060-SLLR-SLLR-2004-V-3-NAVARATNE-v.-PREMARATNE-AND-OTHERS.pdf
CA
Navaratne v Premaratne and others
(Anandacoomaraswamy, J.)
403
NAVARATNEv
PREMARATNE AND OTHERSCOURT OF APPEALWIJETUNGA, J.
ANANDACOOMARASWAMY, J.
CA 964/87CALA 111/87DC RATNAPURA 261/PAPRIL 28, 29,1988
Interim injunction – Restraining gemming on co-owned land – Partitionaction – Gemming licence valid for six months – Is gemming of the wholeland by a co-owner justifiable?
Held:
A co-owner even through he may not have the consent of his co-owners is entitled to use the common land reasonably for thecommon advantage proportionate to his share for the purpose forwhich the land is intended.
Gemming will exhaust a limited resource on which value of the landdepends and therefore cannot be considered natural use.
Gemming of the whole land by a co-owner is not justifiable.APPLICATIONS for Revision/Leave to appeal.
Faiz Musthapha PC with Hemasiri Withanachchi and Ms. S. Arul-pragasam for petitioner.
W.P. GunatiHeke with J.A.J. Udawatte and C. Gamage for 2-11defendant-respondents.
Cur.adv. vult.
July 15, 1988
ANANDACOOMARASWAMY, J.This is an application to Revise the order of the LearnedDistrict Judge dated 17.8.87 and an application for leave toappeal against the said order. By this order an interim
404
Sri Lanka Law Reports
[2004] 3 Sri L.R
injunction was issued at the instance of the plaintiff-respondentrestraining gemming by the 30th defendant-petitioner(hereinafter referred to as petitioner). The learned Counsel forthe petitioner submitted that the learned District Judge had notmade a proper assessment of the relevant material and assuch had misdirected himself on the primary facts when heordered the issue of the interim injunction. At the request ofboth Counsel both these applications were taken together.
The relevant facts are as follows:
The land in question is about 21/2 acres and had beenused as a paddy field but gemming had been carried on evenearlier in the years 1982 and 1983. The 29th defendant-respondent claims 30/48th share of the land and on that basisthe petitioner on 10.12.86 obtained a lease of the whole landfrom the 29th defendant-respondent for Two (2) years.Thereafter the petitioner obtained from the State GemCorporation a licence for gemming. Only 8 Co-ownersobjected to the issue of licence in respect of their shares. Theplaintiff-respondent did not attend the inquiry held by the StateGem Corporation before the issue of the licence. The 2nd to11th defendant-respondents who are now seeking to supportthe plaintiff-respondent) and the 12th, 22nd, 28th and 29thdefendant-respondents are owned some shares gave theirconsent. The gemming licence was issued by the State GemCorporation for a period of 6 months.
Subsequent to the issue of licence on 05.06.87 the plaintiff-respondent instituted a partition action on 22.07.87. He and hisbrother the 1st defendant-respondent claimed 4/32 shares andthe plaintiff-respondent left ”16/32" shares unallotted. Noshare was given to 29th defendant. He thereafter sought andobtained an interim injunction restraining the petitioner fromgemming on the said land for the reason that the petitioner hadno interest in the land, whereas his brother the 1st defendant-respondent in the years 1982-1983 obtained a licence forgemming stating that D.A. Caldera late husband of Mrs.Caldera the 29th defendant-respondent owned 5/8 share ofthe land.
CA
Navaratne v Premaratne and others
(Anandacoomaraswamy, J.)
405
The petitioner objected to the interim injunction and statedthat his lessor owned 30/48 shares and that in the years 1982and 1983 the 1st defendant-respondent obtained a gemminglicence, and further that the plaintiff-respondent obtained agemming licence, and further that the plaintiff-respondent didnot attend the inquiry which preceded the issue of licence bythe State Gem Corporation.
These applications are by the petitioner and they areresisted by the 2nd to 11th defendant-respondent whoconsented to the issue of the licence and not by the plaintiff-respondent at whose instance the interim injunction wasissued.
From the foregoing facts it is quite clear that the 29thdefendant is a co-owner of the land along with the plaintiff-respondent and others and that the land originally a paddyfield had been used for gemming earlier by the 1 st defendant-respondent a brother of the plaintiff-respondent.
The plaintiff-respondent at whose instance the interiminjunction was issued had not objected either to the issue ofthe gemming licence or to these applications before thisCourt. The consenting 2nd to 11th defendants' position is thatthey consented to the issue of licence for the period ofa 6 months only. Its continuance is the only matter now inissue.
Having regard to the fact that it is a co-owned land the 1stprinciple is that any act of a co-owner rests for its legality onthe consent of the remaining co-owners either expressed orimplied, but even a co-owner even though he may not have theconsent of his co-owners is entitled to use the common landreasonably for the common advantage, proportionate to hisshare, for the purpose for which the land is intended. Gemmingwill exhaust a limited resource on which value of the landdepends and therefore cannot be considered natural use.Therefore gemming of the whole land by a co-owner is notjustifiable.
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Sri Lanka Law Reports
[2004] 3 Sri L.R
For the foregoing reasons gemming beyond a period of 6months is not justified and the interim injunction restraininggemming before the 6 months period is also not justified. Theenjoining order was issued on 23.07.87 and interim injunctionwas issued on 17.08.87. The gemming licence was issued on05.06.87. The stay order suspending the operation of theinterim injunction was issued on 10.09.87 and is in force now.As more than 6 months had passed it is necessary to bring intoforce the operation of the interim injunction which was issuedon 10.09.87 and is in force now. As more than 6 months hadpassed it is necessary to bring into force the operation of theinterim injunction until the final disposal of the Partition actionin the District Court.
We therefore order that the interim injunction shall beoperative with immediate effect and accordingly dismiss theapplication of the petitioner. We are not inclined to order costsas both parties are to blame for this situation.
WIJETUNGA, J. – I agree.
Application dismissed.