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Present: Middleton J.
BLACKETT v. DE SILVA.
223—C. R. Gampola, 11,759.
Compensation for improvements—Fruits of the improvements should notbe set off against the value of the improvements—Bona fidepossessor.
In a claim for compensation for improvements the fruits of theimprovements themselves should not be set off against the valueof the improvements.
*JpHE facts are set out in the judgment of Middleton J.
Hayley, for the plaintiff, appellant.—There is no evidence to showthat die defendant was in possession of the land for ten years. Evenif there was, the defendant having refused to accept the land onpayment of Rs. 68, which was half the improved value, the Crown
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had a right to sell the land and refer the defendant to-his commonlaw right, which was one for compensation only. Counsel referredto Perera v. FernandoMohamado Ali v. Seneviratna.2 Thedefendant is only entitled to Rs. 22 SO, which is the value of theimprovements. But even from this sum must be deducted theincome derived from the land after the date of the Crown grant in1906. After the Crown grant to plaintiff, defendant possessed theland as a mala fide possessor, as he was aware that the plaintiff wasthe owner. Counsel cited Nicholas i>. Shaik Ali Walter Pereira’sCompensation for Improvements, pp. 51, 52. The defendant, byhis act in bidding at the first sale, is now estopped from claimingcompensation. Carpen Chetty v. Wijesinghe,4 Kartikesar v. Kandaiya.*
Alwis, for defendant, respondent.—The fruits of the improvementscannot be set off against the value of the improvements. Voet6, 1, 39.
There is no estoppel, as there was no representation on the partof the defendant by which plaintiff was misled. The evidence showsthat the facts of this case are very different from those in CarpenChetty v. Wijesinghe4 and in Kartikesar v. Kandaiya.* Counselreferred to Angell on Limitation, 420-421 ; Odris v. Mendis et al.6
Hayley, in reply.
Cur. adv. vult.
July 11, 1911. Middleton J.—
This was an action for declaration of title to a piece of land, butat the trial the defendant admitted the plaintiff’s title, and hisdefence was limited to a claim for compensation for the planting oftea on it. The plaint also contained a claim for Rs. 25 as damagesfor the wrongful possession of the defendant, and Rs. 5 per mensemfor the continuance thereof. It was agreed that the defendant’sclaim for compensation for impensae utiles was justly estimated atRs. 22 • 50. The Commissioner of Requests, however, on the groundthat the defendant as against the Crown—the grantor to the plain-tiff—had been entitled to a grant of the land on payment of halfthe improved value, under section 8 of Ordinance No. 12 of 1840,considered that defendant was entiled as against the plaintiff tohalf the present value-of the land, i.e., Rs. 84 * 37, and gave judgmentin defendant’s favour for that sum, together with Rs. 22-50, or atotal of.Rs. 106 87, and held that plaintiff was bound to pay thatsum to the defendant before taking possession of the land. TheCommissioner of Requests gave the plaintiff his costs of action,subject to a deduction on account of the defendant’s costs in provinghis claim to compensation. The plaintiff has appealed.
1 (1906) 2 A. C. Ji.112.' (1910) 14 N. L. R. 152.
(1904) 2 A. C. R.113.5 (1910) 5 Bal. 103.
(1895) 1 N. L. R.228.6 (1910) 13 N. L. R.309(01 page 315).
Blackett v.De Silva
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July It, 1611
Blackett v>Be Silva
The facts as proved or admitted were that the defendant produced aconveyance (marked X) dated December 17, 1904, from one Hatenato Aberan Appu, which the Crown refused to recognize, and statedthat the land was advertised for sale in 1904, and he also producedan extract from the Government Gazette (marked Y) dated September2, 1904, showing that the land had tea on it then six years old.Defendant refused to buy it for R$. 68, and it was put up for auctionby Government and bought by the defendant, the plaintiff beingthe next highest bidder, and apparently from receipt Z Rs. 62*78 waspaid to Government by the defendant. The plaintiff seems to havegot this purchase cancelled through the Colonial Secretary. The landwas then put up again for sale and purchased by the plaintiff, whoobtained a Crown grant on February 23, 1906. The land is only asmall strip of 1 rood 5 perches, and the defendant made no clainfto it other than as a person who has, under the impression that itwas his own, planted the land, and who as a bona fide possessorhas the jus retentionis of it. The defendant did not in his answer orevidence set up specifically any claim in support of the allowance madeto him by the Commissioner under section 8 of Ordinance No. 12of 1840, and the only issue material to his claim for compensationwas (2). That issue was : “ Is defendant entitled to compensationfor improvements,” i.e., to impensae utiles, not to half-improvedvalue, or half the value of the land. There is no complaint madeby the defendant that the sale to him was improperly set aside,or that the money he paid by receipt Z was not returned to him.The inference I draw is that the Government were of opinion thathe was not entitled to come in under section 8 of Ordinance No. 12of 1840, and that defendant acquiesced in that decision, and he hasnot during the trial set up any such claim. There is, moreover,no evidence on the record that he held uninterrupted possession ofthe land in question for not less than ten years, nor more thanthirty years, under the section. In my opinion, therefore, theCommissioner of Requests was wrong in awarding the defendant morethan the sum of Rs. 22 * 50 as compensation for impensae utiles. Thequestion on the (1) issue, “To what extent plaintiff has suffereddamage, if any ? ” was not considered by the Commissioner, and itwas contended for the plaintiff before me, that although the defend-ant may have been a bona fide possessor up to the date of the saleto the plaintiff, that since the sale he has in law lost the possessiocivilis, and so has become a mala fide possessor, and liable to accountto the plaintiff for the fruits and produce, and De Silva v. Shaik AH1was relied on. I cannot concede to the argument of Mr. Haylcy,founded on the assertion of a change of status, without being referredto explicit authority. It is clear, however, from the case referredlo, that the fructvs ex ipsa melioratione percepti are to be excluded,and there are no other fruits here, except the pickings of the tea11 N. L. R. m.
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bushes, which the defendant himself planted. In my opinion thestatus of the possessor ab initio is the criterion of his right to compen-sation iotimpensae uiilesanA jusretentionis. Were this not so, I do notsee how a jus rerentionis, admittedly a part of the Roman Dutchlaw, could ever occur. If further authority is needed, it may befound in Voet 6, 1, 39 (Casie Chett/s translation, p. 63), relied onby defendant's counsel. The defendant was, therefore, entitledto retain possession until he was paid the value of the impensac utiles,and his answer to the plaint should have been an assertion of thisright, when the estimate which the plaintiff has proved and thedefendant has accepted might have been determined, instead ofsetting up a title to the land itself. I must direct that the judgmentof the Commissioner be varied by omitting from it the order to paythe defendant the sum of Rs. 84 • 37. As regards the costs in the Courtbelow, the judgment is rather ambiguous, and I must further vary itby ordering that the plaintiff is entitled to the costs of this action,subject to the deduction of the defendant’s costs of his proctorand of the answer and his own appearance as a witness at the trial.As plaintiff has substantially succeeded in the appeal, I give him hiscosts of the appeal.
In my opinion, when a bona fide possessor is exercising his jusretentionis for compensation for impensae utiles, he ought to furnishthe real owner as soon as possible with a demand of the amount heclaims for his improvements, but I do not know of any law to compelhim to do so.
Blackett v.Dc Silva
BLACKETT v. DE SILVA