1839     Present: Keuneman and de Kretser JJ.

JAYASENA v. KARLINAHAMY.

166-D. C. Galle, 29,477. 

Partition action-Decree for sale-Purchase of lot by improver-Price below value of improvements-Right of improver to compensation-Claims of other improvers to compensation.

Where, in a partition action, the land is sold in lots under a decree for sale and a lot is purchased by an improver,-who claimed improvements upon it-at a price below the assessed value of his improvements,-

Held, that the improver is not entitled to the full value of his improvements but is bound to bring into Court the proportionate share of the compensation due to other improvers of the lot in question.

The Court should provide in the conditions of sale that, in the event of the sale realizing less than the appraised value, the purchaser shall pay the improvers in full or that an improver shall not buy at less than the appraised value of the improvements.

THIS was a partition action in which a decree for sale was entered and certain parties were declared entitled to compensation for buildings and plantations. The land was sold in blocks and at the sale the sixth defendant purchased lot C for Rs. 3,555. He was entitled to compensation for a building in the lot, which was valued at Rs. 6,000. The scheme of distribution provided that the sum available should be distributed rateably among all the parties including those entitled to compensation The sixth defendant claimed that he was entitled to be paid the full value of his building. The learned District Judge held that there should be a proportionate reduction of all claims.

H. V. Perera, K.C. (with him S. W. Jayasuriya), for the sixth defendant, appellant.-There should be one guiding principle applicable to the case where the land is sold at a figure in excess of the appraised value and to the case where it fetches a figure below it. Once a valuation is made under section 8 of the Partition Ordinance and the Court approves of it, it becomes an order of Court and must be given effect to. The matter really is one of res judicata as between the improver and the soil owner. See Jayawardene on Partition, p. 174.

A case of hardship cannot alter the principle. That a soil owner should get nothing may appear anomalous to a layman but not to a lawyer. Injustice should be distinguished from hardship.

An improvement is appraised to pay off an improver, but the soil is appraised for a totally different purpose.

In the converse case, where there is an excess, it has been held that the improver is entitled to the value of the improvement ; see Kanapathipillai v. Nagalingam [1 22 N. L. R. 223.], the improvement being regarded as a fixed quantity which cannot be enhanced or decreased, de Silva v. Odiris [2 34 N. L. R. 176.].

The District Judge agrees that one legal principle should govern both the cases, but assumes the anomaly in the case of a deficiency to be absurd. The principle laid down in the later decisions is correct and should be followed, or the whole matter should be referred to a fuller Court.

L. A. Rajapakse (w