T. S. FERNA"NDO, J.—Edwin v. A.beyguru*ralne
1959Present : T. S. Fernando, J.H. L. G. EDWIK, Appellant, and X>. D. A B E Y GUN A EATNE,
-S'. C. 81—C. It. Matara, 5070
Jurisdiction—Action to eject a person from a house—Valuation of subject matter ojaction.
Whore an action is instituted to .eject a person from a house on tho groundthat tho plaintiff is tho owner thereof and that the defendant is in unlawful,possession of it, the proper tost for deciding tho value of the subject matter ofthe action is tho value of the houso as a standing house and not the value of thecost of demolition of the house plus tho value of the building materials thereofaftor demolition.
^lPPEAE from a judgment of the Court of Requests, Matara.
A.. P. Wijemanne, for the 2nd defendant-appellant.
Sir Lolita jRajapakse, Q.C., with Mangala Moonesinghe, for the plaintiff,respondent.
Cur. adv. vult.
May 12, 1959. T. S. EniWA^no, J.—
The only question raised by counsel for the 2nd defendant-appellantbefore me was whether the learned Commissioner of Requests has reacheda corroct decision on the question of the jurisdiction of the Court ofRequests to hear this case. At the commencement of the trial, theappellant’s counsel desired that the issue framed in respect of the juris-diction of the Court be heard first, but the learned Commissioner as hewas entitled to do directed that evidence on all the issues be led so thatho may adjudicate on all the matters arising in the case. After a verylengthy trial the question of jurisdiction was decided in favour of theplaintiff. This decision is canvassed and it has been contended thatthe learned Commissioner has misdirected himself on this vital issue byadopting a wrong test in deciding the value of the svfbject matter of theaction.
T. R. F15RNAN3D O, J.—Edurin v. Abeygunaratne
The plaintiff instituted this action for ejectment of the appellant andanother from a certain house standing on a defined allotment of landwithin the urban limits of Matara on the ground that ho was the ownerthereof and that the defendants axe in wrongful and unlawful possessionof tho said house. The appellant filed answer asserting that he was theowner of this house by right of construction and that he has acquiredtitle by prescription thereto and to all the soil covered by the houseadverse to and independent of the plaintiff and all others. It is inthis state of tho pleadings that the issues were framed and an additionalissue framed in the course of the trial reads as follows :—
“ Is the subject-matter of this action the 9 cubit thatched house asdescribed in paragraph 2 of the plaint inclusive of the soil on whichthe said house stands ”.
Tho learned Commissioner has answered this issue in the negative,but in my opinion the pleadings leave no room for dispute that theplaintiff sought to eject the defendants from the house of which healleged they were in wrongful and unlawful possession. If a person is inunlawful possession of a house it seems to follow that he is in unlawfulpossession also of the soil on which that house stands. It is relevant tonote that the 2nd defendant-appellant specifically claimed the soil and itis implied in the plaint that the appellant is not entitled to the soil.
The test applied by the learned Commissioner was not the value of thehouse as a standing house but the cost of demolition of the house andthe value of the building materials thereof after demolition. On thebasis he adopted the Commissioner valued the subject-matter as beingunder Rs. 300/- and therefore within the jurisdiction of his Court. Thistest is in my opinion the wrong test to be adopted. The house shouldhave been valued as a standing house. There was an abundance ofevidence on both sides as to the value of the house. It is sufficient tonote that the annual value of the house for rating purposes was Rs. 104/-about the time of the institution of the present action. Having regardto that circumstance alone it cannot be seriously d.oubted that the housein question valued as a standing house at the time of the filing of theplaint was well in excess of Rs. 300/-. The evidence I have referred toabove is sufficient to enable me to dispose of the question of jurisdiction,but I must add that, if the value of the soil covered by the house is takeninto account in determining the value of the subject-matter of the action,as in my judgment it should be* then the subject-matter comes to bevalued at well over a thousand rupees.
Por reasons indicated above the judgment of the Court below must beset aside, and the plaintiff’s action dismissed with costs in both Courts.
H. L. G. EDWIN, Appellant, and D. D. ABEYGUNARATNE,Respondent