045-NLR-NLR-V-10-MUDIANSE,-et-al.-v.-SELLANDYAP,-et-al.pdf
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Present: Mr. Justice Wood Benton and Mr. Justice Grenier.MUDIANSE, et al v. SELLANDYAP, et alD.C., Kurunegala, 2,493.
•Compensation for improvements—Persons holding under a planting agree-ment — Rightto compensation — Lessees — Roman-Dutch Lato —
Principle of assessment.
Where a person improves land under a planting agreement withthe owner, and is subsequently ejected by the transferee of theowner, such person is entitled to compensation for improvements.
Grenier A.J.—A lessee of land is entitled, under certain circum-stances, to claim compensation for improvements made by him.
A
PPEAL by the defendants. The facts are fully set out in thefollowing judgment of the District Judge (Bertram Hill,
Esq.): —
44 The plaintiffs in this case and the sixth defendant took fromthe third, fourth, and fifth defendants the land Welikandehenyayaon the 11th January, 1900, on a planting agreement registered on10th December, 1903.
4 * The terms of the agreement were briefly: (1) that the plantersshould put in coconut plants, and the land was .to be dividedbetween the two parties at the expiration of ten years, and thatmeanwhile the planters were to enjoy the whole of the produce ofthe plaintains, fine grain, &c.; (2) that if any dispute should■arise regarding the title of the first party (t’.e., the landowners, third,fourth, and fifth defendants) to the land and thereby prevent theplanters from carrying on the plantation, the first party should beresponsible to the planters for all the damages suffered thereby.
44 The plaintiffs, say that they duly began planting, and inDecember, 1903, the first and second defendants, alleging thatthe third, fourth, and fifth defendants had transferred the land tothem, forcibly ejected the plaintiffs.
44 They claim damages, by reason of their being prevented by thedefendants from planting the land, to the amount of Bs. .2,000, -andpray for such further and other relief as the Court shall seem meet.
44 The first and second defendants deny oily forcible entry on theland, admit that they purchased the land Welikandehenyaya fromthe vender of the third defendant and from defendants fourth an£fifth, profesd to be in peaceful and* lawful possession, and claim thatas their deeds of sale were registered prior to the agreement referredto in the plaint, they ought to prevail in law against the* said agree-ment, which is of no force or avail in law.
4 4 The third and fourth defendants aver that the plaintiffs could dotcarry out the terms of the planting agreement, and surrendered it.
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The fifth defendant filed no answer. The sixth defendant was joinedas a defendant, because it was alleged he was unwilling to join theplaintiffs and was acting in collusion with the other defendants.
The case was decided by arbitration, but as the fifth defendantdid not sign the reference to arbitration, the arbitrators' award wasset aside in appeal.
“ The main issues between the plaintiffs and the first and seconddefendants are—
“ (1) Is the deed of agreement of any force in law against theprior registered deeds of sale of the first and second de-fendants?
“ (2) If this question is answered in the negative even, does itconstitute a valid defence to plaintiffs* action?
“ Before going further, I should state that I do not see anyreason for holding that there was any fraud perpetrated by the firstand second defendants in getting their deeds registered at an earlydate. They may have been aware that the planting agreementwas not registered, but this fact (as the authorities quoted byMr. Markus show) raises no presumption of fraud.
." I should also add that I see no reason to doubt that the
plaintiffs planted the land according to the terms of the agreement,.and that the entry of the first and second defendants in the land was.a forcible One—that they were in fact trespassers. It is very unlikelythat the plaintiffs, having made extensive plantations and obtaininga fair income from the plantains, would have resigned the agreement.
44 On the first issue there can be ho doubt that the deed ofindenture pleaded in the plaint cannot prevail against the priorregistered deeds of sale off. the defendants first and second, and if theplaintiffs were attempting to enforce the provisions of the agreementas against them, and had asked for a decree of the Court declaringthem entitled' to carry out the agreement, their action would ofcourse fail..
14 But, holding as I do that the plaintiffs were bond fide possessorsof the property, and that they were dispossessed forcibly s andwithout due process of law, I consider that they are entitled tocompensation for improvements. The law on that point is clear.
44 It must be admitted that the word compensation does notappear in the plaint, but the facts are fully set- out, and the actionhas proceeded on the assumption that the measure ^of the damagesclaimed by the plaintiffs for forcible dispossession was practically‘the value of the improvements effected by them, plus, the value ofthe prospective plantain crops.0
44 The third paragraph in the prayer of the plaint is sufficientlycomprehensive to cover an order of the Court for payment of com-pensation. In it the plaintiffs pray for such other and furtherrelief as to the Court shall seem meet.
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44 I am in some doubt (though the point has not been distinctly■raised in the pleadings) whether the plaintiff can join in one actionjS claim against the third, fourth, and fifth' defendants for breach ofShe covenants in the deed of indenture with a personal action fordamages against the first and second defendants; it is urged thatthe action' is entirely on the agreement, and that plaintiffs*remedy is against those with whom he has contracted, viz., third,fourth, and fifth defendants. The cause of action, however, is the■same in both cases, namely, the wrongful act of the first and second•defendants.
“ I am doubtful, too, if the third, fourth, and fifth defendants areliable on the deed of indenture. If the plaintiffs had taken the*precaution of registering the deed, they could have enforced theirrights under it against subsequent purchasers from the landowners.
“ Surely it is not the latter’s fault that the plaintiffs failed toregister, and surely they are not precluded by the deed of indenturewhich binds their assigns as well as themselves from parting withtheir rights in the land to third parties?
“ The fourth and fifth defendants, who are ignorant women, appearto have been induced by third defendant and first and second■defendants to sell their share of the land.
" In view of the ultimate clause in the deed of indenture, whichrefers to assigns, it does not seem to me that the disputes mentionedin the penultimate clause have any reference to disputes raised bypersons deriving title from the landowners (the first party), but todisputes of outsiders who claims title against the first party.
The only question then that remains to be .determined is theamount of»compensation which first and second defendants areliable to pay to the plaintiffs and sixth defendants for improve-ments. ”
The District Judge condemned the first and second defendantsto pay to the' plaintiffs and the sixth defendant Es. 2,000 as compen-sation for improvements.
The first and second defendants appealed.
Van Langenberg, for the appellants.
Sampayo, K.C., for the respondents.
Cut. adv. vult,
18th June, 1907. Grenier, A.J.—-
The only question argued before us on this appeal was whetherthe respondents were entitled to compensation for improvementsmade by them and the sixth defendant on the land called %Welikande-henyaya, from which they have been ousted by the first and seconddefendants, who claimed title under the third, fourth, and fifth de-
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fendants. The District Judge has awarded respondents and thesixth defendant the sum of Es. 2,000 and it was contended for the
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Qbbnxer
A.J.
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appellants that even if the respondents were entitled to compen-sation, the District Judge had not guided himself by the rules laiddown in the case of De Silva v. Shaik Ali1 in arriving at the amountawarded.N
The principal point sought to be made by Mr. Van Langenbergwas that the respondents were not entitled to compensation becausethey had not made the improvements in question as owners, andhe cited from Voet, 5, 3, 21, and 6, 1, 86, in support of his contention.I think I am right in saying that the Boman-Dutch Law, as under*stood and administered in Ceylon, does not limit the right to claimcompensation to such persons only. The remedy is a purelyequitable one, and it has been held by this Court in the caseof Muttiah v. Clements2 that a lessee can, in certain circum-stances, claim compensation for improvements. The presentcase is not exactly the case of lessor and lessee. The respondentsare the lessees of the third, fourth, and fifth defendants, and thefirst and second defendants are their assigns, or to be more correct;the respondents entered under a planting agreement with the third,fourth, and fifth defendants which was to run for a term of yearsand under which certain reciprocal obligations were contracted.By the mere accident of the respondents not having registeredtheir lease, the first and second defendants, who have registeredtheir conveyance, have been able to maintain their title to the landas against the respondents, who, at the date of the dispossessionby the first and second defendants, were in bond fide possession ofthe same. I would emphasize the nature of their possession, becauseit is an essential ingredient in all claims which the Boman-DutchLaw recognizes when awarding compensation in respecA of impen-see utiles as distinguished from impensce necessaries.
Besides, it has been held by this Court that a lease is a pro tantoalienation, and that affords an additional ground in support of thepresent claim for compensation. It has been held by my brotherWood Benton in the case of Banda v. Hendrick3 that ausufructuary mortgagee can maintain a possessory suit against hismortgagor, and that he has a sufficient beneficial interest in theproperty to* constitute a possession ut dominus. It has beendecided in the case* of Perera v. Sobana4 that even the lessee ofa usufructuary mortgage can maintain a possessory suit, and, byanalogy, it is in my opinion competent for a lessee to maintain suchan action. His right to do so may properly be based on the ground*that he is the owner for the time being, or has such a beneficialinterest in the property leased that he can successfully claim to berestored ^possession in the event of his being dispossessed by a 'thirdparty. The case of Appuhamy v. Silva and another5 is a strong
A (1896) 1 N, L. R. 228.3 App. Court Reports, p, 81.
* (1900) 4 N. L. R. 158.4 (1884) 8 9. C. G. 61.
3 (1891) 1 8. C. R. 71.
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authority in support of the view I am taking. There Clarence and 1907.Dias JJ. held that the right to retain possession of land until com- ^ IS.pensation is paid for improvements may be asserted by the party gjienieb.who has effected the improvements, not only as against the owner A.J.under whom he entered as a tenant, but as against those claimingtitle to the land on conveyance from such owner. The onlydifference between that case and the present one is that here thetenant is not in possession, having been dispossessed by the owner’svendees or assigns, but that should make no real difference on thequestion of compensation where there has been a forcible ouster,as in this case.
In the case of Appuhamy v> Silva1 which was decided byBurnside C.J. and Withers J., the two learned Judges wereof opinion that neither by Kandyan Law nor Roman-DutchLaw could a tenant retain leasehold premises against all theworld till compensated for the benefit to the owner of the soilfor improvements made by the tenant. In neither of the casesI have cited have any authorities from the Roman-Dutch Lawbeen referred to, and it goes without saying that* the cases aredirectly in conflict with each other.
The balance of judicial opinion, however, as far as it can be dis-covered in decisions of the Appellate Court, is, I think, in favour ofthe respondents’ contention. It certainly seems inequitable tosend the respondents away empty, and leave the defendants inpossession of the fruits of their labours, simply because the respond-ents had not complied wjth * the statutory requirements as toregistration.
In cases ^here the law is doubtful, or is -rendered uncertain andobscure by conflicting pronouncements, no better course can befollowed than to apply the principles of natural justice and equityabout which agreement pannot but be universal.
As the District Judge in awarding damages has entirely overlookedthe rules laid down in the case of De Silva v. Shaik Alif2 awould, whilst affirming his decree awarding compensation, send thecase back with directions that the District Judge should ascertain,
, after applying the rules I have referred to, what compensation theplaintiff and the sixth defendant are entitled to, and enter judgmentfor them accordingly.
There will be no costs of this appeal. The costs in the Courtbelow will' be dealt with by the District Judge after he hasdetermined^ the amount of compensation.
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Wool) Renton J.—=
I concur on both points. On the question as to the haeasure ofcompensation, I have nothing to add. But I desire to say some-thing as to the right of compensation itself. It is quite true thati (1892) 1 8. G. R. 243.* (1895) 1 ff. L. A. 226.
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1$07.June 18.
WoodRbntoh J.
there is a strain both of Roman-Dutch (cf. Voett 5, 8, 21, and6, 1, 36; Kotae's Van Leeuwen, ii., 112n) and of Ceylon authority(Appuhamy v, Silva1) which supports Mr. Van Langenberg’sargument that no common law right to compensation could arise insuch a case as the present. But the weight of recent decisionshere, as my brother Grenier has shown, is on the other side; and Iam inclined to think (see Nathan, ii. 378, 379) that South Africanauthority supports it also. As to the equitable right of the respon-dents to relief there can be no question. The view taken by thethird, fourth, and fifth appellants of the value of the work that therespondents were doing is evidenced by the fact that, under theplanting agreement of 1900, it gave the latter a right not only tothe produce while the plantation was going on, but to a definiteshare of the land when it was completed.
Appeal dismissed : case remitted.