HOWARD C.J.—Cooray v. Samara-nayake.
1946Present: Howard C.J. and de Silva J.COORAY et al., Appellants, and SAMAR AN AYAKF., Respondent.
318—D. C. Colombo, 2,786.
Possessory action—Right of one co-owner to maintain possessory action againstanother co-owner.
A eo-owner who has been in possession of the entire common propertyfor a year and a day ut dominus can maintain a possessory action againstanother co-owner who thereafter ousts him.
PPEAL from a judgment of the District Judge of Colombo.
N.Nadarajah, K.C. (with him J. M. Jayamanne), for the defendants,appellants.
N. E. Weerasooria, K.C. (with him E. A. O. de Silva), for the plaintiff,respondent.
Cur. adv. wit.
June 20, 1946. Howaed C.J.—
The defendants in this case appeal from an order of the District Court,Colombo, giving judgment for the plaintiff and declaring that she isentitled to be restored to the possession of the rubber plantation on theland referred to in the schedule to the plaint together with damagescalculated at Rs. 70 a month from March 17, 1943. The plaintiff’scase was that her husband Don Peter Wijesekera, Vidane Aratchi, wasthe owner of the plantation and on his death it passed to her and herchildren. Since the death of the Vidane Aratchi the plaintiff statesthat she and her children have had exclusive and uninterrupted possessionof the plantation and taken the produce thereof up to March 17, 1943,on which day the defendants wrongfully and unlawfully ousted theplaintiff therefrom. The defendants admit that they took possession ofthe plantation on March 17, 1943, but maintain that they'were entitledto do so as they are co-owners with the plaintiff and others of the planta-tion. The learned Judge has found that the plaintiff was in possessionof the entire rubber plantation for a year and a day prior to March 17,1943, that the plaintiff’s possession of the plantation was ut dominus,
HOWARD C.J.—Cooray v. Samaranayake.
and that the plaintiff was entitled to damages calculated at Rs. 70 amonth from March 17, 1943. On these findings the learned Judge gavejudgment for the plaintiff as already stated.
I do not think that the District Judge’s findings of fact can be ques-tioned. In these circumstances the only question that arises for deter-mination is whether he was right in holding that the plaintiff, who was aco-owner with the defendants could maintain a possessory action for theplantation. In Abeyaratne v. Seneveratne * it was held by Lascelles C.J.that a possessory action can be maintained by one co-owner against theothers. In his judgment in this case the Chief Justice referred to thecases of Silva v. Sinno Appu 3 and Fernando v. Fernando 3 where it washeld that an owner of an undivided share of land can maintain a possessoryaction in respect of such share if he joins the other co-owners as parties.Rowel Appuhamy v. Moises Appu 4 is also an authority for the propositionthat, when exclusive possession for the whole of the planter’s sharefor some years prior to the assertion of title and forcible ouster has beenestablished, a co-owner is entitled to a decree against the co-owner whohas ousted him. The question as to whether a co-owner can maintain anaction against another co-owner without joining all the other co-ownersof the land was considered by the Full Bench in Heenhami v. Mohotihami s.It was held as follows :—
“ There is no rule of law that a co-owner cannot maintain an actionagainst another co-owner without joining all the other co-ownersof the land.
No doubt in many cases they are proper parties, and would bejoined on an application being made for the purpose. In some casesthey may even be parties, whose presence before the Court may benecessary in order to enable the Court to effectually and completelyadjudicate upon all the questions involved in the action, in whichcase the Court may add them of its own motion under section 18,but if they are not added, the Court should, in accordance with theprovisions of section 17, deal with the matter in controversy so far asregards the rights of the parties actually before it.”
The right to maintain a possessory action by a co-owner against anotherco-owner who attempts to occupy a house built by the former wasconsidered in Kathonis v. Silva 6, the headnote of which is asfollows:—
“ A co-owner has the right to build and live on the common land.If a co-owner exercises his right and builds a house for his private useon the land, he may eject any other co-owner who attempts to occupythat house without his permission.
It is possible that a co-owner may have the right to enter the housebuilt by another co-owner for certain purposes, but not to claim oneof the rooms for his own personal residence.”
1 (1914) 3 Bal. N. C. 22.» (1903) 7 N. L. R. 5.
* (1910) 13 N. L. R. 165.
11399) 4 N. L. R. 225.
« , 116) 19 N. L. R. 235.
1919) 21 N.L. R. 452.
CANEKERATNE J.—Wijeratne v. Wijeralne.
Kathonis v. Silva was cited and followed in the judgment of Soertaz J.in Oirihagama v. Appuhamy *.
In my opinion-the learned Judge was r'ght in holding that the plaintiffcould m«.infa«Ti this action. The appeal ig therefore dismissed withcosts.
dk Silva J.—I agree.
Appeal dismiss id.
COORAY et al , Appellants, and SAMARANAYAKE, Respondent