011-NLR-NLR-V-16-SILVA-v.-BABUNHAMY-et-al.pdf
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Present: Lascelles C.J. and Pereira J.
SILYA v. BABUNHAMY et al.
74r—D. C. Gatte, 9,918.
Co^rwner—Right to build on common land—Right to compensation—Sale
of house—Right to soil.
A co-owner has no right to build on the common propertywithout the consent of the other co-owners. Where a co-ownerbuilds with the consent and acquiescence of the other co-owners,he has no greater right than a mere improver of property that doesnot belong to himself; he can claim either the cost of the improve-ment or the difference between the original and the enhancedvalue of the property, whichever is less.
Where the Fiscal.sold under a writ “the tiled and whitewashed
house bearing assessment. No. 344 and standing on the
land Wellawalawatta,”—
Held, that the property sold was not the mere materials of thehouse to be taken down and removed, but the house as a whole(as a fabric or structure as it stood on the land) without the portionof land on which it stood.
Pebehia J.—A conveyance of land includes everything on itand below it, unless something is expressly excluded ; but I am notaware that there is any authority in support of a converse proposi-tion, and I hold that in the present case the appellant boughtno more than the house; that is to Say, he bought the fabric orstructure, and not the portion of land on which it stood.
rpHE facts appear sufficiently from the judgment of Pereira J.
Bawa, K.C., for 47th defendant, appellant.
A. Jayewardene, for 9th defendant, respondent.
Cur. adv. vult.
October 16, 1912. Pebeira J.—
_ In this case the question is how much the 47th defendant isentitled to be paid for his interest in house marked F in planNo. 2,764a. The house stands on a small portion of the land knownas Wellawalawatta, which has been dealt with in this case underthe Partition Ordinance. It appears that originally a partitionof the whole land was decreed, but, later, with the consent of allthe parties, a decree for the sale of the whole, land and distributionof the proceeds was entered up. The house in question belongedto the 9th defendant who was a oo-owner, with the other partiesto the action, of the land referred to above. During the pendency
IMS.
1912.
Pereira J.
Silva ©.Babunhamy
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of the partition proceedings, the house was sold on a writ againstthe 9th defendant and purchased by the present appellant. I mayhere observe that it has been held by this Court that such a saleis not obnoxious to the provisions of section 17 of the PartitionOrdinance.
Now, in the first place, it is necessary to ascertain what wasactually sold by the Fiscal to the 47th defendant, because it wascontended by hie counsel in appeal that by his purchase he becameowner * not only of the house, but of the portion of land on whichit stood, and he himself in his evidence says that he bought “ thehouse and the soil covered thereby.*’ He continues: “At thetime of my purchase I so understood. ” The best evidence of whatwas purchased by the appellant is the Fiscal’s transfer in his favourdated October 25, 1911. In it the property sold is described as“ the tiled and whitewashed house of twenty-five feet in lengthand twelve feet in breadth, and bearing assessment No.. 344, andstanding on the land called Wellawalawatta.” This descriptionmakes it clear that the property purchased by the appellant wasthe house F on plan 2,764a; that is to say, the property purchasedwas not the mere materials of the house to be taken down andremoved, but the house as a whole—as a fabric or structure as itstood on the land named. Such a purchase, it was contended,carried with it title to the piece of land covered by the building.With reference to that contention, I need only say that I am awarethat there is authority for the proposition that a conveyance ofland includes everything on it and below it, unless something isexpressly excluded {cujus est solum cjus est usque ad ccelum etinferos); but I am not aware that there is any authority in supportof a converse proposition, and I hold that in the present case theappellant brought no more than the house; that is to say, he boughtthe fabric or structure, and not the portion of land on which it stood.
It was further contended by the counsel for the appellant thatat the present stage of proceedings in this case the appellant wasentitled to receive in respect of the house in question whateverhis predecessor in title, the 9th defendant, was entitled to receive■ for it as a co-owner of the land, the assumption underlying thatcontention being that a co-owner who builds; on the commonproperty was entitled to something more than the mere cost ofimprovements. I am not prepared to accede to that proposition.A co-owner has no right to build on the common property withoutthe consent of the other co-owners (see Silva v. Silva1 and Voet 10,3, 7), and where he builds with the consent and acquiescence of theother co-owners, I am not prepared to say that he has any greaterright than a mere improver of property that does not belong tohimself. In the case of the latter, it is well-established law thathe can claim either the cost of the improvement or the difference
i 6 N, L. R. 225.
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between the original and the enhanced value of •the property,whichever is less. There is good reason for this provision of thelaw. A person will not be allowed by building, on his own initiativeand account, on another’s land to benefit by the enhancement invalue of what does not belong to him. At the same time he willnot be allowed, by putting up, let us assume, an unsuitable building,which does not in the -least degree enhance the value of the landbuilt upon, to place on the owner of the land the burden of makinggood the full cost of the building. Hence the reason for the rulementioned above. But whatever the rule may be, I am notprepared to hold* that the present applicant is exactly in the sameposition as the 9th defendant would have been in but for the sale.He bought no more than the house, and he is only entitled to thepresent value of it. He himself saya in his evidence that the merestructure is not worth so much as Bs. 100, and the evidence ofhis own witnesses is very much to the same effect. In thesecircumstances, I would affirm the order appealed from.
4M8.
Pbbuba J.
pabimhomy
Lascelles C.J.—I entirely agree.
Appeal dismissed.