KURUNERU v. HATHTHOTUWA

036-SLLR-SLLR-1983-2-KURUNERU-v.-HATHTHOTUWA.pdf


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Kuruneru v. Haththotuwa
429
KURUNERU
v.
HATHTHOTUWA
COURT OF APPEAL
TAMBIAH, J. AND H. A. G. DE SILVA. J.
S.C. 793/75 &
S.C. 794/75 F
D.C. MOUNT LAVINIA 855/L
14. 15 DECEMBER 1982.
Rei vindicatio action — Encroachment — Remedies for encroachment.
Held —
Where a defendant is found to have encroached on the plaintiff’s lot, the courtmay according to the circumstances, order the removal of the encroachment ororder the defendant to buy the land encroached upon or order the defendant topay compensation. In deciding what to do the court will consider the conduct ofthe parties whether the encroachment was made in bad faith with knowledgethat it was an encroachment, or whether he thought he had a right to do what hedid and whether the plaintiff saw the encroachment while it was in progress andsaid nothing about it; or if he did not know of it until after it was finished whetherhe acquiesced in it for a long period or otherwise.
Where the defendant had put up a parapet wall and two sewerage pipesencroaching on plaintiff's lot at the time it belonged to his (plaintiff's)predecessor without any protest from the predecessor, and where when theplaintiff bought his lot the wall was there and the precaution of a survey at thetime of purchase had not been taken, an order for compensation would meet theends of justice.
Cases referred to :
Silva v. Bastian 15 NLR 132.
Abeykoon Hamine v. Appuhamy 52 NLR 49.
De Silva v. Goonetilleke 32 NLR 217.
Mutusamy v. Seneviratne 31 C.L.W. 94.
Wanigaratne v. Juwanis Appuhamy 65 NLR 167.
Peeris v. Savunhamy 54 NLR 207.
Miguel Appuhamy v. Thamel 2 Current Law Reports 209.
Bisohamyv. Joseph 23 NLR 350.
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Sego Nadar v. Makeen 27 NLR 227.
APPEAL from judgment of the District Judge of Mt. Lavinia.
H. W. Jayewardena. Q.C. with Miss P. Seneviratne for plaintiff-appellant in S.C.793/75 and for plaintiff-respondent in S.C. 794/75.
C. Ranganathan. Q.C. with D. R. P. Gunatilake for the defendant-respondent inS.C. 793/75 and for the defendant-appellant in S.C. 794/75.
Cur. adv. vult
February 08. 1983.
H. A. G. DE SILVA, J.
The Plaintiff in this case filed action against the Defendantseeking a declaration that he is entitled to the portion of the landmarked 'X' in Plan No. 2051 (P3) which he alleges had beenencroached upon by the Defendant; (b) for an order directing theDefendant to remove the encroachment; (c) that the Defendantbe ordered to divert the sewage pipes fixed to the wall of theDefendant's house, from the Plaintiffs land; (d) if the Defendantfails to carry out the orders sought, such removal to be effectedby officers of the Court and (e) damages.
The case went to trial on the following issues:
Is the Plaintiff the owner of the land described in theSchedule to the Plaint upon Deed No. 23 of 1968?
Is the strip of land depicted as Lot X in Plan No. 2051 of2.3.74 a portion of the Plaintiff's land?
If so has the Defendant encroached on the said portiondepicted as X
by putting up a parapet wall
by putting two sewage pipes?
i
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Kuruneru v. Hathihotuwa (H. A. G. de Silva. J.)
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If issues 1. 2 and 3 are answered in the Plaintiff's favouris the Plaintiff entitled
to have the said encroachment removed?
to recover damages?
If issues 4(b) is answered in the Plaintiffs favour in whatsum is he entitled to as damages?
Are the Defendant and his wife the owners of the land tothe East of the land claimed by the Plaintiff?
Is Lot X in Plan No. 2051 a part of the land of theDefendant and his wife?
If so can the Plaintiff maintain this action?
The learned Trial Judge in his Order answered issues 1, 2. 3(a)& (b) and 6 in the affirmative and issues 4(a) & (b) and 7 in thenegative. In regard to issue 5 he held that the Plaintiff was notentitled to damages, and on issue 8. he held that the Plaintiff canmaintain this action to recover the value of the portion of landencroached by the Defendant. He goes on to say in his Order, "Itherefore hold that the strip 'X' (depicted in Plan P3) is part of LotB3D of the Plaintiffs land. The Plaintiff is however not entitled tohave the encroachment by the Defendant, the parapet wall andsewage pipes on the wall of the Defendant's house removed. ThePlaintiff will however be entitled to compensation for the portionof his land encroached by the Defendant as assessed by theCommissioner of this Court. The Defendant will also pay thecosts of the commission. On payment of the compensationDefendant will be the owner of the strip of land depicted as lot 'X'in Plan P3. The Plaintiff will also be entitled to the costs of thisaction". It is from this Order that both the Plaintiff and Defendanthave appealed.
The Plaintiff's case was that he became owner of the Lot B3Ddepicted in Plan No. 2204 of 12.6.60 (P1) on Deed No. 23 of
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10.7.68 (P4). He also purchased Lot B3C. The Defendant, it isalleged has built a parapet wall encroaching on the Eastern sideof Lot B3D. This encroachment is said to be 18" wide, North toSouth, is 0.34 perches in extent, and depicted as ‘X’ in Plan2051 of 2.3.74 (P3). The Defendant is said to be the owner ofpremises bearing No. 29/8, Visakha Road, Colombo, whichpremises lies immediately to the East of Lot B3D owned by thePlaintiff. At about the same time that he had purchased Lot B3D,he avers that he had also purchased Lot B3C.
When the Plaintiff commenced on 13th February 1974 to laythe foundation of the building to be constructed on a planapproved by the Colombo Municipality, he discovered thealleged encroachment. The Plaintiff had thereafter on 2nd March1974 had this land surveyed and Plan P3 prepared whichshowed that the encroachment was all along the parapet wallconstructed by the Defendant. Prior to the land being surveyedand the Plan P3 being made the Plaintiff had discussed thisencroachment with the Defendant who had denied that therewas any such encroachment but had said that if there was suchan encroachment, he was prepared to pay for it but was notprepared to demolish the parapet wall. The Plaintiff had evenoffered to pull down the offending wall and construct a new oneat his own expense but to this too the Defendant was unwilling toagree. The Defendant in his.evidence at the trial has denied thatany such discussions had taken place.
The Defendant's position was that he and his wife had becomethe owners of the land depicted as Lot 1 in Plan No. 1043 of1967 (D2) and Deed No. 645 of 4.1.1966 (D4). He hadinspected the land before he purchased it. There was a live andbarbed wire fence on the West of Lot 1 and this is shown in PlanD2. Lot 1 had well-defined boundaries and Plan D2 showedboundary stones at the North Eastern, South Eastern and SouthWestern corners of Lot 1. He had completed building his houseand the parapet wall by March 1967. The parapet wall had beenbuilt by making use of the boundary stones. Dayananda Rodrigothe owner of the land now claimed by the Plaintiff saw himbuilding his house and wall but made no protest.
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Mr. Ranganathan contended that the Plaintiff has failed toprove title to the encroachment 'X' in P3 and hence his actionmust necessarily fail. It was his submission that this action was inreality a rei vindicatio action and it was incumbent that thePlaintiff proved his title to the alleged encroachment. He cited aseries of cases in support of his contention.
In Silva v. Bastian (1) it was held that a Crown grant by itselfcreated no presumption of the title of the Crown to the land itconveys. Similarly, it was held in Abeykoon Hamine v.Appuhamy (2), that in the maritime Provinces, a Crown grantdoes not raise a presumption that the grantee is vested withdominium. The Plaintiff in an action rei vindication cannottherefore rely on a Crown grant alone to discharge the initialburden of proof that rests on him to establish that he hasdominium to the land in dispute.
This principle has been reiterated in a number of cases whichmakes it more or less axiomatic; the leading cases on this pointare De Silva v. Goonetilleke. (3) ; Mutusamy v. Seneviratne. (4) ;Wanigaratne v. Juwanis Appuhamy. (5) ; Peeris v.Savunhamy. (6) and in Maasdorp's Institutes of South AfricanLaw, Vol II (9th Edition) page 68 it is stated that—
"the Plaintiffs ownership in the thing is the very essence of theaction and must be both alleged and proved, and the claimmay therefore be met by the defence that a third party and notthe Plaintiff is the owner. The action should as a rule bebrought against the person who is in possession of theproperty claimed".
I will now proceed to consider whether the Plaintiff hasadequately proved his ownership of the portion encroachedupon.
In paragraph 2 of his Plaint the Plaintiff avers that by virtue ofDeed of Transfer No. 23 of 10.7.68. (P4) he became owner ofpremises described in the schedule to the Plaint. Schedule 1 (a)refers to "all that allotment of land marked Lot B3D in Plan
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No. 1104 of 10.6.1960 (P1) with the building thereon bearing
assessment No. 28/1, Vajira Roadand which said
Lot B3D is bounded on the North by Lot B3A (reservation forroad) East by the property of Mr. N. L. Silva. South by theproperty of Mrs. N. L. Silva and on the West by Lot B3C andcounting 5.2 perches.
The Defendant in para 3 of his answer states that he isunaware of the facts placed in paragraph 2 of the Plaint and callsupon the Plaintiff to prove the said facts if so advised.
Para 3 of the Plaint avers that the Defendant is the owner orreputed owner of premises bearing No. 24/8, Visakha Road.Colombo 4. which premises lie immediately to the West andadjoining the premises owned by the Plaintiff. In answer to thisthe Defendant denies that he owns any premises bearing No.24/8. Visakha Road, Colombo 4. lying immediately to the Westof and adjoining the premises alleged to be owned by thePlaintiff.
The Plaintiff in his evidence stated that on (P4) he purchasedLot B3D and that he had also purchased the adjoining Lot B3C.He had bought these two Lots to put up a house. He hadpurchased these lots in July 1 968. At that time there had beentwo tenements and his idea was to demolish these twotenements and put up the house.
In cross-examination he had stated that the land was notsurveyed before it was surveyed by Mr. Abeygunawardane for thepurposes of this case. When he purchased this land he had goneto the spot. He had seen on the Eastern boundary of Lot B3D, anew parapet wall, about which he is now complaining. Thisparapet wall had been in existence in 1968 before he purchasedthe land. It was a new wall and it has been built recently.According to Plan (P1), the Eastern boundary of B3D is a live andwire fence. At the time he purchased this land there was no wireand live fence and the parapet wall had taken its place. He hadnoticed on the other side of the parapet wall a completelyconstructed house, and the Defendant was in occupation of it.
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The Defendant stated in his evidence that he and his wifePushpa Kumari by Deed No. 645 of 24.1.1966 (D4) purchasedLot 1 and he had constructed a house on the land which bearsassessment No. 29/8. Vajira Road. Colombo. He stated that (D4)recites the title to Lot 1 which he and his wife purchased. Hefurther states that when he was building the house and wall,there were persons living on the land to the West which is thePlaintiff's land. The owners of the land to the West did not objectwhen he was building the house and the wall. He knows a mancalled Dayananda Rodrigo. This Dayananda Rodrigo was therewhen he was building his parapet wall on the Western side.Again in the course of his evidence, speaking of the allegeddiscussion that was said to have taken place between himselfand the Plaintiff, he has said that he had told the Plaintiff that he.the Defendant had not encroached on the Plaintiff's land.
Dayananda Rodrigo, the Plaintiffs predecessor in title to thisLot B3D, gave evidence that at one time he was the owner of LotB3 in Plan P2 at Vajira Road. He was the owner of this land. Hisfather Shelton Rodrigo during his lifetime had got B3 partitionedby the Surveyor and divided B into four lots B3A to B3D. OnDeed P4 he had sold Lot B3D in Plan P1 and also Lot B3A whichis a road reservation from Vajira Road, to the Plaintiff in this case.He had become the owner of the land on Deed No. 536 of 28thAugust 1 960 as stated in P4. Incidentally this Deed No. 536 wasnot produced.
Deed P4 recites the title of Dayananda Rodrigo, thepredecessor in title of the Plaintiff. He has testified to suchownership in his evidence but there was no cross-examinationon this point by the Defendant, nor was the Plaintiff so cross-examined. On the other hand the Defendant himself has in hisevidence referred to the land adjacent to his land on the West asthe Plaintiff's land. Deed P4 defines the land transferred by it asLot B3D in Plan No. 2204 (PI). It is therefore quite clear thatwhatever the Defendant stated in his answer, during the courseof the trial he has accepted that Lot B3D was transferred on P4and that Lot B3D since D4 is owned by the Plaintiff. I therefore
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agree with the conclusion come to by the learned Trial Judgethat the Plaintiff has at the trial proved that he is the owner of LotB3D and he was correct when he answered issue 1 in theaffirmative.
As the learned Trial Judge has stated in his Order, the mainquestion in this case is whether the portion marked 'X' in Plan P3is an encroachment i.e. is it a portion of Lot B3D owned by thePlaintiff. There is no doubt that the strip 'X' is the portion onwhich the parapet wall has been built.
Mr. Ranganathan has contended that in 1968, when thePlaintiff is alleged to have purchased Lot B3D on P4, the wall wasin existence. The Plaintiff saw this wall on his Eastern boundary.He did not get a survey done and a plan prepared prior to thepurchase, but in P4, the metes and bounds of Lot B3D have beenstated in reference to Plan P1. made in 1960 at the time whenDeed No. 536 by virtue of which Dayananda Rodrigo derived histitle was executed. The existence of the encroachment which isdepicted as 'X' in P3 was discovered as a result of the surveydone by Surveyor Abeygunawardane and superimposing it onPlan P1. I. W. Indatissa who prepared Plan P1 in 1960 andAbeygunawardane who did the last survey and made thesuperimposition have given evidence and their evidence hasbeen accepted by the learned Trial Judge in preference to theevidence of W. 0. Wijesingha who surveyed the Defendant's landand prepared Plan No. 780 (D1) by superimposing his plan onPlan No. 1043 (D2Jwhich is referred to in Deed D4, by virtue ofwhich the Defendant's land was purchased by the Defendant andhis wife in 1 966. The learned Trial Judge has dealt exhaustivelywith the evidence of these three surveyors and has come to theconclusion that he accepts the evidence of the two surveyorscalled by the Plaintiff, and in accepting the evidence ofAbeygunawardane who made Plan P3, that the strip marked 'X'was an encroachment on Lot B3D owned by the Plaintiff.
Mr. Ranganathan also referred to the evidence of theDefendant who stated that he completed his house and parapetwall by March 1967 and Dayananda Rodrigo who owned
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Lot B3D did not protest when the parapet wall was built. Hecontended that, had there been an encroachment. DayanandaRodrigo would have protested to the Defendant immediately.Dayananda Rodrigo has stated that he was the owner and hadseen the Defendant building the house, but at that time he wasresiding at Dehiwela. It may very well be, that on his visits to thisColombo land, Rodrigo, though he had seen the house andparapet wall being built, it did not occur to him that anencroachment was taking place. Had he been residing on thatland itself or in close proximity to the house that was beingconstructed, he may have taken greater care to see thatboundaries of his land were not being encroached upon.
Considering the evidence led in this case I do not think onecould say that the learned Trial Judge was wrong in holding thatthe Defendant had encroached on the Eastern boundary of LotB3D. Similarly regarding the sewage pipes and the down pipes,the learned Trial Judge has. as he is entitled to do. accepted theevidence of the Plaintiff and his surveyor Abeygunawardane. inpreference to the evidence of the Defendant and his surveyorWijesinghe. He cannot be faulted for coming to such aconclusion.
The Plaintiff-Appellant has in his petition of appeal prayed (a)that the Defendant-Respondent be ordered to- remove theparapet wall built by the Defendant-Respondent on theencroached portion of the land and marked 'X' and the Plaintiffbe restored to possession thereof: (b) that the Defendant-Respondent be ordered to remove the sewage pipes on theWestern side of this house wall from the Plaintiff's land; and (c)that the Defendant-Respondent be ordered to pay the Plaintiff-Appellant damages in Rs. 5325/-. The Defendant has on theother hand in his cross-appeal maintained that the Defendantcannot be ordered to pay compensation for any encroachment.
Mr. Ranganathan contends that the order made by the learnedTrial Judge in reference to the award of damages or to permit thePlainitff to have the encroachment by the Defendant viz., the
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parapet wall and the sewage pipes on the wall of the Defendant'shouse need not be removed, is an equitable order and this Courtshould not interfere with such an order. He cited the case ofMiguel Appuhamy v. Thamel (7). which held that where thePlaintiff asked the Court to order the Defendant to remove abuilding which is an encroachment on the Plaintiff's land, theCourt may, according to the circumstances, either order theremoval of the encroachment or order the Defendant to buy theportion of the land encroached upon", and it was also held byHutchinson C.J. that "there may also be a power, instead ofdoing either of those things, to order the Defendant to paycompensation". Hutchinson C.J. went on to say at page 210, "Indeciding what to do the Court of course will consider theconduct of the parties. Whether the Defendant's encroachmentwas made in bad faith with knowledge that it was anencroachment, or whether he thought that he had a right to dowhat he did, and whether Plaintiff saw the encroachment while itwas in progress, and said nothing about it; or (if he did not knowof it until after it was finished) whether he acquiesced in it for along period, or otherwise".
In Bisohamy v. Joseph (8), "the Defendant built a house walland in doing so encroached upon a very small strip of landbelonging to the Plaintiff. The Plaintiff who was aware of thebuilding raised no objection at the time. In the circumstances theCourt, instead of giving judgment for the actual portionencroached upon, as prayed for by the Plaintiff, orderedDefendant to pay compensation for the encroachment. SampayoJ. said, "the strip is so narrow that it would be inequitable tocompel the Defendant to break down the wall".
In Sego Nadar v. Makeen (9) it was held that if in thecircumstances the plaintiff could be compensated by damages,an injunction to compel the Defendant to remove the buildingand restore a small strip of unbuilt land should not be granted.
In the instant case we have the following facts:
(1) In 1967 when the Defendant was putting up his houseand constructing the parapet wall, Dayananda Rodrigo
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the Plaintiff's predecessor-in-title who saw the house andparapet wall being built did not protest.
At the time the Plaintiff purchased the land in 1 968 onP4. the house and parapet wall were already in existencei.e. by that time the land the Plaintiff was purchasing hadbeen encroached upon. He did not take the elementaryprecaution of having the land surveyed and a plan made.If, as it was elicited in evidence, the blank wall carryingthe sewage pipes was on the boundary, and the parapetwall was not in line with the wall of the house but jutting18" towards the Plaintiffs land, and had the Plaintiff beenmore observant and careful, he would have noticed thisdiscrepancy and got a survey done. He had beennegligent in not having got this done.
The Plaintiff states that it was only when the foundation ofthe proposed house on Lot B3D was being laid in 1 974in accordance with the Municipal Council's approvedplan, that the Engineer had told him that the foundationcould not be laid as the ground extent was not enough. Itwas then that he discovered the encroachment.Mr. Ranganathan quite correctly submits that theevidence of what the Engineer told the Plaintiff washearsay as the Engineer had not been called as a witness.Further he submits that there is no evidence that a housecannot be constructed on the extent of Lot B3D that isnow left to the Plaintiff. Lot B3D is 4.79 perches and LotB3C which is also owned by the Plaintiff has 4.2 perches,i.e. in all the Plaintiff has 9.04 perches (Vide P3). Theencroachment 'X' is 0.34 perches. Therefore even if hehad this additional strip the Plaintiff would only have 9.38perches in all. There is no evidence that even if a housecould be built on 9.38 perches that a house with thenecessary modification cannot be built on 9.04 perches.
The Plaintiff states that though he purchased these two Lots in1968. he commenced construction of the house only in 1974,
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that is 6 years after he bought it. He also stated that he was awayin the U.S.A. on scholarship for one year and that though theplans of his house had been approved in 1969, the loan that hehad applied for to construct this house had only been finalised in1974. Even if he had been away for one year, he still had fiveyears to notice and protest at the encroachment. This he hasfailed to do. In the circumstances the order made by the learnedTrial Judge is in my view eminently just and I affirm his findingson issues 4(a) (b), 5 and 8.
I therefore, in conclusion, affirm the Order of the learned TrialJudge in its entirety and I dismiss the appeals of the Plaintiff andof the Defendant. The parties will bear their own costs.
TAMBIAH, J.-l agree
Appeals dismissed
Order of District Judge upheld