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Present: Ennis A.C'.J. and De Sampayo J.
KATHONIS v. SILVA.212—D. 0. Galle, 15,011/G.
Co-owner—Right to build on common land—Right to eject another co-ownerfrom house.
A co-owner'has the right to build and live on the common land.
If a co-owner exercises his right and bnilds a honse for hisprivate use on the land, he may eject any other co-owner who 'attempts to occupy that house without his permission.
It' is possible that a co-owner may have the right to enter thehouse built by another co-owner for certain purposes, but not toclaim one of the rooms for his own personal presidence.
facts appear from the judgment.
A. St. V. Jayewardene (with him F. de Zoysa), for the appellant.E. W. Jayawardene, for the respondent.
October 28, 1919. Ennis A.C.J.—
– This was an action for declaration of title to a house for ejectmentand for damages. It appears that the parties are co-owners in acertain land, the plaintiffs owning at least 7/10 and the defendanta small share in the remainder. It appears that one of the co-owners, many years ago, built a house on the land. This house waspurchased by one Odiris Appu, also a co-owner. Odiris, onJanuary 6, 1893, sold the house and his share in the soil to oneBabun Hamy. Babun Hamy was the wife of the first plaintiff andthe mother of the other plaintiffs.
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The defendant’s case was that the house now on the land wasnot the one dealt within Odiris’s deed, but a new one put up byhimself. His story was that the old house fell down, that heprovided the money to the first plaintiff to build a new house, andthat the first plaintiff built the new house, which is on the land,for tiie defendant. The learned Judge found that the house atpresent on the land was not exactly the same as the old one. Hesays that the old one “ was completely replaced by the removal ofthe old walls, posts, and roof, and the erection of a stone masonryand tiled building on the identical site. "
It is suggested by the appellant that this is a finding that thehouse is a new one completely. I do not so read it. It is rathera finding that the present house is a reconstruction of the old one.
The Judge further held that the plaintiff could not claim moreagainst a co-owner than a declaration of their right to the improver’sinterest and damages for ouster, and that they cannot claim abso-lute ownership or the eviction of the defendant without provingthat the defendant was without a vestige of co-ownership in thesoil. Two questions were raised on the appeal: First, the questionof fact as to who built the present house; and the second, thequestion of law as to whether one co-owner can maintain suchan action as the present one against another co-owner? On thequestion of fact I see no reason to interfere with the finding of thelearned Judge that the plaintiff built the present house, that thepresent house is in substitution for the old one sold by Odiris in1893, and that the defendant has failed to prove that he contributedfor the expenses of building.
The question of law is not an easy one, more especially as thelearned Judge declared the builder of the house and the plaintiffsentitled to damages at the rate of Bs. 30 per annum from January 1,1917, but not for more than three years. The judgment is datedMay 5, 1919. The period between January 1, 1917, and May 6,1919, is not three years, and it could hardly be, therefore, that theJudge had in mind that' damages could only be claimed for threeyears before the date of action owing to prescription.
The same order has been reproduced in the decree. It wouldseem, therefore, that at the end of three years from January 1, 1917,under the decree in the case, the plaintiffs will get no further pay-ments. Exactly what is to happen after that is not clear. Neitheris it clear as to whether the damages are to be taken as the equi-valent of rent paid by the defendant. I have some doubt as to theaccuracy of the learned Judge’s statement that the plaintiffs couldnot evict the defendant without proving that the defendant Waswithout a vestige of co-ownership in the soil. A co-owner has theright .to build and live on the common land. Presumably thisright is limited to the accommodation which his share wouldprovide when convenience of possession is considered. If a
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co-owner exercises his right and builds a house for his private useon the land, I am quite unable to see why he should not eject'anyother co-owner who attempted to occupy that house without his.permission.
It seems to me that the right to build a house on the commonland and live in it must carry with it a right to keep the Houseprivate, and to that extent an order for ejectment could be made.It is possible that a co-owner may have the right to enter the housefor certain purposes, but not, as in the circumstances of this case,to claim one of the rooms for his own personal residence.
Assuming that the Judge has granted damages on the basis ofrent, it Is difficult to say whether it is to be for a lease from yearto year or what it is. The difficulty in the case is mainly due tothe fact that the plaintiffs have not appealed from the order made.
But counsel for the plaintiffs has pointed out that the limitationof the damages- to three years is presumably an error, and has;asked us to rectify it. If merely a clerical error, it is the duty of theDistrict Court to put it right. The appellant has raised this questionof law, although in his answer in the Court below he claimed toexercise as against the plaintiffs the very right which he now woulddeny an action for. In view of the facts that the appellant hasraised the question that the decree is difficult to follow, and thatthe dispute between the parties could hardly be satisfactorilysettled on the basis of that decree, I would deal with the matter inrevision, and allow damages up to the date of judgment, and there-after until possession, is given by the defendant at the rate fixedby the learned Judge from January 1, 1917. I would affirm thejudgment that the plaintiffs are entitled to a declaration of theirright to the improver’s interest, and go further and say that inthe circumstances of this case they are. entitled to an order ejectingthe defendant from the house.. The appellant should pay the costsof the appeal.
Db Sahpayo J.—I agree.
KATHONIS v. SILVA