082-NLR-NLR-V-22-CARIMJEE-et-al.-v.-ABEYWICKREME.pdf
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1920.
Present; Shaw J. and Sohneider A. J.
CARIMJEE et dl. v. ABEYWICKREME.
D. C. Galle, 15,256.
Compensation for improvements—Burden of proof that possession wasmala fide—Arrwwnt of compensation.
The plaintiffe sued for declaration of title to a land. Thedefendant admitted plaintiffs’ title, but claimed compensation forimprovements. The possession of the defendant, and the fact thathe had made improvements, was admitted.
Held, the burden of proving mala fide possession was on theplaintiffs, as there was a presumption in favour of bona fidepossession.
“ The amount to which he (bona fide possessor) is entitled iseither the improved value of the land, or the cost that he incurredin effecting the improvements, whichever should'be smaller.”
T
HE plaintiffs-appellants, setting up title in themselves derivedfrom a Crown grant of May 22,1894, sued in this action to be
declared entitled to the land Kurunduwattabedda, situate atBaddegama, 3 roods and 24 perches in extent, and to have therespondent ejected therefrom.
The defendant-respondent filed answer saying he had planted theland under the bona fide, belief that it was his land, and that he waswilling to give up the land on payment of compensation.
The appellants’ title was admitted, and when it came to thequestion of framing issues, the appellants’ counsel submitted thefollowing issue : “ Is the defendant a bona fide improver ? ” Therespondent’s counsel contended that the issue should be “ Is thedefendant a mala fide improver ?” and that the burden of provingmala fide was on the appellants.
The District Judge accepted the issue as suggested by respondent’scounsel, and ruled that the burden of provingmala fide was on theplaintiffs-appellants, and that the defendant-respondent was notliable to establish bona fide.
Zoysa, for plaintiffs, appellants.
A. St. V. Jayawardene (with him Mahadeva), for defencfifht,respondent.
July 15, 1920. Shaw J.—
i
In this case the plaintiffs claimed a declaration of title to apiece of land called Kurunduwattabedda, situated at Baddegama,and claimed to be put in possession of the land. The defendant
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admitted the plaintiffs’ title to the land, bat he says that ho was inpossession of the land under the bona fide belief that it was hisproperty, and that he had planted theland and unproved it, and 'waswilling to give up the land on payment of compensation for hisimprovements. When the case came on for trial before the Judge,a question arose as to the proper form of the issues to be tried.The fact that the defendant had made improvements to the landwas admitted, and the Judge thought' that a proper issue was whetherthe defendant was a mala fide possessor. The plaintiffs’ contentionwas that the issue should have been “ was the defendant a bona fidepossessor,” and contended that the burden of proof lay upon thedefendant to prove the bona fides of his possession before he wasentitled to any compensation for useful improvements. Thereuponthe counsel who appearedior the plaintiffs refused to take any furtherpart in the proceedings, and said he meant to appeal on the questionof onus of proof. The defendant and a witness were called showinghowhe came on the land and how hecame to make the improvements,and also showing what he had spent in the actual planting of theland with tea and rubber. These Witnesses were not cross-examinedby counsel for the plaintiffs. I thinkthe Judge was right in eastingthe onus of proof in this case upon the plaintiffs. The possessionof the defendant and the fact that he had made improvementswas admitted, and the law is laid down at page 23 of the late Mr.Justice Pereira’s book on theright of compensation for improvementsin the following words : “ The presumption always is in favour ofthe bona fides of possession, and therefore he who alleges mala fideain a possessor is' bound to prove that he had knowledge that theproperty belonged to another.” For this he gives reference toVoet 41, 3, 9. There is a reference made to the same matter in thecase of The General Tea Estates Company v. PtiUe.1 In that caseWood Renton J. in the course of his judgment says: “ I think thatCourts of law ought to scan jealously the evidence of mala fidepossession, and to insist that the conscientia rei alianse should beclearly proved,” evidently showing that it Was considered in thatcase that the proof of mala fides should lie upon the person whoclaimed to oust from the land a possessor who had made useful- improvements upon it. With regard to the second point in the Case,namely, whether the Judge has properly assessed the amountof the improvements to which the defendant is entitled, I thinkthat* the amount awarded by the Judge is not sufficiently borneout by the evidence. The amount of compensation ought to beproved by the defendant, and the amount to which he is entitledis either the improved value of the land, or the cost that he incurredin effecting the improvements, whichever should be the smaller.In my opinion the evidence adduced by him on these points isnot sufficient to enable the Judge to come to a true decision as to
1920.
Shaw J.
Oarimjee «.Abey-wtckreme
»(1906) 9 N. h. R. 98.
the amount to which he i0 entitled. In his own evidence he provesthat the cost of clearing and planting the tea and rubber wasfrom Rs. 260 to Rs. 300. Be also stated that after the plantinghe had for some years weeded and pruned the land. The amountthis cost him he gives no estimate of. He further states that itis worth Rs. 600. It is not possible to tell from the evidencerecorded Whether the witness meant that the lands are now worthRs. 600, or whether the improvements were worth Rs. 600, Hiswitness says that the clearing and 'planting would not cost lessthan Rs. 260, and that, besides that, it had to be kept up andthe fences. maintained. But, like the defendant, he gives noestimate of the cost that had been incurred in keeping-up andmaintaining the tea ^and rubber. He further states that theimproved value of this lot is between Rs. 400 and Rs. 600. This isthe whole of the evidence, and it is impossible on that evidence, as itstands, to tell what is the least sum that the Judge ought to havearrived at and allowed to the defendant, whether it Was the amountof the planting and upkeeping, or some sum between Rs. 400 andRs. 600, which the defendant’s witness says is the improved valueof the land. I think the proper course would be to send the caseback to the District Court for the purpose of taking further evidenceof the value of the improvements to which the defendant is entitledto be assessed in the manner I have mentioned, namely, as the smallerof the two, the cost of the improvements or the improved valueof the land. Both parties have partially succeeded on this appeal.I would make no order as to costs of the appeal, but the costs of thehearing in the Court below I leave to the District Judge on hisfinal determination of the case.
Schneider A. J.—I agree.
Sent bach