Land Development Ordinance – Permit-holder’s title – Rei Vindicatio – State land alienation – Bona fide and mala fide possession – Compensation for improvements – Ius retentionis and Ius tollendi.
BLOGGER’S NOTE
Land Development Ordinance – Permit-holder’s title – Rei Vindicatio – State land alienation – Bona fide and mala fide possession – Compensation for improvements – Ius retentionis and Ius tollendi.
Facts
The plaintiff instituted proceedings in the District Court of Monaragala seeking a declaration of ownership over a land described in the plaint, based on a permit (P1) issued under the Land Development Ordinance, and for the ejectment of the defendant. The defendant denied the plaintiff’s ownership and claimed to be the lawful possessor or owner, asserting that he had purchased the land from the plaintiff’s father in 1989 by an informal writing (V1). In the alternative, he sought Rs. 1,000,000 as compensation for improvements made to the property.
The District Court dismissed the plaintiff’s action, holding that the permit had been issued contrary to the provisions of the Land Development Ordinance. On appeal, the High Court reversed the decision, declaring the plaintiff as the lawful permit-holder and allowing the defendant to remove his buildings without damaging the land. The defendant appealed to the Supreme Court, challenging the High Court’s findings and raising questions of law regarding the plaintiff’s title and the denial of compensation.
Arguments
For the Appellant (Defendant):
Counsel contended that the High Court erred in accepting that the
plaintiff was the valid permit-holder, as she was only about 13 or 14 years old
when the original permit was purportedly issued. It was further argued that the
permit (P1) was invalid and that the court had failed to apply the strict
principles governing rei vindicatio actions, particularly the rule that the
burden of proving title rests entirely upon the plaintiff. The appellant also
claimed that he had made substantial improvements to the property and was
entitled to compensation or, alternatively, to remain in possession until such
compensation was paid (jus retentionis).
For the Respondent (Plaintiff):
Counsel maintained that P1 was lawfully issued by the Divisional
Secretary—the competent authority under the Land Development Ordinance—and was
not challenged in any proper forum. It was submitted that the appellant’s claim
to ownership was untenable, as the land in dispute was state land, which could
not be alienated by private individuals. The informal sale (V1) was therefore
void under Section 46 of the Land Development Ordinance and Section 2 of the
Prevention of Frauds Ordinance. The defendant’s improvements, having been made
after warnings by the Divisional Secretary, were at his own risk.
Held
Per Mahinda Samayawardhena, J. – - The permit P1 was duly issued by the Divisional Secretary, the lawful authority empowered to alienate state lands under the Land Development Ordinance. The District Court erred in treating the permit as invalid.
The defendant’s father-in-law had no right to sell state land; hence, the transaction evidenced by V1 was void ab initio. Under Section 46 of the Land Development Ordinance, a permit-holder cannot transfer or alienate land without the written consent of the Divisional Secretary.
The defendant was fully aware that the property was permit land and nevertheless proceeded to build upon it after being cautioned not to do so. Consequently, any improvements were made at his own peril and did not confer rights of compensation or retention.
The principle is well settled that only bona fide possessors are entitled to compensation for useful improvements and the right of retention (jus retentionis) until payment. A mala fide possessor, or one who acts with knowledge of his lack of title, is disentitled to such rights.
Even assuming that the defendant had been a bona fide possessor, the plaintiff cannot be compelled to accept improvements against her will or to pay compensation for unwanted buildings. The law does not allow an owner to be forced into an unwanted transaction; the proper remedy is the right of removal (jus tollendi), enabling the improver to dismantle his structures and restore the land to its original condition.
The burden in a rei vindicatio action is upon the plaintiff to prove ownership, but once superior title is established, the court is entitled to consider the defendant’s evidence to ascertain the real ownership. The plaintiff’s permit was sufficient proof of superior title, and she successfully discharged her burden.
Appeal dismissed.
The High Court’s judgment affirmed. Defendant allowed to remove
buildings without causing damage to the land.
Principles of Law
Rei Vindicatio:
The plaintiff must prove that he was the owner of the land at the time
of the action and continues to be so until judgment. However, where the
plaintiff shows “sufficient” or “superior” title to that of the defendant, the
court may grant relief without excessive technicality (Wasantha v. Premawathie,
SC Appeal 176/2014).
State Land – Alienation:
State lands cannot be transferred or sold by private individuals; even a
permit-holder requires written consent from the Divisional Secretary to
alienate land (Land Development Ordinance, s.46).
Compensation for Improvements:
Only bona fide possessors are entitled to compensation for useful
improvements; mala fide possessors cannot recover for improvements made with
knowledge of lack of title.
Right of Retention (Jus Retentionis):
This right allows a bona fide possessor to retain possession until
compensated but ceases once possession becomes unlawful.
Right of Removal (Jus Tollendi):
The improver may remove improvements made in good faith when the owner
declines to compensate, provided no material injury is caused to the land.
Owner’s Autonomy:
The owner cannot be compelled to pay for or accept improvements made
without consent; equity does not compel an unwilling owner to bear the burden
of another’s unilateral acts.
Precedents Referred To
Wasantha v. Premawathie – SC Appeal 176/2014, SC Minutes 17.05.2021
The General Ceylon Tea Estates Co. Ltd. v. Pulle (1906) 9 NLR 98
Carimjee v. Abeywickreme (1920) 22 NLR 286
Wijeyesekere v. Meegama (1939) 40 NLR 340
Anglo-Ceylon and General Estates Co. Ltd v. Abusalie (1954) 55 NLR 345
William v. Attadasi Thero (1962) 65 NLR 181
Final Order
Appeal dismissed. The judgment of the High Court affirmed. The defendant
permitted to remove the improvements without causing damage to the property. No
costs awarded
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