197-NLR-NLR-V-47-ARNOLIS-SINGHO-Appellant-and-MARY-NONA-et-al-Respondents.pdf
£64
Arnolia Singho v. Mary Nona.
1946Present: Nagalingam A.J.ARNOLIS SINGHO, Appellant, and MARY NONA et al.,Respondents.
197—C. JR., Panadure, 10,373.
Co-owner—Plantation made by him on more than his proportionate share—His right to possess the entirely of it as against the other co-owners.
Where a co-owner plants more than his proportionate share of thecommon property he is entitled to possess the entire plantation asagainst the other co-owners till such time as the common ownershipis put an end to in an action for partition.
A
PPEAL from a judgment of the Commissioner of Requests,Panadure.
M.D. H. Jayewardene, for the plaintiff, appellant.
U.W. Jayewardene, for the defendants, respondents.
Cur. adv. vult.
1 (1911) 14 N. L. R. 14.* (1926) 28 N. L. R. 136.
» (1931) 33 N. L. R. 176.
NAGALINGAM A.J.—Amelia Singho v. Mary Nona.
565
November 29, 1946. Nagalingam A.J.—
The plaintiff who is admittedly a co-owner with the 1st defendantand certain others of the land described in the plaint institutes thisaction for a declaration that he is entitled to the possession of certainrubber trees planted by him on a portion of the common land and fordamages for wrongful possession of the plantation by the defendants.The defendants deny that the plantation was made by the plaintiff andfurther plead that the land with the plantation which, according to them,had been made by another co-owner, Nomis, had been allotted byamicable partition to the 1st defendant who had acquired a prescriptivetitle to the land including the plantation.
After trial the learned Commissioner held in favour of the plaintiffthat he had made the plantation himself and also found that sinceNovember, 1941, the defendants had dispossessed the plaintiff of hisrubber plantation. The learned Commissioner, however, held that asthe land was undivided, the plaintiff though he may have made theentire plantation could not claim to possess more than a third, as thatfraction represented the proportionate share of the soil to which ho wasentitled.
The extent of the right of a co-owner to the fruits of improvementsmade by him was the subject of conflicting decisions but they were all re-viewed in the case of Podisingho v. Altovs 1 where a bench consisting ofLyall Grant J. and Maartensz A.J. held that an improving co-owner isentitled to the fruits of the improvements effected by him. That case hasrecently been followed by Keuneman and Cannon JJ. in an unroportedcase, S. C. No. 2673, D. C. (F) Kalutara, 23,445, Supreme Court Minutes of20th November, 1944. No case appears to have been cited to the learnedCommissioner and in view of the two cases referred to above it must followthat the view of the learned Commissioner that the plaintiff is entitledto a one-third share of the plantation made by him cannot besupported. It is needless to add that the plaintiff will only be entitledto possess the plantation till such time as common ownership is put anend to by the institution of a properly constituted partition action inwhich the rights to compensation for the plantation would bo adjudicated,in the event of the plantation made by him not being allotted to him.The learned Commissioner has accepted the quantum of damages asset out by the plaintiff, namely, the sum of Rs. 5 per mensem.
I would therefore set aside the judgment of the learned Commissionerand direct that decree be entered in favour of the plaintiff declaringhim entitled to the possession of the rubber plantation standing on theland described in the plaint and to damages at Rs. 5 a month fromNovember, 1941, till plaintiff is restored to possession of the plantation.The plaintiff will also be entitled to costs both of appeal and of theproceedings had in the lower Court.
Appeal allowed.
(1920) 28 N. L. B. 201.