069-SLLR-SLLR-2005-V-2-RATHNAYAKE-vs-WIJEWARDANA-AND-OTHERS.pdf
CA
Rathnayake vs. Wijewardana and Others.
409
RATHNAYAKEVS.WIJEWARDANA AND OTHERSCOURT OF APPEAL,
SOMAWANSA, J. (P/CA) AND,
BASNAYAKE, J.,
CA 1106/2004,
DC GALLE 15068/P,
MARCH 10, 2005.
Civil Procedure Code – Partition action – Alleged co-owner constructing abuilding – Permissibility?
The plaintiff petitioner in the partition action instituted complained that the 1stdefendant having entered the land unlawfully without any right or title isattempting to construct a building. The Court granted an enjoining order, butrefused the interim injunction, on the basis that the 1st defendant is a co-owner.
The plaintiff petitioner moved in revision.
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Sri Lanka Lai’.' Reports
(2CD5) 2 Sri L. R.
Held;
The 1st defendant admits that the plaintiff is a co-owner, the plaintiffdoes not admit the 1 st defendant as a co-owner. The pedigree Hiedby the defendant is different to that filed by the plaintiff.
The defendant claims a share through a certain deed, this deed hasto be examined and accepted to consider the 1st defendant as a co-owner.
The court could not consider the defendant as a co-owner prior toconsidering the validity of the deed of the defendant he becomes aco-owner provided he gets a share through the said deed.
Thus there is a serious question to be tried in this case, the plaintiffhas a strong case.
APPLICATION in revision from an order of the District Court of Galle.
Cases referred to :
Elpi Nona vs. Punchi Singho -52 NLR 115.
Sumanaweera vs. Mahinda -(1998)3 Sri LR 4
S. N. Vijith Singh for Petitioners.
Ms. Malini Maitipe for 1st repondents.
Cur.adv. vult)
July 28, 2005Eric basnayake, J.
The plaintiff petitioner (plaintiff) fifed a Partition action in the District!-Court of Galle, to have the land called “Deeganowita”, an extent of 10'kurunees of paddy, to be partitioned. The plaintiff named 6 defendants.;Shares were allotted to the plaintiff and 2-6 defendants in the plaint. Theplaintiff states that the 1 st defendant having entered into this land unlawfully/without any right or title is now attempting to construct a building. TheDistrict Court issued notice and an enjoining order at the first instance.
The 1 st defendant-respondent (1 st defendant) filed objections claiming -1/14 and 1/28 shares through a deed marked V2. He admits to thor
CA
Rathnayake vs. Wijewardana and Others-
(Eric basnayake, J.)
4J 1
construction of a building. The 1 st defendant took up the position that theconstruction was in proportion to his share. The defendant does not disclosethe area in which the construction is being done or the extent to which thedefendant is entitled to occupy in this land. The defendant also does notclaim exclusive possession.
The Learned District Judge has found that the plaintiff has failed todisclose the manner in which the construction is being done and theprogress thereof. The court has also found that the 1 st defendant is a co-owner. Therefore as a co-owner the 1 st defendant is entitled to enjoy theland proportionate to his share and the onus is on the plaintiff to prove thatthe defendant is using the land disproportionate to his share and also thatirreparable damage would be caused in the event of a construction. Thecourt found that the plaintiff has failed to establish a case against thedefendant and refused an interim injunction.
The plaintiff in this case is seeking to revise the said order of the learnedDistrict Judge dated 21.04.2004. After the counsel was heard in support,this court issued notice on the defendants. The court also issued an interimorder in terms of prayer ‘c’ to the petition staying the construction. Thecounsel for the 1 st defendant informed court that he would not be filing anyobjections to this application. At the hearing the learned counsel for thepetitioner agreed to file written submissions.
The following facts are not disputed in this case. Namely,
The corpus.
The fact that the plaintiff is entitled to a share.
The fact that the defendant is constructing a building in the corpus.
In ElpiNonavs. Punchi Singhdx) Gratiaen J. held that “every co-ownerhas the right to enjoy his share in the common land reasonably and to anextent which is proportionate to his share, provided that he does not infringethe corresponding rights of his co-owners. More over neither he nor theycan, except by mutual consent apply the common land to new purposesin such a manner as to alter the intrinsic character of the property. Shouldthe erection of a building for instance (or for that matter any assertion of aco-proprietary right) be proved to constitute an interference with thelegitimate use of the property by an objecting co-owner, a cause of actionaccrues to compel the wrongdoer to restore the status quo. The Question
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Sri Lanka Law Reports
(2005) 2 Sii L. R.
whether in any Particular case a co-owner has exceeded his rights orviolated the rights of others must be determined by reference to all therelevant factors, and cannot be solved as an abstract question of law.”
Each co-owner is entitled to a reasonable use of the propertyproportionate to his interests in accordance with the object for whichthe property is intended to be used. Weerasuriya J. in Sumanawathie vs.Mahinda{2)citing wille, Principles of South African Law editor at page 213said Construction by one co-owner does not necessarily require the leaveand acquiescence of the others. The law does not require the consent ofall the co-owners to construct buildings on the common property providedthe act of building does not constitute either an alteration of the inherentcharacter of the common property or an attempted user of the commonproperty to an excessive extent G. L. Pieris – Laws Property 15 Ed page396.
The 1 st defendant admits that the plaintiff is a co-owner. The plaintifldoes not admit the 1st defendant as a co-owner. The 1st defendant isclaiming a share through a deed marked “V2”. This deed has to be examineeand accepted to consider the 1st defendant as a co-owner. The 1sdefendant was never in possession of this land until he started constructingthis building. The present action was filed when the 1 st defendant beganto appear on this land. Where the act of building would constitute anunexpected and novel use of co-owned properly consent of all other co:owners is necessary – Weerasuriya J. Sumnawathievs. Mahinda (Supras
The extent of the land is given as 10 “kurunees”. There is no indicatiocas to the nature of the land ; whether it is a land for building or cultivation^The 1st defendant too does not claim this land to be a land meant fobuilding. The 1st defendant, although he claims that he is building iproportion to his share, does not mention the extent of his share or thlextent of land used for this building. I am of the view that the learnerDistrict Judge erred in considering the 1 st defendant as a co-owner priorto considering the validity of the deed marked “V2”. The requirement <consent applies only to co-owners. The 1st defendant becomes a ccowner provided he gets a share through the deed “V2”.
The defendant filed a pedigree which is different to the pedigree filed II bthe plaintiff. Therefore there is a serious question to be tried in this cas=s
CA
Lowe vs. Dahanayake and another
(Wimalachandra J.)
413
The 1st defendant admits that the plaintiff is entitled to a share. If theplaintiffs pedigree is accepted by court, the defendant may even lose.Therefore I am of the view that the learned District Judge erred by decidingthat the plaintiff did not have a strong case.
In view of the established principles enumerated above I am of the viewthat the learned District Judge erred in law in refusing an interim injunction.The court therefore allows this application and sets aside the order of thelearned District Judge dated 21.04.2004. The court also issues an interiminjunction as prayed for in the plaint. The plaintiff is entitled to costs in asum of Rs. 10,000/- by the 1 st defendant.
SOMAWANSA, J., — I agree
Application allowed.