023-NLR-NLR-V-44-MARUTHAPPAH-v.-ZOUHAR-90.pdf
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Maruthappah v. Zouhar.
1942Present: Soertsz and Keuneman JJ.
MARUTHAPPAH v. ZOUHAR10—D. C. Colombo, 1,418
Building—Sale of adjoining premises—Portion of first floor projecting overground floor of another—Description of premises in plan—Right toprojection.
In a decree for sale in a partition action certain premises depicted in aplan (D 1) were ordered to be sold in blocks. Two of the premisesadjoining each other bore the assessment numbers 212 and 216. D (1)showed, that a portion of first floor of No. 212 projected over the groundfloor of No. 216. For the purposes of the sale a new plan P 3 was made.It referred to the assessment numbers but did not depict the saidprojection. At the sale separate blocks were sold as partitioned in P 3,and plaintiff became the purchaser of lot 216 and defendant thepurchaser of lot 212. In the conveyance to the plaintiff the block isdescribed as the allotment of land presently bearing assessment No. 216 :the western boundary as premises bearing assessment No. 212 accordingto plan P 3. In the conveyance to the defendant the block is describedas premises bearing assessment _ No. 212 eastern boundary of lot 216according to plan P 3.
Held, that the plan P 3 was an essential part of the description of theland purchased.
Held, further, that plaintiff became the owner of everything above theportion of the ground floor depicted as No. 216 in plan P 3 including theportion of the building projecting over it and that defendant is restrictedto that only which is above the portion depicted as No. 212 in the sameplan. .^
A PPEAL from a judgment of the District Judge of Colombo.
The facts are stated in the headnote.
H. V. Perera, K.C. (with him N. K. Choksy and D. W. Fernando), forthe plaintiff, appellant.—What was sold to the plaintiff was an allotmentof land within certain boundaries. He is entitled, therefore, to all theair space above that land. The case of Layboum ,v. Gridley 1 is directlyin point., That case was followed in Mitchell v. Moseley ‘.
N. E. Weerasooria, K.C. .(with him A. E. R. Corea), for the defendant,respondent.—What in fact were sold to the plaintiff and the defendant1 L. R. (1892) 2 Ch. D. S3.*1.. R. (1914) 1 Ch. 438.
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KEUNEMAN J.—Maruthappah v. Zouhar.
were the two buildings bearing the Municipal assessment numbers 212and 216. The controlling words in the conveyances are “ premisesbearing assessment number ”, and not “ allotment of land
H. V. Perera, K.C., replied.
Cur. adv. vult.
September 16, 1942. Keunemah J.—
In a decree for sale entered in D. C. Colombo, No. 233, under OrdinanceNo. 10 of 1863, premises bearing numbers 212, 216, 220, 222, and 224,situated along Keyzer street and Third Cross street in the Pettah,Colombo, were ordered to be sold in blocks. The whole area was depictedin plan D 1 No. 33 by H. C. Stotesbury, Licensed Surveyor. This planshowed both the' ground floor and the first floor, and it is clear from theplan that a portion of the first floor of No. 212 projected over the groundfloor of No. 216. In these proceedings this projection has been describedas a room, used as a kitchen in connection with No. 212, and this is theportion now in dispute.
For the purposes of the sale, a new plan No. 14378 was made by P. B.Weerasinghe, Licensed Surveyor. This is the plan P 3, and consistsonly of the ground floor plan. There is reference in this plan to theassessment numbers. In it the projection in dispute in the first floor ofNo. 212 is. not depicted. According to the conditions of sale (vide P 5relating to No. 212, and P 6 relating to No. 216), the separate blockswere sold as partitioned in P 3, but the whole premises is referred to asdepicted in D 1.
At the sale plaintiff became the purchaser of lot 216, and the defendantthe purchaser of lot 212, and the question in dispute is as regards theprojection referred to.
In the conveyance to the plaintiff,' marked P 2 (certificate of titleNo. 38 of March 2, 1937), the block is described as the allotment of landpresently bearing assessment No. 216, the western boundary is given aspremises bearing assessment No. 212 and the extent is 2.21 perches,according to the partition plan No. l,-437 (P 3 made by P. ,B. Weera-singhe.) Certain other blocks purchased by the plaintiff are thendescribed, and it is added that all these blocks are part of the wholepremises of 9.80 perchescdescribed in the plan No. 33 (D. 1 made by H. C.Stotesbury).
In the conveyance to" the defendant, the block is described as thepremises bearing assessment No. 212, the eastern boundary is given asNo. 216 and the area as 3.46 perches according to plan P 3, and it isadded that this block is part of the whole premises depicted in D 1.
On examination of these deeds_.it is clear that defined areas depictedon plan P 3 were conveyed. There is no question that the projectionin question is- immediately above the’ portion depicted as No. 216 in P 3.“ The grant pf the land includes the surface and all that is supra-—houses,trees, and the like—cujus est solum jus est usque ad caelum—and all thatis infra, i.e., mines, earth, clay, &c.” (per Cozens-Hardy M.lt. in Mitchellv. Moseley ) No doubt, as .the learned Judge added, this only applieswhen you can find nothing to the contrary in' the conveyance.
* (1914) 1 Ch. D. 438 at 450.
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S. G. de Zoysa (A.S.P., Jaffna) v. Cumarasuria.
Can it be said that there is anything to the contrary in the conveyancesin this case ? Counsel for the respondent argues that the referencesto the premises as bearing assessments numbers 212 and 216, respectively,taken in conjunction with the description of the whole premises as beingin accordance with plan D 1 must be so regarded. But I think it is avery strong point in favour of the plaintiff that the actual conveyances ofthe particular blocks in question were made in accordance with plan P 3,and in that plan the reference to the first floor is (I think, deliberately)omitted. The reference to the precise area further helps to confirm thisopinion.
I think the plan (P 3) was “ an essential part of the description, showingthe dimensions exactly, and indicating the area of the buildings on theground floor; there is nothing in any way to indicate what is above ;therefore, it is clear that 'what was above was intended to pass to thegrantee of the land.” (per North J. in Layboum v. Gridley ').
This rule will operate in two directions. The purchaser of – lot 216becomes the owner of everything above the portion of the ground floordepicted in P 3 as No. 216, including the portion in dispute, and thepurchaser of lot No. 212 is restricted to that only which is above theportion depicted in P 3 as No. 212.
There is very strong similarity between the facts of the present caseand the facts, in Layboum v. Gridley (supra). That case was followedin Mitchell v. Moseley (supra).
I think the dismissal of the plaintiff’s action was wrong. I set asidethe judgment of the District Judge and enter judgment for the plaintiffas prayed for, except as regards damages, which will be assessed at Rs. 5a month from date of action until plaintiff is restored to possession. Theplaintiff is entitled to costs in both Courts.
Soertsz J.—I agree.
Appeal allowed.