031-NLR-NLR-V-07-KATHERINA-v.-JANDRIS.pdf
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KATHERINA v. .TANDRIS.
C.B., Galle, 2,629.
hand—Higlits of soil owner and house builder—Seizure in execution—Prescrip-tion.
Where A built a house on a land owned in common with others, andthen sold his share in the land to his co-owners but kept possession ofthe house till his death, and where B, a creditor of A, seized in executionof his judgment against A the house he had occupied, and in which hisson and daughter-in-law were living,—
Held, that the house in question was the property of the soil owners;that he had only a right to compensation against them; that thisright was not kept alive by his continuing to occupy the honse; that, theright to compensation was prescribed in three years after his alienationof his share of the land; and that B had nothing to seize in execution.
T
HE first defendant (.Jandrfs), having a money judgment againstthe second defendant (Sarnelis), and Salo, the father of the
second defendant-, seized in execution of his judgment a houdle ap$rtfrom its site as property belonging to Salo, because he had built it.Thereupon the plaintiff, the wife of Sarnelis,* claimed the house ashaving been built by her previous deceased htisband, Endoris, abrother of Sarnelis. The claim( having been disallowed, theplaintiff brought this action against the writ-holder and theexecution-debtors to hav'e her own right declared.
1904.
February 16.
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1904.
February IS.
The Commissioner (Mr. G. A. Baumgartner) found that Salo,and not Endorig, had built the house. He held that this fact didnot confer on Salo any right of property in the house, but only aright to compensation, because Salo had parted with his interestin the land itself twenty-four years ago; and that no saleableinterest in the house devolved on Salo's son, the second defendant.The Commissioner refused to allow the first defendant executionRgainst the fabric of the house. His judgment was as follows: —
“A house becomes the property of the owners of the soil onwhich it is built, and the builder’s sole right is right to compensa-tion (De Silva v. Harmanis, 3 N. L. Ii. ICO). That being so,Salo’s right to anything beyond compensation ceased tweuty-fouryears ago, when he parted with his interest in the land itself.
“ This right to compensation constituted a claim against theco-owners of the land, and should have been enforced againstthem many years ago, as it is a claim that becomes prescribed inthree years under section 8 of Ordinance No. 22 of 1871, and is, inmy opinion, not kept alive by the fact of the builder continuingto occupythe house.Such occupationcannotbe construed as
amounting to a promise by the owners of the land to pay thecompensation (5 S. C. 0. 78) or as payment of interest.
" I, therefore, hold that Salo’s claim to compensation vanishedbefore hisdeath, anddid notdevolveon hisson, the second
defendant. If it did survive, I doubt whether such an unascer-taihed claim could be the subject of seizure. It seems to me tofall in thesame class' as ‘ mererights tosue fordamages ’, which
by section218 (a) ofthe CivilProcedure Codeare not liable to
seizure under writ.
“ Assuming that such a claim can be seized, the procedure forseizing it would be that under sections 229 and 230, not seizure ofthe house itself under section 237, ,the procedure adopted in thiscase. Notice would have to be served on the owners of the landagainst whom the claim to compensation is alleged to exist, andthey would have to be dealt with under section 230.
“ It is further to be noted that sections 241 to 247 do not apply toseizures under section 229, at least sr it has been held in India(hid. L. R. 4 Bom. 323; Pereira's Inst., p. 337).
“ I dismiss the plaintiff's p.ction. I refuse the first defendant
any execution against, the fabric of the said house ”.
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The plaintiff appealed^
The case was argued on 15th February. 1904.
Samarawikrama. for first defendant, appellant.
A'o appearance for respondent.
Cut. adv. vutf.
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16th February, 1904. Moncreiff, J.—
I think the Commissioner is right in this case. The claimantfailed to establish one part of her contention; her husbandEndoris had nothing to do with the building of, and did not livein, the house. He held also that Samelis, brother. of Endoris,raid present husband of claimant, had no claim to the house. Hefound that the father of the two men built this house and livedin it for a considerable .time, but that the house belonged to thesoil owners. • The claimant and her son were entitled to T'8 ofthe land. The Commissioner refused to allow the claim, but healso refused to allow the defendant to levy execution on the house.Inasmuch as the Commissioner found that the judgment-debtorhad no interest in this house,- and that the claimant was entitled toas being a co-owner of the soil, I think, looking at the terms ofsections 244 to 245 of the Civil Procedure Code, that there is noalternative to what the Commissioner did.
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1904.
February 18.