Sopihamy v. Dias
1948Present :Basnayake J.SOPIHAMY, Appellant, and DIAS, RespondentS. G. 24—C. R. Galle 25,966
Co-owners—Building by co-owner on common property— Seizure by creditor—Not liable in execution.
A 'building erected by a co-owner on common property cannot beseized and sold in execution of a debt of tbe co-owner who erected thebuilding.
Appeal from a judgment of the Commissioner of Requests, Galle.
R. Gunaratne for the plaintiff appellant.
No appearance for the defendant respondent.
Cur. adv. wit.
(1871) Vanderstraaien 180 ; (1881) 4 S. C. C. 29.
* Voet, 24—2, de Divert 71 17.
Grotivs Introduction 1-5-40 et seq., 3—21 last note.
BASNAYAKE J.—-Sopihamij v. Dias
April 19, 1948. Basnayakk J.—
On September 29,1945, the defendant-respondent (hereinafter
referred to as the defendant) seized in execution of writ in X). 0. GalleCase No. L. 503 '‘an undivided of 1/7 of 1/14 parts of the soil andtrees ” on a land called Jambugahawatta “ together .with the entiretyof the 7 cubits wattle walled house ” thereon said to be the property of hisjudgment-debtor, one Carolis. On October 9, 1945, the plaintiff-appellant (hereinafter referred to as the plaintiff), who is Carolis’s sister,claimed an undivided one-eighth share of the land and the house byvirtue of a deed of transfer No. 2,418 dated January 4, 1933, attestedby J. P. Jayawardena, Notary Public. She also claimed that shebuilt the house. On February 18, 1946, the District Judge upheld theplaintiff’s claim to three-sixteenths of the land, but he held that the houseclaimed by her belonged to her brother Carolis and dismissed her claimthereto. On February 25, 1946, she instituted this action under section247 of the Civil Procedure Code to establish the right which she claimsto the house. The defendant seems to accept the finding of the courtin the inquiry into the claim to the seized property and has not institutedan action under section 247 in respect of the shares in the land declaredto be exempt from seizure.
The learned Commissioner of Requests has formed the view thatCarolis is a co-owner of the land and that he built the house. Carolishimself who is the best witness on the question of his rights to the land,has not given evidence in these proceedings, and the only evidence thathe is a co-owner is the bare word of the defendant that Carolis is entitledto soil rights by maternal inheritance. As against this is his failure toassert this claim by an action under section 247. I am unable thereforeto uphold the finding of the learned Commissioner that Carolis is a co-owner. It seems to me that he has misdirected himself on this question,for, he says, “ Counsel for the plaintiff has raised the question thatCarolis not being the soil owner cannot be entitled to the house even ifhe built it, his rights, if any, being a right to compensation in respectof the house against the owners of the land. As a bare proposition I canfind no fault with his argument, for it is based on the maxim quicquidaedificalur solo solo cedit; but where is the evidence before me thatCarolis is not a soil owner ? The onus of proving this is on the person whoasserts this, i.e., the plaintiff. There is no doubt that the plaintiffand his witness Hendrick Dias have said in their evidence that Carolis isnot a soil owner. I cannot, however, accept that kind of evidence partic-ularly because there is the evidence on the other side that Carolis is asoil owner.”
The burden of proof in a suit or proceeding lies on that person whowould fail if no evidence at all were given on either side.1 In order toascertain on whom lies the burden of proof in this matter, one has onlyto examine the issue thereon which reads “ Is Carolis entitled to anysoil rights in this land ? ” Clearly, the plaintiff cannot fail if no evidenceat all were given on either side as to Carolis’s interest in the land. Shedoes not assert in her plaint that Carolis is a co-owner, nor does the
1 Section 102, Evidence Ordinance.
BASNAYAK.E J.—Sopihamy v. Dias
defendant do so in his answer. As it is no part of the plaintiff’s case thaCarolis is a co-owner, the burden of proof does not lie on her. Thelearned Commissioner is therefore wrong in holding that the plaintiffshould have proved that Carolis is not a co-owner. Not only has thedefendant failed to pursue the claim to the share of the property hecaused to he seized but he has also failed to prove that Carolis is entitledto any other share. The plaintiff’s claim that she built the house inquestion is supported by her evidence and that of Hendrick Dias. Thedefendant’s evidence that Carolis built the house rests on his bare state-ment. No attempt has been made by him to support his claim with theevidence of Carolis himself who knows best whether he built the house ornot. Even if Carolis built the house, as he has built it on land of whichhe is not even a co-owner, the defendant cannot seize and sell it inexecution because the building is the property of the persons who own thesoil.1 The rights of a person who builds on another’s land are thusstated by Grotius 8 :—
“ Again, if any one builds with his own timber or stone on anotherman’s land, he loses his ownership in the materials, which thereupongo to the owner of the land, but the owner of the land is bound to makehim compensation, if he built- under the impression that the landbelonged to himself, or even as usuary of the land, unless indeed thebuilding was erected not for necessary or useful purposes, but merelyfor purposes of pleasure, in which case the owner of the land has theoption of either retaining the building and giving compensation, orof allowing the person who built it to remove it. If, however, a personhas built mala fide, he is ‘not entitled to claim any but necessaryexpenses.”
On the same question Van Der Keessel 3 says :•—-
“ CCXII. He who has built on another’s land of which he was inpossession bona fide, may by the Daw of Holland, on losing possession,recover the useful expenses incurred by him, even by action.
“ CCXIV. Many authors maintain, contrary to the opinion ofGrotius, who has followed the rule of the Civil Daw, that a mala fidepossessor may deduct the useful expenses also. Their opinion cannot,however, be admitted.”
In the case of De Silva v. Siyadoris et al. 4, Dascelles C.J. stated :—“ But the co-owner who puts up a building on the common propertyis in a totally different position from a person who, under agreementwith the owner, builds on the land of another. The co-owner in sucha case acquires no title in severalty as against the other owners.One co-owner could prevent him from building on the commonproperty without the consent of the other co-owners (Silva v. Silva6 N. D. R. 22), but the building once erected accedes to the soil andbecomes part of the common property. The right of the builder islimited to a claim for compensation, which he could enforce in £partition action under sections 2 and 5 of Ordinance No. 10 of 1863.”
Samaranayahe v. JMendoris etal., (1928) 30 N. L. R. 203 at 206.
Ghrotius, The Introduction of Dutch Jurisprudence, p. 76 Maasdorp’s Translation.
Van Der Keessel Select Theses Lorenz's Translation, p. 73.
* (1911) 14 N. L. R. 268 at 270.
HCWABD C.J.—Ceeris A.ppu t>. Seydeen
The same opinion has been expressed in D. C. Tangalla, No. 1,540 S. C. Mof April 2, 1917, and in the case of Wijesuriya and others v. Wijesuriyaand another 1. The foregoing statements of law lead to the conclusionthat a building erected by a co-owner on common property cannot beseized and sold in execution of a debt of the co-owner who erected thebuilding. It would seem therefore that even- on the learned Com-missioner’s view of the facts the house which was seized in executionby the defendant cannot be sold in execution of the decree against Carolis.The judgment of the learned Commissioner must therefore be set aside.
The plaintiff’s prayer is that she be declared entitled to the house indispute and that it be declared exempt from seizure and sale in executionof the decree against Carolis in D. C. Galle, Case No. L. 503.
As the plaintiff is, on her own admission, not the sole owner of the landon which the house stands, I am not prepared to declare her entitled to thehouse. She is a co-owner who has built on common property and thehouse has acceded to the soil and become part of the common property.But the second part of her prayer is one that can be granted. I set asidethe judgment of the learned Commissioner and declare the house in disputeas not liable to seizure in execution of the decree against Carolis in D. C.Galle, Case No. L. 503. The plaintiff is entitled to her costs in bothCourts.
Judgment set aside.
SOPIHAMY, Appellant, and DIAS, Respondent