006-NLR-NLR-V-36-CHARLES-v.-THEMANIS-et-al.pdf
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Charles v. Themanis.
1933Present: de Silva A.J.
CHARLES v. THEMANIS et al.
218—C. R. Panadure, 1,449.
Co-owner—Objection to another building on common property—Right to aninjunction—Cannot be compelled to bring partition action.
A co-owner, who objects to another co-owner, building upon the com-mon property is entitled, in an action for a declaration of title, to askfor an injunction restraining the defendant from building.
He cannot be compelled in the circumstances to institute a partitionaction.
A
PPEAL from a judgment of the Commissioner of Requests,Panadure.
Ranawake, for plaintiff, appellant.
Rajapakse, for defendant, respondent.
Cur. adv. vult.
i (1933) 2 C. L. W. 284.
DE SILVA AJT.—Charles v. Themanis.
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March 27, 1933. de Silva A.J —
The plaintiff instituted this case for a declaration that he was entitledto un undivided 1/8 plus 1/24 of a land called Medawatta. He stated inthe 9 th paragraph of the plaint that the defendant denied his title andwas “ unlawfully and forcibly and against the plaintiff’s consent ”attempting to put up a house on the land. He stated further that thedefendant’s object was to prevent him from being allotted that portionof the land should a partition be made. It will appear from what followsthat this last averment was unnecessary. He asked among other thingsfor an injunction restraining the defendant from building a house. Itappears from the proceedings of August 3, 1932, that the defendant’sposition was that he had acquired a title by prescription to a definedportion of land. It is not clear what this portion is but presumably it isthe portion on which he is said to have attempted to build a house. Anobjection was taken by the defendant that the plaintiff was not entitledto maintain this action and that his only remedy was a partition action.This objection was upheld by the learned Commissioner who dismissedthe plaintiff’s action.
It was laid down by Pereira J. in the case of Goonewardene v. Silva1,that a co-owner may not put up. a building on the common property indefiance of an objection expressed by another co-owner. It is one of thedisadvantages of common possession that a co-owner may not build whenanother co-owner objects. Any co-owner who is dissatisfied with thisincident of common ownership is free to bring a partition action. It isnot correct that the co-owner who objects to the building must resort to apartition action. He is entitled in law to prevent building and to askfor an injunction against a co-owner who proposes to build. This viewwas taken by Shaw J. in the case of De Silva v. Karaneris*.
Apart from the question of the injunction, if a co-owner asserts title toan undivided share of the land and this assertion is disputed by anotherco-owner, the first co-owner is entitled to bring an action to have thedispute settled. No doubt, a very convenient form of action is a partitionaction but a co-owner is not prevented from bringing an action fordeclaration of title. Indeed it appears that he must bring the latteraction, and not a partition action, where he claims damages. It isfrequently the case that when an action for declaration of title is filedanother co-owner institutes a partition action, and, in appropriatecircumstances, it is right that the action for declaration of title should be-laid over pending the partition case. It is, however, clear that a co-owner whose rights are disputed by another co-owner is not compelled tobring a partition action.
I set aside the order of the learned Commissioner. He will proceed tofind whether in fact the plaintiff is entitled to an undivided share of theland as stated by him in his plaint. It he is so entitled, an injunction willissue restraining the defendant from building on the land. If necessary,after such inquiry as he thinks fit, he will issue an interim injunction
2 1 Ceylon Late Recorder p. 28.
i (1914) 17 N. L. R. 287.
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DE SILVA A.J.—Charles v. Themanis.
restraining the defendant from building pending the decision of the) action.The learned Commissioner will also go into the question of the damageswhich are claimed.
The appellant will be entitled to the costs of this appeal and to thecosts of the proceedings of August 3, 1932. The learned Commissionerwill fix the latter in such sum as he thinks fit.
Set aside.