Kanagoratnarn v. Suppiah
1957 Present: Sansoni, J., and L. W. de Silva, A.J.&ANAGARATNAM, Appellant, and SUPPIAH et al., RespondentsS. C. 262—D. C. Nuwara Eliya, 3181
Ownership of buildings—Exclusive right of soil owner—Erection of building by severedpersons—Claim, to co-ownership of building—Maintainability—Jus super-?
A building cannot be owned apart from the land on which it stands.Accordingly, where several persons join in erecting a building on a land, oneof them who has no interest in the land cannot maintain an action against theothers to be declared entitled to an undivided share of the building. Nor canhe claim, for the first time in appeal, a jus superficiariwm, especially when thereis no evidence of any agreement between him and the soil owner.
iTAPPEAL from a judgment of the District Court, Nuwara Eliya.
H. W. Jayewardene, Q.G., with P. Somatilakam, D. It. P. GoonetiUekeand P. Naguleswaram, for the substituted defendants-appellants.
S. J. V. Ghelvanayakam, Q.G., with E. B. Wikramanayake, Q.C., and
J. Tomvpoe, for the plaintiff-respondent.
Gnr. adv. wli.
SAXSONI, J.—Kanagaralnam v. Suppiah
June 28, 1957. Sa^tsont, J.—
The plaintiff came into court in this action claiming that he and thethree defendants built a theatre in Nuwara Eliya called and known as theTivoli Theatre, and equipped it with plant and machinery. He furtherpleaded that he and the defendants became entitled to the said theatretogether with the plant and machinery in the proportion of J share each.He complained that the 1st defendant as a co-owner has, since June1948, been in possession of and managed the theatre and collected therents and profits for the benefit of himself and the other co-owners, buthas at the same time unlawfully appropriated to himself all the mesneprofits and rents of the theatre and refused to give the plaintiff his share.The plaintiff accordingly claimed that he had a cause of action to sue the1st defendant for a declaration of title to, and possession of, an undivided£ share of the theatre and the mesne profits and rents. Ho relief wasclaimed against the 2nd and 3rd defendants whom the plaintiff has joinedbecause he claimed they were co-owners.
In his prayer the plaintiff prayed :—
that he he declared entitled to J share of the theatre and the plant
and machinery thereof;
that he be placed in quiet possesson of the said J share ;
that the 1st defendant be ordered to account to the plaintiff for
his share of the rents and profits from June 1948 up to date ofaction and for judgment against the 1st defendant in such sumas may be found due at such an accounting.
The first defendant filed answer denying that the plaintiff and the defend-ants are co-owners. He pleaded that neither the plaintiff nor the 2ndand 3rd defendant had any right in law in the said building. He furtherpleaded that he was the lessee of the land on which the building standson a deed of lease of 1946, and that the plaintiff and the 2nd and 3rddefendants with full knowledge of that fact contributed money and putup the said building along with the 1st defendant, with a view to carryingon business at the theatre. He pleaded that the claim for an accountingwas not maintainable as the agreement to carry on business at the theatrewas not in writing, and the said business was a partnership, of which thecapital was over B>s. 1,000.
The case went to trial on several issues one of which was:—(10) Can the plaintiff ask for a declaration of title without a notarialwriting giving him any share of the premise's ? After the plaintiff’scase was closed, his counsel wanted to raise an issue as follows :—Is the1st defendant in possession of the Tivoli theatre partly on his own behalfand partly on behalf of the plaintiff and the 2nd and 3rd defendants astrustees ? The trial Judge then himself raised the question whether anaction brought by a co-owner for a declaration of title to a share of abuilding could be properly joined with a claim for an accounting of theprofits of the business Which had been run in that building.
SANSONI, J.—Kanagaratnom v. Suppiah
After hearing argument, he held that the plaintiff had violated theprovisions of section 35 of the Civil Procedure Code by joining thesenln.ima without the permission of the Court. The plaintiff1 s counsel wasgiven an opportunity to amend the plaint by striking out his claim for anaccounting apparently because, as appears from the reasons given inthe order, he had invited the Court, if it held that there was a misjoinder,to strike ont the additional claim for an accounting and allow the plaintiffto proceed with the action for a declaration of title to the building. TheJudge accordingly decided that the case should he confined to decidingwhat fractional share, if any, the plaintiff was entitled to in the building.He added that in these circumstances the issue as to whether the 1stdefendant held the lease in trust for the plaintiff and the 2nd and 3rddefendants, did not appear to arise or be relevant.
The case was thereafter called in Court and the plaintiff’s counselmoved to amend the plaint by confining his action to one for a declarationof title to J share of the theatre building, for possession of that share,and for costs : the claim for an accounting and for such sum as may hedue on an accounting was therefore deleted. The application was madewithout prejudice to the plaintiff’s right to canvass the order alreadymade in the final appeal if necessary. The trial was resumed and the 1stdefendant’s case was heard and judgment thereafter given. In hisjudgment the Judge held that the parties were co-owners of the buildingand that there was no legal objection to the plaintiff being declaredentitled to his fractional share of the building as against his co-builders.He also held that the absence of a notarial agreement was no bar tothe plaintiff making a claim to the building. He declared the plaintiffentitled to a specific share of the building and its equipment.The 1st defendant has appealed, and as he died pending the appeal hisheirs have been substituted as the appellants.
I think the learned Judge was in error when he said that “ the ownershipof a building apart from the site on which it stands is well known to ourlaw. It is called the right of superficies It is clear beyond doubtthat our law does not recognize the ownership of a building apart fromthe land on which it stands. In Samaranayake v. Mendoris 1 Drieberg J.so held, and, if I may adopt some words in his judgment, if at the timethis theatre building was erected the plaintiff had no interest in the land,he cannot possibly be owner of the building in any sense, for it becamethe property of the soil-owner.
At the argument before us, counsel for the plaintiff-respondent seemedto accept this as being the correct position in law, but he claimed that theplaintiff had the jus superficiarium which he had acquired by virtue ofhaving erected the building. He .submitted that the action should beregarded as having been brought on an executed consideration. Herelied on SamaraseTcera v. Munasinghe a and Perera v. Fernando 3.
I see several objections to this contention. The chief is that the
plaintiff’s claim is to be declared entitled not to a jus superficiarium but to
an undivided J share of the building. He cannot be allowed at this stage
(1923) 30 Iv. L. R. 203.2 (1954) 55 N. L. R. 559.
3 Bamanathan's Reports (1863-68) 83.
SANS ONI, J.—Kanagarainam v. Suppiah
to make out a new ease which is quite different from the one to be foundin his plaint. The next objection is that, even if such a claim could beentertained at this stage, the plaintiff does not rely on either a notarialdocument or on prescription as the foundation of his claim. I do not thinkthere is any other mode of acquisition of such a right. The argumentthat such a servitude as the jus superjiciarium can also be created by anon-notarial agreement between the builder and the soil-owner was putforward in Samarasekera v. Munasinghe 1. I find great difficulty inaccepting such an argument. In any event, it is not suggested that in thepresent case there was an agreement of any sort between the plaintiffand the soil-owner.
For a similar r eason, namely, that this is not an action between the builderand the soil-owner, the case of Perera v. Fernando a does not apply. Thatis the leading case on the maintainability of an action for use and occupationof a land even where there is no notarial lease. Such an action is regardedas an action for compensation, and rests on the principle that “ where thereis no legal obligation to do a future thing, yet if one has in fact enjoyedall the advantages of an agreement, that forms a moral obligation sufficientto support a promise notwithstanding the statute ”. But in whatsense can it be argued that the present action for declaration of title is onefor compensation ? The plaintiff's complaint seems to be that the 1stdefendant enjoyed all the advantages of the business which was conductedin this theatre building and has appropriated the rents and profits. Butin this situation his claim should surely be not for the building, of whicheven the 1st defendant is not the owner, but for the money which cameinto the 1st defendant’s hands. But that is the very part of the prayerto the plaint which the plaintiff abandoned in the course of the trial. Iwould therefore hold that the decree under appeal which declares theplaintiff entitled to a share of the theatre building and its equipmentmust be set aside.
Cross objections under section 772 of the Code were filed by theplaintiff-respondent, in which he complained that the trial Judge waswrong in disallowing the issue whether the 1st defendant held his leasein trust for the plaintiff and the 2nd and 3rd defendants. Clearly thecross objections are not objections to the decree but to an order made inthe course of the trial. In such a case it was the duty of the plaintiffto have filed an appeal against the order in question if he was dissatisfiedwith it, and it was for this reason that at the hearing of the appeal wedecided that we could not entertain any argument in support of the crossobjections.
I would therefore allow this appeal, set aside the decree appealedagainst, and direct that the plaintiff’s action be dismissed. The appellantsare entitled to their costs in both Courts against the plaintiff-respondent.
L. W. de Silva, A.J.—I agree.
1 (1945) 55 N. L. R. 559.
– Ratnanaihan’s Reports (1863-68) 83.
KANAGARATNAM, Appellant, and SUPPIAH et al , Respondents