110-NLR-NLR-V-48-PEERIS-Appellant-and-APPUHAMY-Respondent.pdf
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KEUNEMAN A.C-J.—Peeris v. Appuhamy.
Present; Keuneman A.C J. and Wijeyewardene S.PJF.
1947
PEERIS, Appellant, and APPUHAMY, Respondent.
S. C. 300—D. C. Pwnadure, 422.
Co-owner—Plantation on common property—Acquiescence of other co-owners—
Right to possession.
A co-owner who makes a plantation on the common property with theconsent of the others is entitled to possess the entire plantation untilcommon ownership is terminated by a partition action.
Semble : This principle may not apply where the improvements havebeen made against the wishes or without the acquiescence of the otherco-owners.
^^PPEAL from a judgment of the District Judge of Panadure.
H. A. Koattegodde, for the defendant, appellant.
Vernon Wijetunge, for the plaintiff, respondent.
Cur. adv. vult.
July 16, 1947. Keuneman A.C.J.—
The plaintiff brought this action, claiming to be declared entitled topossess the rubber plantation on the land in question, under lease P 1 ofDecember 28, 1942, from Bastian Perris, and asking for damages. TheDistrict Judge entered judgment for plaintiff, and the defendant appeals.
The land at one time belonged to Machohamy, the wife of BastianPeiris, and to her sister Nanohamy. Nanohamy sold her half share byP 2 of July 10, 1921, to Bastian Peiris. Later Machohamy died leavingas her heirs, Bastian Peiris and her son the defendant. The defendantwho claimed title to a Jth share of the land and the rubber trees forciblytook possession of 30 rubber trees out of the plantation of 130 trees.
The District Judge has held on the evidence that Bastian Peiris plantedthe rubber after his purchase from Nanohamy, and in his own right andnot for bis wife. Bastian Peiris himself gave evidence to this effect, andhis evidence was accepted by the District Judge, and I see no reason todisagree with this finding. It is also in evidence that immediately afterthe execution of P 1, Bastian Peiris placed the plaintiff in possession ofthe whole rubber plantation of 130 trees, and the defendant subsequentlydispossessed him in respect of 30 rubber trees.
Counsel for appellant argued that as the defendant was a co-owner ofthe land, he was entitled to a 1th share of the rubber trees as well as thesoil, and that the action of the plaintiff is misconceived.
For the defendant it is argued that the improving co-owner was entitledto be in possession of the whole plantation and was entitled to mesneprofits, and that an alienee from the improving co-owner was entitledto the same rights, at any rate till the rights of the parties were finallydetermined in a partition action.
In Silva v. Silva1 Lascelles C.J. said “ It is difficult to see on whatprinciple an improving co-owner, who is entitled to compensation, can be
1 {1911) IS N. L. R. 79.
John Singho v. Pedris Hamy.
345
excluded from the benefit of the jus retentions He held that theimproving co-owner was entitled to retain the portion of the property"improved until compensation is paid, as ascertained in a partition action.“ But it is a different matter when the claim takes the form of refusingto give up possession, while the property is still undivided, until a specificsum is paid by the other co-owners as compensation In other wordsthe amount of the compensation payable has to be determined in aproperly constituted partition action, and not in another suit.
In Podi Singho v. Alivis it was held that an improving co-owner isentitled to the fruits of the improvement effected by him. It mustfollow that he is entitled to retain possession of the improvement. Inthis case apparently conflicting decisions were considered and reconciled.
In Amolis Singho v. Mary Nonas, it was held that where a co-ownerplants more than his proportionate share of the common property, he isentitled to possess the entire plantation as against the other co-owners,until the common ownership is terminated by a partition action.
It is possible that on the authorities this view will have to be modifiedto this extent, that it will not apply where the improvement has beenmade against the wishes or without the acquiescence of the other co-owners. In the present case, however, this particular considerationcannot arise, for it is clear that Machohamy acquiesced in the making ofthe plantation.
In this case then I hold that Bastian Peiris was entitled to possessionof the improvement made by him, i.e., the rubber plantation, and that hislessee, the plaintiff, has been rightly declared to be entitled to possess thisplantation, until the rights of the parties are finally decided in a partitionaction. The claim for damages can therefore be sustained.
The appeal is dismissed with costs.
Wijeyewardene S.P.J.—I agree.
Appeal dismissed-