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Preamt ; Shaw J. and De Sampayo J.SILVA v. WIRATUNGA.
17—D. C. Tangalle, 1,640.
Improvement by one co-owner with the content of the other co-owner—Soleby oo-ownerof halfshare, including plantations, made bytheother
co-owner—Action by co-owner against the other co-owner for halfcosts of improvement—Rights of co-owners.
Where X, a co-owner, planted and improved a piece of land withthe. consent and approval of bis co-owner Y, and where Y sold hisundivided half share, including the plantation,—
Held, that X had no cause of action against Y to recover halfthe cost of the plantation. ^
“ X has stillhis right to compensation under the Partition
Ordinance, in the1 event of a partition, should he not get the wholeof the portion i of the land which he has unproved; and if Y haspurported tosell tothe purchaser of his interest theimprove-ments effectedby X,that is a matter between themselves,inwhich
X is not concerned. "
The rightsof co-owners for compensation for improvements
rest on quitea different footing to the rights of persons whohave
improved anotherperson’s property, – and are regulated by the
•'J’HE facts are set out in the judgment.
Bawa, K.C. (with him Ismail), for appellant.—The plaint doesnot disclose any cause of action against the defendant. The plaintiffmay in a partition action against the purchaser get compensationfor improvements effected by him. Counsel cited De Silva v.Siyodoris,1 Silva v. Babunhamy,* Silva v. Silva,* Oeris Appu v. Silva,*Wijhton v. Brown.*
Samaraoiokrema, for the respondent.—The plaintiff has a personalclaim against the defendant, with whose consent and approval he-made the improvements, and a jua retentionis against any purchaserfrom him. The fact that he has a jua retentionis which he can enforceagainst the purchaser, or that he can claim compensation in apartition action, does not take away his right of action against thedefendant (see 2 Maas. 54, 55). Plaintiff is a bona fide possessor,
1 (1911) 14 N. L. R. 268.* (1911) 15 N. L. R. 79.
* (1912) 16 N. L. R. 43.1 (1915) 18 N. L. R. 219.
■ (1889) 8 S. C. C. 203.
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and is entitled to compensation (see Neuman v. Mendis1). Evenif he is not a bona fide possessor he is entitled to compensation (seeMudyanse v. SeUandyar* Eliatambi v. Sinnatambi 3). The improve-ments were effected with the consent and approval of the defendant.He has enriched himself by selling the improvements to his purchaser.
Bawa, K.C., in reply.—If the defendant does not Object to theimprovements) why should he be called upon, as soon as theimprovements are made, to pay the plaintiff their value? These arequestions for a partition action.
The plaintiff is clearly a mala fide possessor, and 'is not entitled tocompensation. Counsel cited The Qeneral Tea Estates Co., Ltd., v.PuUe%4 Moldrich v. La Btooy.*
Cut. ado. unit.
April 17, 1917. Shaw J.:—
The plaint alleges that the plaintiff and defendant were co-ownersof certain lands, and that the plaintiff, with the consent and approvalof the defendant, planted with young coconuts and otherwiseimproved the lands. That the defendant has sold his undividedhalf share of the land, including the plantation, to a Mr. Wickrema-nayake, and a cause of action has accrued to the plaintiff againstthe defendant to recover half the cost of putting up the plantation.
The defendant, by his answer, in addition to other defences,took the objection that the paragraphs tof the plaint setting upthis claim disclosed no cause of action. The Judge has found apreliminary issue, raising the point in favour of the plaintiff, andthe defendant appeals.
I think the decision is wrong. I cannot see what right, of actiona co-owner who has made improvements can have against a formerco-owner who has parted with his interest. He has still his rightto compensation under the Partition Ordinance, in the event of apartition, should he not get the whole of the portion of the land whichhe has improved; and if the former co-owner has purported to sellto the purchaser of . his interest the improvements effected by theplaintiff, that appears to me to be a matter between themselves, inwhich the plaintiff is not concerned.
It was attempted, on behalf of the respondent, to apply theprinciples of the Eoman-Dutch law where improvements have beenmade upon the land of another by a bona fide or mala fide possessor*These principles appear to me to have no application, for theimprovements were not on the land of another, but on the improver’sown land; and even if the land can be scud to be that of another, inconsequence of that other having an undivided interest, then the
X <2900) 1 Br. 77.8 (1909) 2 Leader 121.
* (1907) 10 N. L. B. 209.4 (190$) 9 N. L. B. 98.
* (1911) 14 N. L. B. 381.
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improver cannot be said to be a bona fide possessor, because he knewthe other was a co-owner; and if he is a mala fide possessor, then
The General Tea Estates Co., Ltd. v. FvUe1 shows that he cannot
claim compensation at all. The rights of oo-owners for compensationfor improvements appear to me to rest on quite a different footingto the rights of persons who have improved another parson’sproperty, and to be regulated by the Partition Ordinance.
Counsel could cite no case to us where a co-owner has claimed thevalue of his improvements against his co-owners, except a partitionsuit, and, as I said in the course of the argument, it is hardly likely,if- such a fruitful source of litigation existed, that it would have beenso long neglected.
There was another small claim for Bs. 25 in the action, which wasadmitted by the defendant. The plaintiff is entitled to judgment forthis amount, but I would' dismiss the claim for compensation, andgive the defendant the costs of the action and of this appeal.
Db Sampayo J.—I agree.
SILVA v. WIRATUNGA