Salim v Shatry (Civil Appeal No. 29 of 1938) [1940] EACA 32 (1 January 1940)

## APPELLATE CIVIL

### BEFORE LUCIE-SMITH, J.

## SAID BIN SEIF, a minor by his next friend and duly appointed Guardian SIR ALI BIN SALIM, Appellant (Original Plaintiff)

# SHARIFF MOHAMED SHATRY, Respondent (Original Defendant)

# Civil Appeal No. 29 of 1938

Action for possession of land—Jurisdiction of subordinate court—Real action-Courts Ordinance, 1931, section 18—Civil Procedure Ordinance, section 12— Land let for building in Mombasa—Arab parties—Fixtures—Conflict of laws—Whether Mohamedan Law or Transfer of Property Act applied— Applied act fitting the circumstances—Transfer of Property Act, 1882, sections 105, 106 and 108(h)-Kenya Order in Council, 1921, Article 11-Overholding—Whether right to compensation for disturbance.

Appellant being the registered owner of a plot of land in Mombasa let it to the respondent for building at a rent of Sh. 2 per month. The parties were Arabs. Respondent built a hut on it and duly and regularly paid the rent. The appellant served the respondent with a notice to quit terminating the tenancy on the 31st December, 1937. Respondent held over. Appellant sued respondent for possession and mesne profits in a subordinate court. The value of the plot was Sh. 1,400. Respondent defended the action on the ground that it was governed by Mohamedan Law under which he was entitled at his option inter alia to remain in possession on payment of the rent or to be paid the value of the hut and he asked that the suit be dismissed and in the alternative claimed Sh. 1,000 as compensation for the value of the hut. Appellant relied on the Transfer of Property Act, 1882, section $108(h)$ , and pleaded to the counterclaim that the respondent was not entitled to compensation since the appellant never claimed the hut or its materials.

The lower court held that the suit was governed by Mohamedan Law and that the respondent was entitled under that law to retain possession on payment of the rent. The suit was dismissed and the counterclaim left undecided.

Appellant appealed and on the appeal the respondent contended that the suit had been wrongly instituted in a subordinate court because such courts have no jurisdiction to entertain a suit for possession of land.

Held $(27-3-40)$ .—(1) That a subordinate court has jurisdiction to try a suit for possession of land subject to the value of the land being within the pecuniary jurisdiction of the court. Mohamed Moti v. Shariff Mohamed (9 E. A. L. R. 137) not followed.

(2) That the Mohamedan Law does not apply where there is an Applied Indian Act which fits the case. Secretary for Foreign Affairs v. Charlesworth Pilling and another (1901 A. C. 373) distinguished.

(3) That section $108(h)$ of the Transfer of Property Act, 1882, fitted the case and was the law applicable to it.

Appeal allowed. Decree for possession, mesne profits, interest and costs. Counterclaim dismissed.

**Budhdeo** for the Appellant.

Inamdar for the Respondent.

JUDGMENT.—The action from which this appeal arises was commenced in the Court of the Resident Magistrate, Mombasa, on the 19th January, 1938.

Paragraphs 1, 2 and 3 of the plaint are formal and are admitted by the defence.

Paragraph 4 sets out that the defendant was a tenant of the plaintiff at a monthly rental of Sh. 2 per month. The defendant did not admit this paragraph in his defence but at the trial admitted it and also that proper notice to quit was given as set out in para. 5 of the plaint and that defendant had failed to vacate the premises in accordance with that notice.

The first question to be decided in this appeal is that of the jurisdiction of the Resident Magistrate's Court to entertain this action.

The point was not raised at the original trial but was raised by the respondent before this Court.

It was held in the case of Rajlakshmi Dasee v. Katyayani Dasee, 38 Cal. 639, that if a court has no jurisdiction over the subject matter of the litigation, its judgments and orders, however precisely certain and technically correct, are mere nullities, and not only voidable; they are void and have no effect either as estoppel or otherwise, and may not only be set aside at any time by the court in which they are rendered, but be declared void by every court in which they may be presented. It is well established law that jurisdiction cannot be conferred on a court by consent of parties and any waiver on their part cannot make up for the lack or defect of jurisdiction.

That being so I am of opinion that the point of jurisdiction may properly be taken in this Court and must be decided. In the plaint it is stated that the value of the land of which it is sought to recover possession is Sh. 1,400. This valuation is not admitted by the defence but no attempt has been made to establish that it is an undervaluation. I accept the plaintiff's valuation as being correct.

Under section 18 of the Courts Ordinance, No. 16 of 1931, courts of the first class have full jurisdiction over all persons in all matters in which the value of the subject matter in dispute does not exceed £75 by section 1 of the Schedule to the Ordinance a Resident Magistrate may be invested with increased civil jurisdiction in non-native cases to any sum not exceeding £150. I have been unable to discover whether the Resident Magistrate who tried this case was so invested. Section 2 of Ordinance 55/34 states that the term "native" shall not include an Arab and section 4 reads "wherever in this or any other Ordinance the expression 'non-native' is used, such expression shall be construed to mean a person other than a native as herein defined".

In Mohamed Moti v. Shariff Mohamed, 9 E. A. L. R p. 137, Pickering J. did not feel able to decide that a subordinate court, the exercise of whose jurisdiction is specifically confined to "persons", can entertain a suit for foreclosure which historically constitutes a claim against the land charged.

The learned judge would appear to have been of the opinion that the remedies which subordinate courts might grant were limited to judgments in personam or inter partes. It is of interest to note that in Romeo Antao v. Mubarak Bukhait, 7 E. A. L. R. 152, an action for the recovery of land the same learned judge appears to have considered only the question of the value of the subject matter in dispute vis-à-vis the jurisdiction of a subordinate court.

In Civil Appeal No. 4/37 Webb J, held that a subordinate court had no jurisdiction to decide a dispute as to the title of immovable property. In his judgment the learned judge somewhat reluctantly followed the decision of Pickering J. in Mohamed Moti v. Shariff Mohamed (supra) which was to the effect that the words in section 18 of the Courts Ordinance imported that the jurisdiction of subordinate courts was in personam only.

This decision of Pickering J. was also followed by Lane, Ag. J., in Civil Appeal 13/38, Mohamed Moti & Sons v. The Land Officer. Meru. In Shariff Ali bin Mohamed v. Abdulmajid bin Mwijabu, 12 K. L. R. p. 53, Thomas J. expressed the opinion that a claim for specific performance in respect of a contract relating to land may be rightly made in a District Court.

In Civil Appeal 16/24 Thani bin Ali El-Khasibu v. Mohamed bin Rashid. Johnson, Ag. J., held that a subordinate court could decree specific performance of a contract to transfer land. The learned judge in his judgment discusses the judgment of Pickering J. in Mohamed Moti v. Shariff Mohamed Haji Hussein.

Referring to the differentiation made by Pickering J. between the phrases "over all persons and over all matters in East Africa" and "full jurisdiction over all persons in all matters" used in the Order-in-Council of 1902 and the Courts Ordinance, Cap. 5 of the Laws of Kenya (now Ordinance $16/31$ ) respectively Johnson, Ag. J., makes the following remarks: -

"My brother Pickering stresses the word 'in' in the above phrase. I would stress the words 'full' and 'all' and regard the money limitation as analogous to the proviso in section 56 and the limitations in sections 57-60 and section 57 (sic) of the County Courts Act of 1888.

In Abdulla Kanji v. Wakf Commissioners, 8 E. A. L. R. p. 182-a case in which an injunction was granted by a subordinate court of the first class in addition to damages for trespass he (Pickering J.) upheld the grant of an injunction. An equitable remedy was granted in a matter monetarily assessable as being within the lower courts powers. In my opinion this latter case should be followed in the matter before me rather than the general doubts expressed by the learned Judge in Supreme Court Civil Case No. 155. of 1923 (Mohamed Moti v. Sheriff Mohamed (supra)).—The cases which I have so far quoted dealt with the jurisdiction of a subordinate court in respect of $(1)$ rights claimed under an equitable mortgage, $(2)$ a dispute as to the title of immovable property, (3) a claim to rights over immovable property, (4) a suit relating to land and (5) specific performance of a contract to transfer land.

In most if not all of those cases there appears to have been some idea in the minds of the learned judges that to arrive at the jurisdiction or lack thereof of a subordinate court one must consider whether the individual action was real or personal. The action at present before the Court is however for ejectment which is a mixed action (1 Hals., p. 84, section 51). In this connexion I would refer to the case of Lewis Fernandes v Joseph & Son, 8 E. A. L. R. 99—where it was held by the Court of Appeal of which Pickering J. was a member that where a suit is instituted for recovery of possession of a house the value of the 'subject in dispute' is the value of the house. (In the present case the value of the subject matter in dispute is that of the land sought to be recovered.) That appeal originated in the court of the Resident Magistrate at Nairobi and there appears to have been no query either before him or before the Court of Appeal for Eastern Africa as to the Resident Magistrate's jurisdiction to entertain a claim for the recovery of possession of immovable property—so long as the value of the property sought to be recovered was within the pecuniary limits of the Resident Magistrate's jurisdiction. On this point I would in conclusion refer to the Civil Procedure Ordinance, section 12, which reads as follows: -

'Subject to the pecuniary or other limitations prescribed by any law, suits-

- (a) for the recovery of immovable property, with or without rent or profits, - $(b)$ for the partition of immovable property, - (c) for the foreclosure sale or redemption in the case of a mortgage $\frac{1}{2}$ of or charge upon immovable property,

- (d) for the determination of any other right to or interest in immovable property, - (e) for compensation for wrong to immovable property; (I omit $(f)$ );

shall be instituted in the court within the local limits of whose jurisdiction the property is situate:

What Courts in this Colony have only local jurisdiction? the subordinate courts—the jurisdiction of the Supreme Court extending over the whole of the Colony. Again the proviso to section 12 is of great interest:—

'Provided that a suit to obtain relief respecting or compensation for wrong to immovable property held by or on behalf of the defendant $may$ where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily. resides' etc.

Though it may not be strictly relevant but bearing in mind the close relation in the past between the legislation of Kenya and India it is of interest to note the case of Anwar Ali Bepari v. Jamini Lal Ray Chaudhuri (1939) Cal. 254. That was an action for ejectment and was commenced in the court of the Second Munsif of Narayanganj. No objection to his jurisdiction being taken at hearing or on first or second appeal.

In view of the authorities I have quoted I have no hesitation in finding that the learned resident magistrate had jurisdiction to entertain the present suit.

We now come to what is the really important issue in this appeal and that is 'what law is to be applied to this action'? Before giving my decision on this there is one small point on which I must touch. In the course of the trial in the lower court the learned magistrate, from time to time, framed issues. The first of these, in point of time, reads as follows: --'Agreed issues to be decided—'First Issue—A landlord lets to a tenant a piece of land for building a wattle and daub hut thereon at agreed ground rent of Sh. 2 per month.

Tenant erects the hut-pays the ground rent from month to month. Tenant is willing to continue to pay rent and retain occupation. The landlord wants his land back. The tenant is now asking for compensation.

Is the landlord entitled to eject without paying compensation?

Land situated in Mombasa and the parties are Arabs.

Agreed (I am still quoting)—If the landlord is so entitled without paying compensation there will be judgment as prayed for plaintiff. The landlord is not claiming the materials at all and the defendant will be allowed to remove the same."

At a later date I find the following in the learned resident magistrate's $note: -$

"Agreed fact and case. A landlord lets to a tenant a piece of land for building a wattle and daub hut thereon at agreed ground rent of Sh. 2 per month.

The tenant erects a hut and pays the ground rent from month to month. The tenant is willing to continue to pay rent and retain occupation. The landlord wants his land back.

Is the landlord entitled to eject without paying compensation? The land is situated in Mombasa and it is agreed that a proper certificate of registration of ownership has been issued in respect of it under the Land Titles Ordinance. The parties are Arabs. Issue to be decided.

What law governs such land on the above points—Mohammedan or Land Titles Ordinance?

Mr. Inamdar agrees that if Mohamedan Law does not apply he has no case."

It appears to me that the issue would have been better phrased to read: "To the above facts what law is to be applied?"

The learned magistrate heard very lengthy argument and gave a "ruling" on the issue on the 23rd July, 1938.

As a result of that ruling there was further long argument before the resident magistrate sitting with an assessor on Mohamedan Law as he was entitled to do under section 89(1) of Civil Procedure Ordinance and the learned resident magistrate gave final judgment on the 3rd August, 1938. A decree was drawn up dated the 2nd September, 1938. It is from that judgment and decree that the appellants appeal. A copy of the judgment is attached to the memo of appeal but no copy of the ruling: though it is obvious from para. 6 of the memo of appeal that the ruling as well as the judgment is attacked.

I have been somewhat exercised in my mind as to whether it is competent for this Court to consider the "ruling" in dealing with this appeal but have come to the conclusion that such "ruling" is incorporated in the judgment appealed from by reason of the opening words of the judgment. In this case I have already decided that Mohamedan Law principles govern this case."

Before dealing with the question of what law is applicable to this case I should like to express my very real appreciation to the advocates concerned for the very careful and exhaustive manner in which they have presented their respective cases before this Court.

Mr. Inamdar for the respondent bases his case on the Privy Council decision in Secretary of State for Foreign Affairs vs. Charlesworth Pilling and another, L. R. (1901) A. C. 373. In that case (I am quoting from the headnote of the report) : —

"The lands of the plaintiffs in the island of Mombasa, part of the dominions of the Sultan of Zanzibar, were taken for a railway by the<br>British Government under section 6 of the Indian Land Acquisition Act, 1894, which had been brought into force in Zanzibar by Order in Council.

In a suit for compensation for the value of the lands so taken, and also of the buildings previously erected thereon by the said Government without authority:

$Held$ (1) As regards the lands ... (The Applied Act, the Indian Land Acquisition Act, 1894, applied).

(2) As regards the buildings, English law applied under the Order in Council<br>of 1884 and the subsequent treaty of 1886. By that law, notwithstanding treaty rights of exterritoriality, the lex loci rei sitae governs the incidents of land, that is, in this case Mohamedan Law, of which law a Zanzibar Judge has judicial cognizance.

As regards Edward Powys Cobb v. Rashid bin Salim, 2 E. A. L. R. 35-This was an action by an Englishman against an Arab for damages for breach of contract in respect of a land transaction. Mr. Byron for the plaintiff argued that the case must be settled by the applied law of the Protectorate. He further argued that since the Indian Transfer of Property Act, 1882, had been applied to the Protectorate (by the 1897 Order in Council) the case of Secretary of State $v$ . Charlesworth Pilling only applied to natives. Judge Bonham Carter without giving any reason stated in his judgment: "As the defendant is an Arab and as the land lies within the Coast strip the law governing the matter is the Sheria and the issues have to be decided by that".

The next case referred to by Mr. Inamdar is that of Ibrahimii Allibhoy v. Mwenye Shimbwa and others, 4 E. A. L. R. 3. This case too was decided by Hamilton J. according to Sheria but no reasons for so doing are put forward by the learned Judge who contented himself by saying: "Here we have a contract relating to land in the Sultan's dominions, the defendants being subjects of the Sultan and as such subject to the Sheriah relating to sales—I see no reason to depart from the general rule applicable to such cases which was affirmed by this Court in the case of *Cobb v. Rashid bin Salim* (supra) decided by Bonham Carter J. in July, 1909, viz. that the proper law of such contract is in general the lex loci rei sitae, in other words, the Sheriah". As regards that case it is to be noted that the defendants were apparently natives so that Cap. 4 of the Laws of Kenya would appear to put them outside the application of an Indian Applied Act.

Again in Sheriff Jaffer & Co. v. Bwana Mzee, an action for damages, Hamilton C. J. applied the Sheriah but there again it must be borne in mind that the defendant would appear to have been a native.

In Jaffer Dewji v. Mohamed bin Abdulla and another, 6 E. A. L. R. 170, a suit for a declaration that the defendant had forfeited their right to a reconveyance of land and that such land was absolutely vested in the plaintiff. Ehrhardt J. without giving reasons followed the Sheriah. As regards the law followed the learned judge in his judgment says: "As the document refers to land in Mombasa, the law to be applied in considering it is the Sheriah".

In Shariff Ali bin Mohamed v. Abdulmajid bin Mwijabu, 12 K. L. R., p. 53, Thomas J. says: "Now the piece of land in question is situated in the Island of Mombasa. It has been suggested that, in that the plaintiff is not a native, Mohamedan law does not apply. The land is subject to the lex loci rei sitae, and being in Mombasa, the Mohammedan law applies even though the parties are not Mohamedans". The learned judge cites the cases of Charlesworth Pilling and Edward Powys Cobb (supra). He also cites the case of Romeo Antao v. Mbarak Bukhait, 7 E. A. L. R. 152.

To return to the Charlesworth Pilling case it appears to me that that part of the judgment which deals with the question of what law is applicable is governed by the following extract taken from p. 383 of the Law Report:—

"The first question is whether the dispute is to be governed by the English or the Mohamedan rules applicable to unauthorized buildings on land. The Indian enactments which the Order in Council makes applicable as far as circumstances admit, either directly or by order of the Secretary of State, do not fit this case; and therefore Her Majesty's jurisdiction is to be exercised under and in accordance with the Law of England. But the Law of England recognizes the principle that the incidents of land are governed by the law of its site."

I would particularly stress the words "the Indian enactments. applicable $\ldots$ do not fit this case". In this connexion I would refer to the judgment of Murison J. in Barton v. O'Swald and Co., Z. L. R., 1868-1918, p. 420, and quote therefrom at p. $421:$

"The fundamental issue is whether the English Law or the Mohamedan Law governs the case.

In this connexion I refer first to Charlesworth's case. The law relating to immovable property in Zanzibar is there laid down by the Privy Council to the following effect. First you look to the Order in Council, and to the Indian Acts applied by it to Zanzibar. If there is an Act which fits your case you apply it, subject to what is stated below. If there is no applied act to fit your case, you go back to Article $11(a)$ of the Order in Council, 1897, which is

kept alive by Article 52(1) of the Order of 1906. That article prescribes that the common law of England shall be applied, and it is part of that law that the lex situs, namely the Mohamedan Law, governs land cases. So far, therefore, as the Order in Council is concerned you hold ready for application either the applied Act, if there is one which fits your case or the Mohamedan Law, if there is no applied Act which fits your case. Next. . . . In Charlesworth's case there was no difficulty, for the question raised thereas no applied Act fitted the case—came under the Mohamedan Law."

I would next refer to the case of The Wakf Commissioners for Zanzibar v. Wallo Ramchor, Z. L. R. (1868-1918) 227, where it was held by Lindsay Smith C. J. and Murison J. that the action was not governed by Charlesworth's case because an applied Indian Act fitted the case. The learned judges say in their judgment at p. $234$ :-

"In our opinion the position in the present case is as follows. It is undoubtedly part of the English Common Law that actions relating to land are to be tried according to the lex rei sitae. So far as that goes it is clear that the Mohamedan Law must apply. But the Order in Council, 1897, has specified a list of Indian Statutes which are to apply to British subjects in Zanzibar, including a Transfer of Property and other acts applying to land. A question then arises; which law overrides the other? where the applied Statutes deal with a question relating to land."

The learned Judges then quote from Their Lordships' judgment in Charlesworth and continue: —

"It is to be noted that the first step Their Lordships took in enquiring whether English or Mohamedan Law applied to a dispute about unauthorized buildings on land was to look at the list of applied acts. It was only upon the ground that there was no applied law which fitted a dispute as to unauthorized buildings that they fell back, in accordance with section 8 of the Order in Council, on the Common Law of England, which says that the lex rei sitae applies."

In Naser Karemsy v. Allarakhia Dadani, Z. L. R. 97. the learned advocate for the plaintiff contended that the defendant had agreed to transfer the undertaking and that this was a covenant running with the land. The learned judge however held the stipulation to be a personal guarantee and not, as contended on behalf of the plaintiff, a covenant running with the land, being an interest which the defendant had no power to convey, or in the language of the Indian (Transfer of Property) Act was not "capable to pass".

The case of Ladha Hasham v. Suleman Nathoo, Z. L. R. 184, was decided by Murison J. under the provision of the Indian Transfer of Property Act as applied to Zanzibar.

Let us now turn to the Indian Transfer of Property Act (Act 4 of 1882) which as I have said was applied to the Colony in 1897 by Order in Council retained by Art. 28 of the East Africa Order in Council, 1902, and again retained by Art. 11 of the Kenya Colony Order in Council 1921. It is to be noted that by section 2 of the Act, nothing in the *second* chapter of the Act is to be deemed to affect any rule of Hindu. Mohamedan or Buddhist Law.

Chapter V of the Act Section 108 deals with the rights and liabilities of lessor and lessee. Section 105 defines a lease.

Section 106 deals with leases of immovable property for agricultural or manufacturing purposes while section 107 says: "A lease of immovable property from year to year, or for any term exceeding one year, can be made only by a registered instrument".

In view of the admissions of, and agreed, facts in this case this part of the section does not apply. The section continues: "All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession". This to my mind, if the Transfer of Property Act fits, covers the present case as being a lease of immovable property by oral agreement accompanied by delivery of possession.

Section 108 reads "In the absence of a contract or local usage to the contrary (the which has been neither pleaded nor proved) the lessor and the lessee of immovable property, as against one another, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased."

The rule which is of interest in this case is rule $(h)$ . Rule $(h)$ reads as $follows: -$

(h) "the lessee may remove, at any time during the continuance of the $\frac{1}{2}$ lease, all things which he has attached to the earth: provided he leaves the property in the state in which he received it."

In Shephard and Browns Commentaries on the Transfer of Property Act, 1882, we find at p. 507 referring to rule $(h)$ the following:-

"The result of the rules is that, instead of the rule quicquid plantatur solo, solo cedit, which subject to various exceptions represents the law in England one general rule is enacted, enabling the tenant to remove trees and shrubs of all sorts which have been planted by himself. The maxim above cited holds good with regard to such trees only after the termination of the tenancy. Similarly with regard to buildings the Legislature ignoring the rule *guod solo inaedificatur, solo cedit, and the distinction made in English Law* between things which are and things which are not tenant's fixtures, and things which he may or may not remove during the tenancy, has enacted one general rule for buildings of all sorts erected by the tenant. Any fixture or other thing attached to the earth which on a transfer of the land would under section 8 pass to the transferee, may under this section when it has been so attached by the lessee be removed by him, provided only that he restores the land to the condition in which it was when possession was given to him."

The amendments to section $108(h)$ contained in the amending Act XX of 1929 being explanatory rather than new I think justifies me in referring to Mulla's Transfer of Property Act-(2nd Ed. 1936)-at page 609. The learned author $says: -$

"This sub-section has been amended by insertion of the words 'even after the determination of the lease' to settle a conflict of decisions referred to in Angammal v. Aslami Sahib (1915 38 Mad. 710) as to whether a lessee is entitled to an allowance of a reasonable time after the determination of the lease for the removal of his fixtures. A further amendment by the words 'whilst he is in possession of the property leased and not afterwards' fix definitely the time during which the right may be exercised. The amendment introduces no new principle but limits and defines the tenant's right to remove as one to be exercised during the term and negatives any right to remove when the tenant is not in possession."

In Poramanick's case (1866) 6 W. R. 228, which this section follows, a Full Bench of the Calcutta High Court said:—

"We think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials,

restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil—the option of taking the building, or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess."

On the same subject at p. 610 Mulla says: $-$

"The right to remove the buildings negatives the right to compensation. The option is with the lessor either to take the buildings on paying compensation or if he is unwilling to pay compensation to allow the lessee to remove the building."

Having so far as possible examined the Sheriah as regards "Hiring" I have come to the conclusion that the main difference between its principles and those of section 108 of the Land Transfer Act is that under the latter the lessor has withe option of retaining a building upon payment of compensation while under the Sheria the tenant may at his option (1) keep the house and continue to pay rent, (2) remove the house on payment of compensation or (3) purchase the land by paying the value thereof.

At page 196 of Minhaj et Talibin it is laid down that where the owner takes back a piece of land lent for building purposes with no time of restitution mentioned, the borrower is obliged to demolish the buildings only if this has been specially stipulated. In default of such stipulation the borrower cannot be obliged to do so—where the borrower (lessee) refuses to demolish buildings without compensation, the owner (lessor) cannot force him to do so, but may choose one of two courses. He can either leave them on the land, charging the borrower a rent; or himself carry out the demolition, compensating the borrower for the loss of his buildings. Some authorities maintain that the owner of the land can also appropriate the buildings paying their value to the borrower.

In view of the foregoing I ask myself have we got an Indian Applied Act which fits this case and have no hestitation in answering Yes the Indian Transfer of Property Act.

That being so I am of opinion that the appellants must succeed on paras. 4, 5 and 6 of the memorandum of appeal. $\frac{1}{2}$

As regards para, 6 it must not be thought for a moment that I am suggesting that the decision in the Charlesworth case is not good law.

The appeal is allowed and there will be judgment for the plaintiff in terms of paras. 1, 2 and 3 of the prayer of the plaint—the counterclaim is dismissed.

The appellant to have his costs here and in the lower court.

I should like to say in conclusion that fully realizing that this case involves important principles which may affect hundreds of tenants in Mombasa I should welcome an appeal even to the highest tribunal.