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1913.Present: Lascelles C. J. and Pereira. J.
PERERA v. PELMADULLA RUBBER AND TEA CO. et. ol.
22—D. 0. Ratnapura, 1,873.
Co-owner—Right to compensation for improvements effected by him—
Is bona fide possessor obtaining a certificate of quiet possessionentitled to compensation from owner f—Ordinance No 12 of1840, s. 7.
A co-owner building on ^common property has no larger rightsto compensation than a bona fide improver of property which wasnot his own. He is entitled to either the value of the improvements,that is, to * the difference between the original and the enhanced.value of the property, or to the costs of improvements, whicheveris less.,•.'
A bona fide possessor paying a sum of money to the Crown forobtaining a certificate of quiet possession was held not entitled toclaim that, sum as compensation for improvements from the ownerof the land.-
Lascelles C.J.—There can be no objection as to the advantageof paying off a mortgage on a property, but the advisability ofobtaining a certificate of quiet possession may vary according to
circumstances and the position of the owner Ordinance
No. 12 of 1840 lends no sanction to the curious system whichseems to have grown ..up of practically selling the land at a fixedrate per acre and then issuing a certificate of quite possessioninstead of a Crown grant.
Per Pereiba J.—The expression “value of improvements” iiisection 5 of the Partition Ordinance means what the party whohas effected the improvements is, in law, entitled to receive ascompensation for the improvements.
N this case the plaintiff sought tp partition a land called Galande-;
pelapanguwa, in extent about 100 acres, which consisted ofseveral chenas, and which formed part of Rilhene estate, whichbelonged to the defendant company.
The learned District Judge (Allan Beven, Esq.), after discussingthe facts, made the following order:—
The value of the rubber , is estimated at Rs. 250 to Rs. 400 an acre,but I doubt whether the first defendant company can claim that sum.
A bona fide possessor is not entj£$nj to claim, more than was actually .expexj^kl, but may include thg^volue of labour in such expenditure(J CfSlJ. 22). 1 put this down roughly at Rs. 100 an acre on Mr.Hawkm*s evidence. The plaintiff wj|l/therefore have to pay at thatrate per acre, plus his proportionate share for the certificate of quiet
, before he enters in|o possession of his 10/18,
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I understand’ some 8 acres have been, set aside, unplanted, for thesecond minor defendant. If, however, there is to be a partition, hemust come in and pay equally if his guardian ad litem wishes to havehis chare from the planted portion, but the Commissioner appointedto divide the land will, as far as possible, apportion to him the portionunplanted for his share.^
Enter an interlocutory decree for partition as follows:—Plaintiff to
10/18tbs of the land; first defen lapt company to 7/18ths; tho second
defendant to l/18th.
The Commissioner in partitioning the land will estimate the plantedportion at Rs. 100 an acre, at whicn rate plaintiff will have to pay firstdefendant company for his share (viz., 10/18) before he can erfter intopossession, plus his proportionate share of Rs. 1,000 for the certificateof quiet possession.»-I
The second minor defendant to get l/18tl^of the land from theimplanted portion.‘j)
As regards costs, I think the fairest order would be that each party
should bear its own costs, because if plaintiff has won on the, questionof title, the first defendant comp iny is entitled tjo the cost pi proving
his right to compensation.
Costs of partition will be borne pro rata.
The first defendant company appealed.
The plaintiff-respondent filed
a statement of
Civil Procedure Co^eiv
. Q&lmntmyo; K.6*-, far first defendant, app4Uant.c. L.,
-• s 5" v -Af •• •- .*
> – .-• /• V
A: Si. V. fayewardene, toy plaintiff, respondent. *
May .14. 1918. Las<
Cur. adv. vuIt.
Then it is said that the learned District Judge was wrong inestimating compensation, on the footing that the first defendant-appellant is not entitled to claim' more than was actually expended'on the improvements. But the judgment in this respect is inaccordance with the principles laid down by this Court. In SilvaV.- Babunhamy 1 this Court was not prepared to hold that a co-owqe/building on common property had any larger rights to compensationthan a bona fide improver of property which was not his own. Theright of the latter is to either the value of the improvements, thatis, to the difference between the original and the enhanced valueof the property, or to the cost of the improvements, whichever isless. In this connection I may note that English Courts of Equity,in partition actions, have followed the same principle. The allow-ance to which the improving co-owner is entitled extends to the*amount by which the value of the property, estimated • at thecommencement of the action, has been increased, not exceeding*
Peremc.PelmadvUaBobber andTea Co.
1 (1915) 16 N. L. B. i£
Foreran.FelmaduflaMtibber andTea Co*
the amount expended (Watson v. @asstl Be Jones Farrington v.Forrester 2). I do not think that any exception can be taken tothe decision on this ground.
I now proceed to deal with the plaintiff-respondent’s cross objec-tions. He objects, in the first place, that the compensation payableby the plaintiff should be restricted to the 97 acres planted beforethe receipt of the letter P 8 dated February 6, 1911. The contentioniB that the first defendant, after the receipt of that letter, ceasedto be a bona fide possessor. This letter was addressed to Mr.Hawkins by Mr. Gunawardene, on behalf of the plaintiff-respondent,stating his client’s claim to 11 /18th shares in the land, and givesnotice to Mr. Hawkins not tp plant the whole of the panguwa. Theplaint in the action was filed on February 24, 1911. It is thus notvery material whether the date of the letter or the date of the insti-tution be taken as the point when the plaintiff ceased tp have therights of a bona fide possessor, for it is clear that he cannot claimany allowance for improvements effected after litis contestatio.The compensation, I think, should be limited to improvementsmade before this date.
Next, the plaintiff-reBpondent objects to being called on to paycompensation for his share of the Bs. 1,000 paid for the certificateof quiet possession. It is contended by the plaintiff-respondentthat His position is analogous to that of a possessor who has paidoff an encumbrance; that he has improved the land; and that thetrue owner is not entitled to have the benefit of this improvementwithout paying for it. I do not think that there is any true analogybetween the two cases. In the one case the possessor frees theland from a charge which is enforceable at law; he confers anunquestionable benefit upon future owners of the property. Buta certificate of quiet possession affords protection against a merelycontingent danger, against a claim which possibly may never be setup by the Grown. There can be no objection as to the advantageof paying off a mortgage on a property, but the advisability ofobtaining a certificate of quiet possession may vary according tocircumstances and the position of the owner. What is to theadvantage of a joint stock company is not always necessary oruseful to a private owner.
But there is another consideration. The purchase of a certificateof quiet possession at a fixed price per acre' is a proceeding unwar-ranted by law. Under section 7 of Ordinance No. 12 of 1840, ifthe Government Agent is satisfied on investigation that the GrownhaB no claim to this land, it is his duty, with the consent of theGovernor, to grant a certificate to that effect. If the Crown hasno claim to the land, the applicant becomes entitled ex 'debito justifiesto the certificate. On the other hand, if the Crown has any claimto the property no certificate should be given. The Ordinance lendsi fm2) M h. J. (Cfc.)480.* (2698) 8 Ch. 462.
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no sanction to the curious system which seems to have grown up *913.of practically selling the land at a fixed rate per acre and thenLasoellbb
issuing a certificate of quiet possession instead of a Crown grant.
I think that the plaintiff is not chargeable with any part of the Pererav.cost of these proceedings.
The remaining cross objection is with regard to costs. The Tea Co.plaintiff-respondent contends that he should not have been deprivedof the costs of the contest. In view of the plaintiff’s delay in comingforward with his claim, I would not disturb the order as to costs.
In the result the appeal should be dismissed with costs; but thedecree should be modified (a) by directing the Commissioner, inestimating compensation, to exclude any land planted after February7, 1911, and By deleting so much of the decree as orders theplaintiff to pay his proportionate share of the Bs. 1,000 paid forthe certificate of quiet possession.
I agree, and I would add that under section 5 of the PartitionOrdinance the Commissioner appointed to make a partition has todo so with reference, inter alia, to the value ofi any improvementsmade on the property to be partitioned. In my opinion this ex-pression—" value of improvements ”—means no more than whatthe party who has effected the improvements is, in law, entitled toreceive as their value. In the case of a bonoi fide possessor, whathe is entitled to receive as the value of improvements effected byhim is the amount by which the value of the whole property onwhich the improvements have been, effected has been enhanced byreason of the improvements, or the actual expenditure incurred ineffecting the improvements, whichever is less. In the circumstancesof this case, the first defendant is . in the position of such apossessor.
Appeal dismissed; cross appeal allowed..
PERERA v. PELMADULLA RUBBER AND TEA CO. et al