W. E. ALWIS, Appellant, and R. A. D. PIERIS APPIHAMY, Respondent

111-NLR-NLR-V-59-W.-E.-ALWIS-Appellant-and-R.-A.-D.-PIERIS-APPIHAMY-Respondent.pdf

518 *■H. N- G. KERNAlv DO,'j.—v. JPieria Appuhamy i.
1956 / •. . Present: K. D. de Silva, J., and -H. N. G. Fernando, J.W. E. ALWIS, Appellant, and R. A. D. PIERIS APPUHAMY,
~'Respondent .
’S. C. 341—D. C. Colombo, 6,647
Co-owners—Possessory decree in respect of entire common properly—Right of a co-owner to claim it against another co-owner—Elements necessary—Joinder ofother co-owners..
The plaintiff, a co-owner of a certain allotment of land, sought a possessorydecree in respect of the whole land against the defendant, who was one out ofseveral other co-owners who were not parties to the action. The evidenceestablished nothing more than that the plaintiff had planted cinnamon andmanioc on the land 20 years before the action and had at that stage built asmall hut on the land. It was admitted, however, that all the cinnamon plantshad since been destroyed and that, at the time of the action, there was nocinnamon there. In addition it was alleged that the plaintiff had started cuttingcabook on the land about 12 years before the action, but the evidence disclosedthat this activity was not carried on during the 8 or 10 years preceding theaction. The plaintiff based his cause of action on the mere fact that thedefendant erected a hut on the land.
Held, that on the evidence the plaintiff had no right to a possessory decreeagainst one set only of his co-owners. The question of importance was whetherthe plaintiff had possession ut dominies or, in the alternative, whether he hadmade plantations or erected buildings in respect of which ho was entitled to apossessory decree against an interfering co-owner.
-AlPPEAL from a judgment of-the District Court, Colombo.
H. W. Jayewardene, Q. C., with D. R. P. Goonelilleke, for the defendantappellant.
S. B. Lekamge, with li". P. Ar. de Silva, for the plaintiff respondent.
Cur. adv. vult.
February 29, 1956. H. N. G. Fernando, J.—*
The plaintiff in this case has been granted a decree placing him inpossession of lot 1 of a land called Delgaliawatta depicted in the plan filedof record. He had asked as an alternative for a declaration of title to theLot in question, but that was refused by the learned Judge on the groundthat the plaintiff and the defendant are co-owners of the land in question.
It has been argued in ajjpcal that the plaintiff did not have possessionsufficient to entitle him to a possessory decree, and that even if he did,the decree should not have been granted unless the other co-owners werejoined as parties. The question for our decision, is whether, in thecircumstances of the case, the plaintiff has a right to a possessory decreeagainst' one set only of his co-owners.
If. is. G. FEKX.VNDO, J.—Ahuij v. ricris Appuhamy
510
The learned District Judge lias relied on the ease of' Abeyratne y. Scnevi-ralne 1 and that of Coorciyv. Samaranayakc -. The first of those cases wasconsidered subsequently in Sadirisa v. Atiadassi Thcro 3 where the effectof the case was summarised in the following terms :—
“ From the short judgment of Lascellcs C. J. it appears that theplaintiffs had a lease from Alexander for the entire land and that theyhad been in possession of the entire land ; when a lessee takes alease for the whole land without being aware of the fact that his lessorwas really entitled only to an undivided share and when he gets intojiossession of the whole land and holds it for a number of years, thesefacts are entirely corroborative of the fact that possession by theplaintiff was id dom in us, in other words, thatr he possessed it fullybelieving that the lessor was the owner of the whole land and thathe was entitled to keej> the possession of the whole land against any-body but his lessor
That case then is only authority for the proposition that where a strangeroccupies the whole of the land fully believing that liis transferor was theowner of the whole, he has the possess)o civilis necessary to enable him tomaintain a possessory action even against a co-owner.
In Cooruy v. Samaranayakc-, the plaintiff asked to be restored to thepossession of a whole plantation from which he had been dispossessedby the defendants after a considerable period of possession. It was heldthat she was entitled to be restored to possession notwithstanding thefact that the defendants were eo-owners and that all the co-owners hadnot been joined. The judgment chiefly relied on was that of Heen-hamy v. Jfohcllihatny 4 which was the judgment of a Full Bench.
In the latter case the plaintiff claimed declaration of title to certainshares of land against the defendant, another co-owner-, who contestedhis title. It was contended in aj^eal on the authority of certain earliercases that such an action could not be maintained without joining all theother co-owners. The Full Bench held that having regard to sections17, IS and 22 of the Civil Procedure Code-, the rule that all the co-ownersmust be joined cannot be regarded as absolute and invariable, andaccordingly, on the footing that the other co-owners Mere not necessaryparties and that the cause of action was that the defendant took theplaintiff's share of the crop presumably planted by the plaintiff, grantedthe declaration sought by him. It has to be noted however that in thatcase the declaration sought Mas a declaration of title to certain sharesof land and not to the whole land, and was only incidental to the claimfor damages (79 N. L. B. p. 237).
It does not appear from the judgment in Cooruy v. Samaranayakc 2that there was a full realisation of the point that the Full Bench inHcenhamy v. 2[ohotihamy 1 only decided that the'plaintiff in that caseMas entitled to a declaration of title to certain shares, uhereas in Cooray v.Samaranayake 2 the plaintiff asked for restoration of possession to theentire common property. But on the facts of the latter case it wouldappear that the rubber plantation had belonged to the plaintiff's husband
1 (1914) 3 Sal. AhCh 22.3 (1930) 33 Ah L. It. 30S.
* (1946) 47 Ah Tj. R. 322.-> (1916) 19 Ah S. R. 236.
520
H. G. FERJy'AiirDO, J.—Alwis v. Pieris Appuhamy
and liad been exclusively possessed by the husband and thereafter byherself and her children. That being so, the restoration of the plaintiffto possession of the plantation and the grant to her of damages forouster was, if I may say so with respect, justified not so much bn theearlier Full Bench decision, but on the principle recognised in a latercase to which I shall immediate!}' refer.
In Pieris v. Appuhamy 1 the plaintiff brought an action to be declaredentitled to possess the rubber plantation on the land in question, whichhe held under a lease fro run one Bastian Pieris. The defendant whoclaimed title to a Jt-h share of land, forcibly took possession of 30 rubbertrees out of the plantation of 130 rubber trees. It was proved thatBastian Pieris had made the plantation in question with the acquiescenceof the other co-owners. The principle stated by Lascelles C. J. that“ it is difficult to see on what principle an improving co-owner, who isentitled to compensation, can be excluded from the benefit of the iusretcnlionis ” was cited with approval by KcunemanJ., who observed thatit must follow that, until common ownership is terminated by partition,the improving co-owner is entitled to retain possession of the improve-ment. On this footing Bastian Pieris and his lessee the plaintiff wereentitled to possess the plantation as against the other co-owner defendant,and according]}' the lessee was granted his declaration.
In yet another case, Kathonis v. Silva 2, a co-owner who had erected ahouse on the common land asked for a declaration of title to the house,and for ejectment. It was held that the erection of a house was inexercise of the rights of a co-owner and that the light to build a houseon the common land and to live in it must carry with it a right to keepthe liotise private and to that extent to an order for ejectment. In thecircumstances of that case this Court held that the plaintiffs were entitledto a declaration of their right to the improver’s interest and to an orderejecting the defendant from the house.
In Sadirisci v. Altadassi Thero 3 Alcbar J. pointed out that the plaintiffwas asking for a possessory decree not with regard to an undivided share,but with respect to the whole land, and that he was asking for a decreeagainst two co-owners without making the other co-owners parties tothe action. He therefore said that it was “ very material to find outwhether the possession alleged by the plaintiff was possessio ut dominusor whether it was possession by him with the full knowledge that he was aco-owner, and with the"knowledge that the law presumes in such circum-stances, namely, that his possession must enure to the benefit of hisother co-owners also On the facts, which were that the original owner,a priest Gunatissa, died in 1917, and that after Iris death all his pupils(i.e. the co-owners under deeds of donation) came to the understandingthat the plaintiff should possess the field in question, Akbar J. held thatit was unreasonable to conclude that the jmssession was tit dominusor animo domijii and he thought that the period from 1918 to the year1934 was too short a preseriod for peription against the other co-oivners.
On these grounds he dismissed the plaintiff’s action. 1
1 {1947) 4S X. L. R. 344.* {1919) 21 X. L. R. 452.
3 (1930) 3S -V. L. R. 30S.
H. AT. G. FER^.OiDO, J.—Alwis v. Pieris Appuhamy
521
These authorities no doubt establish the proposition that all the co-owners of a common property need not necessarily be made parties toevery action in which, one of them (or a person claiming under him)seeks recognition of his title to, or possession of, the property as againstanother co-owner. The general rule as to joinder is subject to exceptionswhich arc made in certain clear circumstances.
(а)Where, as in Abeyralne v. Senevircitne 1 a person in good faith
possesses the whole land under the impression that it is notsubject to co-ownership ;
(б)where, as in Cooray v. Snmaranayake2 and Pier is v. Appuhamy1 * 3
one co-OHucr has grown and possessed a plantation whether onthe whole or part of a common land in the'exercise of his dueright as a co-owner, and then seeks recognition of his ins re-tentionis of the plantation until such time as co-ownership isterminated b3>- partition ;
where, as in Kalhonis v. Silva 4 a co-owner erects a house on the
common land and seeks to be protected in his possession of it;and
where, as in HeenJiamy v. AloJioliJmmy5 a co-owner whose crops are
improperly taken b3* another co-owner asks for a declaration oftitle to a share of the land as incidental to his claim for damagesfor the unlawful removal of his crops.
This last case is in reality' not substantial^ different from the one secondlymentioned, in that the declaration is sought by way of protection for aright to retain a plantation and take the crops thereof. The aboveclassification may not be exhaustive .and there ma3' be other instanceswhich fall substantially within the principles recognised in the casesto which I have referred. But in cases which do not fall within theseprinciples, disputes between co-owners should be settled either by par-tition or at least b3r an action to .which all the co-owners are parties.
In the present case the learned Judge has held that the plaintiff anddefendant are co-owners of the disputed Lot, and having regard to theevidence on which that finding was reached, it follows that there areother co-owners who are not parties. Hence, as in the case of Sadiri-sa v.Alladasi Thero6, the question of importance is whether the plaintiffhad possession ul dominus, or in the alternative whether he had madeplantations or erected buildings in respect of which he is entitled to a pos-sessor decree against an interfering co-owner. The evidence establishesnothing more than that the plaintiff had planted cinnamon and maniocon the land 20 3‘ears before the action and had at that stage built a smallhut on the land. But it is admitted that all the cinnamon plants havesince been destro3~ed and that there is now no dnnamon there. Inaddition it was alleged that the plaintiff had started cutting cabook onthe land about 12 years before the action, but it would appear from theevidence of the Headman that this activity- was not carried on during
1 {191-1) 3 Bal. A7. G. 22.
1 {1916) 47 A7. R. R. 332.
3 (1947) IS A7. R. R. 344.
(1919) 21 N. R. R. 452.(1916) 19 A7. R. R. 235.(1936) 33 A7. R. R. 303.
522
' Fernando v. Fernando
the 8 or 10 years preceding the action. Apart from the bare statementof the plaintiff that he possessed the land prior to the alleged ouster(which consisted merely of the erection of a hut on the land by the de-fendants) there is no evidence of physical possession by the plaintiffduring recent years, and indeed on his own evidence that there is now noplantation nor erection on the Land one cannot imagine that there wasany possibility of acts of physical possession.
In these circumstances it is difficult to see how the plaintiff can bes.aid to have had possession tit do minus or animo do mini. Nor also wouldthere be any question of a ius retentioni-s in the absence of plantationsor erections made by the plaintiff in his capacity as a co-owner. He doesnot come within the ratio decidendi of Hcenhamy v~31ohotifiamy 1 becausehe never claimed a declaration to shares in the land, but a declarationto the whole land or in the alternative, a possessory decree in respectof the whole land. He made no attempt to establish the specific shareto which he is entitled. Ultimately therefore, his cause of action isbased on the fact merely that the defendants erected a hut on the land.This was a proper exercise by the defendant of his rights as a co-owner,and, in the absence of erections or plantations made by the plaintiff,cannot be construed to have been derogatory of any light which theplaintiff might properly claim as a co-owner. If, as it is alleged, thedefendant is in possession of the Uot, and the plaintiff now seeks entry-in his right as a co-owner and is resisted, he might be entitled to theassistance of the Court if the circumstances bring him within the principleset out in HeenJiamy v 3IohotiJiamy 1 ; or else, whether with or withoutan attempt to enter, it would be open to him to maintain a parti-tion action. But there is for the present no circumstance which entitledhim to either of the reliefs which he has claimed.
For these reasons I would allow the appeal and dismiss the plaintiff’saction with costs in both Courts.
K. D. de Si Eva, J.—I agree.
Appeal allowed.