant in the case in the DC had wanted a declaration that she and her parents before her were tenants, and had denied the existence of a document to the effect that her father was a licensee allowed to occupy the land at the pleasure of the now deceased owner.

The Appeal Court judgement notes:

“The original 1st and 2nd defendants by their joint amended answer dated 18.10.1989 whilst denying the accrual of the cause of action and entering into the aforesaid writing, averred that they were in occupation of the premises as tenants of late Rasheed. In the aforementioned premises they had moved for a dismissal of the plaintiff's action and for a declaration that they are the tenants of the house in the subject matter”.

Moreover, the Appellant was substituted for the then 1st and 2nd defendants in the DC case who were now deceased. The 1st and 2nd defendants were the parents of the Appellant who was their daughter, and it was these parents that had originally occupied the land in question.

The position taken up by the administratrix of the estate of Rasheed was that she as the deceased’s wife was aware that the original first defendant — the appellant’s father — Sinniah was asked by her deceased husband to occupy the land and hand over the coconut crop to the owner from time to time. However, when the husband died Sinniah had refused to do so because he disputed the widow’s rights to the property and its produce. Also, though there had been a document produced that purported to be the terms on which Sinniah had been made the ‘watcher’ of the land the defendants had disputed the existence of such a document, in the D.C.

The pivotal question to be decided in this case was whether the original 1st defendant and the 2nd defendant were the licensees or whether they were the tenants of the premises from the year 1961.

The substituted defendant who was only four years at the time the land came to be occupied by her father gave evidence in the DC and said that her parents had been paying rent in the sum of 25 rupees a month to Rasheed, but there were no receipts of any such transactions, and moreover the substituted defendant did not have any idea about some of the documents that were produced in court, notably P5, the document that legally appointed Sinniah as a ‘watcher’ in the premises.

The Court of Appeal judgement notes that in these circumstances the learned DC judge relied on the evidence of the plaintiff as opposed to the defendant:

“The Learned Judge who was in an advantageous position of listening to the witnesses has proceeded to rely upon the testimony of the plaintiff. In this regard it would be pertinent to consider the case of Alwis vs. Piyasena Fernando per G. P. S. De Silva, C. J.-

"It is well established that findings of primary facts by a trial judge who hears and sees witnesses are not to be lightly disturbed in appeal."

Judgement went onto note:

“In my view necessity has also arisen to consider the decision in Eileen Prins V. Marjorie Patternot wherein it was held to the following effect by G. R. T. Dias Bandaranayake, J. S. B. Gunawardena, J, and P. R. P. Perera, J. agreeing that:

(a) Section 10 (1) of the Rent Act, No. 07 of 1972 sets out what constitutes the letting of a part of premises. In such a tenancy,

(i) the object should be to let and hire;

(ii) the portion of the premises must be properly defined for exclusive occupation by the tenant;

(iii) the landlord should relinquish his right of control over such part of the premises; and

(iv) there must be payment of a fixed rent which is ascertainable at any time by a definite method.

(b) Mere permissive occupation by a person, of property of another, even if some payment of money for the personal privilege extended is made, is not a letting of premises creating a tenancy.

(c) the true nature of the transaction is to be ascertained by a consideration of all the relevant facts. The Court must find out what the parties intended to create.

(d) The use of words such as rent, tenancy, rent in advance etc. is not conclusive proof of a contract of tenancy. These are words which laymen are apt to use for any payment in respect of accommodation.

It was held in the case under review that though words such as tenancy and rent etc. was cited in the document P5,there was no indication whatsoever that Sinniah was occupying the premises on rent.

For the foregoing reasons there was no reason seen to interfere with the findings of the learned Judge and the appeal was dismissed with costs fixed at Rs.5,000, payable by the Appellant to the Plaintiff - Respondent.



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