058-NLR-NLR-V-56-W.-AGNES-PERERA-Appellant-and-W.-EDWARD-PERERA-et-al-Respondent.pdf
NAG ALT NG AM S.P.J.—Agnea Perera v. Edward Perera
211
1954Present: Nagalingam S.P.J. and Fernando A.J.W.AGNES PERERA, Appellant, and W. EDWARD PERERAet al., Respondents
S. C. Of—D. C. {Inly.) Colombo, 6,099/P
Co-owner—Right to build on the common land—Order for demolition of building—•Propriety of seeking it in partition action.
In a partition action, the Court is entitled to order the demolition of abuilding constructed by a co-owner contrary to tho protests of the other co-ownersmid in violation of their rights as co-owners.
Wliero a co-owner puts up a building on tho common land, he cannot compelany of his co-owners to take over such buildings and pay compensation. *
^V.PPEAL. from an order of the District Court, Colombo.
The appellant, a co-owner, had put up a building on the common landin violation of tho rights of the other co-owners to have an adequate roadfrontage to enable them also to put up' buildings on the portion of the landwhich, it was common ground, was tho most valuable part as a buildingsilo.
H. T. Perera, Q.C., with H. W. Jayewardene, Q.C., and D. R. V. Ooone-tilleke, for tho 1st defendant appellant.
N. E. W'eerasooria, Q.C., with Vernon Wijetunge and S. Sharvananda,for the plaintiff respondent.
Cur. adv. vv.lt.
December 10, 1954. Nagalingam S.P.J.—
The main point for decision on this appeal is whether an order for de-molition of a building constructed by one co-owner contrary to and inspite of tho protests of another co-owner can bo legally made in an uctionfor partition. Learned Counsel for the 1st defendant – appel lant contendsthat where one co-owner builds or is alleged to have built in defiance oftlio protests of another co-owner, the remedy of the latter co-owner isto institute an action for aninjunctionto prohibit tho continuance of thebuilding and, if necessary, for a mandatory order to compel the demolitionof the structure or any part thereof that may have been put up, but notto commenco an action under the Partition Ordinance. No authorityhowever for this proposition has been cited and there is nothing in thowritings of Roman Dutch Jurists to support this view. I should havethought that a partition action would be the most appropriate form of
I LLVI
2J. N, H 4,505 <S/65)
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NAG AIDING AM S.P.J.—Agnea Perera vl Edward Perem
proceedings to determine all the questions that arise in connection with anallegation that one co-owner has wrongfully put up buildings infringing therights of the other co-owners.
Any building put up on common property by a co-owner accedes to thesoil and itself becomes common, but of course the co-owner who put up thebuilding is entitled to the use and enjoyment of it until such time ascommon ownership is put an end to ; and in fact at a division of commonproperty the co-owner who has put up a building, though erected contraryto the wishes of the other co-owners, is entitled to be allotted that buildingif he can satisfy the Court that having regard to the nature, extent andamenities available in respect of the land, he could not be said to haveviolated the rights of his co-owners by erecting the structure.
It is obvious that such a question as whether the co-owncr who has putup the building without the consent of his co-owners should be permittedto retain it or not in appropriate circumstances cannot be as convenientlydetermined in a proceeding which has for its object the grant either of aprohibitory injunction or a mandatory order as in a partition action.
The absence of judicial opinion on this question may be ascribed to theview that the proposition being so evidently patent the matter has neverbe.forc received judicial attention. But there is a case which may beregarded as deciding the converse of the proposition contended for onbehalf of the appellant. That is the case of de Silva v. Caraneris.1 That-was a case where one co-owner brought an action for declaration of titlefor his undivided shares and for an injunction against the defendant co-owner restraining him from building on the common land. In grantingthe injunction, Shaw J. expressed the view that where a co-owner meetswith opposition in putting up a building on the common land “his propermethod would be to apply for a partition of the land when he would heable to do whatever ho likes with the portion allotted to him ”,—a viewwhich fully recognises the suitability of partition actions for settling dis-putes arising between co-owners even in regard to their right to buildon the common land.
I am of opinion that the learned Judge exercised his jurisdiction properlyin these proceedings in adjudicating upon the rights of parties in regard totho building put up bj' the 1st defendant-appellant in opposition to thewishes of her co-owners.
During tho course of the argument, in view of the very substantial natureof tho building that lias been put up I was inclined to uphold the submis-sion on behalf of the appellant that as she was not unwilling that whilebuilding No. 3 in the plan may be allotted to her, order might he niadoallotting buildings No?. 1 or 2, or both, to her co-owners subject to the latterpaying her compensation as the quantum of such compensation would notbo so heavy as if lot 3 had been allotted to them ; we postponed deliveringjudgment in the hope that the parties might arrive at a settlement on thefooting of that submission, but the parties have not been able to composetheir differences. It therefore becomes necessary to decide the rights ofparties on the basis of legal considerations.
1 {191$) 1 Ceylon Isaw Recotder 2$.
0Charles Appultamy v. Abeyesekera243
1 think it is settled law that where a co-owner puts up or becomessolely entitled to a building on the common land, he cannot compel anyof liis co-owners to take over such buildings and pay compensation tohim for it.
Building No. 1 was allotted to the 1st defendant under an earlier partitiondecree and she is the owner of it. Building No. 2 was erected by her notonly without protests on the part of the plaintiff and the 2nd defendant,but also without violating, it may be said, the rights of the other co-owners.The direction of the learned District Judge that these buildings should beallotted to her at the partition is unobjectionable. In this view it is easyto see that in putting up building No. 3, the 1st defendant has, as has beenfound by the learned District Judge—a finding which has not been chal-lenged on appeal—committed a flagrant invasion of the undoubted rightsof her co-owners to have if not a proportionate, at least an adequate, inso far as circumstances will permit, road frontage along the mainthorougli-faro, to enable them as well to put up one or more buildings on the portionof the land which, it is common ground, is the most valuable part us abuilding site.
In this view of the matter, it cannot be said that the order of the learnedDistrict Judge, which is in conformity with tho principles laid down in thecases of Silva v. Silva, 1 Muthaliph v. Munsoor et al., 2 and Perera v.Podisingho, 3 is liable to be disturbed. The judgment of the learnedDistrict Judge is therefore affirmed and the appeal is dismissed with costs.
Fkknanlio A.J.—l agree.
Appeal dismissed.