113-NLR-NLR-V-39-GNANAPRAKASAM-et-al.-v.-MARIAIPILLAI.pdf
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FERNANDO A.J.—Gnanaprakasam v. Mariaipillai.
1937Present: Fernando A.J.
GNANAPRAKASAM et al, v. MARIAIPILLAI.
42—C. R. Jaffna, 4,091.
Encroachment on another’s land—Erection of building—Alternative remedy—
Right to remove building or claim damages—Delay on part of plaintiff.
Where a building is erected partly on one’s own ground – an encroachedpartly on the ground of another, the Court may either order the encroach-ment to be removed or the party encroaching to take a transfer of thepiece of ground actually occupied by the encroachment and so muchof it as is rendered useless by the encroachment and pay the value ofthe ground transferred together with the costs of transfer and a reasonablesum as damages.
The Court will grant such remedy as is reasonable in the circumstancesof each case.
Whether there has been delay oh the part of the party encroached uponor not, .the party encroached should not be ordered to remove thebuilding, if the other party could be compensated in damages.
Bisohamy v. Joseph (.23 N. L. R. 350) and Sego Madar v. Makeen(27 N. L. R. 227) referred to.
^^PPEAL from- a judgment of the Commissioner of Requests, Jaffna.
H. V. Perera, K.C. (with him T. Nadarajah), for plaintiffs, appellants.
L. A. Rajapakse (with him N. Nadarajah and M. I. M. Haniffa), fordefendant, respondent.
July 1, 1937. Fernando A.J.—
On the evidence before him, the Commissioner of Requests held thatthere was an encroachment by the defendant on the land belonging tothe plaintiffs, and that encroachment is shown in Mr. 'Weerasingham’splans as being -25 kulies in extent. The Commissioner of Requests alsofound that the defendant did not- act maliciously, but in-the mistakenbelief that the encroachment was on her own property, and that suchmistake on her part was perfectly bond fide.
It would appear from the evidence of the Surveyor, Manuel, that hewas taken by the plaintiffs to the spot to test the correctness of the thenexisting boundary, namely, the fence that stood between the two lands.He found that there was an encroachment by the defendant of about2 or 2jt inches on the eastern corner of the plaintiffs’ land, and as theencroachment was very small, the surveyor thought it could be passed,
FERNANDO A.J.—Gnanaprakasam. v. Mariaipillai.
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and his evidience is to the effect that on that occasiofi both the plaintiffanrf the defendant accepted the boundary fence which existed as the limit.After the fixing of the boundary, the defendant began the construction■of her building, and it would appear that the first protest by the plaintiffwas in April, 1936, by which time-the foundation had been laid and thewall on the plaintiffs’ side had come up about 5 feet. It is possiblethat the plaintiff began to dispute the boundary only after he realizedthat there would be a window opening on to his land. This window was'apparently removed in view of the objection, but the plaintiff persistedin claiming the land, and has brought this action.
Counsel for the appellant contended that in a case where a building,is erected partly on one’s own ground and encroaches partially on theground of another, the owner of the ground encroached on, may demandthat the encroachment be removed, or that the party making theencroachment shall take a transfer of the piece of ground actuallyoccupied by the encroachment, and so much of the rest of the ground asis rendered useless to him thereby, and to pay to him the value of theground transferred together with the costs of transfer and a reasonablesum as damages for the trespass and as a solatium, for the compulsoryexpropriation of his property (see Institutes of Cape Law, vol. II. (1903edition), pp. '47-48. The passage continues in these words “ wherehowever, there has been delay in applying for the former remedy, theCourt will restrict the party injured to the latter. ” On the strength ofthis passage, Counsel argues that the owner has the option of askingfor one or other of these two remedies, and that the Court is bound togive him the first remedy if he has not been guilty of any delay. It seemsto me, however, that the passage cited may be read as meaning that theowner has one of two remedies, and may press for one or other of them,and that the Court will grant him such remedy as is reasonable in thecircumstances, but where there has been delay on the part of the plaintiff,he will not be allowed the first remedy in any event.
Whatever the interpretation of that passage may be the law as appliedin Ceylon is not exactly in the terms of that passage. De Sampayo J.in Bisohamy v. Joseph1 said that “In a case of encroachment like this,it does not necessarily follow that plaintiff should get judgment for theactual portion encroached on, with the result that any building shouldbe broken down. ” He referred to the case of Miguel Appuhamy v.Thamel as an authority for the proposition that in certain circumstances,the Court instead of ordering- the removal of the encroachment mayeither order compensation to be paid by the defendant or compel thedefendant to buy the land encroached upon'. In Bisohamy v. Joseph,the evidence indicated that the plaintiff was aware of the building, anddid not object to it until the defendant after completing the buildingof the wall, sent him a letter of demand claiming half the expenses. Thewall in that case was only a boundary wall, but in spite of that circum-stance, the case was sent back to the Court of Requests in order thatthe Commissioner might award to the plaintiff reasonable compensationfor the encroachment. In Sego Madar v. Makeen*, de Sampayo and
39/31
23 N. L. R. 350.
3 27 N. L. R. 227.
* 2 Current Law Reports 209.
408FERNANDO A.J.—Gnanaprakasam v. Martaipillai.
Porter JJ. set aside the judgment of the District Court by which aninjunction had been allowed compelling the defendant to remove abuilding put up by him encroaching on the plaintiff’s land. “ It hasbeen pointed out ”, said de Sampayo J., “ in the course of the argumentthat the principle both of English equity and the Roman-Dutch law,is that an injunction of this sort should not be granted if the plaintiffcan be compensated in damages.” The principle is apparently appli-cable whether there has been delay on the part of the plaintiff or not. Theorder of the District Court was set aside, and the case was sent back sothat the District Judge might consider the question of compensation tobe paid, smd assess the proper amount of damages that were^due to theplaintiff. In the circumstances of this case, I see no reason why thatprinciple should not be applied.
The encroachment is very small in extent, and there is nothing toindicate that the plaintiff has suffered damages in any way except withregard to the value of the portion of land which has been encroachedupon. The learned Judge appears to have accepted the evidence of theSurveyor, Manuel, to the effect that the portion of land encroached uponis worth about Rs. 40 and he ordered Rs. 50 to be paid to the plaintiffas compensation. I see no reason to interfere with this – order, and Iwould affirm the judgment of the Commissioner of Requests. Theplaintiffs-appellants will pay to the defendant-respondent her costs ofthis appeal.
Appeal dismissed.