1926 Present: Garvin and Lyall Grant J J.

 NUGAPITIYA v. JOSEPH.

352?D. C. Kegalla, 7,167.

Jus retentionis-Improvement of land on informal agreement-Knowledge and consent of owner-Right to compensation.

Where a person effected an improvement on land with the knowledge and consent of the owner and upon the latter's representation that he would be allowed to possess it as long as he wished, upon the payment of a specified ground rent.-

Held, that he was entitled to retain possession of the land until he was compensated.

BY an agreement dated July 3, 1912, which was not notarially attested, H. A. Molligoda purported to grant to the defendant a certain allotment of land for him " to build a tiled boutique thereon '' subject to the condition that upon the payment of a ground rent of Rs. 5 per mensem the defendant was at liberty to stay in the boutique for any length of time. The defendant entered upon the land and built a house in compliance with the terms of the agreement. On October 20, 1919, Molligoda sold the premises to the plaintiff, who brought the present action to eject the defendant. In his answer, the defendant claimed compensation for the improvements effected by him and the right to retain possession until he was compensated. The learned District Judge held that he was entitled to compensation, but not to the jus retentionis.

Keuneman, for defendant, appellant.

H. V. Perera (with Ranawake), for plaintiff, respondent.

Cur. adv. vult.

May 14, 1926. GARVIN J.-

The question raised by this appeal is whether the appellant is entitled to the jus retentionis in respect of improvements effected by him on a land of which the respondent is now the owner. By an agreement dated July 3, 1912, which was not notarially attested, one H. A. Molligoda, the then owner of this land, purported to grant to the appellant a certain allotment of land for him " to build a tiled boutique thereon " subject to the condition inter alia in that upon payment of a ground rent of Rs. 5 per mensem the appellant was to be at liberty to stay in the house built by him "for any length of period." This agreement is in Sinhalese, and the translation, as usual, is not very satisfactory, but in substance the agreement seems to be that upon payment of ground rent of Rs. 5 the appellant was to have the right to the enjoyment of the boutique built by him as long as he wished. The appellant entered upon the land, built a house, and in compliance with the terms of what, he believed to be a binding agreement, regularly paid this ground rent of Rs. 5. On October 20, 1919, Molligoda sold the premises to K. B. Nugapitiya, his son-in-law. On June 9, 1925, Nugapitiya brought the present action asking for declaration of title to the. land and that the defendant, i.e., the appellant. be ejected therefrom. The plaintiff has ignored the agreement and has chosen to treat the defendant as a trespasser. The defendant in his answer claimed compensation for the improvements effected by him and the right to retain possession until he was compensated. The learned District Judge held that the defendant was entitled to compensation, but that he was not entitled to the jus retentionis in respect of the house built by him. The defendant appeals both from the order of compensation as well as from the refusal of the District Judge to recognize his claim to retain the premises until compensation is paid. He has also appealed from an award of damages made in favour of the plaintiff. There can be no doubt that the appellant had a good and enforcible right to compensation as against Molligoda. It is not necessary to consider whether the right to compensation is available against Molligoda's vendee. The plaintiff has acquiesced in the order for compensation made against him, and the whole argument in appeal has proceeded upon the footing that the rights which were available to the appellant against Molligoda are