APPLICATION in Revision from an order of the District Court of Kalutara.
Case referred to :
1. Elpinona vs Punchi Singho – 52 NLR 115
S. C. B. Walgampaya P. C., with W. A. N. Jayanath for defendant respondentpetitioner.
O. W. K. Gunasena with R. M. Tilakaratne for plaintiff respondent respondent.
October 21,2004WIJAYARATNE, J.
The plaintiff-petitioner-respondent instituted action for the partition ofthe land described in the schedule to the plaint in the above styled actionNo. P 5994, on the basis that he and the 1 st to 5th defendants-respondents-petitioners are the co-owners of the land in suit. The defendant-respondent-petitioners filed their statement of claim after the, preliminary survey of the
Sri Lanka Law Reports
(2005) 1 Sri L. R.
land claiming shares in the land and the entirety of the improvements andthe plantations on the land. The respective parties at variance of claims,suggested several points of contest on which the trial proceeded. Thelearned trial Judge having heard and considered the evidence held thatplaintiff failed to prove his title and possession of the rights he claimed andthe defendants too failed to prove the devolution of title in the manner givenin the pedigree though he accepted that the defendants were in possessionof improvements including plantations, dismissed the plaintiffs action.The plaintiff appealed from such judgment dated 03.10.2000. Pending suchappeal, the plaintiff-petitioners on 22.06.2001 made application against1-3 defendant-respondents under and in terms of Section 67(3) of thePartition Law, No. 21 of 1977 as amended by Act, No. 17 of 1997 read withSection 662 of the Civil Procedure Code, praying for an injunction restrainingthe defendant-respondents from carrying on any construction work of thesubject matter of the above action on the grounds that the defendant-respondent obtained the approval of a building plan contrary to law andthat the 1st and the 2nd defendant-respondents unlawfully changed thenature/character of the corpus acting contrary to the provisions of thePartition Act. The defendant-respondent showed objection to the grant ofsuch relief by way of injunction and the declaratory relief sought by theplaintiff-petitioner, when given notice of the application. The Court inquiringinto the matter resolved the same by way of pleadings, affidavits and writtensubmissions tendered by the parties, after consideration of the same,issued injunciton in terms of the enjoining order issued at the stage theCourt entertained the application for the same. Alleging that the ordergranting the injunction is perverse and causing very grave hardships andinconvenience, the defendant-respondent-petitioner made this applicationinvoking the revisionary jurisdiction of this Cd^rt seeking to set aside theorder of the learned District Judge delivered on'02.11.2001 and dischargeof the injunction issued against them restraining them from constructingany buildings on the land in suit.
Given notice of this application for revision, the plaintiff-petitioner-respondent filed his statement of objection alleging that the defendant-respondent-petitioners have attempted to mislead Court and theconstruction if completed would cause serious damage and irreparableloss to other co-owners who may get their share of the land and it definitelychanges the character of the land and adversely affects the rights of theother owners. At the stage of arguments the parties moved Court to dispose
Sirisena Perera and Another vs
Vinson Perera (Wijayaratne, J.)
of the matter by way of written submissions to be tendered by the parties,which this Court now considers.
It is common ground that the application for injunction was made pendingpartition and in terms of Section 67(3) of the Partition Act.
Section 67(3) states
“Where an appeal has been preferred against any judgement, decreeor order made or entered by any court in any partition action, suchcourt may, on application made by way of petition and affidavit in thatbehalf, make such orders, pending the determination of the appeal, asmay be necessary to prevent any waste, or damage to the land inrespect of which such action was instituted. Any such order may begiven effect to in the manner provided for in section 53.” ■
The defendant-respondent-petitioners have conceded that they werecarrying out some contruction work which they stated was renovation ofexisting buildings. What was in dispute was whether the construction wasof the nature of renovation or whether they were new constructions. Thelearned District Judge upon examination of relevant documents concludedthat the defendant-respondents attempted a new construction and theplaintiff-petitioner-respondent alleged that it was an attempt to misleadCourt when they stated that it was only a renovation of existing buildings.The learned District Judge who inquired into the matter of granting theinjunction has concluded that the action to partition the land in suit did notcome to an end and therefore any new construction would cause a changein the corpus resulting in irreparable loss and damage to the other partiesto the action. The injunction was granted upon conclusion and considerationof loss and damage the parties other than the defendant-respondents wouldsuffer. It appears on the impugned order of the learned District Judge, thatthe sole criterion used in the excise of the jurisdiction to grant the injunctionprayed for is the likelihood of the construction changing the nature/characterof the land and the irreparable loss and damage that would be caused tothe other party, tfte plaintiff-petitioner who invoked the jurisdiction of theCourt.
However, the Court exercised its jurisdiction to grant the injunction interms of Section 67(3) of the Partition Act, conceding the fact that it was
Sri Lanka Law Reports
(2005) 1 Sri L. R.
exercising such jurisdiction despite the dismissal of the action but on thebasis of express provision empowering the Court to make orders asenvisaged under such provisions notwithstanding the Court being functusofficio or ceased to have jurisdiction over the matter. Accordingly the Courtshould exercise such special jurisdiction within the ambit of the sectionempowering the Court and strictly according to the conditions stipulatedtherein.
The specific provisions of Section 67(3) of the Partition Act empowersthe Court to make orders, pending appeal necessary for the purpose ofpreventing of ‘waste or damage’ to the subject land of the partition action.The learned District Judge did not consider the alleged construction wouldcause ‘waste or damage’ to the land. There is no finding by the learnedDistrict Judge that such construction would cause ‘waste or damage’ tothe land necessitating order to prevent the same. The planintiff-petitioner-respondent too has not complained of any waste or damage to the landwhich is the subject of the partition action. His allegation that constructionwould change the character/nature of the land is without any basis. Anyconstruction on a buildable land cannot reasonably be described orconsidered as tending to change the nature/character of the land unlessthere is specific reference to the nature of such change and any change tobe considered as causing waste or damage to the land there should bespecific evidence of such waster or damage. The mere fact that aconvenient division of the land may be affected adversely is not a waste ordamage to the land. Any other factor than the waste or damage to theland, shall not be the basis of the court exercising special jurisdictiongranted to it under Section 67(3) of the Partition Act. Any irreparable lossand damage certainly is no ground in terms of Section 67(3) to exercisethe special jurisdiction pending appeal.
The apprehension of the plaintiff-petitioner-respondent that in the eventof defendant-respondent-petitioner being allowed to construct the housewill result in his losing proportionate share of the road frontage is definitelyno ground to make orders under and in terms of Section 67(3) of thePartition Act, specially in view of the fact that such an event will entitle himunder partition law to compensation to the extent of loss of share of roadfrontage and that a matter that can be remedied by payment ofcompensation is a ground even during the pendency of an action to refusean injunction for damage or loss if any then is not considered irreparable.
Sirisena Perera and Another vs
' Vinson Perera (Wijayaratne, J.)
The plaintiff-petitioner-respondent has always conceded that thedefendant-respondent-petitioners are co-owners of the land sought to bepartitioned. The 1st defendant-respondent-petitioner has exclusivelyclaimed all the buildings and plantations except three coconut trees of100 years of age and plaintiff-petitioner-respondent had no claim or disputeagainst the claim made by the 1st defendant who obviously was in thepossession of the land at the time of survey.
In the case of Elpinona Vs. Punchi Singho(1) it was held.
"a co-owner has the right to build on the common property withoutthe consent of his co-owners, provided that he acts reasonably and toan extent which is proportionate to his share and he does not infringethe co-proprietory rights of his co-owners…."
Even if the defendant-respondent-petitioner is considered to be a co-owner of the land in extent 57 perches despite plaintiff-petitioner-respondents action being dismissed, he is entitled to build without theplaintiff-petitioner-respondent’s consent, vide approved building plan, he isnot shown to utilize an extent disproportionate to his share of the land.
The learned District Judge has granted the injunction on grounds otherthan those specified in Section 67(3) of the Partition Act and on improperconsideration. The order impugned is thus contrary to law and specially toprovisions of Section 67(3) of the Partition Act. It results in a miscarriageof justice and hence this Court acting in revision sets aside the order ofthe learned District Judge dated 02.11.2001 and discharges the orderaffirming the enjoining order issued on 27.06.2001.
The defendant-respondent-petitioner is entitled to the costs of thisapplication fixed at Rs. 5,000.
SRIPAVAN, J. — I agree.
Application allowed.