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ARNOLIS SINGHO v. MARY NONA
NLR47V564
1946 Present:
Nagalingam A. J.
ARNOLIS SINGHO, Appellant, and MARY NONA et al.,
Respondents.
197-C.R.,Panandure,10,373.
Co-owner-Plantation made by him
on more than his proportionate share-His right to possess the entirety of it as
against the other co-owners.
Where a co-owner plants more than his proportionate share of
the common property he is entitled to possess the entire plantation as against
the other co-owners till such time as the common ownership is put an end to in
an action for partition.
APPEAL
from a judgement of the Commissioner of Requests, Panadure.
M. D. H. Jayawardene, for the plaintiff, appellant.
H. W. Jayawardene, for the defendants, respondents.
Cur. adv.. vult.
November 29, 1946. NAGALINGAM A.
J.-
The plaintiff who is admitted a co-owner with the first
defendant and certain others of the land described in the plaint institutes this
action for a declaration that he is entitled to the possession of certain rubber
trees planted by him on a portion of the common land and for damages for
wrongful possession of the plantation by the defendants. The defendants deny
that the plantation was made by the plaintiff and further pled that the land
with the plantation which, according to them, had been made by another co-owner,
Nomis, had been allotted by amicable partition to the 1st defendant who had
acquired a prescriptive title to the land including the plantation.
After trail the learned Commissioner held in favour of the
plaintiff that he had plantation himself and also found that since November,
1941, the defendants had dispossessed the plaintiff of his rubber plantation.
The learned Commissioner, however, held that as the land was undivided, the
plaintiff though he may have made the entire plantation could not claim to
posses more than a third, as that fraction represented the proportionate share
of the soil to which he was entitled.
The extent of the right of a co-owner to the fruits of
improvements made by him was the subject of conflicting decisions but they were
all reviewed in the case of Podisingho v. Alwis [1
(1920) 28 N. L. R. 201.] where a bench consisting of Lyall Grant L.
and Maartensz A. J. held that an improving co-owner is entitled to the fruits
of the improvements effected by him. That case has recently been followed by
Keuneman and Cannon JJ. in an unreported case, S. C. No. 2573, D. C. (F)
Kalutara, 23,445, Supreme Court Minutes of 20th November, 1944. No case
appears to have been cited to the learned Commissioner and in view of the two
cases referred to above it must follow that the view of the learned Commissioner
that the plaintiff is entitled to a one-third share of the plantation made by
him cannot be supported. It is needless to add that the plaintiff will only be
entitled to posses the plantation till such time as common ownership is put an
end to by the institution of a property constituted partition action in which
the rights to compensation for the plantation would be adjudicated, in the event
of the plantation made by him not being allotted to him. The learned
Commissioner has accepted the quantum of damages as set out by the plaintiff,
namely, the sum of Rs. 5 per mensem.
I would therefore set aside the judgment of the learned
Commissioner and direct that decree be entered in favour of the plaintiff
declaring him entitled to the possession of the rubber plantation standing on
the land descried in the plaint and to damages at Rs. 5 a month from November,
1941, till plaintiff is restored to possession of the plantation. The plaintiff
will also be entitled to coats both of appeal and of the proceedings had in the
lower Court.
Appeal allowed.
