PUXitiB J.—Silva «. Silva
i960Present : Nagallngam J. and Pulle J.SILVA. Appellant, and SILVA, Respondent
S. C. 79—D. C. Balapitiya, 78
Encroachment—Power of Court to order sale of ground encroached upon—Reasonableterms—Compensation.
Where a. building has been erected not "wholly on the ground of another,but is built partly on one's own ground and only encroaches partially on theground of another, the Court may, where it is equitable to do bo, order thaowner of the ground encroached on to transfer that portion on reasonableterms to the party who made the encroachment.
A PPEAL from a judgment of the District Court, Balapitiya.
A. L. Jayasuriya, for the first defendant appellant.
S. W. Walpita, with L. F. Ekanayake, for the plaintiff respondent.
Cur. adv. vult.
June 20, 1950. Pulle J.—
This appeal relates to two contiguous allotments of land each of the•extent of 3.92 perches called lots B7 and B8 in Plan No. 1199 dated22nd November, 1948. The 1st plaintiff became the purchaser of lot B8from his father the 2nd plaintiff and one Saranapala Thero on deed P4 ofthe 23rd November, 1935. From about 1930 to 1937.the 2nd plaintiff wasthe owner of also lot B7 which he transferred to one K. Jamis de Silva bydeed 1 D3 of 17th January, 1937. The 1st defendant, who is the appellant,purchased the interests of K. Jamis de Silva in 1943 and 1945. Thereare three boutiques on the lots, of which boutique No. 1 is situated whollyon lot B8 and boutique No. 3 on lot B7. Boutique No. 2, however, ispartly on lot B7 and partly on lot B8 and the extent of the ground spaceoccupied by it on lot B8 is decimal 53 perch. This area is depicted as lotA in Plan No. 1199 and the learned District Judge has held that the1st plaintiff is entitled to that portion of boutique No. 2 standing on lot A.
It is not necessary to discuss the evidence on which the finding is based.The plans and the deeds make it abundantly clear that the 1st defendant-appellant has no manner of right or title to the portion of land in dis-pute. At the hearing of the appeal a settlement was suggested on thebasis that the 1st plaintiff should sell lot A to the. appellant on a valua-tion and a date was given for that purpose. It would appear that theparties are not agreeable to a settlement and it has become necessaryto consider whether, in all the circumstances, the 1st plaintiff ought to becompelled to sell lot A.
PUX/LiE J.—Silva v. Silva
Now the major portion of boutique No. 2 which consists of one roomand is five cubits in extent lies on lot B7 owned by the appellant. Assum-ing that the room could be partitioned along the boundary line betweenlots B7 and B8, it is obvious that the entire space occupied by the bouti-que would thereby be rendered sterile. In that event appellant’s losswould be greater than the 1st plaintiff’s. The Judge has found thatthe three boutiques on lots B7 and B8 were built about 1937 by the 2ndplaintiff, the predecessor in title of both the 1st plaintiff and the appel-lant, and there is no circumstance which would render it inequitableto grant to the appellant the option of purchasing lot A. The case ofMiguel Apptihamy v. Thamel and others 1 which has been followed,except on one point, in 8amarawe<era et al. v. Mohotta et al. 3 and withoutqualification by De Sampayo J. in Bisohamy v. Joseph et al. 3 has laiddown that “ The Court may, according to the circumstances, after it issatisfied that there has been an encroachment, either order the removalof it, or, according to the authority quoted to us by the defendant’scounsel, order the defendant to buy that part of the plaintiff’s land onwhich he has encroached ”. Massdorp states in the Institutes of SouthAfrican Law, "Vol. II (6th Edition), p. 54,
A difficulty arises where a building is erected not wholly on theground of another, • but is built partly on one’s own- ground and onlyencroaches partially on the ground of another. In such a case theowner of the ground encroached on may demand that the encroach-ment be removed, or that the party making the encroachment shalltake a transfer of the piece of ground actually occupied, by the encroach-ment and so much. of the rest of his ground as is rendered useless tohim thereby, and pay to him the value of the ground transferred to-gether with the costs of transfer and a reasonable sum as damages forthe trespass and as a solatium for the compulsory expropriation of hisproperty. Where, however, there has been delay in applj'ing for theformer remedy, the Court will restrict the party injured to thelatter ’ ’.
In my opinion, having regard to the findings of the learned Judge onthe value of lot A, compensation to the 1st plaintiff in a' sum of Us. 300would be adequate.
The case will go back with the order that the 1st plaintiff do transferto the 1st defendant lot A upon payment of the sum of Bs. 300 on orbefore a date to be fixed by the Judge. The 1st defendant will bearthe expenses of the transfer. If the 1st defendant is not prepared to takea transfer, the appeal will stand dismissed.
In any event, the 1st plaintiff will be entitled to the costs of appealand the order as to costs m the District Court will stand.
Inasmuch as the 1st defendant was in bona fide possession of lot A andthe portion of the boutique standing thereon built by his predecessor
1 (1910) 2 Our. L. R. 209.* (1916) 18 N. L. R. 187.
» (1923) 23 N. h. R. 350.
SWAN J.—Premadasa v. Cooke
in title, the father of the 1st plaintiff, I do not think that the 1st plaintiffwas entitled to any damages based on the rental value of boutique ISIo. 2.The order for damages is, therefore, set aside.
Naqaungam J.—I agree.
SILVA, Appellant, and SILVA, Respondent