136-NLR-NLR-V-56-J.-D.-LIYANAGE-Appellant-and-L.-H.-THEGIRIS-Respondent.pdf
MS
Liyanage v. Thtffirfe
1954Present: Rose C.J. and Sansoni J.J. D. LI Y AN AGE, Appellant, and L. H. THEGIRIS,-RespondentS. C. 139—D. C. (Mbs, 4,593
Partition action—Improvements made 6?/ a co-owner—Scope of his right to be allottedportion which contains the improvements—Partition Ordinanc , ATo. JO of 1863,ss. 4,6….
In nil notion Tor the partition of a land, owned in common the rule thnt nco-owner should l>o allotted the portion which contains his improvements isnot nn invariable rule ; it will not be followed if it involves substantial injusticeto the other co-owners.
Whore, therefore, co-owner A wrongfully, demolishes a building put up byoo-ownor B and erects on its foundation another building, A will not, in pre-ference to B, bo allotted the portion of the land on which tho building stands.The question as to who should get the lot with tho building may bo decidedat the stage of partition if there is no provision in regard to it in the inter-locutory dccroo.-
A.
^APPEAL from a judgment of the District Court, Galle.
H. V. Perera, Q.C., with Cyril E. 8. Perera, Q.C., and A. W. W. Qoona-wardana, for the 7th defendant appellant.
C. O. Weeramantry, for the plaintiff respondent.
Cur. adv. wit.
8AN80NT J.—Liyanage v. Thtgiris
647
August 4, 1054. Sansont J.—.
This is an appeal by the 7th defendant in a partition action who isdissatisfied with the scheme of partition ordered by the learned DistrictJudge. The dispute has arisen because of the building No. 1 which theSurveyor in his report, attached to the preliminary plan, described as*’ a partly constructed masonry-walled and thatched garage (not com-pleted) ”, Lying under this bnilding is an old foundation. It is commonground that building No. 1 was constructed by the 7th defendant andthe foundation No. 2 by the plaintiff. Under the interlocutory decreeeach of them received 780/12090 share of the land and in respect of the
buildings the decree provided “No. 1 to the 7th defendant,
No. 2to the plaintiff”. Obviously the Commissioner could not
comply with both directions, if they are to be considered “ special direc-tions as to the partition ” within the moaning of section 5 of the Parti-tion Ordinance, No. 10 of 1863,since the building stands on the foundation.I would regard this part of the decree not as a direction but merely as adetermination by the Court, under section 4, that these improvementswere made by the parties mentioned. To that extent only the decreeis res judicata, and compensation would accordingly become payableto the improvor who does not receive a lot containing his improvement.The Commissioner was faced with' the difficulty of partitioning the landand giving each improver his particular improvement, and he gave the7th defendant lot A with the building and foundation and gave theplaintiff lot C which is bare land. The plaintiff objected to this scheme,and after inquiry the learned District Judge gave lot A to the plaintiffand lot C to the 7th defendant. The 7th defendant has appealed againsttliis order.
Tt is im]K>rtant to bear in mind the considerations wliich led the learnedJudge to make this order. The plaintiff had a 5 cubit thatched boutiquestanding on the foundation No. 2 ; he had transferred his share of the landand the entirety of this boutique to the 7th defendant by a conditionaltransfer in September, 1948, and the 7th defendant had re-transferredthat sliaru and the boutique to the plaintiff in September, 1949. On27th June, 1950, the 7th defendant bought a share of the land from anotherco-owner uiul on the following night he pulled down the plaintiff's boutiqueand crectod a shed on the foundation. The plaintiff complained of thisto the Headman and charged the 7th defendant with mischief in thoMagistrate’s Court on 1st July. Tha criminal case did not proceed totrial, but tho Magistrate advised the 7th defendant not to add to thobuilding pending this partition action which had, by that time, beenfiled by tho plaintiff. These are the facts as found by the learned Judgoand they have not boon canvassed in appeal. The learned Judge saysin lus order : “ Hut for tho 7th defendant’s act in pulling the plaintiff’shouso down, lot A would have contained the plaintiff’s house, and ordi-narily that lot would have been allotted to the plaintiff. To allow thescheme to stand as it is would be to allow the 7th defendant to profit byhis wrong doing ”. The main argument urged for the appellant is thatthe learned Judge should not have gone into the liistory of how thebuilding No. 1 came to be erected, as it involved investigating events
348
SAXSONI J.—Liyanage v. Thegiri.t
which happened before the interlocutory decree was entered. It wasalso submitted that the Court should not set aside the scheme of partitionproposed by the Commissioner except upon grounds which the Commis-sioner himself coidd have considered : in other words, the Court wouldact as an appellate authority considering only submissions which couldhave lieon mado to the Commissioner. Both submissions involve the<|iiestion whether a Court is precluded, when acting under section (5,from considering any grounds which could not have been eonBiderodby the Commissioner. Now T am willing to concede that it is only inexceptional cases that a Judge, who is considering the merits and de-merits of a scheme of partition submitted by a Commissioner, will haveneed to, or he willing to, consider the earlier history of improvementseffected on the land Insfore he makes his decision as to how the landshould be partitioned. In the majority of eases the principle acted uponis that in dividing the property it is no more than equitable that, whenit can be conveniently done, the improving co-owner should be allottedthe portion which contains his improvements. The main reason is that,this course will render it unnecessary for the other co-owners to payhim compensation in respect of those improvements. Hut it is not -aninvariable rule, and it will not be followed if it involves substantialinjustice to the other co-owners.
That there will bo substantial injustico done to the plaintiff in „thiscase if lot A wevo to bo allotted to the 7th defendant is undeniable.The plaintiff’s boutique had stood on lot A for some years. It presumablycame up with the acquiescence, if not the-consent, of the other co-ownorsand the 7th defendant has recognized the plaintiff's right to it in histransactions with the plaintiff in 1948 and 1949. Nothing that I can soowould have stood in the way of the plaintiff getting lot A with his boutique,if the boutique had been standing when the interlocutory decree ptagewas reached. Can the 7th defendant have a better right to lot A, basedas his claim must be solely upon his- forcible and wrongful conductin demolishing the boutique and hastily'attempting to croct a garageupon the same site, despite the plaintiff’s objections and in breach of thoMagistrate’s direction that there should not be an addition to the partiallyconstructed building ? I find it impossible to condone such conduct,and I consider that he has acquired no superior equity or favour in thosubsequent division of the property under such circumstances—seeSilva v. Corea l. I would, moreover, stress that in this case tho plaintiffhas acted promptly in protesting against the series of wrongful acts oftho 7th defendant, from the very first act of demolishing the boutique.The complaint to the Headman, the criminal prosecution, and tho filingof this partition action were all closely related steps taken by the plaintiffto seek redress.
Is there any statutory provision, which prevents the grant of redressat this stage ? If the plaintiff had contested the 7th defendant’s rightto get any compensation at all for his garage, as he might concoivablyhave done in the proved circumstances of .this case, tho learned Judgowould have decided that- dispute before entering the interlocutory decree ;
1 (1859) 3 Lor. 312.
Fernando v. AliUt/ Nona
649
|,ul aiiK-c (he. plaintiff iliil not at that stage ileny the 7th defendant’sright to claim compensation I think it was not unreasonable for the ques-tion as to who should get the lot with the garage to lie left to bo decidedonly at the stage of partition. The 7th defendant did not at the trialclaim that he should at the partition get a lot with his garage. There isnothing in the interlocutory decree which suggests that the garage should]>e allotted to the 7th defendant. It is generally premature for sucha provision to he made in the decree. Up to that point, therefore, thematter was left open. When the stage of partition was reached, theCourt was entitled to inquire summarily and decide whether the 7thdefendant had infringed the rights of his co-owner to such an extentthat ho should not enjoy the privilege of getting a lot which containedliis improvement.
1 would, for these reasons, dismiss this appeal with costs.
Kosk C..r.—T agree.
Appeal dismissed.