024-NLR-NLR-V-16-BANDA-et-al-v.-CADER.pdf
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Present: LasceUes C.J. and Wood Benton J.
BANDA et at. v. OADEB.
295 and 295—D, C. Kegalla, 2,724.
Partition—Defendant in bona fid© possession of whole land—Compensa-tion for improvements—Profits taken after litis contestatio—Setoff—May claim for die value of profits taken after litis contestatiohe made in partition action ?
The right to compensation is an incident of bona fide possession,and depends upon the possession being of. that character. But theeffect of litis contestatio is to change the character of the possession.After litis contestatio the possession is no longer bona fide, and thepossessor is liable to account for the profits which he has takenafter that.
Partition actions do not stand on a different footing to ordinaryactions for declaration of title as regards the liability of the bonafide possessor to account for his profits after litis contestatio.
LASCELiiBS C.J.—The point at which the litis contestatio arises ismarked by the filing of the contesting defendant’s answer. .
Where a defendant (co-owner) was in bona fide possession of thewhole land, the Court set off the value of the profits taken by himafter litis contestatio as against the compensation that was due tohim, but declined in the partition action to order the defendant toaccount for the entire profits taken after the litis contestatio, thoughthe value of the profits taken by him was in excess of the sum dueto him for compensation, as it was in substance a claim for damageswhich cannot be combined with a partition action on unstampedpleadings.
facts appear from the judgment.
Bawa, K.C., for the defendant, appellant, in No. 295, and for thodefendant, respondent, in No. 296.—The plaintiffs were not entitledto set off the profits which the defendant derived from the improve-ments since litis contestatio.
In partition action there cannot be said to be a litis contestatioat any particular point of time. The whole duty of investigatinginto the title of the parties is cast on the Court. Therefore the
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principles applicable to ordinary actions do not, apply to parti-tion actions. In partition actions litis contestatio arises, if at all,only when the Court holds that a party is not entitled to the shareclaimed *by him. Till then the party .must- be deemed to be a bonafide possessor. The Court had, moreover, no jurisdiction to decidethe question of damages and set off in this case.
Counsel cited Van Letuwen (Kotze), Volt II., pp. 368 and 450;Walter Pereira*8 Bight to Compensation for Improvement» 49;Samarasinghe v. Balahamy;1 Silva v. Silva;2 Perera v» Silva.9
A. St. V. Jayewardene, for the plaintiffs, respondents, in No. 295,and the plaintiffs, appellants, in No. 296.—There is no differencebetween ordinary actions and partition actions as to the liabilityof a possessor to account for the fruits of his improvements.
It was agreed between the parties that the question of set offshould be tried, and the defendant is now estopped from disputingthe propriety of the issue. Counsel cited Gurdeo Singh v. Singh9Cornelia v. Endoris,5 Adarahamy v. Abraham et cl.,6 Pormammav. Arumugam.7
January 21, 1913. Wood Renton J.—
The points involved in these appeals do not, in my opinion, presentany very serious difficulty, and both appeals may be dealt withtogether.
The action is one for partition. The plaintiffs alleged that theywere entitled to a two-thirds share, and allotted to the defendant aone-third share, of the land in suit. The defendant in his answerclaimed the entirety of the whole land. The learned District Judgegave judgment in the plaintiffs’ favour, and his decision was affirmedin appeal. He held, however, that the defendant had been inbona fide possession of the land. The question then arose as to thecompensation to which the defendant was entitled. The Com-missioner appointed to settle the scheme of partition appraised thevalue of the land, as enhanced by the defendant’s improvementson it, at Rs. 500 an acre, and considered that a sum of Rs. 200 wassufficient to cover the defendant’s outlay in connection with hisimprovements. The learned District Judge in the result fixed thecompensation at Rs. 716, but set off as against that amount theprofits made by the defendant through his possession of the landsince litia contestatio in the action. This set off is far more thansufficient to extinguish the compensation awarded to the defendant.The amount of compensation fixed by the learned District Judge isnot challenged. But the defendant contends that the profits made
(1907) 36 Cal. 193, at pp. 906-208.
* (1907) 1 A. C. R. x.
' • (1907) 2 A. C. R. 120.
7 (1906) 8 N. L. R. 223.
i (1902) 5 N. L. R. 379.
(1906) 9 N. L. R. U0.
(1910) 1$ N. L. R. 88.
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by hiiiT through his possession of the land up to the date at least ofthe judgment ought not to have been set off against the compensa-tion to which the District Judge h&B held that he was entitled as abona fide possessor. There can be no question but that in anordinary action for declaration of title to land a bona fide possessorwould be bound to account for profits after litis contestatio. Theredoes not s,eem to be any very clear authority on the questionwhether in this Colony there is litis contestatio on the filing of theplaint or on the filing of the answer. For the purposes of thepresent case the point is immaterial. The defendant’s contention isthat the principle applicable to ordinary actions for declaration oftitle does not hold good in partition actions in which no peremptoryprovision is made for pleadings, and it is the duty of the Court toinvestigate independently the title of every claimant who appearsbefore it. No authority was cited to us in support of this contention,and, in my opinion, it is untenable. In a partition action, as in anaction for declaration of title, compensation to a bona fide possessoris an incident arising from a declaration ef title. Section 2 of thePartition Ordinance of 1863 makes the filing of a libel, or plaint, asit now is, by the plaintiff imperative, and the following sectionsprovide for the appearance of defendants and for a statement bythem of their attitude to the plaintiff’s claim. In practice thedefendant in a partition action invariably defines this attitude byfiling a written answer, and I doubt whether in District Court casesthere is any other legal mode of placing it before the Court. Butbe that as it may, the Partition Ordinance creates machinery bywhich a substantial litis contestatio between parties is arrived at. Isee no reason why the ordinary rule of the common law as to profitsafter litis contestatio should not hold good in actions under thatOrdinance.
The point taken by the plaintiffs in appeal No. 296 is that thelearned District Judge should have. ordered the defendant toaccount to them for a two-thirds share of the profits that accruedto him from possession of the land since litis contestatio in the actionand to pay damages. To this claim it appears to me that there areseveral answers. In the first place, it is not a claim-of which theCourt could take account in a partition action.. Even as regardsthe share of profits, it is really a claim in the nature of damages, andin a partition action damages cannot be claimed or awarded. Thisclearly results from the cases of Samarasinghe v. Balahamy 1 andSilva v. Stlva.2 The plaintiffs’ counsel referred us to a ruling to thecontrary in D. C. Jaffna 5,148.3 But that decision, as the defend-ant's counsel pointed out, is prior to Ordinance No. 10 of 1897, whichexempted the pleadings in partition actions ix6m stamp duty. Itwas certainly not the intention of the Legislature by that enactment
i (1002) 5 V. L. R. 879.2 (1000) 0 N. h. R. 110; 8 Bdl. 149.
® (1877) Rank 1877,100.
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to enable actions for damages to escape from stamp duty by beingtacked on. to an action for partition. In the next place, it is clearfrom the record that no claim such as the plaintiffs have now set upwas presented to the Judge in the proceedings in the District Court.Their counsel called our attention to the fact that issues had beenframed, one of which raised the question as to the damages whichthey had suffered by the defendant’s operations on the land, whileanother dealt with the income that he had derived from it afterlitis contestatio. It is obvious, however, tiratr the "objeet-of-theBeissues was simply to enable the District Judge to decide as tothe amount of compensation payable to the defendant, which heexpressly declares in his judgment to have been the only questionin the case. The inquiry which he held is described in the recordsb an ” inquiry regarding compensation.” The judgment deals withcompensation only.
On the grounds that I have stated I would dismiss these appealswith costs.
Lascelles C.J.—
I concur with the judgment of my brother Wood Benton. Icannot see on principle why partition actions should stand on adifferent-footing to ordinary actions^ for declaration of title asregards the liability of the bona fide possessor to account for hisprofits after litis contestation That there is a litis contestatio wherethe rights of the co-owners are in dispute is indisputable, and thepoint at which the litis contestatio arises is, under the practice whichprevails in our Courts, clearly marked by the filing of the contestingdefendant's answer. After this the parties are at issue.
The right to compensation is an incident of bona fide possession,And depends upon the possession being of that character. But the.effect of litis contestatio is to change the character of the possession..After litis contestatio the possession is no longer bona fide, and thepossessor is liable to account for th.e profits which he has taken.After that.
I therefore think that, in assessing the compensation to which-the defendant was entitled, the learned District Judge was right:in setting off the value of the profits taken by the defendant after.litis contestatio. If he had not done this, he would obviously haveAwarded the defendant more than that to which he was equitably•entitled.
With regard to the appeal in action No. 296,1 need only say that,in my opinion, a claim to account for the whole of the profits afterlitis contestatio is a different matter. It is in substance a claimrfor damages, which, it is well settled, cannot be combined with a. partition action on unstamped pleadings.
I would dismiss the appeal with costs.
Appeals dismissed*