M. P. MOHIDEEN and another, Appellants, and M. M. MUSTAPHA, Respondent

088-NLR-NLR-V-71-M.-P.-MOHIDEEN-and-another-Appellants-and-M.-M.-MUSTAPHA-Respondent.pdf


424
Mohideen v. Mustapha
1968 Present : Alles, J., and Pandita-Gunawardene, J.M.P. MOHIDEEN and another, Appellants, and M. M. MUSTAPHA,
Respondent
S. C. 119-120/2066 (F)—D. C. Batticaloa, 4378/M
(.'ompensation for improvements—Meaning of term “ improvements ” —Unjustenrichment—Applicability of principle not only to bona fide possessors but alsoto bona fide occupiers—Fructus industriales—Quantum of compensation—Oralagreement relating to occupation of land—Improvements made by occupierthereafter—Occupier's right to compensation despite invalidity of agreement—
. Prevention of Frauds Ordinance, s. 2—Evidence Ordinance, ss. 91, 92.
Although in Ceylon the concept of the bona fide occupier has not beenexpressly accepted, yet it has been recognised in various forms in whichcompensation has been given to persons who, though they are not strictly bonafide possessors, have entered into occupation of land with the leave and licenceof the owner and made improvements thereon.
Plaintiff cultivated a paddy field of the 1st defendant after it was agreedorally between them that the plaintiff could do so on condition that the 1stdefendant should be paid some avanams of paddy as ground rent. On 22ndMarch 1963, when the harvested paddy was ready for removal, the defendantsprevented the plaintiff from transporting it from the field. In the presentaction, in which the plaintiff sought to recover the value of the harvestedpaddy, it was contended on behalf of the 1st defendant (1) that the paddy cropcould not be considered as an improvement to the land because after it wasreapod the land was in the same condition as it was before the paddy wassown and the value of the land was not permanently increased, (2) that theagreement between the plaintiff and the 1st defendant was null and void and-unenforceable in view of section 2 of the Prevention of Frauds Ordinance and.sections 91 and 92 of the Evidence Ordinance.
Held, that the plaintiff was entitled to-claim compensation for thepaddy harvested by him with the leave and licence of the 1st defendant.
" Although the bags of paddy could not bo regarded as " improvements v theywere clearly “ fructus industriales ” and the claim of the plaintiff was based,not on a contractual right under a lease, but upon the equitable principle of theRoman-Dutch law that no one should be enriched at the expense of another.This principle applied to the case of a bona fide occupier equally with that of abona fide possessor..
Held further, that the plaintiff was entitled to compensation as from22nd March 1963. He acquired all the fruits gathered by him before the litisconstestatio, whether they had been consumed or were still in existence.
Ar
PEAL from a judgment of the District Court, Batticaloa.
H. W. Jayawardene, Q.C., with S. H. MoTiamed, P. Edirisuriya andM. S. Aziz, for the 1st Defendant-Appellant.
No appearance for the 2nd Defendant-Appellant.
C. Ranganathan, Q.C., with S. G. Crossette-Thambiah and C. Sandra-sagara, for the Plaintiff-Respondent.
Cur. adv. wit.
ALLES, J.:—Mohideen v. Mustapha425
September 16, 196S. Alles, J.—
The plaintiff instituted this action against the defendants on twocauses of action. On the first cause of action, he alleged that the -defendants wrongfully and unlawfully prevented him from removing aquantity of paddy which he had harvested from a field called KekkaraiChenai. The first defendant was the owner of this field, and, accordingto the plaintiff, about September 1962, the first defendant allowed himto use and occupy the said land for the 1962/1963 Munmari cultivationseason on the plaintiff delivering a certain quantity of paddy as groundrent for the said cultivation. The plaintiff maintained that he cultivatedthe said field, reaped the crop, threshed it and realised 59 avanams ofpaddy, a certain quantity of wet paddy and chaff paddy, all valued atRs, 5,924.
On the second cause of action, the plaintiff claimed that the defendantshad token possession of certain articles valued at Rs. 480/- belongingto him from the wadiya situated on the field. The first defendant, asowner of the field, averred in his answer that he utilised the servicesof the plaintiff to assist him in cultivating the field by supervising thelabourers and getting the work done, for which the defendant paid theplaintiff then and there? But when he gave evidence he took up thecontradictory position that there was some remuneration due to theplaintiff when the paddy was harvested but that no payment could bemade until he had looked into the accounts. The second defendantis a Vatte Vidane of the area and when the harvest was reaped, he tookcharge of the paddy and two days later handed it to the first defendant.-The learned trial Judge has disbelieved the evidence of both defendantsand in regard to the second defendant he has held that he assisted thefirst, defendant to take charge of the crop when he was aware that'there was a dispute between the first defendant and the plaintiffregarding the ownership of the crop.
The learned trial Judge, in a carefully considered judgment, hasaccepted the evidence of the plaintiff that the field was handed over tohint by the first defendant for the purpose of cultivation and that it wasagreed between the parties that the first defendant should be paid 12avanams of paddy as ground rent. The plaintiff commenced cultivationoperations in September 1962—he hired a tractor from the son-in-lawof the first defendant and employed about nine or ten labourers duringthe sowing operations. He endeavoured to get a writing from the firstdefendant several times but the first defendant on one pretext or anotherput him off and did not give him any writing. Early in October 1962, heinterviewed the Vatte Vidane and the Cultivation Superintendent andwanted dappu entered in his name but the Cultivation Superintendentwas not able to comply with his request until he produced a chit from thefirst defendant as owner. In January 1963, he wrote the letter P3 to thePresident of the Cultivation Committee informing him that he hadcultivated the field upon a verbal lease from the first defendant and
426
ALLES, J.—Mohidecn v. Mustapha
requesting that permission be granted to him to deliver the paddy underthe Guaranteed Price Scheme, and receive payment. After harvestingthe crop, and commencing to thresh the paddy, he met the first defendantand informed him that the harvest was threshed and ready to be removedand requesting him to come to the field on 21.3.63, to take his share of theground rent. The plaintiff maintained that although the first defendantstated that he had given him 10 avanams of paddy sowing, he was onlygiven 6 avanams and was only prepared to give G avanams as ground rent.Tire first defendant refused to accept this sum and' insisted on groundrent being paid at the agreed amount of 12 avanams. The learned trialJudge has rightly, in my opinion, given credit to the first defendant for12 avanams in pursuance of the agreement between the parties.
On 21.3.03, when the paddy was ready for removal, the first defendantdid not come to the field and on 22.3.63, about S a.m., the plaintiff madearrangements to transport the paddy from the field and engaged a tractor,trailer and a lorry. The first defendant came there about 9 a.m. anddemanded the ground rent of 12 avanams ; there was an altercationbetween the plaintiff and the first defendant and the first defendantrefused to allow the plaintiff to remove the paddy or to give him a chit.The plaintiff got alarmed, went in search of the Vatte Vidane and theCultivation Superintendent and failing to meet them, made a complaintto the Police at 1.35 p.m. and sought Police assistance to remove the paddyand his articles from the field. The Police arrived for inquiry to prevent'a breach of the peace but the first defendant refused to allow the removalof the padd} Some of the paddy was transported to the house of thesecond defendant ; this paddy together with the paddy which was on thethreshing floor, was subsequently handed by the second defendant to the•first, defendant.
On the evidence which has been accepted by the learned District Judge,it is quite clear that the plaintiff, in pursuance of an agreement Avithfirst defendant, cultivated the field, reaped the harvest and claimed thathe was entitled to the ownership of the paddy provided he paid theground rent to the first defendant. The learned trial Judge has acceptedthe evidence of the plaintiff that 57 a vanams of padd}' were reaped andgiving credit to the first defendant for 12 avanams has given judgment infavour of the plaintiff for 45 avanams of paddy on the first cause of action,and Rs. 4S0 for the articles claimed by the plaintiff on the secondcause of action. I agree Avith Mr. Jayewardene that the learned trialJudge has erroneously held that the plaintiff is entitled to compensationfor ‘ improvements 5 effected by him (the improvement in question beingthe paddy crop cultivated by him), on the basis that he was a bona fidepossessor. The paddy crop could not be considered as an improvementto the land because after it is reaped the land would be in the samecondition as it Avas before the paddy was sown and consequently cannotbe termed an ‘improvement’. Counsel cited in support the case ofMadanaydke v. Narikar 1 where De Sampayo, J. held in regard to expenses
i (1919) 6 C. W. R. 7.
ALLES, J.—Mohideen v. Mustapka
427
incurred in preparing a field for cultivation that ‘' improvements must.beof a kind which will permanently enhance the value of the land ”, and thatsuch expenses were nob improvements. This view has been supportedin other judgments of the Supreme Court—vide Muttiah v. Clements J,where Bonser, C.J. stated that ” the right to compensation arises whenone who is in possession of the property of another expends money onthe property either on necessary maintenance or improvements which'permanently increase the value of the property.”
I also agree with Counsel for the appellant that the agreement in thiscase is null and void in view of section 2 of the Prevention of FraudsOrdinance. Counsel for t he appellant submitted, that since the agreementwas one that was null and void, the plaintiff was not entitled to'claimthe value of the paddy harvested bv him by virtue of the agreement andrelied on sections 91 and 92 of the Evidence Act. . To permit Counsel’ssubmission to succeed would amount to an injustice to the plaintiff,who, after expending labour and trouble in harvesting.the crop, wouldnot be legally entitled to any share of the produce because the agreementwas not in conformity with section 2 of the. Frauds Ordinance. AsMr. Ranganathan submitted, the question .for consideration in this caseis whether the plaintiff is entitled to the- movables, i.e., the paddy and(he implements which have been wrongfully retained by the firstdefendant.
In view of the findings of the learned trial Judge that the paddybelonged to the plaintiff ]>rovided he paid the first defendant 12 avanamsof paddy as ground rent, it is now necessary to consider the legal position.Although the bags of paddy cannot be considered as * improvements 5 theyarc clearly * fructus industriales ’ and the claim of the plaintiff is based,not- on a contractual right under a lease, but upon the equitable principleof the Roman-Dutch law that no one should be enriched at the expenseof another. This principle applied to the case of a bona fide occupierequally with that of al bona fide possessor (Per Solomon, J. in Fletcher <t*Fletcher v. Bulawayo Waterworks Co. z), and was first recognised in theSouth African case of Rubin v. Botha 3. The plaintiff vas not a bona fidepossessor as he did not have the possessio civilis and the detentio animodomini, nor was he a lessee since the lease was null and void but he enteredthe field with the leave and licence of the owner,-sowed the paddy at hisown expense in the bona fide belief that he would be entitled to theharvest on payment of the ground rent. As such, he had the rights of thebona fide possessor and was entitled to compensation. The principleson which a bona fide occupier was entitled to compensation have beenstated by Bertram, C.J. in Appuhamy v. The Doloswala Tea & RubberCo. 4, which was a case in which the lessor and lessee claimed compensa-tion from the owner. He said :
“ That a lessee has not the civilis possessio is undoubted, but it may besuggested that the rights of the bona fide possessor were emphasizedin those chapters (Voet * De hereditatis petitione ’ and ‘ De rei
(1900) 4 N. L. R. 58 at 162.* (1911) A. D. 568.
(1915) A. D. 636.'<(1921) 23 N. L. R. 129 at 134.
428
ALL.ES, J.—Mohidten v. Mustapha
vindicatione ’) not because of the importance attached to his Civilispossessio, but, on the one hand, because of the importance attachedto his bona fide3, and, on the other, because of the maxim, cited in thisconnection, “ lure naturae aequum'est neminem cum alterius inuriafieri locupletiorem.” (For instances of the generality of this maximsee Voet VI. 3. 52.) There is nothing in that maxim which requiresthat it should be limited to persons holding the civile possess to.”
Although in Ceylon the concept of the bona fide occupier has not beenexpressly accepted, yet it has been recognised in various forms in whichcompensation has been given to persons who are strictly not boria fidepossessors. In Martelis Appu v. Jayawardene x, Hutchinson, C. J. heldthat “ a man who takes possession in the mistaken belief that he has agood title, or that he is certain to obtain one, whether his mistake be offact or of law, cannot be said to do. so mala fide ” and was entitled tocompensation for improvements. In The Government Agent, CentralProvince v. Letchiman Chetty 2, it was held that the Government Agentwho took possession of land under the Land Acquisition Ordinance andeffected improvements on the expectation of the formal title, which ingood faith he believed himself certain to obtain, may be a bona fidepossessor. In Davith Appu v. Bahar3 Bertram, C-J- recognised theright to compensation of a person who effected improvements on land onan informal grant, subsequently repudiated, and though he did not usethe term bona fide occupier, he held that “ it certainly extends thedoctrine of the rights of a bona fide possessor to compensation forimprovement and is thus a development of the law.” In BandiralaVidane.v. Kiri Banda 4, in a case where a son claimed compensation fromhis father for improvements on a land which had been gifted to him butthe donation subsequently repudiated, Bertram, C.J. said : “ the rightto compensation for improvements is primarily based on bona fide
possessionbut it is not confined to this. In certain cases a person
may have executed improvements under such circumstances that thoughhe is not technically speaking a bona fide possessor he ought to have therights of a bona fide possessor.”
This right of a person, who has entered into occupation with the leaveand licence of the owner and made improvements entitling him tocompensation and the ius reteniionis in the same manner as a bona fidepossessor, has been recognised in Nugapitiya v. Joseph5 by Garvin. J.who referred to the development of the law by the expansion of thedoctrine of the rights of a bona fide possessor to compensation for improve-ments to a class of persons who have not had the possessia civilis. OurCourts have recognised the grant of compensation to such persons,following the principle laid down in Nugapitiya v. Joseph—vide WilliamSilva v. Atiadesi Thero6 and Dharmaratna v. Perera1. I am therefore
(1908) 11 N. L. R. 272.*(1924)2TimesLaw Reports124.
(1922) 24 N. L. R. 36.»(1926) 28 N. L. R. 140.
(1923) 26 N. L. R. 73.* (1962) 65 N. L. R. 181.
7 (1963) 66 N. L. R. 345.
Premadaaa v. The Queen
42d
satisfied that the learned trial Judge came to the correct conclusionthat the plaintiff in this case, on the principles set out above, was entitledto claim compensation for the paddy harvested by him with the leave andlicence of the first defendant.
It was conceded by Mr. Jayewardene, that if the plaintiff was entitledto compensation for the paddy on the footing that he bad the samerights as a bona fide possessor he acquires all the fruits gathered by himbefore the litis contestatio whether they have been consumed or are stillin existence. (Vide Maasdorp Vol. II, 7th Edn. p. 57). In Lee’scommentary to Grotius (‘Jurisprudence of Holland ’) Vol. II p.'85, hestates that according to Roman law, the bona fide possessor wasaccountable to the owner for fruits gathered but unconsumed at thedate of litis contestatio but in the Roman-Dutch law “ by gathering thefruits the bona fide possessor acquires in every case an ownership whichis plenary and irrevocable” and he cites in support Voet 41.1.33.
The plaintiff was therefore entitled to the paddy which he had reapedand which was ready to be transported by him on 22.3.63. In regardto the second cause of action, the plaintiff’s evidence is respect of thearticles left behind by him at the wadiya was uncontradicted. In theresult, the plaintiff’s claim on both causes of action was entitled tosucceed. We would therefore dismiss the appeals of the two defendantswith costs payable jointly by both defendants.
Pandita-Gunawardene, J.—I agree.
Appeals dismissed.