081-NLR-NLR-V-66-L.-J.-DHARMARETNA-Respondent-and-M.-E.-A.-PERERA-Respondent.pdf
SANSONI, J.—Dharmaretna v. Perera
345
a 963Present: Sansoni, J., and L. B. de Silva, J.
J. DHARMARETNA, Appellant, and M. E. A; PERERA,
Respondent
S. C. 261 f60—D. C. Anuradhapura, 5519
iJompensation for improvements—Jus retentionis— “ Bona fide possessor ".
The defendant originally came to live on a land of the plaintiff as a licensee ortenant. Subsequently, however, there was a change in the relationship. Thedefendant became at some stage an occupier who improved the land by puttingup a substantial house on it with the acquiescence of the plaintiff on theunderstanding that he would be allowed to live on the land indefinitely andenjoy the benefit of his improvements.
Held, that, in the circumstances, the defendant should be treated as a bonafide possessor and given all the rights of one, both as regards compensation andthe right of retention.
_AlPPEAL from a judgment of the District Court, .Anuradhapura.
H.'W. Jayewardene, Q.G., with M. 8. M. Nazeem and E. St. N. D.T.'Tillekeratne, for the Defendant Appellant.
N.E. Weerasooria, Q.C., with W. D. Gunasekera, for the Plaintiff-Respondent.
Cur. adv. vult.
May 6, 1963. Sansoni, J.—
The Plaintiff, who is the permit holder of a Crown land, has sued thedefendant in ejectment and for damages in respect of a house which theplaintiff claims, to have constructed on that land. The defendant’sanswer was that he is living in a house which he himself huilt on that landwith the knowledge and acquiescence of the plaintiff, because the plaintiffrequested him to live on the land and look after it, undertaking to givehim an acre with the permission of the Government.
Upon the evidence led at the trial it is clear that the defendant came tolive on this land in 1943 in a house which the plaintiff also occupied.The defendant has stated that he later built a house for himself at theplaintiff’s request and lived in it until it came down in 1957 during a flood.'He then built a house in which he is now living at a cost of Rs. 7,000 atthe plaintiff’s request and on the plaintiff undertaking to give liim anacre of land. The plaintiff’s version as to how the new house came to bebuilt is that the defendant demolished the house in winch oneEdwin Perera had lived, and built the new house in its place. He deniedthat the land was affected by floods in 1957.
One matter is clear, as the learned District Judge himself holds, andthat is that the house in which the defendant is living is a new housewhich he himself built. The plaintiff has in his plaint not only claimed
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SANSONI, J.—Dharmaretna v. Perera
that he built that house, but he has claimed damages in Rs. 350 from thedefendant for an alleged attempt to alter it. The plaintiff in his evi-dence conceded that the defendant built the new house, but he has des-cribed it as “ valueless ”, although his witness valued it at Rs. 1,500.That witness also admitted that in 1957 a wall of the old house came downowing to strong winds ; he said, further, that all the walls of the old housewere made of mud while the present house is built of bricks, lime andcement.
The learned District Judge has awarded the defendant a sum ofRs. 2,500 as compensation for the new house, but he held that the defen-dant was not entitled to a jus retentionis. It is this last finding that hasbeen mainly attacked in appeal. Mr. Jayewardene also argued that thecompensation awarded was inadequate, but there is no material uponwhich we can say that the learned Judge should have awarded thedefendant more.
With regard to the jus retentionis, it is necessary first to decide underwhat circumstances the defendant built the new house. He had beenon the land for 15 years when he came to build it." For about four yearsat most the plaintiff recovered occupation fees from him, but after thatnothing was paid. One thing seems certain, and it is that the plaintiffwas well aware that the defendant was building a substantial new houseat a cost of about Rs. 2,500. Yet no protest was raised by the plaintiff.
The defendant’s position is that the plaintiff asked him to build it.The learned Judge has held that no promise was m£de by the plaintiffto give the defendant an acre of land, and we accept that finding. ButI think the circumstances show that when the defendant built thehouse, he had a reasonable expectation of being allowed to occupy it foran indefinite length of time. The friendly relations that existed betweenthe parties for such a long time, and the large sum of money that went inthe construction of the house, are clear indications that when the housewas being built it was understood between the parties that the defendantcould occupy it for a long period.
In these circumstances I think the defendant should be treated as abona fide possessor and given all the rights of one, both as regards com-pensation and the right of retention. The position of the defendant is-similar to that of the improver in the case of Nugapitiya v. Joseph1.Mr. Weerasooria argued that the defendant was no better than a licensee,,tenant or lessee, and in none of these cases is the jus retentionis grantedin respect of improvements made by them. While it may be concededthat when the defendant originally came to the land he was a licenseeor tenant, the circumstances point to a change in the relationship betweenthe parties. The defendant became at some stage an occupier who im-proved the land with the consent of the owner, on the understandingthat he would be allowed to live on the land indefinitely and enjoy thebenefit of his improvements. When the owner seeks to cut short the
1 (1926) 28 N. L. R. 140.
SANSONI, J.—Thedohanamoorthy v. Nadarctjah
347
period of occupation of such an improver, he must not only compensatehim, but such compensation must be paid before the improver isejected.
*
I would therefore vary the decree entered in this case by ordering that
the writ of ejectment against the defendant shall not issue until thesum of Rs. 2,500 is paid as compensation to the defendant, and (2) thatthe plaintiff do pay the defendant his costs in both courts.
B. de Silva, J.—I agree.
Decree varied.