095-NLR-NLR-V-55-ANGLO-CEYLON-AND-GENERAL-ESTATES-CO.-LTD.-Appellant-and-ABUSALIE-Responde.pdf
Anglo-Ceylon and General Estates Co., Ltd. v. Abusalie
345
1954Present : Gratiaen A.C.J. and Gunasekara J.ANGLO-CEYLON AND GENERAL ESTATES CO., LTD.,Appellant, and ABUSALIE, Respondent
S. C. 424—D. C. Kandy, L 2,570
improvements—Claim for compensation—Bona fide possession—Proof of bona fidesand mala fides.'
Before a person can claim compensation for improvements effected upon aland on the ground that he made the improv ements as a bona fide possessor ofthe land he must show that he had reasonable or probable grounds to thinkthat he had some right of ownership in the land.
^^LPPEAL from a judgment of the District Court, Kandy.
H. V. Perera, Q.G., with Kingsley Herat, for the plaintiff appellant.
H. W. Tambiah, with A. C. M. Uvais, for the defendant respondent.
Cur. adv. milt.
1 (1908) 11 N.L.R. 190.
346 GRATIAEN A.C. J.—Anglo-Geylon and General Estates Co., Ltd. v. AbusaUeFebruary 15, 1954. Gbatiaen A.C.J.—
The land' which is the subject-matter of this action forms part ofNaranghena Estate belonging to the plaintiff-Company. .TW- title ofthe Company has been clearly established and the learned DistrictJudge has also held in the Company’s favour on the issue of prescription.He decided, however, that the defendant was a bona fide possessor, andaccordingly, while upholding the Company’s title, he awarded thedefendant a sum of Rs. 3,500 as compensation for improvements. Itis to the latter part of the decree that this appeal relates.
The judgment under appeal gives no indication as to why, in the cir-cumstances of this case, the defendant was regarded as a bona fidepossessor. In my opinion, his mala fides has been very clearly establishedby the evidence.
The property in dispute forms part of a jungle which had for over 25years been maintained by the Company as a “ wind belt ” of NaranghenaEstate. On 5th November 1948, the superintendent of the Estatenoticed that a number of people (including the defendant and a mannamed Sinniah) had commenced, without his permission, to fell thetrees standing on a portion of this “ wind belt ”.c He immediatelyprotested, and on the same day the Village Headman held an inquiryon the spot. Sinniah claimed that he was the owner of the propertyand that he had sold ten acres belonging to him to the defendant and to-certain others. The Headman advised them not to clear the land or_erect buildings on it until the dispute as to title had been investigated.
On 26th January 1949, a similar incident occurred, and on thisoccasion the District Revenue Officer, Mr. Tennekoon, held an inquiryinto the dispute. He examined the relevant deeds and plans on whichSinniah, the defendant and the other “ purchasers ” claimed title tothe property, and pointed out to them that (as the learned judge hassince held) “ they were on the wrong land ”. In spite of this warning,the defendant, without any further investigation, insisted on clearingthe jungle and commenced to erect a building on it, The Companypromptly instituted this action to vindicate its title. The building inquestion represents the so called “ improvement ”. It was in factcompleted after the action commenced.
The defendant claimed title on a deed from Sinniah dated 23rdSeptember 1948. It purports to convey to him a title enjoyed bySinniah on two very recent deeds which have not been produced. Theproperty was described as “ an undivided one acre out of undivided six-acres ” which allegedly feH within certain boundaries depicted in specifictitle plans which the defendant admits he had not taken the trouble-to examine. It was these plans which established* at the D.R.O.’s-inquiry that Sinniah’s property was situated elsewhere.
“ Possession is in good faith when the possessor thinks, on reasonableor probable grounds, that he has some right of ownership in the thingpossessed ; it is in bad faith when he does not think so ”—Wille: Prin-ciples of S. African'Law (1st Edn.) p. 144. In this case, the defendanthad no reason whatsoever to believe that his “ undivided one acre
GRATIAEN J.—Baatian Silva v. William Silva
347
fell 'within the land which the Company had possessed and maintainedfor over 25 years, and which Sinniah (who was employed as a watcherin Kandy) had never enjoyed. The defendant ignored the proof whichthe D.R.O. placed before him on 26th January 1949, and if he persistedthereafter in his belief that he had title to the property, it was a recklessopinion. A trespasser who behaves in this fashion is not a bona fidepossessor. Moreover, it is impossible to regard the building which thedefendant constructed as an “ improvement ”. The Superintendenthas explained that the Company will now be compelled to re-plantthe property in order to replace a necessary “ wind-belt•
I would allow the appeal and set aside that part of the decreewhich awards the defendant a sum of Us. 3,500 as compensation. Thedefendant must pay the plaintiff’s costs in both Courts.
Gotasekaea J.—I agree.
Appeal allowed.