089-NLR-NLR-V-40-WIJEYESEKERE-v.-MEEGAMA.pdf
340
Wijeyesekere v. Meegama.
1939
o-
Present: Keuneman and NIhill JJ.
WIJEYESEKERE v. MEEGAMA.
212—D. C. Kalutara, 19,741.
Jus retentionis—Land planted with consent of owner—Right of planter tocompensation for improvements—Jus retentionis granted only to thosewith possessio civilis—Extension of doctrine.
A person who improves a land with the consent or acquiescence of theowner is entitled to compensation.for improvements but not to a jus
retentionis.
-Under the Roman-Dutch law the right of retention is only grantedto persons who have the possessio civilis and to certain special classes ofpersons whose position has been held to be akin to that of a possessor.
1 This right has been extended by the decision of our Courts to certainclasses of persons who may not come under the strict definition ofpossessors, as for example persons who are entitled to a planter’s shareand to persons who make improvements in the bona fide expectation of
receiving a formal title.
1 9 Tax Cases 297.
* 11 Tax Cases 707.
KEUNEMAN J.—Wijeyesekere v. Meegama.
341
^^PPEAL from a judgment of the District Judge 'of Kalutara.
A. Rajapakse, for plaintiff, appellant.
N. E: Weerasooria, K.C. (with him E. B. Wickramanayake andWijemanne), for defendant, respondent.
Cur. adv. vu It.
February 6, 1939. Keuneman J.—
The plaintiff-appellant brought this action against the defendant fordeclaration of title to & plus 1/9 shares of two contiguous allotments ofland called lots Nos. 13 and 14 of Millegahawatta alias Hermitage. Healleged that the original owner was Don Peter Meegama who diedintestate leaving as his heirs eight full brothers and sisters and twochildren of a deceased half brother. The defendant was one of the fullbrothers of Don Peter Meegama, and the plaintiff purchased from someof the other heirs on deed No. 169 dated December 14, 1935. The plaintiff‘ also claimed damages of Rs. 150 and further damages at Rs. 50a month till he was restored to the possession of his shares. Thedefendant admitted that Don Peter Meegama was the original owner, butcontested the correctness of the shares which the' plaintiff was entitledto. He also prayed that he be held to be the owner of a certain rubberplantation, and claimed that he was entitled to be in possession of it untilhe was compensated.
At the trial the following issues were framed : —
Is Don Peter Meegama the owner of the land in dispute ?
What share if any of the soil of this land is the plaintiff entitled to?
How many children did Cecilia leave surviving her?
Did the defendant make the rubber plantation on the land in dis-
pute ?
Is the defendant entitled to remain in possession of the rubber
plantation until he is compensated ?
Can the plaintiff maintain this action without joining all the co-
owners ?•
What damages, if any, is the plaintiff entitled to?
Issue No. (1) was never really in dispute, as both parties agreed thatDon Peter Meegama was the original owner. Issues (2), (3), and (6) weredecided in favour of the plaintiff, and no question arises with regard tothem in this appeal. Issues (4) and (5) were decided in favour of thedefendant, and under issue (7) the learned District Judge held that theplaintiff was not entitled to any damages. The District Judge awardedhalf the costs of the action to the defendant. From these findings theplaintiff appeals.
On the evidence as accepted by the District Judge, Proctor ShelleyEdirisinghe and the original owner Don Peter Meegama entered into aplanting agreement by deed P 2 of November 20, 1912. ProctorEdirisinghe planted a portion of the land with rubber, but subsequentlyneglected the plantation with the result that cattle destroyed nearlyall the young plants except about 50 rubber trees. Don Peter Meegamaand the defendant then persuaded Proctor Edirisinghe to give up theland on the payment of Rs. 250 and the defendant then planted the rest
342KEUNEMAN J.—Wijeyesekere v. Meegama.
i
of the property with rubber, roughly about 550 pther trees. The DistrictJudge has given convincing reasons for accepting this evidence, and I donot think we can disagree with his finding in this respect.
Counsel for the plaintiff however argued that the defendant, thoughentitled under these circumstances to compensation, was not entitled to ajus retentionis. Further, he argued that the plaintiff was entitled todamages for the year 1936. As regards the year 1937 there was evidencethat the plaintiff received his share of the rubber coupons, and so noclaim for damages arose in respect of that year. It is clear that theplaintiff is in any event entitled to damages in respect of his undividedshare of the 50 rubber trees planted by Proctor Edirisinghe. Thequestion whether he is entitled to damages in respect of the rest of theplantations depends upon the determination of issue (5). Counsel forboth parties agreed that in the event of the plaintiff succeeding, thedamages should be fixed at Rs. 12 in respect of the 50 trees, and Rs. 130in respect of the balance of the plantation.
It is necessary to consider on the evidence first whether the defendantwas a possessor, i.e., had the possessio civilis, and next whether- suchpossession was bona fide or mala fide. The only person who gave evidenceon this point was the defendant. He said “ Peter Meegama got me toplant this land on the agreement that I should get half the land andplantations. Peter said he would give me a deed. I did not get a deedas Peter was my brother and I wanted to get the whole by buying theother half ”. In his answer the defendant stated “ This defendantmade the.. . plantation …. upon the understanding
that the owner, the said Don Peter Meegama, would convey to this defend-ant a 'half share of the soil and of the contemplated plantation standingtherein, but the said Don Peter Meegama died while he was contemplatingthe transfer of such half share in favour of the defendant ”.
Now considering that the plantation was made in 1914 or 1915, and thatPeter Meegama died in 1924, there was ample opportunity for him toimplement his promise if he ever made such a promise. Further, thedefendant made a very unfavourable impression on the District. Judgewho was not willing to accept his evidence except where there wasreliable corroboration. On the point under consideration, there was nocorroboration at all. Taking into consideration the fact that defendantwas the brother of Peter Meegama, and that his evidence with regardto the alleged promise cannot be depended on, I think we must hold thatin this case the planting was done without any agreement or understand-ing with Peter Meegama, although it is clear that Peter Meegama wasaware of and acquiesced in the planting.
The case falls within the principle decided in Fernando et al. v.Menchohamy et al.1 In that case Drieberg J. stated “In their answerthe first and second defendants said Juan Naide had planted the landwith coconut and jak trees and was in possession of it as the agent ofAvu Lebbe, and they limited Mathes’ planting to the rubber only. Theydid .not say what the terms were of the agreement with Juan Naideand Avu Lebbe under which the plantation was made, and there is noproof that it is customary in the case of rubber planting for the planter
1 10 C. h. Rec. 124.
KEUNEMAN J.—Wijeyesekere v. Meegama.
343
to get a half share of the plantation. The rubber 'was not tapped until1923 or 1925—there is a conflict of evidence on this point—so thatMathes and his heirs have not acquired an independent title to a planter’sshare by prescriptive possession. Their position, therefore, is thatof persons who held the land on an agreement With the ownerwhich gave them the right of possessing it and improving it for aremuneration not yet given or agreed upon. I cannot regard such aperson is in a better position than a lessee ”.
In Soyza et al. v. Mohideen1 it was held that a lessee has no possessiocivijis, nor can his enjoyment of the land be deemed to be a bona fide pos-session. This is a decision of three judges ”.
In Silva et al. v. Band a et al." it was held that a lessee who madeimprovements was not entitled to a jus retentiojiis. A similar opinionwas expressed in Saibo v. Baba et al* but a distinction was drawn thereas regards a planter who is admitted to be entitled to a “ planter’s share ”.Sampayo J. held that such a planter was not in the same precariousposition as a lessee, but had sufficient interest in the land to constitutehim a bona fide possessor.
Much reliance0 was placed by counsel for the respondent on certaincases. In Mohamadu v. Babun* Pereira J. held that where the defendantbuilt a house and made a plantation with the leave and licence, of theowner, he was entitled to all the rights of a bona 'fide possessor, includingthe jus retentionis. No dispute however was raised in that case as towhether the defendant had the possessio civilis. I may mention thatPereira J. was a member of the Court which decided Soysa v. Mohideen(supra) and concurred in that decision. Again in 406 D. C., Kandy,29,879—S. C, Mins. 29.6.23, a wife who built on her husband’s land withthe consent of the husband and on his promise to transfer the land toher was held to be entitled to compensation and to retain the propertyuntil compensation was paid. Sampayo A.C.J. *held there that thewife “ believed that she was entitled to the land and to the house and toits possession ”.
In Government Agent, Central Province v. Letchimanan Chetty et al.it was held that a person who takes possession of land and executesimprovements thereon on expectation of a formal title, which in goodfaith he believes himself certain to obtain, may be a bona fide possessor.It should be noted here also that the question discussed was not withregard to the possession but to the fact whether the possession was bonafide or mala fide. Bertram C.J. himself said that his interpretation wasa “ development ” of the law.
In Nugapitiya v. Joseph." improvements had been made by a personwho had entered into an informal agreement with the owner, by whichthe improver was to have the right to the enjoyment of the boutiquebuilt by him as long as he wished upon the..payment of ground rent ofUs. 5. Garvin J. was satisfied that the improver did not have thepossessio civilis, but held that under certain circumstances ever such aperson could be granted the rights of a bona fide possessor. “The caseof Mohamadu v. Babun (supra) is referred to by Bertram C.J. in the case
117 N. L. R. 279.'* 9 C. A. C. 86.
* 56 N. L. R. 97..® 24 N. L. R. 36.
» 19 N. It. B. 441.* i8 N: L. R. 140.
344
KEUNEMAN J.—Wijeyesekere v. Meegama.
of Davithappu v. Bahar‘ who regards it as a development of the lawby the extension of the doctrine of the rights of a bona fide possessorto compensation for improvements to a class of persons who have not thepossessio civilis. With all respect, it does not seem to me that reliefin this case was granted by treating these persons as having a utilispossessio which is akin to possessio civilis …. The result isreached by the extensive application of another rule, which is that anowner who acquiesces in the making of improvements is estopped fromdisputing the right of the improver to be compensated on the same footingas a bon a fide possessor ”. It is to be noted however that GarvinJ. based his finding on a passage in Maasdorp, where it was laid downthat a mala fide possessor was entitled to the same rights as a bona fidepossessor including the right of retention,' where “ the owner of theground has stood by and allowed the building to proceed without anynotice of his own claim ”.
Though his language is wide, I doubt whether Garvin J. had anyintention of extending the right of compensation and of retention inthese circumstances to all classes of persons including lessees and personsin a similar position to lessees. If so, a fundamental distinction in thelaw of compensation was lost sight of, and his finding was at variancewith express decisions of our Courts. Walter Pereira in his Laws ofCeylon (2nd ed., pp. 353, 354) said “ Before entering into a discussionof these questions it is necessary to arrive at a correct understandingof the word “ possessor ” when used in connection with the law withreference to compensation for improvements. Clearly the word“possessor” means the person who in law is in enjoyment of what isknown as the possessio civilis. He adds “A lessee’s right, if any, tocompensation for improvements is subject to considerations totallydifferent from those applicable to the rights of a person having thepossessio civilis Maasdorp also in his Institutes of South African Law(5th ed., vol. 11, p. 15) discussed “possession” as follows:—"It is acompound of a physical situation and of a mental state …. Theintention must also absolutely be to hold the thing for one’s self and notfor another, for a lessee, a person who has a thing on loan, or a depositorycannot in strict law be said to possess or, if he possesses at all, he possessesnot for himself but in the name of the owner”. He dealt at page 17with the classification of civil and natural possession. “Voet uses theterm civil possession as possession which is held by a person as owner orby a bona fide possessor with the intention of being or becoming owner ”.Further at page 61 he stated definitely that “ a lessee has in no case theright of retaining or remaining in possession of the land leased afterthe expiration of the lease. His right to compensation will depend uponwhether the improvements were made with or without the consent of theowner ”.
I am of opinion that under our law the right of retention is only grantedto persons who have the possessio civilis and to certain special classes ofpersons whose position has been held to be akin to that of a possessor’s.There can be no doubt that this right has been extended by decisions ofour Courts to certain classes of persons who may not come under the
i 26 N. L. R. 73.
Kandiah v. Solomons.
345
strict definition of “ possessors,” e.g., persons who are entitled to a“ planter’s share ”, which is a special right, and to persons who makethe improvements in the bona fide expectation of receiving a formal title.In Nugapitiya v. Joseph (supra) there was an informal agreement thatthe improver should have the right of retaining his improvements as longas he wished.
In this case the defendant has not proved any circumstances whichshow that his enjoyment of the land approximated in any degree to“possession”. It is clear that all along he acknowledged the title ofPeter Meegama, and there is no proof which can be accepted that anyagreement was arrived at between himself and Peter Meegama wherebyhe was to be invested with title either to the whole or to any part of thesoil or plantation, or that he was to retain his improvement until he wascompensated. I think therefore that he occupied' no better positionthan that of a lessee. I follow the decision in Fernando et al. v. Mencho-hamy et al. {supra). This is the latest of the decisions cited to us, andI do not think this case conflicts with any of the earlier decisions. Inview of the fact that Peter Meegama consented to and acquiesced in themaking of the improvements, I hold that the defendant is entitled toclaim compensation. He has made claim to no specific amount in thisaction, and I reserve to him. the right to make such claim in subequentproceedings. But I hold that he is not entitled to a jus retentionis inrespect of these improvements. I vary the District Judge’s order in thisrespect.
1 further hold that the plaintiff is entitled to damages in respect of theyear 1936 and set aside the District Judge’s order that he is not entitledto damages, and enter judgment for the plaintiff in the sum of Rs. 142,the amount agreed upon by Counsel for both parties. .
As regards costs, the, plaintiff has succeeded on most of the issues,but the defendant has succeeded on the issue relating to the planting,and the bulk of the evidence was directed to that issue. I think thefairest order to make is that there will be no costs to either side of thetrail. The plaintiff has partially succeeded in the appeal, and I give himhalf the costs of appeal.
Nihxll J.—I agree.
Judgment varied.
.