089-NLR-NLR-V-39-MUTHALIPH-v.-MANSOOR-et-al.pdf
316
Mu.tha.liph v. Mansoor.
1937Present: Hearne J. and Fernando A.J.
MUTHALIPH v. MANSOOR et al.
285—D. C. Kandy, 4,438.
Co-owners—Right to build on common land—Obstruction to a passage commonto all—Right to injunction^—Proof of irremediable harm unnecessary.
A co-owner is not entitled to build a house on a land held in commonwithout the consent of .the others.
An injunction may be issued- against the offending co-owner to removethe building without proof of irreparable damage to the party complaining.Goonewardene v. Silva (17 W. L. R. 287) followed.
T
HE plaintiffs in this action complained that the defendant wasforcibly putting up a building on a portion of land which was left
unallotted in the partition action, D. C. Kandy, 17,450. The plaintiffsand the defendant were the co-owners. The plaintiffs prayed thatthe defendant be restrained by an injunction from continuing to buildon the portion of land which is referred to as a passage and that he bedirected to remove the obstructions and buildings constructed by him.The defendant, after the notice of the injunction had been served on him,converted a portion of the passage into a boutique. • The learned DistrictJudge ordered an injunction to issue restraining the defendant fromcontinuing to obstruct and build on that portion of the land in dispute,•the demolition of the building erected by him on the land and the payment-of Rs. 250 as damages.
Hayley. K.C. (with him H. V. Perera, K.C. and N. Nadarajah), fordefendant, appellant.—The learned District Judge held that „a co-ownercould not build against the wish of the other co-owner^He gave amandatory injunction to pull the building down and damages. Firstly,he did not appreciate the limitations to the general rule. The other co-owners cannot capriciously withhold their consent. In this respect theirbehaviour should be taken into consideration. The building cost nearlyRs. 2,000. Secondly, the order of the learned District Judge iswrong in this case. There is no express law for the issue of suchan injunction. It exists only in practice. The principles applicableare the same as those applicable in English law, namely, harmshould accrue to the other side which could not be compensated bymoney. Wood Renton C.J., in Goonewardene v. Goonewardene', heldthat where the co-owners withhold their consent, a partition action couldbe brought. The subject-matter in question is a tenement land and thevarious co-owners have built on it continuously. The rights of co-ownersare discussed in Siyadoris v. Hendrickand in due Silva v. Karaneris *. Inthis case the portion in dispute has been used as a path.
It is immaterial whether there are judgments where injunctions weregranted to pull down the buildings as in de Silva v. Karaneris (suprd).They were of small value compared to the one in this. case. The buildingwas put up long before the plaintiffs took action. A mandatory injunction
* (1913) 2 C. A. C. 149.* (1896) 6 N. L. R. 275.
3 (1918) 1 Ceylon Law Ree 28.
317
FERNANDO A.J.—Muthaliph v. Mansoor.
,.f —^
should not be granted except in serious cases. The leading case isIsenberg v. East India House Estate Co., Ltd.' This question was discussedin Durell v. Pritchard5; Stanley v. The Earl of Shrewsbury *; The Nationaland Provincial Plate Glass Insurance v. The prudential Insurance Com-pany *; and Allen v. Seckham ’.
Unless the plaintiffs have shown that the severest damage is causedthe injunction should not have been granted. Even if the defendantis in the wrong, he must not be asked to pull down the building, but becompelled to pay damages. This is a case where a partition can bebrought at any time and the building will enhance the value, and compen-sation may be due.
N. E. Weerasooria (with him S. W. Jayasuriya), for plaintiff, respondent.—The plaintiffs alleged that the defendant was building on the portionconcerned. The answer was a denial that he was obstructing. Afterthe defendant filed the affidavit, he had encroached on the passage. Ifhe converted the temporary structure into a boutique, he cannot be heard. to say subsequently that he cannot be asked to remove the encroach-ment.
In the English cases the Judges held that each case depended on thecircumstances of its particular facts. There are many cases wheremandatory injunctions were granted (Samaraweera v. Moho'tti*).
Hayley, K.C., in reply.—The damages as far as the land is concernedshould be claimed in a partition action. Only damages with regard touser can be claimed. In Samaraweera v. Mohotti (supra), the defendantwas encroaching on the other person’s land. This is a case dealingwith co-owners.
Cur. adv. vult.
September 20, 1937. Fernando A.J.—
The plaintiffs in this action complained that the defendant-appellantwas forcibly putting up a building on the portion coloured pink in planX made by Mr. G. E. de la Motte, and filed in the case and that he wasthereby obstructing the use of the ground marked pink in the plan, andprayed that the defendant be restrained by an injunction from continuingto build on the portion in pink which is referred to as a passage, and thathe be directed. to remove the obstruction and the buildings constructed-by him.
The land shown in plan X was the subject-matter of a partition action,
C. Kandy, 17,450, and the decree in that action allotted to the partiesthe portions of the land shown in that plan, except only the portioncoloured pink. That pink portion was not covered by that decree, andas it was held by this Court in appeal that pink portion remainedunallotted. The title to that portion remained in the original co-owners,and that title is in no respect affected by the partition decree. Thedefendant in this action derives title to the portions allotted to AssenPeer and it was admitted at this trial that the defendant is a son of AssenPeer, and is therefore a co-owner of the portion coloured pink to theextent of J. The plaintiffs, on the other hand, are some of the successors
1 (1863) 3 De.O. J. & S. M. S63.4(1877)46L J. Ch. 871.
(1863) 33 L. J. Ch. 223.5(1879)48L. J. Ch. 611.
(187.5) 44 i. J. Ch. 339.*(1914)18N. L. R. 187.
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in title of the other parties to that partition action, and are co-owners,along with certain others who have not been joined in this case, to theremaining f of the portion-coloured pink.
The partition decree in D. C. 17,450 was considered by this Court in theappeal in D. C. 35,389, and although the learned District Judge hasreferred to the ruling in appeal in that case, I do not think the decision ofthis Court in appeal, or the reasons, are in any way relevant to thequestions involved in this appeal. The plaintiff-respondent to that appealhad not shown in that action that he had acquired any interest in theportion coloured pink, and the judgment entered by the District Court inhis favour on the assumption that the plaintiff-respondent in that actionhad acquired the rights of Assen Peef was set aside because he had failedto prove that he had so acquired any interest in that portion. It is nowadmitted that the plaintiffs-respondents to this appeal and the defendant-appellant are all co-owners of the land coloured pink. The learnedDistrict Judge held that the defendant-appellant had built upon theportions coloured pink, and that the plaintiffs-respondents were entitledto call upon him to remove the building inasmuch as the act of thedefendant in putting up that building was not a natural or proper use ofthe common property. He also ordered an injunction to issue restrainingthe defendant from continuing to obstruct and build on that portion ofthe land in dispute which is referred to as a passage and the defendantwas also ordered to demolish the building erected by him on that passageand to pay Rs. 250 as damages.
Counsel for the appellant contends that the learned District Judge waswrong in holding that the act of the defendant was not a natural or properuse of the common property. There appears to be very little doubt withregard to the law in Ceylon as to the rights of co-owners to build on thecommon property. As Wood Renton J. stated in Goonawardene v.Goonawardene “ there is no doubt, but that by the Common law of thiscolony, one co-owner cannot build a house on a land held in commonwithout the consent of the co-owners …. There is, how.ever, aclass of exceptions to the general principle which I have just stated. Itis defined by Sir Charles Layard in Silva v. Silva *, and by Sir John Bonserin Siyadoris v. Hendrick “. These decisions stand by their own authority,but they have constantly been followed in later cases. The class ofexceptions referred to may be defined in this way. The law does notprohibit one co-owner from the use and enjoyment of the property insuch manner as is natural and necessary under the circumstances. Forexample, as in Siyadoris v. Hendrick (supra), if the land had been purchasedfor the express purpose of digging plumbago contained in it, it would havebeen unreasonable that any co-owners should have been prohibited fromdigging for plumbago without the consent of the other co-owners.Sir Charles Layard gives another illustration in Silva v. Silva (supra), ‘ Ifthe land were fit for paddy, it could scarcely be contended that anyone co-owner would be entitled to prevent the other co-owners fromcultivating it that way' ”. Wood Renton J. then went on to deal withthe facts of the case before him and expressed the opinion that there was
1 (1913) 2 C. A. C. 149.* (1896) 6 N. L. R. 225.
3 (1896) 6 N. if. 275.
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no instance in which any house had been erected without the consent ofthe other co-owners. This decision was expressly followed by Perera J,in Gocmawardene v. Silva and he stated the rule of law in these words :—“ A co-owner has no right whatever to build on the common propertywithout the consent of his co-owners”. He referred to the decision inGoonawardene v. Goonawardene* and the cases referred to by WoodRenton J., and then proceeded to deal with the remedy available to aco-owner against another co-owner who has built on common property,and allowed the plaintiff’s prayer for an injunction and for an order thatso much of the house as had already been built be taken down on theprinciple that “ proof of irremediable loss is not absolutely necessaryunder our law to entitle one to an injunctionThe same question
came up again before Shaw J. in de Silva v. Karaneris’. “It isclear law ”, he said, “ that one co-owner has no right to build on thecommon land without the consent of his co-owners.” “ It is notvery clear from the evidence ”, he continued, “ whether thedefendant had in fact completed the building before the actionwas commenced, but whether he had done so or not, it does not •seem to me to give him any right to retain the building on the landbecause it- was not put up with the consent of the plaintiff who is one ofthe co-owners and who, in fac.t, remonstrated so soon as he knew that thebuilding was in course of erection. The plaintiff is, in my opinion, entitledto an injunction against the defendant and for an order that he removethe building which has been put on the land. The damages had beenagreed at the sum of Rs. 10. The plaintiff will be entitled also to judg-ment for that amount.” Now it will be noticed that in all the cases, aco-owner has been held not to be entitled to build on the common landwithout the consent of the other co-owners whatever the nature of theland itself. The user of the land for the cultivation of paddy is obviouslya user which will not prevent the subsequent user by all the co-owners forthe natural use to which the land can be put, and with regard to the caseof Siyadoris v. Hendrick (supra), the Court appears to have taken the viewthat co-owners should not be prevented from using the land for the expresspurpose of digging plumbago contained in it, which purpose all the co-owners had in view. The judgment of Bonser C.J. seems to suggest thatthe defendant in that action had only taken a share of the plumbago, andif a co-owner only takes a proportionate share of the mineral dug from aland, there is no room to suggest that he has interfered with the rightsof his co-owners as long as he has not prevented them from taking theirshare of the plumbago, but the oase of building on common land stands onentirely different footing.’ Counsel for the appellant in Goonawardene v.Goonawardene (supra) appears to have suggested that the land had beenacquired by the co-owners as a building site, but as Wood Renton J. re-marked, the evidence indicated that certain houses had been built bycommon consent of the co-owners, and there was no instance in which oneco-owner had built without the consent of the others. Here too, Counselfor the appellant argues that this land was a building site, but if we lookat the portion coloured pink in the plan X, it is apparent that that portion
1 {1914) 17 N. L. 8. 287.* (1913) 2 C. A. C. 149.
1 Ceylon Law 8ec. 28.
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FERN AND O A.J.—Muthaliph v. Mansoor.
had been reserved for the benefit of the co-owners who were declaredentitled to certain portions of the land and building shown in that plan.The common purpose of the portion in pink as stated by the Surveyor in-that case, and as is apparent from the plan was for access to and occu-pation in connection with the buildings that stood on the rest of the land.Even if the whole land can be regarded as a building site the portioncoloured pink was, after the partition decree, if not before, used by all. theco-owners for that purpose and not as building land. The question,whether the plaintiffs or the persons against whom the defendant broughtthe previous action were or were not entitled to build on this pink portionis irrelevant for the purpose of this case. The question is whether thedefendant was entitled to build on the portion of that reservation whichhas been referred to in this case as a passage. There is no clear evidence,with regard to the exact user of this passage, but the plan itself indicatesthat at one time it did give access to the buildings behind 16, 15 and 14 onthe north, and 11, 10 and 9 on the south. By the erection of thesebuildings, and by their occupation, that portion had acquired a specialcharacter, and I do not think any one co-owner was entitled to build onthat passage in such a way as to interfere with the rights of the otherco-owners in it, unless of course, he had obtained the consent of thoseco-owners. I would, therefore, hold that the learned District judge wasrigm in his finding on issue 2.
, tjpuhsel for the appellant next argued that the mandatory orderdrdering the defendant to pull down the building erected by him waswfon^. He relied on a number of English authorities which appear tolay down that an order for pulling down buildings would not ordinarilyissue except where irremediable harm has been done or where the personcomplaining against the building cannot be compensated adequately indamages. The authorities to which I have already referred make it clearthat in our law, an injunction will issue even if irremediable harm has notbeen suffered. It would appear from the judgment of Samaraweera v.Mohotti*, that it had been held in South Africa that where one personbuilds on his own land, and in the course of that building encroaches onhis neighbour’s property, the offending party is allowed to pay the otherparty ah adequate price for the portion encroached upon, and damageswithout being compelled.to remove the encroachment. “ I am aware ofno authority whatever in the Roman-Dutch law ”, said Perera J., “ tosupport this proposition, and …. the circumstances of this case donot in my opinion entitle the defendant to the benefit of any alternative ”.Following a previous decision in Miguel Appuhamy v. Thamial *, heordered the defendant to remove the encroachment which he can no doubtdo without substantially impairing the use of the house which he hadbuilt. The encroachment complained of in Samaraweera v. Mohotti (supra)consisted of the eaves of the defendants house and the steps leading intothe home. The question arises in this case whether or not, the defendantshould have been ordered to remove the home built by him so as toencroach on 1£ feet of the passage. There can be no doubt that irremedi-able loss will occur to the plaintiff if he is ordered to pull down the houseor the wall which constitutes the encroachment on the passage. On the1 {1914) 18 N. b. R. 187.* 2 Current bam Reports 209.
MOSELEY J.—Sinna-pillai v. VeeragcihV-
321
other hand, the evidence indicates that after encroaching on the passagein this way, the defendant has proceeded to cover up the rest of thepassage between the encroachment and the house marked No. 11 in theplan by converting that portion of the passage into a boutique. Thisconstruction of the boutique was effected by the defendant after noticeof the injunction had been served on him. On the defendant’s ownevidence it will not be a matter of great difficulty to remove this boutiqueand to restore the passage to its former state, except for the little encroach-ment constituted by the main building itself. In these circumstances Iwould affirm the order made by the learned District Judge, but limit thedemolition only to the boutique as distinct from the encroachment towhich I have already referred.
The learned District Judge has assessed damages at Rs. 250 but it isnot quite clear how he arrived at that figure. In the circumstances Iwould omit this sum from the decree. The appeal has failed on themajor points raised by the appellant, and except for the variations whichI have already indicated above the appeal will stand dismissed with costs.
Heabne J.—I agree.
Appeal dismissed.