022-NLR-NLR-V-58-J.-D.-A.-GUNASEKARA-et-al.-Appellants-and-B.-M.-SILVA-et-al.-Respondents.pdf
Present : Gratiaen, J., and Sanson!, ~J.
J.D. A. GUNASEKARA el a!., Appellants, and
31. SILVA el al., Respondents
S. C. 374—D. C. Guile, 5167jL
Co-Oicncr—Plantation made b<! him—Acquiescence oj other co-owners—Ui'jJU to■possession—Sight to order of ejectment.
A co-owner who makes a plantation on the common property with the acquies-cence of his co-owners is entitled to possess the entirety of that plantation asagainst the other co-owners until tho common ownership is terminated bya partition action. It makes no difference if two or more co-owners make thoparticular improvement and only some of them suo to enforce their rights ofpossession against a co-owner or any outsider who has no right to enjoy suchimprovement. The exact share of the person suing in such a case is irrelevantso long ns lie establishes that the person sued has no right to enjoythe improvement.•
Although tho co-owner who made the plantation is entitled to an order ofejectment against a person who obtained a leaso of the limitation from aco-owner who had no right to enjoy the improvement, an order of ejectmentwill not be made against tho lessor himself, as ho is a co-owner of tho land.
-i^-PPEAL from a judgment of tho District Court, Galle.
L. Jayasuriya, for the plaintiffs appellants.
II. W. Jayeioardene, Q.G., with D. R. P. Goonetilleke, for the defendantsrespondents.
Cur adv. vult.
February 2, 1955. Saxsoxt, J.—
The three plaintiffs sued tho 1st defendant in tin’s action claiming adeclaration that they and their co-heirs were entitled to an undivided3/10th share of a land and the plantation of 40 coconut trees onthe eastern side. They also prayed that tho 1st defendant be ejectedfrom the land, and for damages until they were restored to possession.The plaintiffs claimed that this particular plantation had been madeby two planters in 1905 at the instance of their predecessors in title,and had been possessed by them and their co-licirs until the 1st defendantdispossessed them in 1951.
The 1st defendant is a lessee on a deed of lease executed in 1040. Hislessor, who claimed to bo a co-owner of the 3/10th share of the land,was added as the 2nd defendant. Tho two defendants pleaded that theplantation in dispute had been made by the 2nd defendant’s jjre-dccessors in title.•
Tho learned District Judge held in favour of the plaintiffs and against-the defendants on tho question as to who had mado tho plantation buthe thought that they wero not entitled to any relief as they had notestablished the oxact share to which they wero entitled. I think therewas ample oral and documentary evidence to support the learned Judge’sfinding as to who mado the plantation in dispute. I would also accept,lus finding that the 2nd defendant is a co-owncr of the land. It doesnot however follow that tho 2nd defendant is, for this reason, entitledto a share in tho produce of the plantation which was made bythe plaintiff’s predecessors in titlo.
It may now be regarded as well settled that a co-owner who makes aplantation or builds a house on the common property with the acquies-cence of his co-owners is entitled to possess tlio entirety of thatplantation or house as against the other co-owners until the commonownership is terminated by a partition action. It makes no differenceif two or more co-owners make the particular improvements and onlysome of them sue to enforce their rights of possession against a co-owneror any outsider who has no right to enjoy such improvement. Theoxact share of the person suing in such a case is irrelevant so long as heestablishes that the person sued has no l ight-to enjoy the improvement.I would therefore hold that the plaintiffs are entitled to a declaration(a) that they are entitled to possess the plantation in dispute as againstthe defendants, and (6) that the defendants have no right to possessthat plantation.
J3ut are tho plaintiffs also entitled to an order of ejectment againstthe defendants ? If the improvement in dispute had been a house-theywould clearly have been entitled to such an order in view of thejudgment in Kathonis v. Silva 1, but, as it is a plantation that is in dis-pute I think a distinction must be drawn between the two defendants.An order of ejectment may be made against the 1st defendant who isonly a lessee of the plantation and who has therefore no rights outsidethe plantation ; but as the 2nd defendant is a co-owner of tho land anorder of ejectment cannot be made against liim because such an orderwill prevent him from exercising his right- to possess the land apart fromt-lie plantation. We have to enforce the rights of an improving co-owner without unduly interfering with the rights of other co-owners.I think that is why no order of ejectment was made in such cases asArnolis Singho v. Mary Nona and Pceris v. Appuhmny 3.
With regard to the rest of the relief claimed by the plaintiffs, however,the plaint itself showed that there were several other co-owncrs of the3/lOtli share of the land, and the evidence led at the trial did not clearlyestablish to what specific share of the lander of the plantation the threeplaintiffs were entitled. A person cannot be granted a declarationof title for himself and persons who are not parties to the action. I agreewith the learned Judge that in these circumstances the plaintiffs had notestablished their right to a declaration of title to the 3/10th share of theland. Nor can they be awarded any damages since they have not provedthe exact share of the damages which they were entitled to recover, anddamages which were due to their co-lieirs cannot be awarded to them.I would therefore set aside the decree appealed from and direct that adecree be entered declaring [a) that the plaintiffs arc entitled to posses-sion of the plantation of 40 coconut trees on the eastern side of theland described in the plaint and that the two defendants have no rightto possess that plantation, and (b) that the 1st defendant be ejectedfrom the’ said land. The plaintiffs will also be entitled to their costs in(both courts.
Gratia ex, J.-—I agree.
Decree set aside.
. * (1919) 21 X. L,. It. 1-52.1 (1910) IT X. L. It. -501.
3 (191T) IS X. L. It. 311.