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Present : De Sampayo J. and Schneider A.J.FERNANDO v. RODRIGO.
204—D. C. Negombo, 13,031.
Partition action—Improvement* affected by co-owner—Compensation—No deductionfor fruits of improvement.
The fruits of the improvement itself (consumed before date of assessment)is not to be set off in calculating the amount of the compensation due to a co-owner for improvements effected by him.
rJ1HE facts appear from the judgment.
Croos-Dabrera, for the plaintiff, appellant.—Primd facie a co-owner is a maid fide possessor, if he possesses a larger share than he isentitled to. A co-owner is a bona fide possessor only for a particu-lar purpose, viz., for compensating him for improvements made byhim. This is an exception to the general rule, and it cannot, there-fore, be said that a co-owner is a bona fide possessor for all purposes.Ordinarily a bond fide possessor is not bound to account for profits, andhe is entitled to the jus retentionis. But these privileges are deniedto a co-owner. This clearly shows that there are limitations, "whichprevent the principle from being applied generally. This question
( 4ie )1919.
was not considered by the,. Full Court. It is submitted that theco-owner who possesses the entire land cannot be considered a bonafide possessor, so as to relieve him from the. liability to account forfruitk gathered by him. It makes no difference because the fruitsare derived from improvements made by him, so long as he cannotclaim the privileges of a bona fide possessor.
Weeraeinghe (with him J. S. Jayawardene), for first. defendant,,respondent, not called upon.
October 3, 1919. De Sampayo J.—
This is a partition action in which the first defendant wasentitled to compensation for certain plantations and improvementsmade by him on the common land. The District Judge assessedthis compensation at Bs. 174.50. The plaintiff appeals from theorder allowing the first defendant compensation to that extent,and says that the amount is excessive. I am unable to accept thisview of the case. It appears the original land was deniya or low-lying land, and the first defendant incurred a great deal of expenseand trouble in filling it up to the extent of about two feet andthen planted it with coconuts. In such a case the expense mustnecessarily be more than an ordinary case of plantation.
Then, again, the defendant' has taken care of the plantation,and now it appears the trees are in a flourishing condition. Therates allowed to the first defendant do not appear to me to beunreasonable. Counsel for the appellant raised a new point, andsaid that in any case the fruits derived by the co-owner whoimproves the land must be deducted in making a calculation as tothe amount of compensation. due. No specific authority has beencited in support of this contention. On the other hand, the Parti-tion Ordinance declares that the improving co-owner shall be entitledto the value of the improvements. That, primd facie, means thatno deduction should be made for fruits consumed before the. dateof assessment.
Moreover, this Court has laid'down that an improving co-owneris entitled to compensation on the same principles as those applicableto a bona fide possessor, and it is well known that the fruits of theimprovement itself cannot be set off in calculating the amount ofcompensation.
For these reasons I think the appeal fails, and I would dismissit, with costs.
Sohneideb A.J.—-I agree.
FERNANDO v. RODRIGO