1877 Nov. 16. within which such compensation may be claimed. that he is in lawful possession of the said garden, it having been leased to him on the 7th August 1865 for 25 years by Galanda Sobitha Nayake Unanse, then incumbent of the said vihares and guardian of Mupana Sonatera Samenaroo Unanse and nephew and pupil of Muppene Dhammarakitta Unanse in accordance with his last will and testament executed on the 31st March 1852 filed in the Testamentary Case No. 216. The said Samaneroo relinquished the robes in 1872, on which Dhammarkitte Unanse instituted a case in the D. C. No. 19465 for the incumbency of the Bogodde Malitta and Beddegame vihares and got judgment, and sues that the plaintiff may be ordered to pay him the sum of Rs. 2000 for the cost of improvements he has effected on the tenements. "The plaintiff's counsel contends that defendant is not entitled to any compensation, as when he leased the premises he was fully aware that they were in dispute as far back as the 23rd May 1862. Beddigame Gamegedere Dhammarakitte Unanse had instituted an action D. C. No. 15,805 against Gallanda Sobitta Unanse for the incumbency of the Passera vihare and its appurtenances, and Passera, Bogodde, Malitta and Beddegame vihares are all held by one and the same incumbent, and that defendant being well aware of this fact leased the premises on his own risk. "From a perusal of the previous cases No. 15,805 and 19,465 and Test Case No. 216, it is quite clear that Gallanda Sobitha Unanse held the incumbency of the vihares in question, having been appointed guardian of Mupane Sonatera Samenaroo Unanse by Dhammarakitta Unanse, as before noticed; he disrobed in 1872 and subsequently went mad, but till then defendant's lessor was clearly in lawful possession of the vihare. The first case brought No. 15,305 was for the lands attached solely to Passera vihare and Pansalawatte is not mentioned in the list of appraisement filed in that case. I dont see that defendant could know that all the vihares were under one and the same incumbent when he had the land on the 7th August 1865, for at that time the land in question was not in dispute, it was not till the 1st October 1872 that Dhammarakitte Unanse instituted his action for Bogodde Malitta and Beddegame vihares and their appurtenances, and consequently I hold that defendant's lessor had a bona fide right to lease the said premises and defendant to take them, and I think the law is clear that when a person takes a land on lease under a bona fide belief of his lessor's right to lease, he is entitled to compensation for the improvements effected during his occupancy; of course had he taken it knowing the lessor's right was disputed, he would have done so at his own risk, but the court holds that when he took it there was no dispute. "The only question now to be decided is the amount of compensation to which defendant is entitled. It is proved that he erected a tiled house in lieu of a building that had been standing at least 40 years, and defendant proves that the erection of this building cost him originally about £ 140 and that additions subsequently made cost another £ 60 which makes up the amount he claims, and it is further shewn that the house can be leased out at the rate of Rs. 25 per mensem. The court thinks that that fact proves his claim is not excessive, but it must be remembered that the materials used in the old house were employed in constructing the new one and consideration must be taken for that. I should think Rs. 1700 would be a fair and just estimate of the value of the premises. 66 It is adjudged and decreed that plaintiff be condemned to pay to defendant Rs. 1700 for the improvements he has effected and that on payment of such sum defendant shall quit the premises, plaintiff paying costs." On appeal Ferdinands, D. Q. A., and Van Langenberg appeared for plaintiff and appellant, and contended that defendant was not entitled to compensation, Perera's Armour, p. 118; even if he was entitled to receive any compensation, he could not retain possession of the property as against the rightful owner, D. C. Badulla 20,137 Ramanathan's Reports, 1877, p. 157. The rents received ought to be set off against the value of improvements, Touissant's Case. Cayley Q. A. (with him Grenier) for defendant and respondent: The present suit is in the nature, of a rei vindicatio in which impensae utiles might be recovered, and recovered not from the lessor, but from the ejector, D. C. Kandy, 66959, 3rd July 1877. The Dutch Law on the subject is very clear. By retention of property alone, can one's right to compensation be made effective, Voet ad Pandectas, vi. 1. 36, retentione sola &c. Defendant is entitled to recover, even though expenses are greater than the value of property, since no man ought to enrich himself at the expense of another. [LAWRIE, J.*-does not clause 2 of Ordinance No. 7 of 1840 affect your position?] No. That clause relates to the acts of parties, but tacit hypothecs arise by operation of law. The Ordinance of Frauds has never hitherto been supposed to have swept away the law of tacit hypothecs. The word " mortgage" in clause 2, relates only to conventional mortgages. On the question of damages, the District Judge's finding is correct. Ferdinands, D. Q. A., (in reply) cited D. C. Kandy, 66599, This case was argued on the 5th October last before CLARENCE, A. C. J., and LAWRIE, J.-ED. 1877 Nov. 16. 1877. Χον. 16. D. C. Badulla, 20137, Touissant's Case and D. C. Kandy, 52139, Cur. ade. vult. And now CLARENCE, J. delivered the judgment of the court, as follows: The lease appears to have been made in contemplation that improvements would be made by the lessee. The first ten years' rent (£50) was paid in advance. If the lessee chose to go out at the end of those ten years, he was to receive the value of his improvements. If he choose to go out at any time between the end of the first ten years and the end of the term, he was to get half valuation for his improvements. And we infer that if he continued on till the expiry of the term, he would have got nothing for his improvements, which is the view upon which the defendant bases the claim in his answer. The lease ofcourse is not binding upon the present incumbent, and the question is what claim has defendant for improve ments? The District Judge finds upon the evidence that defendant has erected a tiled house in place of an old building. Deducting the value of the materials of the old building (which seems to have been a tumble down affair), the District Judge finds that defendant has expended Rs. 1700 net upon the new house, and the District Judge, having regard to the evidence as to the obtainable rental, finds that Rs. 1700 fairly represents the value of the house. Defendant is very much in the position of the man described by Celsus (Dig. xi. 1. 38) qui in fundo alieno quem imprudens emerat ædificavit. He came in bona fide, but he acted imprudently, since he must be taken to have known that his tenancy might determine at any time with the incumbency of his lessor. The building of this house clearly falls under the category impenso utiles, and consequently defendant is entitled to a right of retentio in respect of the money spent, but not necessarily to the whole amount of his expenditure. The limits of the right of retentio for impensæ utiles in the case of an out-going possessor, such as this defendant is, are very plainly laid down by Voet (vi 1. 36), and also in the original passage in the Digest (vi 1. 38), on which Voet's commentary is based. First of all, the amount which the out-going possessor can claim is doubly limited in no case can he claim more than the amount expended, and in no case can he claim more than the difference between the original and improved value of the property. If the rise in the value exceeds the sum expended, he can only claim the sum expended; if the rise in value falls short of the sum expended, then he can claim the amount of the rise in value. Further than this, there is an equitable discretion left to the Judge qui varie ex personis causisque constituit, who is not to allow a man, as Lord Langdale put it in Saunders v. Hooper, 6 Beav. 246, "improved out of his property" where the impensa utiles "nimis graves sint, nec eas ipse dominus fuisset facturus”. It would be manifestly inequitable to shut a man out of his own property merely because he cannot pay for expensive improvements which have undoubtedly raised the value of the property, but which he never would have undertaken on his own account. In such a case as that, the Roman law, and the Roman Dutch law also, empowered the Judge to award that the outgoing possessor shonld sever and take away (tollat) such of his improvements as could be taken away without reducing the property to a state worse than the original one, provided that the real owner might have the option of keeping the improvements as they stood, by paying the outgoing possessor a sum representing what would be the value to him of the materials if severed. In the case before us, we see no reason to disapprove of the Judge's finding that the amount laid out by defendant in these impensa utiles has been Rs. 1700. What is the exact increase in the value of the property, the District Judge has not expressly found. He puts the value of the premises, which apparently means the value of the house, at Rs. 1700, from which it would seem that the District Judge has somewhat confused the value of the new house, site and all with the rise in the value of the property. There is no direct evidence as to whether the new incumbent would have been likely to erect such a building as this new house, but upon this question, whether the dominus eas impensas facturus fuisset, it is material to note that the original incumbent, whose lease actually subsisted for several years contempleted improvements to be made by defendant. The original ground rent reserved in the lease was £5 per annum, and defendant has built a house on the land at an expense of £170, which must have increased the value of the property by very nearly that sum, if the District Judge's finding is right, which we do not think it is. If defendant had gone out voluntarily two years ago about the time when the action was brought, he would, if his original lessor had been continuing incumbent, have been entitled to the full value of his improvements under the lease. He is now being turned out, or rather is liable to be turned out, owing to the results of his imprudence in taking a lease which his lessor had no power to grant at 12 years. Going out at 12 years under the lease, he would have half value for his improvements, and would have to pay two years rent at £ 5 a year. We think under these circumstances that we shall be making an equitable adjudication between plaintiff and defendant, if we give him the half of Rs. 1700. 1877. Nov. 16: 1877. Νον. 16. The decree, therefore, will be that the order appealed from be set aside, and in lieu thereof it is decreed that defendant do quit possession of the property in question on being paid Rs. 850 ; and that defendant be entitled to retain possession of the property until he be paid the said sum of Rs. 850 or on the expiration of the original term of 25 years, whichever event soonest happens. We may as well add that since defendant cannot, and indeed does not, claim to be placed in a better position than he would have had under the lease, he will lose his claim to Rs. 850, if he remains in possession till the expiry of the original term. With regard to costs, the District Judge gave defendant his costs, and defendant has been more in the right than plaintiff, for plaintiff sued in ejectment without tendering anything for improvements, and in fact traversed in his replication defendant's averment of having made improvements. Defendant on the other hand has not denied plaintiff's title, and has established the fact of improvements, though we do not award him their whole value. We shall give defendant his costs in the court below. In appeal, each party will bear his own costs. enough to D. C. Colombo, 69938. 1. In order Plaintiff (Alla Pitche) sued the defendant (Adams) in his to maintain capacity of Fiscal of the W. P., for the recovery of Rs. 2,500 a civil action as damages, averring that defendant seized and advertised for against a sale under the D. C. Colombo writ No. 54348 a house and ground public officer, bearing assessment No. 9, having received previous thereto notice it is not that the premises were specially mortgaged to one Sinnaya Chetty; shew that he that at the sale, the plaintiff in ignorance of the said mortgage behas in the came the innocent purchaser of the said premises for the price of course of his Rs. 2100 being the then full value of the said property; that after business, as a he was put in possession of the said property, the mortgagee issued public officer, writs against it and had the property seized and sold, ejecting the been guilty plaintiff therefrom; that the defendant was guilty of negligence of misfeas- and irregularity in failing to inform the plaintiff of the said mortfeasance, but gage, and to report to the court the claim so preferred, and in althe plaintiff lowing the proceeds of the sale to be paid over to the execution cremust go fur- ditor; that by reason of these premises, the defendent became liather and al- ble in damages to refund the amount of the purchase money, viz: lege that a Rs. 2,100 and an additional sum of Rs. 400 expended on the proparticular right of his perty by the plaintiff for necessary repairs. ance or non has been in The defendant denied the gross negligence and irregularity jured in con- imputed to him, and pleaded that the plaintiff had notice of the sequence. mortgage, inasmuch as it was duly registered by the holder thereof, |