PODI SINNO et al. v. ALWIS

078-NLR-NLR-V-28-PODI-SINNO-et-al.-v.-ALWIS.pdf


( *>1 )
Present: Lyall Grant J. and Maartensz A.J.
PODI SINNO et al. v. ALWIS.
99—D. C. Kalutara, 11,248.
Co-owner—Right to fruits of improvcmnnt—Action against another fordamages—Partition decree.
An improving co-owner is entitled to the fruits of the improve-ment effected by him.
T
HIS was an action for the recovery of damages from thedefendant for wrongful possession of plaintiffs’ share of- a
rubber plantation called Palligodakele. In an action for thepartition of that land the present plaintiffs were declared entitled totwo-fifths of the land, the present defendant to one-third, and thefifth and sixth defendants in that action to four-fifteenths. They arenot parties to this action. The plaintiffs. and the fifth and sixthdefendants were held to have made the entire rubber plantation.The plaintiffs now sue the defendant for the recovery of damages*
1926.
102B;
■ 'Grant J.
Podi ’ Sinnov. Aluns
( 402 )
alleging that the * defendant was in the possession* • ofthe ehtirerubber piafatatfon from June, 1621,' to February, Ti922- – Th£ learnedDistrict Judge gave judgment for the plaintiffs.
if. V. Perera, for defendant, appellant.
De Zoysa, for plaintiffs, respondent.
November 9, 1926. Lyalij Grant J.■—
This is an action in which datiaages are claimed in respect of thewrongful possession of a rubber plantation.. .
The plaintiffs and the defendants were originally co:owhers of,apiece of land called Palligodakele. -The land was made the subj'ectof a partition action and the parties to this case' each received ‘ ashare in the soil. The defendant was ordered to pay compensationto the plaintiffs in order to equalize the shares allotted. In thepartition proceedings there was a dispute between the presentplaintiffs and the defendants as to who- made* a certain "robberplantation on the land. It was then decided that ‘ the presentplaintiffs, with certain other co-owners not parties to the presentaction, made the entire rubber plantation.
In the present action damages are claimed on the ground thatfor a period of about eight or nine months the defendant forciblyand unlawfully possessed the said plantation.
These facts are now admitted, and on them the learned DistrictJudge held that the plaintiffs were entitled to damages.
On appeal it was argued for the appellant that the defendant wasentitled to possession as a co-owner, that a plantation accedes tothe soil, that each, co-owner has a right of property in it whichcarries with it the right of possession, and that no co-owner canclaim sole rights in a plantation.
It was further argued that a partition decree is a final decree asIt affects rights of parties, and that it is not now possible to re-openany question affecting the adjustment’ of the co-owner's rights asbetween themselves.
The latter point has been settled by the case of Silva v. Silvatlwhich follows the case of Samarasinha v. Balahamy. 3t
There it was held that a claim for damages by one co-owneragainst another could not be joined in a partition action. It doesnot- appear that these cases have been over-ruled, and the principlemust now be treated as settled' law. It follows, therefore, thatthe final decree in a partition action does not bar a claim by oneco-owner against another for damages for wrongful possession of 'a
plantation.
1 (1906) 9 N. L. R. 110.
2 (1902) 6 N. L. R. 379.
( 403 )
It being, admitted that the defendant had the use of the plan-tation for & period during which the plaintiffs were entitled toprofits, it is clear that he must account to them for the profits. Theonly difficulty is to ascertain whether he as a co-owner is entitledto a share of the profits which accrue from improvements made byother co-owners. On this point the decisions are conflicting. TnCheUappah v. Ponnampalam 1 Lawrie A.C.J. held that in suchcircumstances the improving co-owner is entitle*}, io the whole ofthe planter’s share, btit that there is also a landowner*s share forwhich he is hound to account to his fellow co-owners.
On the other hand, in a comparatively recent case Fernando v.Rodrigo 2 De Sampayo J. says: —
** It is well known that the fruits of the improvement' itselfcannot be set off in, calculating the amount of compen-sation, ”. .
If this is correct; it follows that in the absence of evidence tothe contrary,an improving co-owneristreated asa. bona fide
possessor and is entitled to the mesne profits unless it can be shownthat he is not bona fidet e.g.t by showing that against the expressedwishes .of his fellow-owners he has planted an area greater thanthat to which his share would entitle him. It follows that he isentitled to' damages .for the loss of these profits,. That , case hasnot been o.ver-ruled, and .has been followed by the learned DistrictJudge in the present case.
The District Judge, who has had long .experience in-this class ofcase, says, that “ it is the invariable custom of the,country for everyco-owner whoeffects improvementsinthe waypf permanent
plantations ona common land alonetopossess such plantations
and .the fruitsof such plantations …^ andthat he has
never heard the contrary proposition propounded.
That this is the custom is not disputed by the appellants,- but theysay .that custom cannot over-ride the law. There is,* however, noenactment to the contrary effect, and. accordingly custom mustprevail on the principle, if on no other, that it is a guide towhat w.as in. the minds of the parties who respectively made theplantation and suffered it to be made.
I think the decision appealed from should be affirmed, and thecase returned to the District Court for the assessment of damageson this basis. .
– The appeal is dismissed, with costs.
Maartensz A.J.—
This is an action for the recovery of damages from the defendant,who is alleged to have been in wrongful possession of plaintiffs’share of' a rubber plantation on a land called Palligodakele.
19^6.
Xota&e,Grant J.
Padi t Sinno%v.l Xlwie
3 (1900) 3 N. L. R. 1M.
(1919) 21 N. L. R. 415.
1926.
Maabtensz
A.J.
Podi Sinno■v. Alwis
( 404 )
The trial proceeded on admissions made by the parties, and* thefacts noted in the judgment of the District Judge were taken as-correct at the argument in appeal. They are as follows: —
The third plaintiff sued for the partition of the land Palligodakelein case No. 10,504 of the District Court of Kalutara. The first,second, and fourth plaintiffs were the fourth, third, and seconddefendants in that action, and the defendant was the seventhdefendant.
The present plaintiffs were declared entitled to two-fifths of theland, the present defendant to one-third, and the fifth and sixthdefendants in the partition action to four-fifteenths. They arenot parties to this, action.
The plaintiffs and fifth and sixth defendants were held to havemade the entire rubber plantation.
The plaintiffs, on the strength of this decision, that they andfifth and sixth defendants, made the rubber plantation, sued thedefendant for the recovery of damages, alleging that the defendantwas in possession of the entire rubber plantation from the middleof 1921, to February, 1922.
The defendant does not deny being in possession of the entireplantation during this period, but alleges that he was by an injunc-tion issued at the instance of the plaintiffs deprived of possessionfrom February, 1922, and in reconvention claims a sum of Rs. 1,000by way of damages.
The appellant's contention is that although he did not make therubber plantation he is entitled to,a share of the income as theowneu of a one-third share of the soil.
The contention is a startling one, as there can be little doubt thataccording to the custom of the country a co-owner takes all thefruits of any improvement effected by him. He cannot at a parti-tion of the land claim to be entitled to the improvements made byhim, but if they do not fall within the share allotted to him, he canclaim by way of compensation the cost of the improvements or theimproved value, whichever is less.
Two cases were relied on by the appellant:. ChelUtppah v. Ponnam-balam (supra), where Lawrie A.C.J. sitting alone held in a very shortjudgment that one of two co-owners of a parcel of land, who plantshalf of it is bound to give the other, as part owner of the land, hisshafte of the proceeds of the cultivation; and Thinohamy v. Paulis:3In this case the plaintiff claimed a defined one-third share of a landcalled Delgahawatta. The only dispute was as to the plantation,the entirety of which was claimed by the second defendant. Thesecond defendant was at one time entitled to two-thirds of Delgaha-watta and had made the whole plantation—a portion of the landrepresenting a two-thirds share of the soil and plantation was
1 {1915) 6 Bal.Notes of Gases 1.
( 405 )
' separated off and sold by the second defendant to one MendisAppuhamy in 1890. The defendant still claimed the plantationon the remaining one-third portion which admittedly belonged to theplaintiffs. The Commissioner, purporting to base his judgment on•the authority of Moldrick v. LaBrooy,1 held defendant was entitledto one-third of the plantation and dismissed plaintiff's actionexcept as to the 6oil.
In appeal De Sampayo J. said: —
“ The partition Ordinance provides for a co-owner being allowedcredit for any improvement made by him, but there isno law which declares a co-owner entitled to the entiretyof a plantation or other improvement made by him onthe common land; unless of course he has acquired it byprescription.”
He also said: —
” A co-owner who plants is not entitled to what is generallycalled ' planter's interest.' The plantation accrues tothe soil in proportion to the shares of the respective co-owners, the improving co-owner being in certain circum-stances entitled to compensation—see Silva et al. v. Silvaet al.2 ”
It was argued on the authority of these propositions that theowner of the soil is also entitled to a share of the fruits of theimprovements.
On the other hand, De Sampayo J. himself held in the case ofFernando v. Rodrigo (supra) that the fruits of the improvementitself (consumed before date of assessment) is not to be set off incalculating the amount of the compensation due to a co-owner forimprovements effected by him. Schneider A.J. agreed.
In the case of Silva v. Silva3 Lascelles C.J. held that thePartition Ordinance introduced no change with regard to the rightsof co-owners under the Eoman-Dutch law to be compensated forimprovements. In Silva et al. v. Silva et al. (supra) Middleton J.treated co-dwners who had improved the land as bona fide possessorseven if they planted more land than their shares amounted to if theother co-owners acquiesced in their doing so. In the present caseno evidence had been led on the point, and as the defendant didnot take the objection that he did not acquiesce in the plaintiffsplanting the whole land, I shall presume that he did acquiasce.
It is settled law that a bona fide possessor is not liable to accountto the rightful owner for the rents and profits, of the propertyenjoyed by him. A fortiori he would not be liable to account forthe fruits of the improvements.
1 14 N. L. R. 331.2 J 4 N. L. R. 79.
*9N.L. R. 114.
iWL
Maabtensz
A.J.
Podi SinnaV. Altttis
( 406 )
MA4B®TO8Z. P/ods Sinno
The defendant in this action is therefore not entitled, to the fruits,of the improvements effected by the plaintiffs. ,
'Another objection to his claim is that he did not in the partitionsuit set-up a claim to any share of the plantation as soil owner. Itis true that he could not claim damages in the partition suit, but hecould have asked the Court to decree that he was entitled to a sharein the plantation as soil owner.
The decree declares the plaintiffs and the fifth and: sixth -defend-ants* in the partition .suit entitled to the entire rubber plantation,and whatever rights the defendants had in the plantation uponwhich he could set up a. claim for damages have. be@n extinguished.He has, in fact, lost the foundation for his present, action.
I wolild• accordingly disniiss the appeal, with ooUt6.
Appeal dismissed.