013-NLR-NLR-V-26-DAVITH-APPU-v.-BAHAR.pdf
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Present : Bertram C.J. and Ennis J.
DAVITH APPU t?. BAHAR.232—D. C. Tangalla, 2,077.
Compensation for improvements^-Rights of a person who improves land'of another on informal agreement—Jus retentionis.
Scmble, a person who effects improvements on a land belongingto another on an informal agreement (subsequently repudiated)is entitled to compensation for improvements.
'* It certainly extends the doctrine of the rights of a bona fidepossessor to compensation for improvement and is thus a develop-ment of the law.**
P
LAINTIFF sued the defendant for the recovery of Rs. 2,700compensation due for converting an area of 17 acres of the-
defendant’s jungle land into a paddy field.
Defendant admitted that he entrusted the work to the plaintiffand another on an informal writing, but denied that the plaintiffor the other contractor carried out the said agreement, and claimedthat the work was done by a third party at the defendant’s expense-The District Judge held that plaintiff had not proved (hat heeffected the improvement, and dismissed the action.
The plaintiff appealed.
Soertsz, for appellant.
M.W. H. de Silva, for respondent.
January 15, 1023. Bertram C.J.—
This was an action in which compensation was claimed for im-provements said to have been executed on the basis of an informalagreement subsequently repudiated. Evidence was given by theplaintiff to the effect that the improvements were in fact done.His evidence certainly might have been more definite, and it mighthave been more fully supported. The learned Judge has regardedthe evidence of the plaintiff with suspicion, and considers thatthe evidence called in support of the plaintiff cannot be relied upoi).He has, therefore, not called upon the defendant for his case. Thelearned Judge's suspicion may be well founded. I cannot helpfeeling, however, that it would have been very much better if hehad heard the whole case before coming to his conclusion.
The case set up by the defendant was that the informal agreement-was never acted upon ; that the plaintiff, having lost his partner who
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1928. was a party to the agreement, never executed any improvements ;
that the improvements were .taken in hand by somebody elseC.J. under another agreement ; and that this action is brought in badDavithAppu faith in conjunction with the plaintiff’s principal witness, Mendis«■ Silva. This case was not put at all fully or specifically to the plaintiffin cross-examination. I find it impossible to say that- a pnmafacie case at least has not been made out. I think, therefore, thatthe case should go back to be fully heard, and as the learned Judgeappears to have formed so definite an opinion, it would be betterthat it should be heard by another Judge.' I would, therefore,remit the case for this purpose.
With regard to the question of law, which, if the Court finds infavour of the plaintiff, will have to be considered, all I need say atthe present moment, is this. It was held on the very high authorityof Pereira J. in Mohamadu v. Babussa 1 that a person who has madeimprovements upon a land with the leave and license of the owneris entitled to the Jus retentionis and all the other rights of a bonafide possessor. That case has been cited with approval in a recentjudgment of this Court, D. C. Kandy, 29,879.1 2 It certainlyextends the doctrine of the rights of a bona fide possessor to com-pensation for improvements, and is thus a development of the law.It may be one of those developments to which I referred in Govern-ment Agent, Central Province, v. Letchiman Chetty.3 There is nooccasion to deliver a final judgment on this question of law in thepresent case, as the Court may find in favour of the defendant.If the Court finds in favour of the plaintiff, it will have to considerthe authorities I have cited, and it would also do well to consideranother case cited by Mr. de Silva (M-udanayake v. Marikar)4
I would, therefore, make the order I have indicated, and woulddirect that the costs of the appeal should be costs in the cause.
Ennis J.—I agree.
Sent back.
1{1922) 2 Court of Appeal Cases.
2(1923) S. C. M. June 29.
{1922) 24 N. L. R. 36.
{1919) 6 C. W, R. 7.