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WILLIAM SILVA v. ATTADASI THERO
NLR65V181
1962 Present
: H. N. G. Fernando, J.,
and T. S. Fernando, J.
WILLIAM SILVA, Appellant, and K. ATTADASI THERO, Respondent
S. C. 283/1960-D.C. Kandy, 1575
Compensation for
improvements-Improvements effected on land with knowledge and consent of
owner-Improvements made by a " lessee " under a non-notarial document-Jus
retentionis.
A person who improves a land on the faith of a document from the owner which
turns out to be void in law is entitled to retain possession, and is not liable
to be ejected, until compensated for the improvements.
Defendant entered into occupation of a land and erected a building thereon after
the execution of a non-notarial document which purported to be a lease from the
plaintiff's predecessor in title, the object of the purported lease being that
the defendant should construct a permanent building of specified dimensions,
paying a ground rent of 33 cents per month.
Held, that the document, being non-notarial, was void and
conferred no rights of occupation on the defendant, who was therefore never a
tenant of the plaintiff. The defendant had, however, the rights of a bona fide
possessor and was therefore entitled to remain in possession of the land until
he was paid the compensation due for the improvement, namely the value, at the
time of the action, of the building which he erected with the express consent of
the plaintiff's predecessor.
APPEAL
from a judgment of the District Court, Kandy.
S. Sharvananda, for defendant-appellant.
B. J. Fernando, for plaintiff-respondent.
Cur. adv. vult.
March 29,1962. H. N. G.
FERNANDO, J.-
The only question for determination in this appeal is whether the Defendant, who
is to be ejected from the Plaintiff's land, is entitled to a jus retentionis
until he is paid compensation for improvements effected on the land with the
knowledge and consent of the Plaintiff's predecessor in title. The Defendant's
appeal is against a finding of the learned District Judge that, although he is
entitled to compensation in respect of the building erected by him, his claim
for compensation can only be enforced after he vacates the land. This finding is
based upon dicta of this court in the cases of Alles v. Krishnan1[(1952)
54 N. L. R. 155.], and Jafferjee v. Cyril de Zoysa2[(1953) 55 N. L.
R. 127.], to the effect that a tenant's right to claim compensation accrues
after the tenancy has expired and after he has vacated the leased property.
Although counsel has invited us to consider whether these dicta correctly
express the common law applicable in Ceylon, it is unnecessary for us to examine
their correctness in the circumstances of this particular case.
The Defendant entered into
occupation of the land and erected a building thereon after the execution of the
document D1 which purported to be a lease executed by the owner, the object of
the purported lease being that the Defendant should construct a permanent
building of specified dimensions, paying a ground rent of 33 cents per month.
This document, being non-notarial, was plainly void, and the Plaintiff's action
for ejectment depended on the fact that the document conferred no rights of
occupation on the Defendant, who was therefore never a tenant of the land. That
being so, the decisions which construe the law applicable in a case in which a
tenant may claim compensation at the termination of the period of the tenancy
are not applicable. What is directly applicable is the decision of Garvin, J. in
Nugapitiya v. Joseph,1[(1926) 28 N. L. R. 140.] and it is useful to
cite in full his observations as to the mode in which the right to compensation
has been accorded in our law to a person who improves a land on the faith of a
document from the owner which turns out to be void in law :-
" But is it competent for a lessor who repudiates his lease because the failure
to comply with certain requirements enables him to do so, to deny his lesse
