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AHAMADO NATCHIA et ol. t>. MUHAMADO NATCHTA.
D. C.t Galle, 7,-459.
Jus superficiarium—Acquisition—Framing of issues—'Prescription—Compensation—Civil Procedure Code.
According to the Common Law of Ceylon a person has the rightto build on land belonging to another, and to use such building untilthe owner of the land tenders the value of the building. This right,which is known as the jus superficiarium, is acquired and lost«in thesame manner as any other right to immovable property; it may beacquired by prescription. The jus superficiarium is capable ofalienation and also of passing to the heirs of the owner of the right.
HE facts appear sufficiently in the judgment of the ChiefJustice.
Bawa, for plaintiff, appellant.
Van Langenberg, for 1st defendant, respondent.
J. C. Pereira (Wadsworth with him), for 2nd defendantrespondent.
11th October, 1905. Layard, C.J.—
The plaintiff’s claim is in respect of a two-ninths share in a house,to which house, fie alleges, one Aidroos Lebbe Maricar (deceased)was entitled. He was the original owner of the whole land, and by adeed in 1864 he transferred it to his daughter, reserving to himselfa tiled house standing thereon. That house appears to have fallendown in 1867, whereupon Aidroos Lebbe built himself anotherhouse on the same site and he continued to live there until his death.The first plaintiff is a granddaughter of Aidroos Lebbe, the .motherbeing dead, and the second plaintiff is another daughter of-his, andby,right of inheritance they claimed two-ninths of the land. We are
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not concerned on this appeal with the other undivided seven-ninths oi 190&the land. It would have been desirable to have had all the other October li.owners as parties to this suit. No objection has been taken for non- Layabd, C: Jijoinder in this Court or in the Court below. It was argued in appealthat the right reserved to himself by Aidroos Lebbe was not a rightto the house exclusive of the ground, but to the soil also. The Dis-trict Judge has distinctly, however, stated in his judgment that theplaintiffs* claim at the trial was to a two-ninths share of the housewithout its site. The ownership of a house apart from the site onwhich it stands is well known to our law. It is. called the right ofsuperficies, The jus superficiarium is the right which a person hastt> a building standing on another’s ground. It cannot be termedfull ownership, for no one can be legally full owner of a building whohas not the ownership of the soil. It is the right to build on the soiland to hold and use the building so erected, until such time as theowner of the soil tenders the value of the building, if the amount tobe paid has not been previously agreed upon. The right is acquiredand lost like immovable property, and is even presumed to * begranted when the owner of the ground permits another to buildthereupon. The right can be alienated, and consequently there canbe no doubt of its passing to the heirs of the original owner of theright (Grot. 2, 46, 9, 10, and 11). The District Judge’s attention doesnot appear to have been drawn to our Common Law as to the jussuperficiarium. The law is clear; the only difficulty in .this case is toapply it. That is largely due to the non-observance of the provisionsof the Civil Procedure Code by the Judge and the parties in theDistrict Court. I cannot find that any issues were settled beforetrial. The parties do not appear to have agreed upon issues. What,appears to have been done in the Court below is this. There wereissues suggested by the plaintiff (which I presume means plaintiffs).
Then on the 19th October the defendant’s proctors accepted thoseissues and suggested further ones. There is nothing to show thatthe plaintiffs’ proctors, accepted the further issues. The journalminutes contain the mythical entry “ Issues perfected,” whateverthat may mean. Seeing that the parties had sot agreed as to theissues, the District Judge should certainly have settled them. Fur-,ther, the very first issue proposed by the defendant’s proctor canhardly be called an issue, as it leaves one to speculate as to whetheron the facts proved at the trial any cause of action had accrued to >the plaintiffs, and the parties are not tied down to one or moredistinct and specific causes of action to be tried and determined bythe Court kt the trial of the case. The non-observance of the rulesof procedure of the District Court is much .to be deprecated, for it must
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conduce in many oases to miscarriage of justice. Further, unintel-ligent appreciation of such rules by the parties and proctors and bythe presiding judge causes great difficulties in arriving at a rightconclusion between the parties interested. The respondent's coun-sel wished to limit the plaintiffs' action to a right of action to recoverdamages «for wilful and fraudulent omission to make the plaintiffsparties to a certain partition suit mentioned in plaintiffs' plaint. Therespondent's proctors, however, were according to the terms of theissues proposed by them ready to meet any cause of action thatmight arise from the facts established at the trial. Whether theplaintiffs ought or ought not to have been joined in the partition suitdoes not matter, for by section 9 of the Partition Ordinance theywould have a right of action to recover the damages they claim, ifnot joined. If there 'was no necessity to join them they would notbe deprived of their Common Law right to retain the superficies untilthe value of the house was paid them, or if dispossessed, to recoverthe value thereof. ’ It is properly admitted by respondent's counselthat the District Judge’s judgment, which limits the period underour Prescription Ordinance in which Aidroos Lebbe could claimcompensation to three years, even though he lived in the house untilhis death, cannot be supported. For the . right to hold and use thebuilding erected on another’s land continues until such time as theowner tenders the value of the building, and is presumed to be p&rtedwith when the owner of the soil allows another to build on his soil.Aidroos Lebbe's rights and subsequently that of his heirs continueas long as they remain in possession, and his right to recover thevalue of the house would only terminate when turned out of posses-sion by the owners of the soil.
The respondents' counsel urges that the appellant’s possession hadceased long previous to her bringing this action. There is nomaterial before us to show when or at what time the heirs were dis-possessed. The judgment of the District Judge must be set aside,and the case remitted to the District Court for a further trial toenable that Court to* decide, for the purpose of determining the ques-tion of prescription, the date of dispossession of the persons entitledto the jus 8uperfLciariun%t the law to be applied to the determinationof such right by prescription being that applicable to immovable1 property, for Grotius (2, 46, 10) states that the jus superficiarium isacquired and lost in the same manner as immovable property.Appellants are entitled to the costs of appeal; the other costs to abidethe final judgment of the District Judge.
AHAMADO NATCHIA et al. v. MUHAMADO NATCHIA