BILINDI et al , Appellants, and ATHTHADASSI THERO , Respondent

097-NLR-NLR-V-47-BILINDI-et-al-Appellants-and-ATHTHADASSI-THERO-Respondent.pdf


276
CANEKERATNE J.—Bilindi v. Athlhadasai Thero.
1946Present: Howard C.J. and Canekeratne J.BILINDI et al., Appellants, and ATHTHADASSI TILER O,
Respondent.
97—D. C. Kurunegala, 43.
Improvements effected by bona fide possessor—Assessment of compensation—No deduction for fruits obtained, before assessment, from the improve-ment.
In a claim for compensation for improvements a bona fide possessorneed not deduct the value of the fruits obtained by him, before the dateof assessment, from the improvement itself.
^^PPEAL from a judgment of the District Judge of Kurunegala.
L. A. Rajapakse, K.G. (with him H. W. Jayawardene), for the defend-ants and added defendant, appellants.
H. V. Perera, K.G. (with him N. E. Weerasooria, K.G., and S. R.Wijayatilake), for the plaintiff, respondent.
Cur. adv. milt.
June 28, 1946. Canekeratne J.—•
On March 25, 1927, the Trustee of Ginikarawa Temple instituted anaction (D. C. 12,182) against one Poola Louis (fifth defendant) andthree others for declaration of title to certain lands. After a surveymade on August 12, 1927 (Plan P2 or Q) it became clear that there wasno dispute as regards lots A, B2, B3 and C3 ; the defendants’ title tolot A and the plaintiff’s to the other lots were accepted.
The defendants claimed lots A, Al and A2 as part of the land calledEhelegollewatta, lots C, Cl and C2 as part of Moragehewatta, lots A3,A4, A5, B and B1 as part of Nagahadalupothe. They alleged thatthey were in possession of these lands since the year 1921 and hadimproved the same.
CANEKERATNE J.—JBilind■' v. Athlhadassi T/iero.
277
After hearing evidence the learned trial Judge held that lots A and A1(Ehelegollewatta) belong to the defendants and that lots A2, A3 (KLurundu-gollehena), lots A4 and Bl (Kandehena), lot A5 (Diggalagawahena)and lot B (Dansalapitiyehena) and lots C, Cl and C2 (Mutugollehena)belong to the plaintiff.
The land claimed by the temple was apparently in jungle in 1921except a portion which was cleared and planted on behalf of the templeby one Aruma some years before the defendants, according to the learnedJudge, after the execution of deed Dll in 1921, took possession of thisland in the belief that it was their property, cleared and planted it.
The learned Judge held that the plaintiff is entitled to all the landdepicted in the plan except lots A and Al, that’ the defendants wereentitled to compensation for improvements in respect of the houses onthe land, one of which is the tiled house that was renovated, and theplantations on the land except the plantation that was raised by Aruma(apparently on lots Cl and C2). As the learned Judge was unable toassess the compensation he referred the parties to a separate action.
The defendants appealed to the Supreme Court and the appeal wasdismissed after argument on February 15, 1938. According to thejudgment the finding of the learned trial Judge as regards the title tolots C, Cl and C2, to lots A4 and Bl, to lots A2, A3 and A5 was rightand the learned Judge was justified in holding that the defendants wereentitled to compensation.
The Trustee filed the present action on March 7, 1939. He allegedthat he estimated the value of the plantations on the three lots A2,A3 and A5 at Rs. 900 and the house on lot A5 at Rs. 75. His prayer forrelief against the defendants included the ejectment of the defendantsfrom lots A2, A3, A5, Cl, C2, A4 and Bl (an extent of 34 acres) anddamages at the rate of Rs. 75 a month. The defendants in their answerclaimed that they were entitled to compensation for improvements inrespect of these lots and the buildings on lot -A5 ; they claimed a sum ofRs. 20,000, i.e., Rs. 15,000 in respect of the plantations and Rs. 5,000in respect of the buildings and a jus retentionis until the sum claimedwas paid.
At the trial a surveyor gave testimony on behalf of the plaintiff regard-ing the valuation of the improvements and on the other side a planterwith considerable experience of coconut estates was called ; he furnishedtwo valuations : one regarding improvements as they stood at 1927and the other, the values as at the time of action. On the basis of the1927 values he valued 7-J- acres at Rs. 800 an acre, 19 acres at Rs. 600an acre, 8 acres at Rs. 300 an acre and an acre of jungle land at Rs. 150.On the basis of values at the time of action he valued the 34 acres atRs. 350 an acre and an acre of jungle land at Rs. 50. The learned Judgeaccepted the valuation of the premises as at 1927 and assessed thecompensation at Rs. 6,481 • 56 in respect of the plantations, Its. 1,000 forthe tank, Rs. 75 for the thatched house on A5, Rs. 50 for the two “ bissas ’’and R^j25 for the bathing well, i.e., a total sum of Rs. 7,806 -56 ;it is urged in appeal that there are certain arithmetical errors in thiscomputation. ,As the defendants had been in possession of the lands
278
CANEKERATNE J.—HHindi «. Aththadaaai Thera.
all throughout they were ordered to pay damages to the plaintiff at tlierate of Rs. 60 a month from October-10. 1938, till he is restored topossession.
The defendants preferred an appeal from this judgment: the plaintiffhas filed objections to the decree.
The main appeal falls into two parts: the one is concerned with thequestion of compensation, the other relates to the claim for an accountof the profits. The former resolves into two questions : (a) what are thepremises in respect of which compensation is payable ?(b) should the
assessed amount be interiered with as contended by the plaintiff ?
It is not disputed that the defendants are entitled to compensation.By entering the property, clearing and planting it the defendants thoughtthey were doing so as owners : they were, however, mistaken; the lotswere not cohered by their deeds and they are now sued by the owner forejectment.
If one had only to construe the judgment of the learned trial Judgein action No. 12,182, there would be some material for the defendants’contention in respect of the lots referred to. The learned Judge seemedto accept the view of the plaintiff’s witness that Aruma was the onlyperson who made any plantation on behalf of the temple and that therest of the estate was planted by the defendants.
The learned Judge declined to read the judgment of the SupremeCourt, though invited to do so, in the light of the earlier judgment of theCourt and came to the conclusion that the defendants were entitled toclaim compensation in respect of lots A3, A4 and A5 only. The SupremeCourt judgment, he said, made it clear that compensation was only to bepaid in respect of these lots. The defendants have failed to show that theview of the learned Judge was wrong.
The plaintiff contends that the learned trial Judge has wrongly adoptedthe valuation of 1927. The defendants do not seriously maintain thecontrary. It is clear that the amount of the expenditure which animprover is enabled to recover is restricted to its value at the time herestores the property.
The extent of the three lots is 11 acres 2 roods and 37 perches. As aplantation it would be worth Rs. 4,105-50 but as jungle land onlyRs. 586-50. The sum payable as compensation would be Rs. 3,519.There can be no doubt that the learned trial Judge in case No. 12,182was of opinion that the defendants were entitled to compensation inrespect of the tiled house. There was only one tiled house at the timeof the hearing of that action and that was the tiled house on lot A5.The reference in the ante penultimate paragraph of the judgment of theSupreme Court to the house on lot A5 is clearly to the tiled house men-tioned by the learned ^District Judge. The defendants are entitled torecover the value of the improvements to this house. The evidenceof the sixth defendant is that the house was worth Rs. 4,000. He saidthat he improved the house by placing calicut tiles on the roof, lime-plastering the walls and cementing the floor and that these improvementscost him Rs. 1,500. It was in evidence that the roof was tiled towardsthe end of 1935. The surveyor called by the plaintiff valued the tiled
CANEKEK.ATNK J.—SHindi v. Aththadassi The.ro.
278
house at Its. 3,800. The defendants are not entitled to claim any sumfor improvements effected after the institution of action No. 12,182(*.e., March, 1927) and the sum of Its. 1,500 might be taken as the cost ofthese improvements. The defendants should be declared entitled torecover the sum of Rs. 2,300 in respect of the tiled house. The orderof the learned Judge allowing compensation in respect of the tank atRs. 1,000, the two bissas ” at Rs. 50, the well and bathing system atRs 200 will stand.
A person who possesses another man’s property in good faith acquiresownership in the fruits, though he is only bona fide possessor of theproperty itself; and if subsequently the owner brings an action againsthim, he (the possessor) is not required to pay-compensation for thefruits which he has gathered in good faith whether they have alreadybeen consumed or are still in existence but is only bound to restore theprincipal thing, together with such fruits as were extant at the momentwhen litis contestatio took place. But as soon as this happens he mustknow that, possibly, he is in possession of another man’s property. Fromthe moment of litis contestatio therefore he is bound to apply the utmostcare in the cultivation of the fruits. If the owner succeeds in provinghis ownership he can require the possessor to hand over all the fruitsgathered by him during the action or pay compensation and can furtherclaim damages for such fruits as he could have gathered by the exerciseof due care.
A bona fide possessor has the right of retaining the property improvedby him until payment of compensation : he need not give up possessionuntil he has been compensated for the expenditure incurred by him orthe value of the improvements whichever is less. He can, if he so wishes,bring an action against the owner for the compensation.
Though the improver profits by the fruits, his expenses for improvementsmust nevertheless be reckoned against him. The rents and profits whichhave been received are to be set off against the expenses incurred inproducing those profits as well as in the improvement of the propertyitself. For although a bona fide possessor may have acquired an absoluteright in the fruits which have been actually consumed by him, yet thereis no reason for not setting them off against his claim for the expenditure.1
The Law of Holland went further : it did not make the bona fidepossessor accountable for the profits which he had received before, andwhich were in existence at the time of the litis contestatio, but only forthose received by him after the litis contestatio *. The case of Banda v.Coder 3 quoted by counsel for the plaintiff is an illustration of this rule.
Now this is not the case of a possessor appropriating the ordinaryfruits of the land belonging to another. The nuts taken from the treeswere the produce of the improvement made by the defendants, for unlessthe trees had been planted by them there would have been no produce tobe obtained. These were the fruits of the improvement itself and notof the property generally. It was the direct result of the work done bythe defendants.
1 Voet 6—1—38 (Probably the Roman Law).
Voet 41—1—33 ; 3. Burge 33 (Burge treats this passage oj Voet as applicable tofruits gathered by a bona fide possessor).
(1913) 16 N. L. R. 79.
280
CANEKE RATNE T.—B Hindi v. Athihadasai Thero.
The view of some, especially Sande 1 was that there was no differencebetween the fruits received by a bona fide possessor in consequence ofhis improvements and the fruits of the property generally ; this doctrine,however, was opposed by others. It tends to deprive a bona fidepossessor of the protection which the Law intended to give him and asthe amount of the expenditure which he is enabled to recover is restrictedto its value at the time he restores the property, there would be greatinjustice in subjecting him to the whole risk of that expenditure, since•it might happen that at the time of the restitution the value of theimprovements had from various causes been diminished2.
Though the bona fide possessor must reduce his claim by the valueof the fruits received by him he cannot be made to include the fruitsof the fruits or the advantage derived from hiB improvements 3. Thequestion is how long is he entitled to take such fruits ? It is arguedfor the defendants that as the improver has a jus retentionis he need notbring into account such fruits till he is paid. The authorities do notappear to make the position very clear. The view adopted in Fernando•v. Rodrigo 4 was that no deduction should be made for fruits consumedbefore the date of assessment; the case of Podi Sinno et al v. Alwis 6seems to take the same view. The decision in Beebee v. Majid 6 canhardly be said to decide the contrary, though it negatives the right of theowner to claim a deduction in respect of fruits received after litis conies-tatio. In these circumstances a safe guide appears to be furnished bythe first of these cases. [Fernando v. Rodrigo].
The learned Judge made his decision on November 3, 1941. Thedefendants therefore need not deduct the fruits of the fruits obtainedby them before this date. They failed to prove their contention thatthey were entitled to claim compensation in respect of lots A4, B, Bl,C, Cl and C2 ; they ceased to be bona fide possessors of these lots onOctober 10, 1938, according to the judgment of the learned DistrictJudge. The fruits gathered by them thereafter should be applied inreduction of the amount awarded for compensation. The extent of theselots is about two-thirds of the whole area in dispute : the learned trialJudge assessed the profits at Us. 60 a month. A sum of Rs. 40 may befairly taken as the profits for these lots. The defendants ought to accountto the plaintiff at the rate of Rs. 40 a month from October 10, 1938, tillthe date of decree [November 3, 1941].
The defendants are entitled to recover as compensation the sums ofRs. 3,519‘50, Rs. 2,300, Rs. 1,000, Rs. 50 and Rs. 200 amounting in allto Rs. 7,069 ‘ 50. The plaintiff must pay the defendants this sum less thesum that should be deducted as mesne profits, namely, at the rate ofRs. 40 a month from October 10, 1938, to November 3, 1941, and at therate of Rs. 60 a month from November 3, 1941, till the date when theplaintiff obtained possession of the property.
There now remains the question of costs. Instead of tendering suchadequate and reasonable amount as the circumstances showed to be due,the plaintiff alleged that a sum of Rs. 975 was due as compensation. 1
1 Frisian Decisions 3—15—3 ; Burge 34.
* Voet 6-1-39 ; 3 Barge 34.
» (1895) 1 N. L. R. 228 ; 3 Bed Rep. 61.
(1919) 21 N. L. R. 415.(1926) 28 N. L. R. 401.(1929) 30 N. L. R. 361.
CANNON J.—Ramapillai v. Zavier.
281
The defendants disputed the right of the plaintiff to obtain an order ofejectment as no tender was made and claimed Rs. 20,000 as compensationfor improvements and a right of retention till this sum was paid.
The plaintiff has succeeded in his claim to an account and the defend-ants, in obtaining as compensation a considerable sum in comparisonwith the sum pleaded by the plaintiff. The fair order seems to be thateach party should bear its own costs in the District Court and in appeal.
Howard C. J.—I agree.
Varied.