050-NLR-NLR-V-11-G.-A.,-W.-P.-,-v.-COORAY-et-al.pdf
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1908.
July 7.
Where in a land acquisition case the lessees oi two of the claim-ants were allowed to intervene and to claim compensationfor
improvements effected by them and damages – consequent onthe
determination of the lease before the expiration of the stipulatedperiod—
Present: Mrs- Justice Wood Benton and Mr. Justice Grenier.
A., W. P., v. COOBAT et al.
D. G., Colombo, 2,235.
Land acquisition proceedings—Claim for damages and compensation forimprovements—Lessees—Intervention—Ordinance No. 8 of 1876.
Held, that the intervention was wrongly allowed, and that itwas not competent for the lessees to claim compensation or damagesin these proceedings.
A
PPEAL from a judgment of the District Judge of Colombo.The facts sufficiently appear in the judgment of Grenier A.J.
Van Langenberg, for the claimants, appellants.
F. M. de Saram, for the respondents.
Our. adv. vult.
July 7, 1908. Grenier A.J.—
This was a land acquisition case, on which has been grafted anaction for compensation in respect of certain improvements allegedto have been made by the lessees of two of the claimants, and fordamages in consequence of the lease having been determined beforethe expiration of the term agreed upon. I have read through thewhole of Ordinance No. 3 of 1876, but I cannot anywhere find init any provision for a claim of this description. One of the primaryobjects of the Ordinance was to afford a speedy settlement of claimsto money brought into Court by the Government Agent as repre-senting the value of the land acquired; and the Ordinance wascertainly not intended to provide for claim of the nature preferredby the intervenients, who are the lessees, being adjudicated uponin any proceedings under it. The Government Agent brought thesum of Bs. 13,000 into Court, and all the claimants, five in number,were agreed that the compensation so tendered was sufficient and. proper compensation to be allowed for the acquisition of the landand premises in question. It was stated in the libel of reference bythe Government Agent that the property was subject to a fideicommieeum, and at the trial, which took place in this case asbetween the intervenients and the claimants, it was admitted thatthe deed No. 2,816 dated October 3, 1890, created a valid fidei .
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commissum over the premises in dispute. There was no questionamongst the claimants themselves either in regard to the sufficiencyof the compensation or its appropriation amongst themselves; hutit would appear that the first and second claimants, without theauthority of the other claimants, had executed a lease in favour ofthe intervenients of the whole of this property for a term of threeyears, commencing from June 1, 1904. The lessees were allowedto intervene in the case and claim a sum of Us. 849 out of thecompensation of Bs. 13,000. Considering that this latter sumrepresented the property itself, and was subject to a fidei commissumin the same manner that the property itself hjad been, I cannotunderstand how the intervenients were allowed a status in the case,and why no objection was taken and pressed at the earliest opportunityagainst their intervention. If the intervenients had any claimagainst their lessors, the first and second claimants, founded on abreach of any of the covenants of the lease or in respect of anyimprovements, they should have brought a separate action insteadof intervening in these proceedings, in which they could not possiblytouch the money in deposit. I find that in the statement filed byall the claimants in answer to the libel of reference by the Govern-ment Agent and the statement of claim of the intervenients, anobjection was taken that it was not competent to the intervenientsin this action to claim damages, if any, payable to them by thefirst and second claimants only, or to claim to be paid such damagesfrom the sum in Court, inasmuch as it represented the corpusimpressed with the fidei commissum imposed by the deed I havealready referred to, with a right of succession by survivorship, andthat even if the intervenients were entitled to claim damages inrespect of the said lease from the first and second claimants, suchdamages could not be paid out of the said sum of Bs. 13,000. Inthe issues that were framed at the trial I find that the first, second,and third issues ran as follows:—“ First.—Did the added claimantserect two buildings on this land, and if so, are they entitled to anypart of the compensation deposited in Court? Second.—Is the landsubject to . a fidei commissum? Third.—If so, are added claimants
entitled to claim a portion of the compensation deposited in Court? ” •The District Judge has found that the added claimants or inter-venients are not entitled to any part of the compensation depositedin Court, on the ground that the land is the subject of a fidei com-missum. Li my opinion there should have been an end of theintervenients’ claim on these findings, but the District Judgeproceeded to consider the other issues with reference to the lease,which did not in the slightest degree affect the compensationdeposited in Court. To my mind it seems .clear that, in thecircumstances I have referred to, these proceedings should not havebeen complicated by the intervenients being allowed to come into thecase with a claim on a lease against the first and second claimants.
1908.
July 1.
OsmiB
A.J.
C 192 )
1908.
July 7.
Obsmjbb
AJ.
It would appear that the lease was prematurely determined by theCrown having acquired the land. The remedy open to the inter*venients, when that event happened, waB to proceed against theirlessors, namely, the first and second claimants, for damages, in thatthey were not permitted to possess the property demised for the fullterm of the lease, and for compensation in respect of any improve-ments they may have made. But certainly there was no founda-tion whatever for an intervention of this character in these pro-ceedings, especially as the intervenients were not entitled underany circumstances to claim any portion of the money in deposit.
I would set aside the order of the District Judge awarding thesum of Bs. 824 to the intervenients, and dismiss the intervention,with liberty to the intervenients to bring a separate action, if soadvised, against the first and second claimants for any damagesthey may have sustained by reason of any breach committed bythe first and second claimants of any of the covenants of the leaseor in respect of any compensation for improvements. As betweenthe intervenients and the claimants they will bear their own costsboth in this Court and in the Court below. The order of the DistrictJudge will Btand with reference to the sum of Bs. 13,000 remainingin Court, subject to the fidei commissum created by deed No. 2,816dated October 3, 1890. The costs of the Government Agent, if any,will be paid by the first and second claimants only, and not by allthe claimants, because I think they alone must be held responsiblefor all this unnecessary and futile litigation.
Wood Benton J.—I concur.
Appeal allowed.