070-NLR-NLR-V-25-SOPI-NONA-v.-PETHANHAMY-et-al.pdf
( 318 )
1928.
Present: Jayewardene A.J.
SOPI NONA t>. PETHANHAMY et. aZ.
252—C. JS. Kalutara,
Co-owner—Right to build on comtnon land—Right to eject trespasser fromhome so built
If a co-owner exercises his right and builds a house for hisprivate use on the common land, he may eject any other co-ownerwho attempts to occupy that house without his permission.Kathonis v. Silva1 followed.
T N this case the plaintiff-respondent sued the defendants-appellantsfor declaration of title to an undivided one-fourth share ofthe house standing on a piece of land. The plaintiff stated that herhusband, Podisingho, who was owner of half share of the saidhouse, died leaving as his heirs herself (his widow) and a minor child.
The defendants-appellants, on the other hand, claimed title tothe whole house on the footing that the said house was built byPodi Singho’s and Andris's mother, Pethanhamy, the first defendant,and she by her deed of transfer No. 777 dated May 23, 1922, soldand transferred the same together with her soil share l/24th to EmiNona Rodrigo, the second defendant, the wife of the first defendant’seldest son, Andris, the third defendant above named. The case wentto trial on the following issues :—
Is the plaintiff entitled to a 3/96 share of the land Karanda-
gahawatta and to J share of the house on it ?
Damages, if any ?
Can the plaintiff maintain this action to vindicate title to a
£ share of the house inasmuch as he is entitled only toa 3/96 share of the land ?
The learned Additional Commissioner of Requests (W. H. B.Carbery, Esq.) held as follows :—
On issue (I) I have not the slightest hesitation in holding on the oralevidence adduced by the plaintiff, that the house in dispute was a newone, built on the land Karandagahawatta about seven years ago, bythe two brothers—Podi Sinno, the late husband of the plaintiff, andAndris (third defendant)—each being entitled to a half share—
Now, on the law issue (3) the case cited by learned counsel for thedefence, 14t N. L. R. 268, does not, in my opinion, touch the presentcase. That was an action brought for the partition of certain buildingson a land under the provisions of the Partition Ordinance, and the
1 (1919) 21 N. L. R. 452.
1923.
( 319 )
Sopi Nonav,
Pathanhamy
J. S. JayewardenCt for appellants.
H. V. Perera, for respondent.
October 31, 1923. Jayewardene A.J.—
This is an action between co-owners. The plantiff, the widow—of one Podi Singho, who is entitled to a share in the land calledKarandagahawatta, sued the defendants, the first of whom is hermother-in-law, the second her sister-in-law, being the wife of thethird, who is her brother-in-law. She claims to be declared entitledto a share of the land, and also to a quarter share of a house standingon the land. Her right to a share in the land is not disputed, andthe only contest is with regard to her right to a quarter share of the-house. Her case is that the house on the land was built by herhusband and her brother, the third defendant, and that she wasconducted to his house on her marriage, and that she lived therefor seven or eight years with her husband, and after her husband’sdeath the defendants would not allow her to enter the house. Sheclaimed a declaration of title, restoration to possession, ejectment ofthe defendants, and damages. The defendants’ case was that thehouse was not built by the first defendant’s husband. The learnedCommissioner has found that the allegation of the plaintiff on thispoint is true, and that her husband and the third defendant built thehouse, and that as one of the heirs of the husband she is nowentitled to a quarter share of the house, and he decreed her entitledto this quarter share and ordered her to be restored to possession,and gave her the damages which are given in the decree. Thedefendants appeal, and it is contended for them that the plaintiffand the defendants are co-owners of the soil, and it is not competentfor the plaintiff to bring an action for declaration of title to anyimprovement effected by a co-owner. The law on the right of aco-owner in these circumstances to sue for a specific share or theentirety of the improvements made by him or his predecessor in
Appellate Court very correctly held that the plaintiffs could not maintainsuch an action without making all the co-owners of the soil parties aswell.
But in the case, 21 N. L. i2. 452 cited by learned counsel for theplaintiff, there is a direct holding that such an action as the presentcan be maintained, even as to ejectment of one who is not a co-ownerin the building. The plaintiff’s counsel in the present case does notask for ejectment.
Justice Ennis on page 453 says : “ A co-owner has the right to buildand live on the comt on land. Presumably this right is limited to theaccommodation which his share would provide when convenience ofpossession is considered. If a co-owner exercise his rights and buildsa house for his private use on the land, I am quite unable to see whyhe should not eject any other co-owner who attempted to occupy thathouse without his permission.” Nothing could be more explicit. Iwould therefore answer issue (3) in the affirmative.
( 320 )
1928.
JiUWAB*DENB A.J-
Sopi Nana
V.
Peihanhamy
title is not in a very satisfactory state. The learned Commissionerfollowed the latest case upon the subject, namely, a judgment ofHis Lordship the Acting Chief Justice in Kathonis v. Silva (supra),where, without any reference to the previous authorities, he laiddown that:—
“ A-co-owner has a right to build and live on the common land.Presumably this right is limited to the accommodationwhich his share would provide when convenience ofpossession is considered. If a co-owner exercises his rightand builds a house for his private use on the land, I amquite unable to see why he should not eject any otherco-owner who attempted to occupy that house withouthis permission.”
De Sampayo J. agreed with this judgment.
This principle, no doubt, is in direct conflict with the principleslaid down in numerous cases referred to by counsel for the appellants'in this case, but I feel that it lays down a reasonable rule, and arule which is consistent with the customary method of dealing withimprovements effected by co-owners of land in this country.Perhaps the matter requires final settlement before a Full Court,but until this is done I am content to follow the judgment inKatkonis v. Silva (supra), which, as I said, lays down a practical rule.
In the circumstances, I bold that the Commissioner was rightin declaring the plaintiff entitled to the quarter share, and also todamages. Of course, the plaintiff is not entitled to an order for theejectment of the third defendant or his wife, the second defendant,from the house, and in this particular case, I do not think the firstdefendant can be treated as a stranger, and she also is not liableto be ejected from the premises, but the plaintiff is entitled to berestored to the possession of her quarter share. Until that isdone the defendants will pay her the damages decreed by theCommissioner.
I would dismiss the appeal, and affirm the judgment.
The respondent is entitled to her costs.
Appeal dismissed.
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