038-NLR-NLR-V-65-WILLIAM-SILVA-Appellant-and-K.-ATTADASI-THERO-Respondent.pdf
H. N. G. FERNANDO, J.—William Silva v. Attadasi Thero
181
1962 Present : H. M. G. Fernando, J., and T. S. Fernando, JT."WILLIAM SILVA, Appellant, and K. ATTADASI THERO, RespondentS.C. 28311960—D.C. Kandy, 1575(Compensation for improvements—Improvements effected on land with knowledge andconsent of owner—Improvements made by a “ lessee ” under a non-notarialdocument—Jus rebentionis.
A person who improves a land on the faith of a document from the ownerwhich turns out to be void in law is entitled to retain possession, and is notliable to be ejected, until compensated for the improvements.
Defendant entered into occupation of a land and erected a building thereonafter the execution of a non-notarial document which purported to be a leasefrom the plaintiff's predecessor in title, the object of the purported lease beingthat the defendant should construct a permanent building of specified dimen-sions, paying a ground rent of 33 cents per month.
Held, that the document, being non-notarial, was void and conferred norights of occupation on the defendant, who was therefore never a tenant of theplaintiff. The defendant had, however, the rights of a bona fide possessor andwas therefore entitled to remain in possession of the land until he was paidthe compensation due for the improvement, namely the value, at the time ofthe action, of the building which be erected with the express consent of theplaintiff’s predecessor.
Appeal from a judgment of the District Court, Kandy.
S. Sharvananda, for defendant-appellant.
J. Fernando, for plaintiff-respondent.
Cur. adv. vuM.
March 29,1962. H. N. G. Fernando, J.—
The only question for determination in this appeal i3 whether theDefendant, who is to be ejected from the Plaintiff’s land, is entitled to ajus retentionis until he is paid compensation for improvements effectedon the land with the knowledge and consent of the Plaintiff’s predecessorin title. The Defendant’s appeal is against a finding of the learnedDistrict Judge that, although he is entitled to compensation in respectof the building erected by him, his claim for compensation can only beenforced after he vacates the land. This finding is based upon dicta ofthis court in the cases of Alles v. Krishnan 1, and Jafferjee v. Cyril deZoysa 2, to the effect that a tenant’s right to claim compensation accruesafter the tenancy has expired and after he has vacated the leased property.Although counsel has invited us to consider whether these dicta correctlyexpress the common law applicable in Ceylon, it is unnecessary for us toexamine their correctness in the circumstances of this particular case.
1 (1952) 54 N. L. R. 155.3 (1953) 55 N. L. R. 127.
182EL K. Q. F.&RNANDO, J.—WUUcm Sib# *>. Aiiadaai Tharv
The Defendant entered into occupation of the land and erected abuilding thereon after the execution of the document D1 which purportedto be a lease executed by the owner, the object of the purported leasebeing that the Defendant should construct a permanent building ofspecified dimensions, paying a ground rent of 33 cents per month. Thisdocument, being non-notariai, was plainly void, and the Plaintiff’saction for ejectment depended on the fact that the document conferredno rights of occupation on the Defendant, who was therefore never atenant of the land. That being so, the decisions which construe thelaw applicable in a case in which a tenant may claim compensation atthe termination of the period of the tenancy are not applicable. Whatis directly applicable is the decision of Garvin, J.inNugapitiyav. Joseph^,and it is useful to cite in full his observations as to the mode in whichthe right to compensation has been accorded in our law to a person whoimproves a land on the faith of a document from the owner which turnsout to be void in law •—
But is it competent for a lessor who repudiates his lease becausethe failure to comply with certain requirements enables him to do so,to deny his lessee the benefits of the lease, and at the same time tolimit the improver’s right to compensation by the very lease which herepudiates ? The lease admittedly is null and void. If the lessor isfree from the obligations imposed upon him by the lease, so also is thelessee. What is the position of a person who is found in possessionof land under these circumstances ? He is not a bona fide possessor, forhis possession cannot possibly be said to be deientio animo domini.He is not a lessee because the lease is null and void. He is a personwho has entered upon a land and has improved it under the bona fidebelief that he was entitled to possess and enjoy his improvements solong as he pleased. There is a further fact which has a direct bearingon the question, and this is that the improvements were made withthe knowledge and consent of that owner and on the representationof the owner that if he made the improvement he was to have the-right to possess and enjoy it for so long as he wished on payment ofthe specified ground rent. Such a person has not the possessio civili3.This is a circumstance which might deprive him of the right to claimcompensation in other cases, but where, as in this instance, his claimis in effect against the person with whose knowledge and consentthose improvements were made, it has been found possible to give himthe rights of a bona fide, possessor though in point of fact he has not thepossessio civilis. In the case of Mohamadu v. Bdbun2 the defendantin an action for declaratipn of title and ejectment pleaded that hebuilt a house standing on the land, that hs made the plantation thereonwith leave and licence of the owner, and that he was therefore notliable to be ejected until compensated for the improvements. Pereira,J. held that in those circumstances he was entitled to all the righte of abona fide possessor, including a right to retain possession until compen-sated. The case of Mohamadu v. Bdbun («tpra) is referred to by1 (1926) 28 N. L. X. 140.• (1912) 2 O. A. 0. 86.
H. N. G. FERNANDO, J.—William Sil va v. Attadasi Thero
183
Bertram, C. J. in Davithappu v. Bakar1, who regards it as developmentof the law by the extension of the doctrine of the rights of a bona fidepossessor to compensation for improvements, to a class of personswho have not the possessio civilis. With all respect it does not seem_ to me that relief in this case was granted by treating these persons ashaving utilis possessio which is akin to possessio civilis, as is suggestedby the same learned Judge in the case of Appuhamy et al. v. DotoswcUaTea and Rubber Co.2 The result is reached by the extension andapplication of another rule, which is that an owner who acquiesces inthe making of improvements is estopped from disputing the right ofthe improver to be compensated on the same footing as a bona fidepossessor.”
Counsel for the Plaintiff-Respondent has not referred us to any subse-quent decision which doubts the correctness of the view here expressed byGarvin, J. On the contrary, the recent decision of the Privy Council inEassanally v. Cassim3 confirms the view that in a case where an ownerrepudiates an alleged contract of tenancy and relies upon its invalidity,the claim of the occupier to compensation for improvements is not to betreated as a claim by a tenant.
The decision in de Silva et al. v. Perusinghe 4 does not deal with a casein which the owner of property repudiated a purported tenancy. In sofar therefore as it held that a tenant has no ius retentionis even thoughhe may effect improvements in good faith the decision is of no assistancein determining the rights of a person who has not been in fact a tenant.
Poliowing the decision in Nugapitiya v. Joseph (supra), I hold that theDefendant must be accorded the rights of a bona fide possessor, and istherefore entitled to remain in possession of the land until he is paid thecompensation due for the improvement, namely the present value of thebuilding which he erected with the express consent of the Plaintiff’spredecessor. The value was in dispute at the trial, but no finding asto the value was reached. When the record is received in the DistrictCourt, the District Judge will proceed to reach such a finding afterhearing such evidence as the parties may adduce as to the present valueof the building. He will thereafter enter decree for ejectment, but thedecree must provide that writ of ejectment cannot issue until the Plaintiffpays to the Defendant the amount fixed as compensation less any amountdue as arrears of rent from 20th October 1951 to the date of issue ofwrit.
The decree already entered is set aside pro forma. The Defendantwill be entitled to the costs of the previous proceedings in the DistrictCourt as well as to the costs of this appeal.
T. S. Febnakdo, J.—I agree.
Decree set aside.
1 (1923) 26 N. L. R. 73.
(1921) 23 N. L. R. 229.
(1960) 61 N. L. R. 529.
(1939) 414 O. L. W. 137.