060-NLR-NLR-V-18-GERIS-APPU-v.-SILVA.pdf
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Pres ni: Wood Benton C.J and Pereira J.
GEK/S APPU 9 SILVA*6; -0. B. Afatom, 7,913.
Action for declaration of tbft to a share of ihe trees against lessee of another
C0'0wner*~~ls artionmotnlsinablc ?—Claimfor ejectment*—
Partition action,
Plaintiffas le*$euofone co-owner of a landsuedthe added
defendant, who isthe assignee of alessee ofthe otherco-owner*
for a declaration of title to a half share of the trees on the northern.•tide of the land, for ejectment of the defendant, and for damages.
Object aob was taken that plaintiff could not have asserted,except inan actionforpartition, suchrights ashe ^ has asserted
in this case.
Held*the actionwas maintainable,buttheclaim forejectment
was bad.
** Them is no objection to one co-owner suing another to Ilavehis titledeclared toacertain shamof the propertyowned in
• common,and iordamages sustainedbyhimby reason- of the
wrongfulenjoymentof his share bytheother co-owners.In the
case of amultiplicityofco-owners, theconvenientcoursewould, be
to bring an action for partition.
HP facts are set out in the judgment.
.4. St. V. Jayewanlemu far appellant.
¥eeraratnet for respondent.
Cur. adv. vult.
April 1, 1915. Wood Hexvox C.J.—
This casev came before me in the first instance sitting alone. 1came to the conclusion that the appeal was entitled to succeed.But subsequently a difficulty occurred to me, and 1 thought itbetter to have the eoso re-argued before two Judges. The plaintiffns the lessee of one co-owner of a land sues the added defendant,who is .ihe assignee of a lessee of the other co-owner, for a declarationof title to a half share of the trees- on the northern side of the land,for the ejectment of the defendant therefrom, and for damages.The defendant alleges that under the assignment of the lease onwhich he relies ha is entitled to the possession of nil the trees,including those claimed by the plaintiff. The parties went to trialon three issues; in the first place, whether the plantation con-taining the trees claimed hy the plaintiff was made by Don Mathes.the father of the co-owner, who is tbs plaintiff's predecessor in title;in the second place, that of prescriptive righto of parties; and
1915,
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^816. lastly, damages. The learned Commissioner of Requests answeredWood the first and second issues in the plaintiff’s favour, declared himRbmtoh OJ. entitled as lessee to the possession of one-half share of the trees inGtria Appn question, directed the ejectment of the defendant therefrom,v. Silva awarded the plaintiff a sum of Rs. 80 a year as damages till possessionwas restored, and decreed that the defendant should pay theplaintiff's and the added defendant's costs. The plaintiff appeals.
I saw, and see, no ground for interfering with the findings of theCommissioner of Requests on the questions of fact involved in theissues. The point was taken for the first time in appeal that theplaintiff as the lessee of one co-owner could not assert against theassignee of a lease granted by another co-owner the right to aplanter’s share in an action for declaration of title. In support ofthis contention the plaintiff's counsel relied on the cases 6—D. C.Mataift, 6,245l, and Silva v. Silva The principle of thosedecisions becomes applicable, however, only in cases ■ where thecommon property has been improved. The plaintiff in the presentcase is not claiming on the basis of any such improvement. Theground of his claim is that he has acquired a prescriptive title to theshare, which the judgment of the Commissioner of Requests has.given to him. He has a right. I think not merely to a baredeclaration of title, but to a declaration of his title to the possessionof the shares in question, and to such compensation as the Com-missioner of Requests has awarded if the defendant is to remainin possession of the entirety of the trees. But the plaintiff cannot,in my opinion, claim the ejectment of the defendant from thepossession of the trees secured to him by his assignment of the lease.That portion of the decree which directs that the plaintiff should bequieted in bis possession of his 9hare of the trees and that thedefendant should be ejected therefrom must be struck out*. Withthat modification I would dismiss the appeal with costs.
Pereira J.—
In this case the plaintiff as the lessee of a half share of certaincoconut trees claimed to be declared, as against the defendant,entitled to possess that share of the trees. The defendant claimedthe right to possess the entirely of the trees by virtue of an assign-ment of a lease thereof granted by two persons, who, for the purposesof this case, may be assumed to be the owners ofx the parcel of landon which the trees stood. The plaintiff's case is that one Matheswas planter of the land under the owners, and that, since planting,he acquired by prescriptive possession a right to the half share of thetrees now in claim, and after his death his son, the added defendant,leased the half share to the plaintiff. The question whether theadded defendant was the sole heir of Mathes need not be considered,because the parties were content to let the decision of the case rest* s. c. iFch. j.7. im.'* <mn v> .v. l. r. 7u.
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on only two issues: (1) ** Was the second plantation of the northernportion of Kurundewatta made by Mathes?" and (2) “ preemptivepossession." On the evidence led, the Commissioner decided boththese issues (rightly I think) in favour of the plaintiff; that is to say,he held that the second plantation referred to was made by Mathes,and that' he had prescriptive possession of the half share of treesin claim in the oase. The plaintiff and the defendant'thus standin the position of co-owners of the trees, the plaintiff being entitledto a half share and the defendant to the other half. On theCommissioner's finding on the issues, judgment has been rightlyentered in the case in the plaintiff’s favour. But a variety ofobjections to the decree have been taken, based mainly on • theassumption that the plaintiff stands in the position of a planter, andthat he could not, except in an action for partition, assert suchrights as he has asserted in this oase. The answer to these objectionsis that the plaintiff’s position is not that of a planter of the land,but of a co-owner, with the defendant, of the trees in question, andclearly there is no objection to one co-owner suing another to havehis title declared to a certain share of the property owned in common,and for damages sustained by him by reason of the wrongful enjoy-ment of his share by the other co-owners. Of course, in the case ofa multiplicity of co-owners the convenient course would be to bringan action for partition, but where, as here, there are practicallyonly two co-owners, I see no objection to such an action as thepresent. Clearly, the order for ejectment cannot stand, becausethe subject-matter of the action is an undivided share of property.Except as to the order directing the ejectment of the defendantfrom the property in dispute and the placing in possession thereof the plaintiff, I would affirm the judgment appealed from withcosts.
Appeal dismissed.
1916.
lteRA J.
Gtria Apput>. Silva