Perera V. Pelmadulla Rubber And Tea Co.,

1913 Present: Lascelles C.J. and Pereira J.

PERERA v. PELMADULLA RUBBER AND TEA CO. et. al.

22-D. C. Ratnapura, 1,873.

Co-owner-Right to compensation for improvements effected by him- Is bona fide possessor obtaining a certificate of quiet possession entitled to compensation from owner ?-Ordinance No 12 of 1840, s. 7.

A co-owner building on common property has no larger rights to compensation than a bona fide improver of property which was not his own. He is entitled to either the value of the improvements, that is, to the difference between the original and the enhanced value of the property, or to the costs of improvements, whichever is less.

A bona fide possessor paying a sum of money to the Crown for obtaining a certificate of quiet possession was held not entitled to claim that sum as compensation for improvements from the owner of the land.

LASCELLES C.J.-There can be no objection as to the advantage of paying off a mortgage on a property, but the advisability of obtaining a certificate of quiet possession may vary according to circumstances and the position of the owner Ordinance No. 12 of 1840 lends no sanction to the curious system which seems to have grown up of practically selling the land at a fixed rate per acre and then issuing a certificate of quite possession instead of a Crown grant.

Per PEREIRA J.-The expression "value of improvements" in section 5 of the Partition Ordinance means what the party who has effected the improvements is, in law, entitled to receive as compensation for the improvements.

IN this case the plaintiff sought to partition a land called Galande pelapanguwa, in extent about 100 acres, which consisted of several chenas, and which formed part of Rilhene estate, which belonged to the defendant company.

The learned District Judge (Allan Beven, Esq.), after discussing the facts, made the following order: -

The value of the rubber is estimated at Rs. 250 to Re. 400 an acre, but I doubt whether the first defendant company can claim that sum. A bona fide possessor is not entitled to claim more than was actually expected, but may include the value of labour in such expenditure (1 C, R. 22). I put this down roughly at Rs. 100 an acre on Mr. Hawkins evidence. The plaintiff will therefore have to pay at that rate per acre, plus his proportionate share for the certificate of quiet possession, before he enters into possession of his 10/18,

I understand' some 8 acres have been set aside, implanted, for the second minor defendant. If, however, there is to be a partition, he must come in and pay equally if his guardian ad litem wishes to have his share from the planted portion, but the Commissioner appointed to divide the land will, as far as possible, apportion to him the portion unplanted for his share.

Enter an interlocutory decree for partition as follows:-Plaintiff to 10/18ths of the land; first defendant company to 7/18ths; the second defendant to l/18th.

The Commissioner in partitioning the land will estimate the planted portion at Rs. 100 an acre, at which rate plaintiff will have to pay first defendant company for his share' (Viz., 10/18) before he can enter into possession, plus his proportionate share of Rs. 1,000 for the certificate of quiet possession.

The second minor defendant to get l/18thof the land from the unplanted portion.

As regards costs, I think the fairest order would be that each party should bear its own costs, because if plaintiff has won on the question of title, the first defendant company is entitled to the cost of proving his right to compensation.

Costs of partition will be borne pro rata.

The first defendant company appealed.

The plaintiff-respondent filed a statement of objections under section 772 of the Civil Procedures Code.

De Sampayo ,K.C. for first defendent appellant.
 
A. St. V. Jayewardene, for  plaintiff respondent.

Cur. adv. vult.

May 14, 1913. LASCELL

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