002-SLLR-SLLR-1998-V-3-SUMANAWATHIE-v.-MAHINDA.pdf
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Sri Lanka Law Reports
[1998] 3 Sri LR.
SUMANAWATHIE
v.
MAHINDA
COURT OF APPEALDE SILVA, J„
WEERASURIYA, J.
A. NO. 540/96
C. HOMAGAMA NO. 1698/PAUGUST 18, 1998
Partition Action – Co-owner seeking to construct building – corpus a paddy field- rights and obligations of co-owners in relation to common land.
The plaintiff-respondent instituted action to partition a 'paddy field'. The defendantpetitioner, while the action was pending sought to construct a building on the fieldin question. The Districit Court restrained him from constructing the building.
Held:
1. In the circumstances, the defendant-petitioner as a co-owner is precludedfrom building on the land which is meant primarily for cultivation of paddywithout the consent of the other co-owners. The material before courtshowed that the proposed erection of the building would materially changethe character of land.
Per Weerasuriya, J.
"One co-owner may restrain another by an injunction only when his co-proprietary rights are being violated and that so long as the land is beingput to the use for which it was specifically adopted, no restraining by aninjunction is permissible. If building on a common land constitutes merelya means of exploiting and enjoying the property in a manner which couldbe regarded as natural and ordinary having regard to such factors as thecharacter and location of the land, the construction of a building by oneco-owner does not require the leave and acquiescence of the others.However in circumstances where building would constitute an unexpectedand novel use of co-owned property – consent of all other co-owners isnecessary".
Application in Revision from the judgment of the District Court of Homagama.
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Sumanawathie v. Mahinda (Weerasuriya, J.)
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Case referred to :
1. Elpi Nona v. Punchi Singho – 52 NLR 115.
W. Dayaratne with R. Jayasekera for 20th defendant-petitioner.
Nihal Jayamanne PC with Ajith Munasinghe for plaintiff-respondent and 4th, 6th,8th, 9th and 11th defendant-respondent.
Cur. adv. vult.
September 25, 1998.
WEERASURIYA, J.
By this revision application 20th defendant-petitioner (hereinafter referredto as the defendant-petitioner) is seeking to set aside the order ofthe District Judge, dated 01. 09 1992, restraining her from constructinga building on the land which formed a part of the corpus in the partitionaction bearing No. 1698 instituted in the District Court of Homagama.
The facts as set out by learned counsel for the defendant-petitionerare briefly as follows:
The plaintiff-respondent by plaint dated 06. 05. 1992, institutedaction in the District Court of Homagama to partition the land calledHatara Anda Hena Kolain Kumbura, morefully described in the sched-ule to the plaint. The plaintiff-respondent in this action further prayedfor an interim injunction to restrain the defendant-petitioner fromconstructing a building on land which formed a part of the corpus.The learned District judge on the application of the plaintiff-respondent,issued an enjoining order in the first instance and at the inquiry intothe application for an interim injunction, directed the parties to tenderwritten submissions and thereafter by his order dated 01. 09. 1992,issued an interim injunction restraining the defendant-petitioner fromconstructing the building. The present application has been filed againstthat order.
At the hearing of this application, counsel for the defendant-petitioner submitted that the learned District Judge had misdirectedherself by holding that the plaintiff- respondent had established a primafacie case against the defendant-petitioner. He based his contentionon the following grounds:
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that the learned District Judge had failed to consider thatplaintiff-respondent was entitled to an extent of 0.77 perchesof the corpus;
that the learned District Judge had failed to consider thatconstruction work had commenced upon permissionobtained from Sri Lanka Land Reclamation and DevelopmentCorporation;
that the learned District Judge had failed to consider thatthe construction work covered only an extent of 5.6 perches.
Learned counsel for the plaintiff-respondent submitted that thedefendant-petitioner by commencing to construct a building on apaddy field had attempted to change the intrinsic character of theland and that he was rightly restrained by an injunction from con-structing a building on such land.
Learned counsel for the defendant-petitioner submitted that aco-owner is entitled to use and enjoy common property in proportionto his share and that she can build on such land proportionate tohis soil rights.
The defendant-petitioner had obtained permission from Sri LankaLand Reclamation and Development Corporation to develop a portionof land as evidenced by letter dated 16. 05. 1994, marked P7.However, P7 does not disclose with certainty the effective date ofapproval given by Sri Lanka Land Reclamation and DevelopmentCorporation and whether such approval relate to the land in suit. Theinquiry into this application by the District Judge had been concludedon 29. 06. 1992 as evidenced from the written submissions tenderedby parties. Thus, the contention of the defendant-petitioner thatshe commenced building operations by filling the land on approvalfrom Sri Lanka Land Reclamation and Development Corporation isuntenable.
Admittedly, the plaintiff-respondent was entitled to 0.77 perchesfrom the corpus and 18th and 19th defendants were entitled to720/1440 shares jointly and the defendant-petitioner was entitled to12 perches. However, the plaintiff-respondent and 8th to 15th defend-ant-respondents are brothers and sisters and the 7th defendant-
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respondent is the mother and they are jointly entitled to 90/1040 sharesor about 13.8 perches from the corpus. Thus, they jointly possessa substantiatl share of the corpus and they have a right in law tosafeguard their interests in respect of the common property.
The rights and obligations of co-owners in relation to common landhave been considered in many decisions of our Courts. Wille'sPrinciples of South African Law by J. T. R. Gibson (7th ed. at p.213) states that each co-owner "is entitled to reasonable use of theproperty, proportionate to his interest, in accordance with the objectfor which the property is intended to be used". The limitations on theright of a co-owner to enjoy the common land are laid down by ourCourts in accordance with the principles prescribed by jurists. Thecardinal principle is that one co-owner may restrain another by aninjunction only when his co-proprietary rights are being violated andthat so long as the land is being put to the uses for which it wasspecially adopted, no restraining by an injunction is permissible. Ifbuilding on a common land constitutes merely a means of exploitingand enjoying the property in a manner which could be regarded asnatural and ordinary having regard to such factors as the characterand location of the land, the construction of a building by one co-owner does not require the leave and acquiescence of the others.However, in circumstances where building would constitute an unex-pected and novel use of co-owned property consent of all other co-owners is necessary.
In Elpi Nona v. Punchi Singhd'] it was held that a co-owner hasthe right to build on the common property without the consent of hisco-owners, provided that he acts reasonably and to an extent whichis proportionate to his share and does not infringe the co-proprietaryrights of his co-owners; moreover, he cannot, except by mutual consentapply the common land to new purposes in such a manner as toalter the intrinsic character of the property.
It was laid down at page 117 as follows:
“The cause of action in proceedings of this kind is based onthe infringement of the rights of the objecting co-owners and nota right simpliciter to withhold consent to something which has notbeen proved to be quid novi in the sense in which, I think, theterm is used by Voet – that is either an alteration or conversion
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of the intrinsic character of the common property or an attempteduser of the property which is disproportionate to the defendant'sinterest therein".
In the instant case, the plaintiff-respondent filed action to partitionthe land which was basically a paddy field and the portion on whichthe defendant-petitioner sought to build, lies on the southern sidefacing the road in extent of about 10 perches. The defendant-petitionerhad placed before the District Judge that he took steps to fill it, asit was a marshy land. Thus, it would be clear that, to erect a buildingon this land he had to take steps to fill it by changing the characterof the land. There was no material placed before Court that anybuilding had been constructed previously on the land by any co-owner.He had failed to place any material that there was a practice amongthe co-owners to build on this land. The material that he placed beforethe Court was sufficient to prove that proposed erection of the buildingwould materially change the character of the land, even though thatportion of the land had been severed from the rest of the land bythe main road. However, it would appear that, that portion still remaina cultivable area as other portions of the land.
The reference by the District Judge, in her order, to the provisionsof the Agrarian Services Act, is clearly an acknowledgement thatspecial procedure is envisaged in situations where building operationsare contemplated on marshy land primarily meant for paddy cultivation.Thus, the conclusion is inescapable, upon a survey of the case law,that the construction of a building on a common property requiresthe consent of all the co-owners in circumstances where buildingconstitutes either an alteration of the inherent character of propertyor an attempted user of the common property disproportionate torights. In the circumstances, the defendant-petitioner as a co-owner,is precluded from building on this land which is meant primarily forcultivation of paddy, without the consent of other co-owners.
For the foregoing reasons, it seems to me that there is no basisto interfere with the findings of the District Judge. Therefore, I dismissthis application with costs.
DE SILVA, J. – I agree.
Application dismissed.