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Present: Pereira J.
GOONEWABDENE v. SILVA.
492—C. E. Galle, 7M9.
Co*otcner—flight to butZd on common Zand.
A co-owner has no right whatever to build on the commonproperty without the consent of his co-owners.
'l No doubt in these cases (2 N. L. fl. 225 and 275) the opinionhas been expressed that the law does not prohibit one co-ownerfrom using and enjoying the common property in such manneras is natural and necessary in the circumstances ; but that hardlymeans that one co-owner can in defiance of an expressed objectionby the others put up a building on the common property.”
Ti HE facts appear from the judgment.
A. St, V. Jayewardene, for plaintiffs, appellants.
Bawa, K.G., for defendants, respondents.
Cur. adv. vult.
February 2, 1914. Pereira J.—
This is an action by the plaintiffs for an injunction to' preventthe defendants from building a house on the land Malpihitiw&tta,of which the parties to the action are co-owners. A co-owner hasho right whatever to build on the common property without theconsent of his co-owners. That proposition has been laid down inseveral cases, and my own views on it will be found expressed in myjudgment in case No. 8,663—C. B. Balapitiya (S. C. Civil Minutesof July IS, 1912), and I need not- repeat them here. It has beenfrequently laid1 down that if one co-owner cannot get the others toagree to any part of the common property being put to any usethat he likes, the remedy is by proceedings under the PartitionOrdinance. It is said that there are exceptions to the rule given
( 288 )
Ooonewar-dene v. Silva
above, and the cases of Silva v. Silva1 and Siyadoris v. Hendrick3haye been cited. No doubt in these cases the opinion has beenexpressed that the law does not prohibit one co-owner from usingand enjoying the common property in such manner as is natural andnecessary in the circumstances ; but that hardly means that onecd-owner can in defiance of an expressed objection by the othersput up a building on the common property. I do not think it meansany more than that the mere fact that a co-owner puts the commonproperty to a use that is natural and necessary without the consentof the other *co: owners does not amount to an unlawful act. Butthe proposition, even in this meaning, does not appear to besupported by authority, and in the case of Goonewardene v. Goone*wardens,3 my brother Wood Benton observed that the decisionsreferred to stood by their own authority. Anyway, a6 in the case ofGoonewardene v. Goonewardene,3 it does not appear to be quite clearin this case that houses used to be put up on the land in questionby some co-owners without the consent of the others. The evidenceon this point is extremely meagre. The evidence against the thirddefendant appears to me to be as strong as the evidence against theother defendants. Proof of irremediable loss, although such loss isaverred in the plaint, is not absolutely necessary under our law toentitle one to an injunction. I set aside the order appealed from,and allow the plaintiffs* prayer for an injunction and for an orderthat so much of the house as has already been built be taken down.The plaintiffs wall have their costs in bpth Courts.
1 9 N. L. R. 225
• 2 N.L. R. 215.
» 2 C. A . O. 151.
GOONEWARDENE v. SILVA