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Present: Mr. -Justice Middleton and Mr. Justice Grenier.
Feb. 4, .1949
PUNCHIBALA v. M0H1DEEN et al.
D. C., Kandy, 18,626.
Improvements ejected by lessee—Compensation—Jus retentionia.
A lessee who has planted trees on the leBBor’s land,, with the consentand acquiescence of the lessor, is entitled to the mere cost of theplanting at the time of planting, and the lessee has a tacit hypothecfor the amount of that cost in the land improved by it, but has nojus retentionis. If there was no acquiescence or consent, then the• lessee is entitled to nothing.
HE facts material to this report are set out in the judgmentof Middleton J.
A. St. V. Jayewardene, for the plaintiff, appellant.
F. de Silva, for the defendants, respondents.
Cur. adv. wit
February 4, 1910. Middleton J.—
This is an appeal from a judgment in favour of the plaintiff forthe land in dispute, but permitting the first and fourth defendantsto remain in possession until the payment of compensation by theplaintiff for the tea planted thereon by the first and fourth defend-ants, and further dismissing the plaintiff’s action against thesecond and third defendants with costs. The second and thirddefendants were employes of the first and fourth, and were inpossession through them. . They, however, disclaimed title, and didnothing to prevent the plaintiff recovering possession. The evidenceshows they helped first defendant in his boutique, but there isnothing to 6how they had anything to do with the land.
I think the judgment in this respect must stand therefore. Asregards the first and fourth defendants, they are not, strictlyspeaking in the eye of the law, possessors at all, but lessees fromthe plaintiff. They cannot, therefore, be in the position of bona fideor mala fide possessors, and their claim toe compensation mustdepend on their position as such lessees. If it is proved that thelessee had planted trees on the lessor’s land with the consent oracquiescence of the lessor, then the lessee is entitled to the mere costof the planting at the time of planting, and the lessee has a tacithypothec for the amount of that cost in the land improved by it,,but has no jus retentionis. If there was no acquiescence or consent,,then the lessee is entitled to nothing.
TJ. K. A 8916S(S/»)
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F«b. i, 1910 Thia, I think, may be clearly inferred from Van Der ICeesol 215;ttfmnr.urmTT Maaadorp, vol. 11., 56; as derived from the ruling in the case of DeJ.Beer'8 Consolidated Mines v. London and South African Exploration
Pnniiftfrnfrr « quoted by Mr. Walter Pereira jn his little book on the Bight ofv, Mohideen Compensation for Improvements. I think also that tea is rathermore than a plant properly so called, and in its class as a shrub maybe more correctly reckoned amongst trees than plants properly socalled, which Van Der Keesel states may be removed by a lessee.
I think that the burden of proof was on the defendants claimingthe right of compensation and hypothec to show that they planted. the tea in question with the acquiescence or consent of the plaintiff.
We called upon the first and fourth defendants’ counsel to showthat this had been done by the evidence in the record; but it isclear that this point was not, as it ought to have been, in issue beforethe Court at the trial, and that it was not even incidentally proved.
It was the duty of the first and fourth defendants to have madeout their case on this point, and they have failed to do so; and inmy opinion, therefore, the judgment of the District Court must bevaried by depriving them of the compensation awarded therein.In other respects the judgment will stand. The first and fourthdefendants will pay plaintiff’s costs in both Courts.
[His Lordship stated the facts, and continued.]
On the third issue, which involves the question whether the teaplantation now on the land was made with or without the consentof the plaintiff, there is no finding by the District Judge, who hadoply found as to the bare amount of compensation. On the deter-mination of that question, the first and fourth defendants’ claimfor compensation largely rested. It was open to the first andfourth defendants to prove consent or acquiescence, but there is noevidence that I can find in the record in support of either. Allthat the District Judge finds is that the first and fourth defendantsbona fide improved the land. This is not enough to discharge theonus cast by the third issue on the first and fourth defendants toprove consent or acquiescence. . . ..
PUNCHIRALA v. MOHIDEEN et al