AHAMADO NATCHIA et al. v. MUHAMADO NATCHIA

AHAMADO NATCHIA et al. v. MUHAMADO NATCHIA.

D. C, Galle, 7,459.

Jus superficiarium-Acquisition-Framing of issues-Prescription-Compensation-Civil Procedure Code.

According to the Common Law of Ceylon a person has the right to build on land belonging to another, and to use such building until the owner of the land tenders the value of the building. This right, which is known as the jus superficiarium, is acquired and lost in the same manner as any other right to immovable property; it may be acquired by prescription. The jus superficiarium is capable of alienation and also of passing to the heirs of the owner of the right.

THE facts appear sufficiently in the judgment of the Chief Justice.

Bawa, for plaintiff, appellant.

Van Langenberg, for 1st defendant, respondent.

H. J. C. Pereira (Wadsworth with him), for 2nd defendant respondent.

11th October, 1905. LAYARD, C.J.-

The plaintiff's claim is in respect of a two-ninths share in a house, to which house, he alleges, one Aidroos Lebbe Maricar (deceased) was entitled. He was the original owner of the whole land, and by a deed in 1864 he transferred it to his daughter, reserving to himself a tiled house standing thereon. That house appears to have fallen down in 1867, whereupon Aidroos Lebbe built himself another house on the same site and he continued to live there until his death. The first plaintiff is a granddaughter of Aidroos Lebbe, the mother being dead, and the second plaintiff is another daughter of his, and by right of inheritance they claimed two-ninths of the land. We are

not concerned on this appeal with the other undivided seven-ninths of the land. It would have been desirable to have had all the other owners as parties to this suit. No objection has been taken for nonjoinder in this Court or in the Court below. It was argued in appeal that the right reserved to himself by Aidroos Lebbe was not a right to the house exclusive of the ground, but to the soil also. The District Judge has distinctly, however, stated in his judgment that the plaintiffs' claim at the trial was to a two-ninths share of the house without its site. The ownership of a house apart from the site on which it stands is well known to our law. It is called the right of superficies. The jus superficiarium is the right which a person has to a building standing on another's ground. It cannot be termed full ownership, for no one can be legally full owner of a building who has not the ownership of the soil. It is the right to build on the soil and to hold and use the building so erected, until such time as the owner of the soil tenders the value of the building, if the amount to be paid has not been previously agreed upon. The right is acquired and lost like immovable property, and is even presumed to be granted when the owner of the ground permits another to build thereupon. The right can be alienated, and consequently there can be no doubt of its passing to the heirs of the original owner of the right (Grot. 2, 46, 9, 10, and 11). The District Judge's attention does not appear to have been drawn to our Common Law as to the jus superficiarium. The law is clear; the only difficulty in ibis case is to apply it. That is largely due to the non-observance of the provisions of the Civil Procedure Code by the Judge and the parties in the District Court. I cannot find that any issues were settled before trial. The parties do not appear to have agreed upon issues. What appears to have been done in the Court below is this. There were issues suggested by the plaintiff (which I presume means plaintiffs). Then on the 19th October the defendant's proctors accepted those issues and suggested further ones. There is nothing to show that the plaintiffs' proctors accepted the further issues. The journal minutes contain the mythical entry " Issues perfected," whatever that may mean. Seeing that the parties had not agreed as

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