352—D. G. Kegdllx, 7,167.
Jus retentionis—Improvement of land on informal agreement?—Knowledgeand consent of owner—Right to compensation.
– Where a person effected an improvement on land with theknowledge and consent of the owner and upon the latter'srepresentation that he would be allowed to possess it as long as• he wished, upon the payment of a specified ground rent.—
Held, that he was entitled to retain possession of the land untilhe was compensated.
Y an agreement dated July 3, 1012, which was not notariallyattested, H. A. Molligoda purported to grant to the defendant
a certain allotment of land for him “to build a tiled boutiquethereon “ subject to the condition that upon the payment of a groundrent of Es. 5 per mensem the defendant was at liberty to stay in theboutique for any length of time. The defendant entered uponthe land and built a house in compliance with, the terms of theagreement. On October 20, 1919, Molligoda sold the premises tothe plaintiff, who brought the present action to eject the defendant.In his answer* the defendant claimed compensation for the improve-ments effected by him and the right to retain possession until hewas compensated. The learned District Judge held that he wasentitled to compensation, but not to the jus retentionis.
Keuneman, for defendant, appellant.
H. V. Per era (with Ranaivake), for plaintiff, respondent.
fCur. adv.
( 141 )
May 14, 1926. Gabvin J.—
The question raised by this appeal it. whether the appellant is•entitled to the jus re ten tionis in respect of improvements effectedby him on a land of which the respondent is now the owner. Byan agreement dated July 3, 1912, which was not notarially attested,one H. A. Molligoda, the then owner of this land, purported togrant to the appellant a certain allotment of land for him “ tobuild a tiled boutique thereon " subject to the condition inter aliathat upon payment of a ground rent of Rs. 6 per mensem the.appellant was to be at liberty to stay in the house built by him"for any length of period/' This agreement is in Sinhalese, andthe translation, as usual, is not very satisfactory, but in substancethe agreement seems to be that upon payment of ground rentof Rs. 5 the appellant was to have the right to the enjoyment ofthe boutique built by him as long as he wished. The appellantentered upon the land, built a house, and in compliance with theterms of what he believed to be a binding agreement regularlypaid this ground rent of Rs. 5. On October 20, 1919, Molligodasold the premises to K. B. Nugapitiya, his son-in-law. On June 9,1925. Nugapitiya brought the present action asking for declarationof title to the laud and that the defendant, i.e-., the appellant,be ejected therefrom. The plaintiff has ignored the agreement andhas chosen to treat the defendant as a trespasser. The defendantin his answer claimed compensation for the improvementseffected by him and the right to retain possession until he wascompensated. The learned District Judge held that the defendantwas entitled to compensation, but that he was not entitled to thejus rvtentioms in respect of the house built by him. The defendantappeals both from the order of compensation as well as from therefusal of the District Judge to recognize his claim to retain the pre-mises until compensation is paid. He has also appealed from•an award of damages made in favour of the plaintiff. There canbe no doubt that the appellant had a good and enforcible right tocompensation as against Molligoda. It is not necessary' to considerwhether the right to compensation is available against Molligoda’svendee. The plaintiff 1ms acquiesced in the order fdr compen-sation made against him, and the whole argument in appeal hasproceeded upon the footing that the rights which were available tothe appellant against Molligoda are available against the plaintiff.The question we have therefore to decide is, whether in respect ofthe improvements made by him the appellant was entitled as againstMolligoda to retain possession of the house he built until he wascompensated. It is a principle of the Roman-Dutch law relatingto compensation for improvements that a person who has the■po88e88io civili8 has an absolute right to be compensated forimprovements made by him and a right to retain possession where
v, Joseph
Garvin J.
WugapiHyac. Joseph
( ' )his possession was bona fide until compensated. A peirson is saidto have the possessio civilis if he is in possession with the intentionof holding the property as owner. The appellant is clearly not apossessor in that sense. It is contended that his possession isakin to that of a lessee. It is well established law in this Colonythat a lessee has no possessio civilis, and that the rights to compen-sation conceded to a lessee are of a strictly limited characterand are only available against his lessor. But is it competentfor a lessor, who repudiates his lease because the failure to complywith certain requirements enables him to do so, to deny ,his lesseethe benefits of’ the lease, and at the same time to limit the improver’srights to compensation by the very lease which he repudiates?The lease admittedly is null and void. If the lessor is free from theobligations imposed upon him by the lease, so also is the lessee.What is the position of a person who is found in possession ofland under these circumstances? He is not a bona fide possessor.i<St his possession cannot possibly be said to be detentio animodomini. He is not a lessee, because the lease is null and void.He is a person who has entered upon a land and has improved itunder the bona fide belief that he was entitled to possess andenjoy his improvements so long as he pleased. There is a furtherfact which has an important bearing on the question, and this isthat the improvements were made with the knowledge and consentof Molligoda. The case we have to consider, therefore, is that ofa claim for compensation by an improver against the owner of aland for an ’ improvement made by him with the knowledge andconsent of that owner and on the representation of the ownerthat if he made the improvement he was to have the right to-possess and enjoy it for so long as he wished on payment of thespecified ground rent. Such a person has not the~possessio civilis.T|ns is a circumstance which may deprive him of the right to claimcompensation in other cases, but where, as in this instance, hiscUim is in effect against the person with whose knowledge andconsent those improvements were made, it has been found possibleto give him the rights of a bona fide possessor though in point offact he has not the possessio civilis. In the case of Mohamadu v.Babun,1 the defendant in an action for declaration of title andej&ctnient pleaded that he built a house standing on the land,that he made the plantation thereon with leave and licence of theowner, and that he was therefore not liable t*o be ejected untileo'mpensated for the improvements. Pereira J. held that in thosecircumstances he was entitled io all the rights of bona fide possessor,including a right to retain possession until compensated. Thecase of Mohamadu v. Babun (supra) is referred to by Bertram C.ti-ro the case of Davithappu v. Baker,2 who regards it as development
* {191$) 2 C. A. C. 86.* {192$) 2$ .V. L. R. 73.
( 143 )
of the law by the extension of the doctrine of the rights oif a bonafide possessor to compensation for improvements, to ar'class of personswho have not the possessio civilis. W*th all respect, it does notseem to me that relief in this case was granted treating thesepersons as having a utilis possessio which is akin to possessio civilis,us is suggested by the same learned Judge in the case of Appuhamyct al. v. Tdte Doloswala Tea & Rubber Co.1 The result is reached bythe extension and application of another rule, which is, that an ownerwho acquiesces in the making of improvements is estopped fromd'sputing the right of the improver to be compsnsated on the samefooting as a bona fide possessor. In Eliyatamby vt S'nnatamby2ihe rights of a bona fide possessor were accorded to an improverwho was a mala fide possessor. This case is based on the case ofThe General Ceylon Tea Estates Co., Ltd., v. Pulle.* That was aclaim by a mala fide possessor, and it was held that the rightsof a bona fide possessor, including the right of retenticn, would beconceded to mala fide possessors in cases where the owner of theproperty stood by and allowed the improvement to be made.In the case of Do Beefs Consolidated Mines v. London & SouthAfrican Exploration Co.4 the following passage in Maasdctp wasquoted with approval: —
‘ A mala fide possessor is in the position of a spoilator who isbound before all things to restore that which he hasobtained by spoliation, and therefore he is not entitled toa right of retention, but is bound to restore the land beforethe question of compensation can be raised by him; but ifthe owner of the ground has stood by and allowed the build-ing to proceed without any notice of his own claim, the malatide possessor will, through the fraud of the owner, be placedin the same position as a bona tide possessor and entitled tothe same right af retention
The mala fides of the possessor is assumed, and the special reliefgranted does not proceed upon any princ ple by which such a posses-sor is to be deemed in certain circumstances to be a bona fidepossessor. The true principle is that the owner who stands byand acquiesces in the acts done by a mala fide possessor is estoppedby his own “fraud ” from pleading the mala fides of the possessorin order tha^ he may take the benefits of the improvements himselfwithout paying compensat'on at all*. Applying this principle tothe facts of this case, as it has been done by Pereira J. in the caseof Mohamadu v. Babun (supra), the appellant would seem entitledto all the rights of a bona fide possessor, noi because he is to bedeemed to have the civilis possessio or something akin to it in theway of utilis possessio, but because the owner who stands by—and
{1922) 23 N. X. E. 129.8 {1906) 9 N. L. R. 93.
2 Weerakoon 64. 'O. 359.
Garvin J.
N ugapitiyav. Joseph
( 144 )
1926. in this instance induced the improver to make the improvementfJAitviv .T 0,1 a representation that lie was to enjoy it so long as he likea—
wi)] no& be permitted to deny the improver’s status jto claim compeii-
sa^on so that he may take the full benefit of the improvementand enrich himself at the iinjiroYer’s expense. In this view of thelaw the appellant is entitled to retain possession till he is com-pensated. It remains for me to deal with two subsidiary pointswhich were taken in the course of this appeal. The learned Disftriev•Judge has assessed the value-of the build’ng at Rs. 000, from thhhe has ordered that the value of the tiuiber which was suppliedby Moliigoda should be deducted; but in doing so he has directedthat the amount so to be deducted should be Its. 250, which wasthe value of the timber in the year 1012. The present value olthe timber is Es. 150, and the sum that, should be deducted fromthe present value of the building is the present* value of the timber.It remains for me to consxler whether the District Judge is riglnin awarding damages to the plaintiff at the rate of Its. 10 permensem. It is said 'dnit the plaintiff told the appellant that beexpected him to pay Rs. 10 for the use of the premises. He isnot prepared to say that the appellant agreed to do so. If theplaintiff did not wish to permit the appellant to continue inoccupation upon the basis of the informal agreement-, it was opento him to treat the agreement as null and void, as he has since done,,pay the appellant the compensation due to him, and determinehis tenure. He has not done so. He clearly had no right to treathim as a trespasser unless and until he had been fully compensatedfor the improvements. In my opinion he is not entitled to recoverfrom the appellant anything more than Es. 5 per mensem, whichwas all that ‘the appellant was liable to pay by way of ground rent.
I would therefore sefr aside the judgment of the District Judgein so far as he has denied the appellant the ju* rctentiovis to whichhe is entitled. In respect of the oompensat:on the District Judge’sassessment of Rs. 600 will remain, but* the amount to be deductedin respect of timber supplied by Molligoda will be reduced fromRs. 250 to Rs. 150. The amount payable by the appellaut to theplaintiff will be assessed on the basis of Rs. 5. and not Rs. 10. Idirect that a decree be entered accordingly.
The appellant is entitled to the costs both here and in the Court •below.
Lyalt. Grant J.—I agree.
Appeal allowed.