.SIRIMANE, J.—Sediris Perera v. Mary Nana
1971Present; Slrlmane, j., and Weeramantry, J.
K. A. SEDIRIS PERERA, Appellant, and S. B. MARY NONA et al.,
S. C. 22/69 (Inty.)—D. O. Gampaha, 136201P
Partition action—Improvements mads by a co-owner despite protest by the otherco-owners—Allotment of shares-—Interlocutory decree—-Variation of it in thefinal decree—Permissibility—Partition Act (Cap. 69), s. 33.
Although, according to section 33 of the Partition Act, a co-owner shouldordinarily be given by the commissioner an allotment which includes theimprovements he has made, this rule need not be adhered to if, in doing so,a fair and equitable division is rendered impossible. Accordingly, an alternativescheme may be adopted at the stage of the final decree so that-a-building put-up in spite of protest may fall into a lot given to a co-owner-other than the.person who put up the building.
A.PPEAL from an order of the District Court, Gampaha.
W. D. Gunasekera, for the plaintiff-appellant.
J. Q. Jayatileke, with G. 0. Forueka, for the 2nd defendant-respondent.
1st and 3rd defendants-respondents absent and unrepresented.
May 27, 1971. 8ibxma»b, J.—
The plaintiff-appellant is entitled to a Jth share of the soil, andJth share of a fairly large house shown as No. 2 in the preliminary Planmarked X.
When he filed this action he also filed petition and affidavit allegingthat the 1st to 3rd defendants, who are members of one family, wereputting up a foundation on the land sought to be partitioned andjwere^“ making preparations to put up a building encroaching on alarger portion
of this, landAfter notice of injunction'was
served on the defendants*, they had completed the building which isshown as No. 5 in Plan X.
The commissioner has submitted a scheme of division in Plan No.-678/P in which lot B was allotted in common to the 1st to 3rd defendants,and lot A to the plaintiff. The western boundary of lot A is irregular, asthe commissioner has attempted to exclude the building, put up underprotest, from lot A. The alternative scheme submitted by the plaintiffis depicted in Plan No. 180/68 which gives lot 4 to the plaintiff and lots1, 2 and 3 to the defendants in Accordance with their respective shares.The irregularity of the boundary on the west is removed and the plaintiffgets a proportionate road frontage. But house No. .6 fallB into lot 4.
Ariyadaaa v. Inspector of Police, Nawalapitiya
We are of the view that in the circumstances of this case, the alternativeplan depicts a fairer division. Ordinarily a commissioner should give alot to a co-owner to include the improvements he has made. (VideSection 33 of the Partition Act.) But if in doing so, a fair and equitabledivision is rendered impossible, this rule need not be adhered to.
The mere fact that the judgment says that a particular building“ belongs ” to a particular person (and the interlocutory Decree basedon that judgment, reflects that finding) it does not follow that thecommissioner must in all circumstances allot a building to theparticular co-owner who built it. A building put up under protest,as in this case, may fall into a lot given to a co-owner other than theperson who built it, unless there is a specific direction to the contrarywith the decree.
The learned District Judge was incorrect when he thought that if heconfirms the alternative scheme there would be a violation of theInterlocutory Decree.
We, therefore, set aside the Final Decree entered in this case. PlanNo. 180/08 dated 5.12.1968 is approved. The defendants-reBpondentsmay, if they so desire, take in common the adjacent lots 1, 2 and 3.The plaintiff-appellant will, of course, be liable to pay compensation,if any, for house No. 5 when one takes into consideration his Jth share inhouse No. 2, which falls outside his lot.
A new summary of distribution should be filed with reference to PlanNo.'180/68, and Final Decree entered, thereafter.
Plaintiff-appellant is entitled to costs of appeal.
Weekamantby, J.—I agrees
K .A SEDIRIS PERERA, Appellant, and S. B. MARY NONA et al., Respondents