Elaris V. Kuruppu
Present: Sansoni, C.J., and Slriroane, J.ELARIS, Appellant, and KURUPPU, Respondent5. G. 472/63—D. C. Panadura, 7790
Co-owners—Possessory action between two co-owners—Maintainability.
A co-owner cannot get a possessory decree against another co-owner inrespect or a divided portion of th.3 common land.
Appeal from a judgment of the District Court, Panadura.
H. W. Jatjeti'ardene, Q.C., with L. G. Scitaviralne and D. S. Wijewardene.for Defendant-Appellant.
D. V. A. .Joseph, for Plaintiff-Respondent.
' (Z352) 54 N.L.R. 449.
Cur. adv. wit.
SANSONI, C.J.—Elaris v. Kuruppu
October 20, 19G5. Sansoni, C.J.—
This is a possessory .action brought in respect of a portion in extent3 roods of the laud called Nidaumulawatte in extent 1 acre 1 rood 13Jperches. The plaintiff claimed that when he "as in undistmbod posses-sion of that po.tion for over a year and a day, the defendant forciblyencroached on a part of it. The defendant in his answer claimed thathe was entitled to and was in possession of an undivided extent of 34pen-lies of the entire land, in the legitimate exercise of his rights asa co-owner.
It transpiied in evidence that the plaintiff inherited his interest fromhis father, and the plaintiff's brother inherited an e<|iial share withthe plaintiff. The plaintiff admitted that he was possessing the landon behalf of his deceased brother’s heirs. There are still other co-ownerssuch as the plaintiff's two daughters, and one D. F. G. Pcrera. Thusthero are several co-owners of the land of 1 acre 1 iood 13$ perches,and what the plaintiff has sought to do in this action is to prevent oneof the admitted co-owners possessing any part of the portion of 3 roodswhich ho claims to have been possessing.
It is settled law that every co-owncr has a right to possess and enjoythe whoie property and every part of it, and it is not open to a co-owner,which the plaintiir is, to prevent another co-owner such as the defendantpossessing and enjoying a part of that property.
This is not one of those cases where a co-owner who has made a plan-tation or erected a building on a portion of the common land seeks apossessory decree in respect of that plantation or building against anotherco-owner who has dispossessed him of his improvements. There aredecisions of this Court which hold that the improving co-owner is entitledto the jus retuntiohis cf his improvements, and can get a possessory decreein respect of such improvements. Apart from such' cases, a co-ownercannot get a possessory decree against another co-owner, since hispossession is not ut domimis.
The defendant as a co-owner was entitled to possess a portion of the3 roods extent. Whether he will ultimately bo allotted the house hehas built or get compensation in lieu of it, is a matter that can onlybe gone into ill a properly constituted partition action.
If the plaintiff wants to have a divided portion for himself, his onlyremedy is to bring such an action, ,1s long as he is a co-owier, hecannot claim to possess exclusively a divided portion of the commonland.
For these reasons the possessory decree which he has obtainedin the lower Court must be set aside, and his action dismissed with
costs in both Courts.
Sibimanb, J.—I agree.
ELARIS, Appellant, and KURUPPU, Respondent