[FULL BENCH.)

1917 Present : Ennis J., Shaw J., and De Sampayo J.

SAIBO v. BABA et al.

4- D .C. Matara, 7,164.

Planter's share-Well dug by planter-Right of retention-Compensation-Improvements.

A planter was held to have been entitled to retain possession of a well dug by him until he was compensated (Shaw J. dissenting).

ENNIS J.-The digging of a well by a planter for the purpose of the plantation, or as incidental to the right to live on the plantation, is not unreasonable; it would be unreasonable for the, holder of a " planter's share " to turn it into a public bathing establishment of to sell the water.

SHAW J.-I know of no authority showing that the planter has any rights to a well made by him on the owner's property. He may have a right to make and use a well for the purpose of watering his plantation, but there is no necessity for this in the present case, as the trees are fifteen years old. He certainly has no right as planter to the use of a well for profit as a bathing well. His position is more like that of a lessee, who, whatever right he may have to compensation, has no right of retention.

DE SAMPAYO J.-It may be that a planter cannot make a well except for the purpose of irrigating the plantation. But both the making and the user of it as a bathing well was acquiesced in from the beginning by the owner, and I think it is too late and unreasonable now, after forty or fifty years, to raise any (question as to the planter's right to make and use such a well.

A lessee who makes improvements with the consent . of the lessor is entitled to compensation, though perhaps not to retention. But a planter who is admitted to be entitled to a " planter's share " is not in the same precarious position as a lessee. He has a sufficient interest in the land to constitute him a bona fide possessor in respect of improvements outside the actual planting.

THE facts appear from the judgment.

Drieberg, for appellant.-A planter has no right known to law to a well dug by him upon the land planted, nor is he entitled to the use of it for himself and his family for domestic purposes or as a' bathing well. The utmost extent of his right is to use the water from such well for the purpose of watering his plantation. There is no claim by prescription, and no notarially executed deed has been produced. (See Jayasuria v. Omar Lebbe Marcar.1[2 C L. R. 6.])

A planter is not a bona fide possessor, and accordingly is not entitled to retain the possession of a well dug by him until he is compensated. His position is similar to that of a lessee. (See Lebbe v. Christie,1 Soysa v. Mohideen.2)

In any case, the planter having taken a lease of the land together with the well (2 D 1), is estopped from claiming any right to the well against the owner.

Keuneman, for first defendant, respondent.-The right to dig and use a well for any purpose is incidental to the right of the planter to live on the planted land. A well is a necessity for the purpose of living on the land. Similarly a planter has the right to build a house upon the land (D. C. Galle, No. 14,952, Lor. Rep. 201), Planters' rights can be acquired otherwise than by notarial deed and prescription. In Sinne Wappo v. Mohamadu Alley 3 the Full Bench held that a planter can acquire his rights by operation of law in the absence of an agreement.

The position of a planter is materially different from that of a lessee. He falls within the definition of a bona fide possessor, and is entitled to retain the land until compensated.

No estoppel arises in this case, as the action was brought after the termination of the lease. Further, the lease (2 D 1) is badly drafted, and it is not clear that it was understood by the planter ' in the sense placed upon it by the owner. o In any case, what was leased was whatever right the owner had in the well, e.g., the right of the owner to recover complete ownership in the well by paying