027-NLR-NLR-V-67-J.-D.-SAMARAKOON-and-others-Appellants-and-D.-P.-GUNAWARDENE-Respondent.pdf
1964Present: Sirimane, J.J. D. SAMARAKOON and others, Appellants, andD. P. GUNAWARDENE, Respondent
8. C. 70j61—C. R. Hambantota, 7170
Partition action—Interlocutory decrez—Award therein of compensation for improve-ments—Jus retentionis—Wrongful dispossession—Damages—Partition Act-(Cap. 69), 8. 52.
A party to a partition action to whom, according to the interlocutory decreoentered in the case, compensation is due in respect of improvements! s entitledto remain in possession of such improvements until he is compensated. Accord-ingly, if he is dispossessed of them by a co-owner before final decree is enteredhe is entitled, in a separate action, to claim damages for the entirety until he isrestored to possession, or until final decree is entered, whichever event takesplace earlier.
A
-ii-PPEAL from a judgment of the Court of Requests, Hambantota.
E. B. WHeramanayalee, Q.G., with S. W. Jayasuriya, for Defendants-Appellants.
E. A. Q. de Silva, for the Plaintiff-Respondent.
Cur. adv. vult.
June 5, 1964. Sibimane, J.—
The plaintiff-respondent had been enjoying the produce of the entirecoconut plantation which stood on the land called Debarawewakele ofwhich he was a co-owner. It is not clear whether he had planted allthose trees, or planted some of them and purchased the others from theplanters, but he was in fact taking the produce of the entire plantationwithout dispute.
The defendants-appellants filed a partition action No. P. 60, in theDistrict Court of Tangalle, in which the present plaintiff was the 6thdefendant. Interlocutory decree had been entered in that case as farback as 16.2.55, by which the plaintiff-respondent was allotted l/6thof the soil and the 1st defendant – app ellan t l/12th share of the soil.The interlocutory decree also awarded the entire plantation and build-ngs to the plaintiff-respondent in the following terms :—“ It is further
ordered and decreed that as the 6th defendant has bought off theplanter’s rights he is hereby declared entitled to compensation for thocost of planting and compensation for buildings. ”
As I understand it, this means that after the scheme of partition isdrawn and the final decree entered, the plaintiff-respondent would beentitled to claim compensation for those trees which would fall outsidethe lot allotted to him for his 1 /6th share, from those on whose lots thoseother trees would fall.
The plaintiffs in the partition case (that is, the present defendante-appellants) had not, as far as one can gather, taken steps to get thefinal decree entered in that case. No final decree was produced at thetrial. On the contrary the journal entries in P60 (P10) show that evenon 23.11.60, the commission to survey had not been executed.
On 1.8.60, the defendants-appellants had taken possession of theentire coconut plantation, and in this action the plaintiff-respondenthad successfully claimed damages from them.
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I am unable to agree with the contention of Mr. Wikramanayake thatonce interlocutory decree was entered the plaintiff’s rights were limitedto a right to claim compensation only, and that he bad lost his rights toremain in possession of his plantation. As stated earlier the quantumof compensation payable to the plaintiff-respondent and by whom suchcompensation is payable can only be ascertained after final decree isentered. In fact the defendants-appellants filed answer in this case onthe footing that final decree had been entered and that they possessedonly the trees which fell within the lot allotted to them—a position whichis factually incorrect. There is one matter, however, to which Mr. Wikra-manayake has drawn my attention which needs correction. Thedecree entered in this case grants the plaintiff-respondent damages untilhe is compensated. Mr. Wikramanayake points out that in terms of thisdecree, even if his clients give up possession of the trees the plaintiff-respondent can still claim damages until compensation is paid. I thinkthe plaintiff is entitled to damages until he is restored to possession, oruntil final decree in entered, whichever event takes place earlier ; foronce final decree is entered some trees would at least fall on his lot and hewould not be able to claim damages for the dispossession of those trees.
It should be noted that under the proviso to Section 52 of the PartitionAct (Volume 3, Chapter 69) even after final decree a party to whom a lotis allotted, is not entitled to take possession of that lot until compensation,if any, due from him is paid. This provision implies that a party towhom compensation is due may remain in possession until compensated.
Subject to the variation in the decree set out above the appeal isdismissed with costs.
Appeal dismissed.