Charles v. Juse Appu
1956Present: K. D. de Silva, J., and Sansoni, J.H. D. CHARLES et al„ Appellants, and H. A. D. JUSE APPU,
S. C. 92—C. R. Oampaha, 6265
Co-owners—Building standing on the common property—Action between co-ownersfor declaration of title thereto—Maintainability.
A co-owner is not entitled to maintain against another co-owner an aotionfor a declaration of title to a building put up by him on the common property.
.^^.PPEAL from a judgment of the Court of Requests, Gampaha.
H. W- Jayewardene, Q.C., with Frederick W. Obeyesekere, for defen-dants-appellants.
N.D. M. Samarakoon, with J.C. A. Perera, for plaintiff-respondent.
Cur. adv. vult.
(1956) 57 N. L. R. 505.
'■(1957) 59 N. L. R. 145.
DE SILVA, J.—Charles e. Juse Appu
July 11, 1956. Silva, J.—
This is an appeal from the judgment of the Commissioner of Requests,Gampaha, declaring the plaintiff entitled to a house standing on the landcalled “ Alubogahawatte ” and for ejectment and damages.
The 1st defendant is the husband of the 2nd defendant. Admittedly,the plaintiff and the 1st defendant are co-owners of this land. The plain-tiff alleged that he built this house in or about the year 1932 and shortlyafter, the defendant came into occupation of it with his leave and licenoe.Later, according to him, the 1st defendant became his tenant of thishouse. The 1st defendant counter-claimed the building also by right ofconstruction. The learned Commissioner entered judgment in favour ofthe plaintiff.
In June 1952, the plaintiff sued the 1st defendant in C. R. GampahaCase No. 5473 for rent and ejectment. In that case too the 1st defendantset up a claim to the house. That action was withdrawn by the plaintiffreserving his right to bring an action to vindicate his title to this building.Thereafter he instituted this action. At the hearing of this appealMr. Jayawardene contended that a co-owner is not entitled to maintainan action for a declaration of title to a building standing on the commonproperty. This point was not taken in the Court below. In de Silva v.Siyadoris et al.1 Lascelles C. J. dealing with the rights of a co-ownerwho puts up a building on the common property stated:—
“ The right of the builder is limitedtoaclaimfor compensation, which
he could enforce in a partition action under sections 2 and 5 of
Ordinance No. 10 of 1853. ”
This view was followed by Basnayake, J. in Sojnkamy v. Dias2. Acontrary view was taken by Jayawardene A. J- in Sopinona v. Pethan-hamy et al.3. I would prefer to follow the principle laid down in the 1sttwo cases referred to above. A building accedes to the soil. A co-owneris entitled in law to his undivided share of every inch of the soil. On thatprinciple it would not be open to a co-owner to ask for a declaration oftitle to a specific portion of the common property. When a co-owneris declared entitled to a building, in effect, it means that he is also declaredentitled to the soil covered by it. Of course a co-owner is entitled tomaintain a possessory action when he is ejected by another co-ownerfrom a house built by him. That right is based on the principle that aco-ovraer is entitled to take the benefit of his improvement until compensa-tion is paid to him by the other co-owners. Mr. Samarakoon who ap-peared for the plaintiff conceded that the point of law raised by Mr. Jaya-wardene was entitled to succeed. Accordingly I allow the appeal anddismiss the plaintiff’s action with costs in the Court below but there willbe no costs of appeal.
Bansoni, J.—I agree. •
1 (1911) 14 N. L. R. 268.
(1948) 50 N. L. R. 284.
• (1923) 25 N. L. R. 318.
H. D. CHARLES et al., Appellants, and H. A. D. APPU, Respondent