084-NLR-NLR-V-66-R.-FERNANDO-et-al.-Appellants-and-H.-S.-COORAY-Respondent.pdf
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Fernando v. Cooray
Present:Herat, J.
R. FERNANDO et al., Appellants, and H. S. COORAY, RespondentS.C. 21161—C.R. Colombo, A1481174430
Improvements made by a licensee—Bona fide improver—Right to claim compensation—Right to remain in possession until compensation is paid.
When the owner of a land, without protest and being fully aware, allowB. aperson to enter that land and improve it by erecting a building, the latter is inthe position of a bona fide improver and is entitled not only to claim compensa-tion for the value of the building but also to a jus retentionis until compensationis paid.
1 {1814) Gurney's Rep. p. 479.
HERAT, J.—Fernando v. Gooray
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Appeal from a judgment of the Court of Requests, Colombo.C. D. S. Siriwardene, for the Defendants-Appellants.
No appearance for the Plaintiff-Respondent.
June 14, 1962. Herat, J.—
In this case the plaintiff, one Somapala Cooray, sued the three defendants-appellants for damages in respect of wrongful possession of a land anda building and for ejectment therefrom. The action was a representativeaction where the three defendants-appellants had been appointed undersection 16 of the Civil Procedure Code to represent an unincorporatedsociety known as Sri Punyawardhana Samitiya of Rajagiriya. The3 defendants-appellants were office-bearers in the said society. Thefacts as found by the learned Commissioner of Requests are as follows :—The plaintiff-respondent’s father, one M. H. C. Cooray (hereinafter referredto as Cooray Senior), was a member of the abovementioned societysometime ago. The said society was formed to run a Dhamma school.It appears that the land and premises on which the society ran thatschool originally, for various reasons became unavailable to the society.The society was at a loss as to where it should conduct its activities..Thereupon Cooray Snr. came to the society’s rescue and permitted thesaid society to build a structure for the purpose of conducting its activitiesupon the land claimed in this action which undoubtedly belonged to-him.
Subscriptions were collected from members of the public by the societyand, as the learned Commissioner finds, a substantial building was erectedon the land in question with the leave and licence of Cooray Snr. Noprotests of any kind or conditions were laid down by Cooray Snr. asregards the erection of the said building. After the said building hadcome into existence and the Dhamma school was conducted therein furtheractivities of an educational nature were conducted by the society onweek days.
Cooray Snr. died in 1955 but shortly before his death he executed adeed of gift including the land on which the said building stands, infavour of his son Somapala Cooray the plaintiff-respondent. Theplaintiff-respondent states that he duly notified the society to quit anddeliver quiet possession of the land and premises in question to him butthat the society has failed to do so. He thereafter brought the presentaction claiming damages for wrongful possession and for ejectment fromthe said building. The defendants-appellants on behalf of the societyas an alternative claim stated that the building was worth about Rs. 15,000
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HERAT, J.— Fernando v. Cooray
and claimed compensation. Although the claim of Rs. 15,000 wasbeyond the jurisdiction of the Court of Requests and judgment cannotbe given to the defendants-appellants in that sum, in any event it waswithin their rights to raise such claim for compensation in order to meetthe claim of the plaintiff-respondent for ejectment and damages.
As Cooray Snr. voluntarily allowed the building to be erected withoutprotest and it was so erected with his leave and licence as the Commissionerfinds the question arises as to what the position of the society is. It isnow clear law that if a person who is the owner of a land without protestand being fully aware allows another to enter that land and improve itby erecting a building he cannot seek ejectment of the builder from thebuilding and the land unless the builder is given adequate compensationfor the building erected. The development of the modem Roman DutchLaw has tended to put such a builder in the shoes of a bona fide improverand to give him not merely the right to claim compensation for improve-ments but also to claim a jus retentionis in respect of the propertyimproved until compensation is paid. This principle is indicated in thejudgment of Lord de Villiers, Chief justice, in the case of Rubin v. Botha 1and in the more recent judgment of the Privy Council in the case ofHassanally v. Gassim2 where the opinion of the Judicial Committeewas delivered by Viscount Simonds. Therefore, applying the principlesof law stated above, the society in this particular case had a right toclaim compensation for the value of the building erected on the saidland in suit and also to remain in possession thereof as well as the landappertaining to the building until compensation was paid in view of theJus retentionis given to it by the law. It is admitted that the plaintiff-respondent has not tendered any compensation or made any offer ofcompensation to the society. It cannot, therefore, be said that thesociety is in wrongful possession of the building and its adjuncts sothat no claim for damages can be successfully maintained against thesociety. For the same reasoning the claim for ejectment must alsofail because until compensation is duly assessed and tendered to thesociety the society has a right to remain in possession in view of thejus retentionis referred to above.
therefore, set aside the decree of the Court of Requests. I allowthe appeal and dismiss the plaintiff-respondent’s action.
The appellants will be entitled to costs of this appeal and also to costsin the Court of first instance.
Appeal allowed.
1 1911 A. D. 568.
2 (1960) 61 N. L. R. 529.