112-NLR-NLR-V-19-SAIBO-v.-BABA-et-al.pdf
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[Full Bench*]
Present : Ennis J., Shaw J., and De Sampayo J.
SATBO v. BABA et al.
4—D.C. Matara, 7,164,
/
Planter's share—Well dug by -planter—Right of retention—Compensation—Improvements.
A planter washeld tohavebeenentitled to retainpossession ofa
well dug by him until he was compensated (Shaw J. dissenting).
Ennis J.—Thediggingof awellby a planter forthe purposeof
the plantation, or as incidental to the right to live on the plantation,is not unreasonable; x itwouldbeunreasonable for the, holder ofa
planter’s share " to turn it into a public bathing establishmentof to sell the water.
Shaw J.—I know . of no authority showing that the planter hasany rights to a well. made by him on the owner’s property. He mayhave a right tomake and usea well ' for the purposeof watering his
plantation, but there is no necessity for this in the present ease,as ' the trees are fifteen years old. He certainly has no right asplanter to the use of awell for profit asa bathingwell.
position is more like that of a. lessee, who, whatever right he mayhave to compensation, has no right of retention.
Db Sampayo J.—It maybe that a plantercannot make awell
except for the purpose ofirrigating the plantation. Butboththe
making and the user of it as a bathing well ■ was acquiesced infrom the beginning by the owner, and I think it is too late andunreasonable now, after forty or fifty years, to raise any question
as to the planter’s.- right to make and use such a well.
» *
A lessee who makes improvements with the consent of the lessor
is entitled to compensation, though perhaps not to retention. Buta planter who is admitted to. be entitled .to a“ planter’sshare " is
not in the same precarious position as- a lessee. He has a sufficientinterest in the land to constitute him a bona fide possessor in respectof improvements outside the actual planting.
T
HE facts appear from the judgment.
– – –
. Drieberg, for appellant.—A planter has no right known to law toa well dug by him upon the land planted,., nor is he entitled to theuse of it for himself and his family for domestic purposes or as abathing well. The utmost extent of his right is to use the waterfrom such well for the purpose of watering his plantation. Thereis no claim by ' prescription,and'no notariallyexecuteddeedhas
been produced. (See Jayasuna v. Omar Lebbe Marcar.1)
* 2 C L. R, 6, .
1917.
1917.
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A plaWer is not a bona fide possessor, and accordingly is not'
Saibo V .Baba entitled to retain the possession of a well dug by him until he isconipensated. His position' is similar to that of a lessee. (SeeLebbe v. ChristieSoysa v. Mohideen.*)
In any case, the planter having taken a lease of the land togetherwith the well (2 D 1), is estopped from claiming any right to thewell against the owner.
q Keuneman, for first defendant, respondent.—The right to dig anduse a well for any purpose is incidental to the right of the planterto live on Idle planted land. A well is a necessity for the purposeof living on the land. Similarly a planter has the right to build ahouse upon the land (D. C. Galle, No. 14,952, Lor. Rep. 201),Planters’ rights can be acquired otherwise than by notarial deedand prescription. In Sinne Wappo v. Mohamadu Alley 3 the FullBench held that a planter can acquire his rights by operation oflaw in the absence of an agreement.
The position of a planter is materially different from that of alessee. He falls within the definition of a bona fide possessor, andis entitled to retain the land until compensated.
No estoppel arises in this case, as the action was brought afterthe termination of the lease. Further, the lease (2 D 1) is badlydrafted, and it is not clear that it was understood by the planterin the Bense 'placed upon it by the owner. • In any case, what wasleased was whatever right the owner had in the well, e.g., the rightof the owner to recover complete ownership in the well by payingfull compensation.
Hayley, for second defendant, respondent.
Drieberg, for plaintiff, appellant, in reply:
Cvr. adv. wit.
March 16, 1917. Ennis J.—.
The plaintiff-appellant is a lessee under a lease from the seconddefendant, dated December 18, 1918, of certain land for five-yearsfrom January 1, 1916.
The property leased is described aB follows: “ Excluding theplanter's share, viz., one-third of the fruit trees on the newly planted
portion, which forms the southern part of the lands the
soil and all the remaining fruit trees of the lands and also
the well existing therein *(.
The plaintiff filed action on March 16, 1916, praying for a declara-tion of title to, and to be placed in possession of, the well and ground,for ejectment of the defendants, and for damages Rs. 228, and furtherdamages at the rate of Rs. 3 per day. The plaint asserted that the
* (1914) 17 N. L. R. 279.
8 8am. (1860-62) 113.
» (1916) 18 N. L. R. 363.
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second defendant, acting fraudulently and. in collision with thefirst defendant, failed to give the plaintiff possession of the welland the ground on which it is. The plaintiff admits that he is inpossession of the rest of the ground and of the trees leased.
The first defendant is the widow of the planter of the plantation.No question as to her right to represent her deceased husband hasbeen raised. It appears in evidence that the husband of the firstdefendant made a plantation and dug the well about forty years ago,that Bb. 100 of the compensation, payable to him under the plantingagreement has been, paid, but further compensation remains to bepaid. The second defendant from time to time leased his interestin the land, and on one occasion the first defendant’s husband,Soils Muttu, took a lease for four years from January 1, 1912. Thesecond defendant’s interest is described in this lease in similar termsto those used in the lease to the plaintiff. As to the well, it appearsthat not only did Solla Muttu dig this well, but it is known as'44 Muttu’s ” well, and he and his wife and family have used it forforty years without any disturbance from any one. It appears tohave been dug as a bathing well, and to have been used by peoplein. the neighbourhood. The second defendant and her daughtershave been in the habit of charging for drawing the water and serviceat the- well at the rate of five cents a bath, while occasionally more.was paid, e.g., by brides.
Solla Muttu’s interest in the land was a “ planter's share Theplanting agreement is not in evidence, but it appears that Solla'Muttu as planter lived on the land. The case turns on the natureand extent of the rights included in a " planter’s share ”, whetherthey can be acquired in the absence of a notarially executed agree-ment, and whether a planter in possession of a.” share ” is entitledto retain possession until compensation is paid. The nature andextent of a “ planter’s share ” have been discussed in Jayewardeneon Partition (page 75-et seq.) In Silva v. Cottalewatte Haminey,1Phear C.J. held that undisturbed user would be evidence of theexistence and extent of the right. In Sinne Wappo v. MohamaduAlley s a Full Bench of the Supreme Cotut held that planters could,claim their rights by operation of law, and not as a consequence ofany agreement between them, and that the absence of a writtenagreement is not fatal to the claim. I presume that this meansthat a person who has planted, and is bona fide in possession as aplanter, is entitled to retain possession of the planter’s share untilcompensated, and that in the absence of a notarially executedinstrument or a title by prescription a bona fide planter could beturned out at any time on payzrient of full compensation. In D. C..Gaile, No. 14,952, 3 it was held that: “ A planter is also entitled tolive on the land planted by him. For this purpose he may build
* 2 8. C. C. 4.* Ram. (1860-62) 113.
8 Lor. Rep. 201.
tWi
Emas.LSaibo v. Baba
1017.Enhib 3.Saibo v. Baba
a ( 444 )
a sufficient house on the land; but in repairing the house he mustnot encroach on the soil, and he can be made to pull down anyencroachment. ”
The digging of a well for the purpose of the plantation, or asincidental to the right to live on a plantation (i.e., for bathingpurposes), does not appear to me to be unreasonable, and theevidence of user in this case shows that it has been acquiesced in forforty years. I imagine, however, that in the case of a well it would beunreasonable for the holder of a “ planter's share ” to turn it into apublic bathing establishment or to sell the water; such proceedingswould be similar to the encroachments on the owner’s rights referredto in D. C. Gralle, No. 14,952, and could be restrained in properproceedings.. I would pause here for a moment to comment on theexorbitant exaggeration of the plaintiff's claim. Tt would seemfrom the headman’s report filed in the case that the plaintiff soughtto exclude Muttu’s widow altogether from the use of the well, andput forward a claim for Rs. 5 per day damages. In the presentaction he seeks to exclude the widow from the use of the well, buthas reduced his claim to Rs. 3 per day, i.e., he claims Rs. 90 permonth on the well alone, while his rental under the lease is onlyRs. 80 per year. The learned Judge has found, as a fact, thatthe takings at the well cannot exceed Rs. 30 per month, and thatmost of that,if not all, is due for the service of the drawers of thewater. It seems to me that the encroachment, if any, is such thatno reasonable man could complain of it. The wife and the daughtersof Muttu received emoluments for their personal service* and theposition is much the same as if they had taken money for givinglodging at the house built and occupied-by the planter. '
The effect of the lease taken by .Muttu remains to be considered.It is asserted that Muttu by taking the lease admitted the seconddefendant’s title. This is true, but the admission in the case of thewell is no more than the admission in case, of the land. As a planter,Muttu could use the land for planting and residence and the purposesincidental thereto. The evidence in the case proves the planter’suse of the ground to build a house and dig a well. The Full Courtcase cited shows that the rights of the planters (known as theplanter's share) arise by implication of law on immemorial custom.The planter, therefore, in taking the" lease did not do more thanadmit the landowner’s rights in the soil; his own rights as planterremained unaffected.
I am of opinion that the first defendant is entitled to the exclusiveuser of the well, just as she is entitled to the exclusive user of thehouse, both of which were made by the planter, until she hasreceived full compensation as a bona fide holder of a “ planter’sshare. ''
The second defendant has filed objections to the order as tocosts. The learned Judge found that the second defendant did
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not act in collusion wth the first defendant, and he is entitledto his costs, inasmuch as the planter’s share was mentioned inthe lease.
I would dismiss the plaintiff’s appeal and allow the objection.The plaintiff should pay costs in both Courts.
1917.
Emns J.Saibov. Baba
Shaw J.—
By deed of lease dated October 13, 1913, the second defendantlet to the plaintiff from January 1, 1916, the adjoining landsBalagewatta and hena, “ and also the well, ” save and except theplanter’s one-third share of the. fruit trees of new plantations ofthe southern portion.
The well included in the lease is a bathing well, to which peopleliving in the neighbourhood have been accustomed to resort onpayment. The profit to the proprietor is estimated by the Judgeat Bs. 30 a month.
When the plaintiff went to take possession under his lease, thefirst defendant disputed his right to the well, and claimed to beentitled to the possession of it. The plaintiff thereupon broughtthe present action against her, claiming a declaration that he wasentitled to possession and damages, and joined his lessor as adefendant in the suit.
The first defendant claims the, well on the ground that it wasmade by her husband, who was the planter of certain plantationson the land, and whose interest in the last plantation- has not yetbeen paid off.
It appears from 2 D 1 that the first defendant’s husband onNovember 2, 1911, took a lease of the land from the second defendant,which lease specifically included the well, and excepted only theplanter’s share in the new plantation in the southern portion, whichwas his own property as planter.
The Judge has found that the first defendant is entitled to-possession of the well, as planter, until compensated, and hasdismissed the action, but has ordered the second defendant to bearhis own costs.
The plaintiff appeals, and the. second defendant has given noticeof objection to the order as to his costs.
I think the decision is wrong. I know of no authority showingthat the planter has any rights to a well made by him on the owner’sproperty.- He may have a right to make and use a well for thepurpose of watering his plantation, but there is no necessity for tbiein the present case, as the trees are fifteen years old. He certainlyhas no right as planter to the use of a well for profit as a bathing well.Moreover, the lease to the first defendant’s husband of November 2r1911, shows that he did not himself set up any right to the well, and
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1917. it would appear from the first defendant's evidence that the lease ofSttaw .t 1911 was not the first lease he took; she says in her evidence “ my
„ husband used to take the lease ” from the landowner.
Saibo v. Baba,
I would set aside the judgment appealed from, and enter judgmentdeclaring the plslintiff entitled to possession of the well against thefirst defendant, with damages at the rate of Us. 30 a month fromJanuary 1, 1916, with costs of the action and this appeal.
No cause of action has been made out against the second defend-ant, and he is entitled to his costs against the plaintiff in bothCourts.
The arguments on the re-hearing have not affected the view Ihave expressed above.
On the re-hearing, the respondent’s claim to retain possession ofthe well was put principally on the ground that the well was animprovement made by her husband as a bona fide possessor.
There appear to be two answers to this. First that a planter isnot a bona fide possessor within the meaning of, the word when usedin connection with the law with reference to compensation forimprovements, he not having the possessio oivilis, and not purportingto hold ut domvnus. (See Walter Pereira 353-355, Lebbe v. Christie,1Soysa v. Mohtdeen.2) His position is more like that of a lessee, wrho,whatever right he may have to compensation, has no right ofretention. (Walter Pereira 373.)
A second answer is that even had the planter a right to retentionof the well until he was compensated for it, that right is gone inconsequence of his having given up the well to the owner of the land,and having specifically taken a lease of the well from him.
He Sampayo J.— "" .
This case was referred to a Bench of three Judges on account of adifference of opinion between my learned brothers as to the rightof the first defendant to retain possession of a certain well on theland leased by the second defendant to the plaintiff. The evidenceis very meagre, and does not show clearly the circumstances in whichthe well was first built. The first defendant's husband, Solla Muttu*made the second plantation bn the land fifty years ago, on an agree-ment with the second defendant. Whether the agreement was inwriting or not, and what the terms of it were, does not appear, butSolla Muttu built a house on the land in connection with the planta-tion, and he and his family have lived on the land ever since. Heappears to have built the well about the same time. It has beenused up to date by him and the family as a bathing well, and theyhave made a profit out of it by taking a few cents from people whoresorted there for baths. He appears to have made another* (1915) 18 N. L. B. 358.a (1914) 17 N. L. B. 279.
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plantation on an agreement with the second defendant in 1883.1917.
This agreement was in writing, but has not been produced. It is, j)B sampayohowever, sufficiently clear from the pleadings and the evidence thatJ •
Soils Muttu thereby became entitled to a '' planter's share ", namely, Saibo v. Babaone-third of the trees of the plantation in the southern portion ofthe land. A receipt of 1893 for Rs./100 paid by the second defendantas part compensation indicates that Soils Muttu was either onlyentitled to compensation on the agreement, or subsequently agreedto take money in lieu of the trees. In any case, full compensationhas not been paid, and the first defendant is entitled to remain inpossession of the plantation. The District JudgeJs findng is thatthe well was made by Soils Muttu incidentally to his rights asplanter. It may be that a planter cannot make a well except forthe purpose of irrigating the plantation. But both the making andthe user of it as a bathing well was acquiesced in from the beginningby the second defendant, and I think it is too late and unreasonablenow, after forty or fifty years, to raise any question as to the planter’sright to make and use such a well. If, then, the making of the wellwas one of the operations in connection with the planting, consentedto and acquiesced in by the landowner, I think the planter is entitledto retain possession of the well, just as much as any house, untilcompensation is paid. There is another point of view from which, Ithink, the first defendant may equally claim a right to be in posses-sion. A lessee who makes improvements with- the consent of thelessor is entitled to compensation, though perhaps not to retention.
But a planter who is admitted to be entitled to a “ planter's share ”is not in the same precarious position as a lessee. He bas a sufficientinterest in the land to constitute him a bona fide possessor in respectof improvements outside the actual planting.
The plaintiff relies greatly on a lease given to Solla Muttu by thesecond defendant in 1911, whereby, excluding the planter’s one-thirdshare of the fruit trees of the new plantation in the southern portion,
" the soil, the remaining trees, and the well ’’ were leased, and it iscontended that this is an acknowledgmeut of the second defendant’sright to the bathing well now in question. Solla Muttu appears tobe dead now, and the second defendant did not give any evidenceat all. There is another well on the land, and in the absence of anyexplanation there is no certainty as to what well was meant. Thedeed itself is so worded in' the Sinhalese that there appears to havebeen some difficulty at the fist hearing of the appeal as to whatexactly was the subject-matter of the lease, and I do not think itfair to conclude that Solla Muttu, who was a Tamil man, understoodthat the well dug by himself and used for his own benefit for fortyyears and upwards was being leased to him By this imperfectlyworded Sinhalese deed. According to the Yidane Arachchi, who wascalled for the plaintiff, the water from the other well is also sold fordrinking, and it may well be that the well mentioned in the lease was
f»17.
JDb BikpatoJ.
Saibo Baba
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that well. The first defendant is stated to have said in orosaexamination, “ my husband used to take the lease ” from the land-owner. I cannot conclude from this peculiar sentence that SollaMuttu took more, than one lease, and much less that the well inquestion was thereby leased to him. On the other hand, tileevidence on behalf of tiie plaintiff himself shows that there wereat least three other lessees under the second defendant, butthat, nevertheless, Solla Muttu, and not the lessees, possessedthis well.
. In my opinion the. District Judge is right in holding that thefirst defendant cannot be ejected until compensation is paid. The•case was dismissed against the second defendant also, as theplaintiff made him a party on an allegation that he had colludedwith the first defendant in keeping plaintiff out of possession, and asthe plaintiff failed on the only issue stated between him and thesecond defendant. The plantiff’s appeal should, I think, be dis-missed, and the plaintiff should pay the first defendant’s costs of■appeal, and should also pay the second defendant’s costs of actionand of the appeal.
Appeal dismissed.