120-NLR-NLR-V-47-PERERA-Appellant-and-PODISINGHO-et-al-Respondents.pdf
HOWARD C.J.—Per era v. Podisingho.
347
1946Present : Howard C.J.
PERERA, Appellant, and PODISINGHO et al., Respondents.
132—C. R. Panadure, 9,881.
Co-oumers—Erection of building on common land by one co-owner—Protestingco-owner'8 right to obtain mandatory order for demolition—Joinder ofother co-oumers as parties—Not a condition precedent.
The defendant built a house on the common land without the consentof the plaintiff, a co-owner, and depriving the latter of her right to putup a building on the road frontage.
Held, that when one co-owner has erected a house on t e common landwithout the consent of another co-owner the latter can obtain a man-datory order for the demolition of the building. There is no rule oflaw that, in such a case, the plaintiff should join all the other co-ownersof the land as parties.
De Silva v. Karaneris (1918) 1 C. L. Rec. 28, followed.
A
PPEAL from a judgment of the Commissioner of Requests ofPanadure.
U.V. Perera, K.G. (with him TJ. A. Jayasundere and L. G. Weera-mantry), for the defendant, appellant.
G. P. J. Kurulculasuriya (with him C. Dias), for the plaintiffs, re-spondents.
Cur. adv. vul(.
July 3, 1946. Howard C.J.—
The defendant in this case appeals from an order ol the Commissioner'of Requests, Panadure, entering judgment in favour of the plaintiffsas claimed together with costs. The plaintiffs who are husband and wifesued the defendant for a declaration of title to a 37/82nd share of theland in question and for a mandatory order directing the defendant todemolish the building which he has erected on the land without the consentof the plaintiffs. The Commissioner found that the plaintiffs wereentitled to a 37/82nd share in the property and an order compelling thedefendant to demolish the house. Mr. H. V. Perera on behalf of thedefendant has not questioned the finding in favour of the plaintiffs withregard to their title to a 37/82nd share in the land. He maintains,however, that the order for demolition was not in accordance with thelaw. It would appear that after the writ of summons had been issuedthe plaintiffs applied for an interim injunction to prevent any furtherbuilding of the house which was not completed. This injunction whichhad been granted was dissolved on June 9, 1943, on the defendantgiving an undertaking that neither in the present action nor in anyother action would he claim any preferential right to the site on whichthe building is by reason of the fact that he has put up the building onthe site before other co-owners.
The Commissioner was satisfied on the evidence that the defendanthad built a house on the common land without the plaintiffs’ consentand that the house had deprived them of their right to put up a buildingon the road frontage. It was contended that in view of the terms of the
348
HOWARD C.J.— Pereya v. PodisvngKo.
order cancelling the order for the injunction the plaintiffs had impliedlyconsented to the erection of the house. I am of opinion that theCommissioner was right in rejecting this contention.
The only question that remains for consideration is whether theCommissioner was right in making an order compelling the defendantto pull down the house. In Vol. I of the 2nd edition of Nathan’s CommonLaw of South Africa at p. 427 the general principle with regard to thealteration by one co-owner in the form of the common property is statedas follows :—
“ No alteration in the form of the common property (such as abuilding) can be made by one owner if the other objects. In such aease, the person who objects is in a superior legal position, and he cancompel the person making the alteration to restore the property toits former condition. But, if one of the joint-owners has knowinglypermitted (but not authorised) a stranger, not having a share in theproperty, to make an alteration, such joint-owner is liable to paydamages for such alteration, but is not compellable to restore theproperty to its former condition (10. 3. S. 7).”
“ See Van der Keessel (s. 777), who agrees with this, but adds thata part-owner, who has the smaller share in a house, may,without the other part-owner’s consent, cause the same to berepaired ; a view which is in accordance with equity, repairscoming under the head of necessary expenses.”
Mr. Pererahas cited the case of De Silva v. Siyadoris.1 In his judgmentin this case Lascelles C.J. at p. 270 states as follows :—
“ But the co-c wner who puts up a building on the common propertyis in a totally different position from a person who, under agreementwith the owner, builds on the land of another. The co-owner in sucha case acquires no title in severalty as against the other owners. Oneco-owner could prevent him from building on the common propertywithout the consent of the other co-owners (Silva v. Silva 2), but thebuilding once erected accedes to the soil and becomes part of thecommon property. The right of the builder is limited to a claim forcompensation, which he could enforce in a partition action undersections 2 and 5 of Ordinance No. 10 of 1863. The claim of theplaintiff, therefore, rests on no legal foundation, and should havebeen dismissed. There is, of course, nothing in this decision toprevent any of the co-owners from claiming a partition, in a properlyconstituted partition suit, of the whole of the property, and in suchan action the right of the builders of the houses now in dispute could beadjusted.”
The plaintiff in De Silva v. Siyadoris claimed a share in the buildingwhich had been erected by his predecessor in title as against otherco-owners, and it was held that there was no foundation in law for such aclaim inasmuch as the building enured for the benefit and was the propertyof all the co-owners whose rights could be adjusted in a partition action» {1911) U N. L. R. 268.» {1903) 6 N. L. R. 22.
HOWABD C.J.—Perera v. Podiringho.
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Mr. Perera also cited the case of JHeenhami v.Mohotihami1 the hcadnoteof which is as follows :—
“ There is no rule of law that a co-owner cannot maintain an actionagainst another co-owner without joining all the other co-owners ofthe land.
No doubt in many cases they are proper parties, and would bejoined on an application being made for the purpose. In some casesthey may even be parties, whose presence before the Court may benecessary in order to enable the Court to effectually find completelyadjudicate upon all the questions involved in the action, in which casethe Court may add them of its own motion under section 18, but ifthey are not added, the Court should, in accordance with theprovisions of section 17, deal with the matter in controversy so far asregards the rights of the parties actually before it. ”
Mr. Perera maintains that as the house put up by the defendant in thepresent case is the property of all the co-owners an order for its demolitioncannot be made without joining them alias parties. I do not think thatthis proposition follows from Heenhami v. Mohotihami. In fact it wouldappear to be contrary to the decision in Muthaliph v. Mansoor 2 in which itwas held that a co-owner is not entitled to build a house on a land heldin common without the consent of the others and an injunction may beissued against the offending co-owner to remove the building withoutproof of irreparable damage to the party complaining. It would appearfrom the judgment of Fernando A.J. in this case that the plaintiffs wereonly some of the co-owners and others had not been joined in the'case.In Muthaliph v. Mansoor the case of De Silva v. Karaneris was cited withapproval. The headnote of De Silva v. Karaneris 3 is as follows :—
“ One co-owner has no right to build .on the common land withoutthe consent of the other co-owners. If they object his proper remedyis to bring a partition suit. So long as the land remains in commoneach co-owner is entitled to the use of every portion of the land andone co-owner has no right to prevent the others from going on anyparticular portion of the land by building upon itT
When one co-owner erects a building without the consent of theothers he can be restrained by injunction from doing so, or if he hascompleted the building in spite of the protest of the others he may beordered to pull down the same.
The decision of the Full Bench in the case of Heenhamy v. MohotiAppu (supra) regarding the joinder of co-owners in an action byone co-owner, followed.”
In his judgment Shaw J. states—
“ With regard to the other part of his claim, namely, the claimfor an injunction, I have although somewhat reluctantly come to theconclusion that he is entitled to succeed. It is clear law that oneco-owner has no right to build on the common land without the consentof his co-owners. If he desires to build on the land and they object
1 (1916) 19 N. L. R. 235.* (1937) 39 N. L. R. 316.
* (1918) 1 C. L. Rea. 28.
350
CANNON J.—Sadiriaa v. Abeyennghe.
his proper method is to apply for a partition of the land when hewould be able to do whatever he likes with the portion allotted to him(but so long as the land remains the common property of all theco-owners they are each entitled to the use in common with oneanother to every portion of the common land, and, therefore, noowner has a right against his co-owners’ wishes to prevent themfrom going on any particular portion of the land by building a houseupon it). ”
I find it impossible to distinguish the facts in the present case fromthose in De Silva v. Karaneris which was cited with approval in Muthaliphv. Mansoor. In these circumstances I am of opinion that the Com-missioner came to a right conclusion and the appeal is dismissed withcosts.
Appeal dismissed.