099-NLR-NLR-V-17-SANCHI-APPU-v.-MARTHELIS-et-al.pdf
( 297 )
Present: Lascelles C.J. and Pereira J.
SANCHIAPPU ». MABTHELIS et al.
115—D. C, Negombo, 9,628.
Partition—Co-owners agreeing as to respective shares after title has beenascertained—Commissioner appointed under s. 5 of the PartitionOrdinance—Notice to the public—Co-owner—Right to building—Compensation.
When in an action for partition under Ordinance No. 10 of I860the Court has ascertained the co-owners of the land sought to bepartitioned and their respective rights, shares, and interests, thereis no objection to the parties agreeing as to the different portionsof the land to be allotted to them respectively by the final decreeand having their agreement embodied in the ^interlocutory decree,but what the parties so agree to can have no force other than as amere direction to the commissioner to be. appointed under section 5of the Ordinance. The parties cannot, however, by agreementdispense with the appointment of a commissioner, because unless acommissioner were appointed the requirements of the proviso tosection 5 of the Ordinance as to notice to the public, Se., cannot be# carried out.
A building erected by a. co-owner on the common property isitself the common property of all the co-owners, the builder being,in certain circumstances, entitled to compensation.
(rj^HE facts appear from the judgment.
Pawa, K.C., for plaintiff, appellant.
A- L. R. Aserappa, for defendants, respondents.
Gur. adv- vult.
1914.
1 S. C. Civil Min., March 4,1914
( 298 )
1914. June 8, 1914. Pereira J .—
SancMAppu The District Judge in his judgment calls this action a “ partition
v. MartheH* su*^>*although the prayer of the plaint is not quite in accord-
ance with section 2 of the Partition Ordinance, the action must bedeemed to be, and treated as, an action for partition of land underthat Ordinance, for the reason, if for no other, that the provisionof the Stamp Ordinance, 1909, exempting from stamp duty “ allpleadings and other documents in actions or proceedings for thepartition or sale of land instituted under the provisions of OrdinanceNo. 10 of 1863,” has been availed of by the parties, and the pleadingsand other documents in the action have not'been stamped.
The land sought to be partitioned is that sB.own on plan No. 706a page 45 of the record. The parties are agreed that the plaintiffis entitled to a half of the land, the second defendant to a shareequivalent to two acres, and the first defendant to the rest of theland. The plaintiff on the one side and the two defendants on theother were at issue as to who was entitled to the house on the land.The District Judge has held that the house was built by the seconddefendant, and I see no reason to doubt the correctness of thatdecision. It appears that there was an informal partition of theland among the plaintiff and the defendants in January, 1913. Atthat partition the plaintiff was allotted the portion marked C, thefirst- defendant the portion marked B, and the second defendantthe portion marked A, on which the house referred to above stood.The plaintiff alleges, rightly or wrongly, that he was to get oil theagreement as to partition Rs. 250 from the second defendant as hisshare of the value of the house. This claim is contested by thedefendants, and hence this action. The District Judge says thatthe plaintiff should have instituted an action for the recovery ofRs. 250 instead of seeking a partition of the land, but it is clearthat the plaintiff could not do that; because the agreement onwhich the plaintiff claimed that sum was not enforceable in law'.The District Judge has practically confirmed the partition ofJanuary; 1913, but has held that the plaintiff was not entitled toany part of the value of the house. It has been argued that a•decree'such as that entered up by the District Judge is a decree inpractical compliance with the Partition Ordinance. It may bethat when the co-owners of a land sought to be partitioned underthe Ordinance ‘ and their rights, shares, and interests are definitelyascertained by the Court, the parties held to be entitled to suchrights, shares, and interests may agree as to the different portionsof the land to be allotted to them respectively by the final decree,;and have their agreement embodied in the interlocutory decree,shut what the parties so agree to can have no force other than asmere directions to the commissioner to be appointed under section 5of the Ordinance. Anyway; it seems to me that parties cannot
( 300 )
avoid the appointment of a commissioner, because unless a commie-1914.
sioner were appointed the procedure laid down in the proviso toj
section 5 of the Ordinance as to notice to the public cannot be_—
observed, and the reason for giving a conclusive effect to the final -4JHWdecree under section 9 of the Ordinance is largely referable to thatprocedure.
The situation ‘in the present case is that the plaintiff does notconsent to a partition in terms of plan No. 706, if that partition does,not involve the payment to him of Bs. 250 by the defendants.
That being so, the only interlocutory decree that can be enteredappears to me to be one declaratory of the? rights 'and interests ofthe respective parties. The second defendant, as builder of thehouse, has not, as the District Judge appears to think, becomeentitled to it. The house is the common property of all the co-owners, the second defendant being entitled to only compensation,which is to be calculated as laid down in the judgment of this Courtin the case of Silva v. Babunhamy.' Whether the second defendantbuilt the house before he became a co-owner of the land or thereafterhe would be entitled to compensation, as even a mala fide possessorof land equally with a co-owner who improves it with the consentand acquiescence of the rightful owner or the other co-owners, as-the case may be, is entitled as regards compensation for improvementto the rights and remedies of a bona fide possessor (see Eliatamby v~
Sinne Tamby 2).
I would set aside the judgment* appealed from, and enter up in-lieu thereof'an interlocutory decree declaring the house as well asthe land sought to be partitioned to be the joint property of theplaintiff and the defendants; the plaintiff being entitled to a halfshare thereof and the defendants to the other half, the second!defendant being entitled to a share of that half equivalent to ail'extent of two acres, and declaring further that, the second defendantis entitled to compensation in respect of the house, from his co-owners to be calculated as indicated in the case cited above, anddirecting that, if practicable, the second defendant, on the partition,be given a portion with the house on it. In that event he will, ofcourse, .have proportionately less of the land.
I would direct that each party do bear his own costs of the-contest in both Courts, and that the other costs be borne by the-parties *pro rata.
Lascbixks C.J.—I agree.
Set aside-
♦
1 (2022) 20 A L. R. U.
2 2 Leader L. R. 227-