( 268 )
Present: Lascelles C.J.
DE SILVA v. S1YAD0RIS et al.
193—C. R. Balapitiya, 7,951.
Superficies—Rights of a co-owner who builds on common land—Compen -sation—May a co-owner of a building bring an action to partitionhouse apart from soil ?—Ordinance No. 10 of 1863, ss. 2 and 5.
Lascelles C.J.—The ownership of a building vests, by the ruleof accession, in the owner of the soil. It is true that in some casesa person who builds on the land of another obtains the essentialrights of an owner by virtue of the right- of superficies, but theright is acquired by means of agreement between the owner and thesuperficiary ; and in view of the provisions of Ordinance No. 7 of1840, it is at least doubtful whether such an agreement would bevalid unless evidenced by notarial deed. But the co-owner whoputs up a building on the common property is in a totally differentposition from a person who, under agreement with the owner,builds on the land of another. The co-owner in such a case acquiresno title in severalty as against the other owners. The co-ownercould prevent him from building on the common property withoutthe consent of the other co-owners, but the building once erectedaccedes to the soil and becomes part of the common property. Theright of the builder is limited to a claim for compensation, which hecould enforce in a partition action.
facts are set out in the judgment of Lascelles C.J.
A. St. V. Jayewardene, for defendants, appellants, contended thatthe Court was wrong in holding that the plaintiff was entitled tomaintain the action under the Partition Ordinance in respect ofthe buildings alone. The houses sought to be dealt with in this
1L. K. 14 Q. B. D. 1411
( 269 )
action were built by the predecessor in title of the plaintiff and thedefendants at a time when he was a co-owner of the land. Thejus superfidarhtm is the right which a person has to a building onanother’s land (Grot, 2, 47, 9). A co-owner cannot have a rightof superficies in respect of a building standing on the common land.Whatever a co-owner builds accedes to the soil, and although hemay be allowed the exclusive possession or enjoyment of a buildingor other improvement which he has the right to make, when theco-ownership is to be dissolved under the Partition Ordinance he canonly claim compensation for improvements. Here the plaintiff andthe defendants are admittedly co-owners, not only of the buildings,but also of the soil. A partition cannot be maintained in respect ofa part of a corpus. By upholding the plaintiff’s right the Court hasbeen compelled to make a decree, which is not only not warrantedby the Partition Ordinance, but is also clearly unworkable.
H. A. Jayewardene, for the plaintiff, respondent.—A superficiescan be the subject of a partition action (Abdul Rahman v. MuttuNatchia1). Hie documentary evidence shows that the buildings inquestion were considered to be separate from the land, and so dealtwith in the deeds. The houses belong to the plaintiff and the'defendants alone ; while the entire land is owned in common, not.only by the plaintiff and the defendants, but also by a large numberof other co-owners who have no interest in the buildings.
A. St. V. Jayewardene.—Abdul Rahman v. Muttu Natchia can bedistinguished. There the parties had no interest whatever in thesoil. All the co-owners of the land have an interest in the buildingserected thereon, and ought to be made parties to this action.
Cur. adv. vult.
June 27, 1911. Lascelles C.J.—
This is a partition suit relating to a land held in undivided sharesby a number of co-owners, on which several houses have been erectedat different times by various co-owners.
The plaintiff claims title from one Edoris Bastian, who, with twoothers, was the owner of the property on whcih the houses wereerected. The plaintiff alleges that Edoris Bastian was the lawfulowner of three houses “ by right of building,” and, after tracing thedevolution of the title to these buildings, claims an undivided one-third share for himself in the three houses, as distinct from the soilon which they stand, and allots the remaining shares in differentproportions to the defendants, who are some, but not all, of theco-owners of the common property.
The defendants, on grounds to which I need not now refer, disputethe scheme of partition propounded by the plaintiff. The addeddefendant disputes the identity of the buildings now in existence
' (1900) l Ur. 2$0,
Dc <SHim w.
( 270 )
De Silva v.Siyadorie
with those erected by Edoris Bastian, and claims the whole or oneof the buildings on the ground that he himself had built it, and alsothe half of another hpuse. *
At the trial the added defendant’s proctor objected that thehouses formed part of the soil, and therefore could not be thesubject of a partition action. He alco contended that the actionshould have been for the partition of the whole land, and that allthe co-owners should have been made parties. These well-foundedobjections were over-ruled by the Commissioner of Requests, who,by his judgment, defined the shares in which the parties wereentitled to the buildings ; directed the buildings to be sold ; andordered that “ if a soil owner buys any house, the house need notbe broken down,” and that “ if a person not a soil owner buys ahouse, it must be on the distinct understanding that the house is tobe broken down, and the material only removed within a date tobe fixed by the Commissioner.” In my opinion the judgment ofthe Commissioner of Requests, and also the numerous transactionswhich have taken place with reference to these buildings, are basedon a. misapprehension ol the rights of the owner of an undividedshare who erects a building on the common land.
By the law of Ceylon the ownership of a building vests, by therule of accession, in the owner of the soil. It is true that in somecases a person who builds on the land of another obtains theessential rights of an owner by virtue of the right of superficies, butthis right is acquired by means of agreement between the owner andthe superficiary ; and in view of the provisions of Ordinance No. 7of 1840, it is at least doubtful whether such an agreement would bevalid unless evidenced by notarial deed. But the co-owner who putsup a building on the common property is in a totally differentposition from a person who, under agreement with the owner, buildson the land of another. The co-owner in such a case acquires notitle in severalty as against the other owners. One co-owner couldprevent him from building on the common property without theconsent of the other co-owners (Silva v. Silva1), but the buildingonce erected accedes to the soil and becomes part of the commonproperty. The right of the builder is limited to a claim for com-pensation, which he could enforce in a partition action under sections2 and 5 of Ordinance No. 10 of 1863. The claim of the plaintiff,therefore, rests on no legal foundation, and should have been dis-missed. There is, of course, nothing in this decision to prevent anyof the co-owners from claiming a partition, in a properly constitutedpartition suit, of the whole of the property, and in such an action theright of the builders of the houses now in dispute could be adjusted.
The appeal is allowed, and the action is dismissed with costs hereand in the Court below.
1 (.1m) fit N, L, R. 22,
DE SILVA v. SIYADORIS et al