1946 Present: Howard C.J

PERERA, Appellant, and PODISINGHO et al., Respondents.

132-C. B. Panadure, 9,881.

Co-owners-Erection of building on common land by one co-owner-Protesting co-owner?s right to obtain mandatory order for demolition-Joiner of other co-owners as parties-Not a condition precedent.

The defendant built a house on the common land without the consent of the plaintiff, a co-owner, and depriving the. latter of her right to put up a building on the road frontage.
    
Held, that, that when one co-owner has erected a house on t o common land without the consent of another co-owner the latter can obtain a mandarin order for the demolition of the building. There is no rule of law that, in such a case, the plaintiff should join all the other co-owner of the land as parties.

De Silva v. Karaneris (1978) 10. L. Rec. 28, followed.

APPEAL from a judgment of the Commissioner of Requests of Panadure

H. V. Perera, K.C. (with him U. A. Jayasundere and L. C. Weeramantry), for the defendant, appellant.

G. P. J. Kurukulasuriya (with him C. Dias), for the plaintiffs, respondents. -

Cur. adv. vult.

July 3, 1946. HOWARD C.J.-
   
The defendant in this case appeals from an order of the Commissioner of Requests, Pan adore, entering judgment in favor of the plaintiffs as claimed together with costs. The plaintiffs who are husband and wife sued the defendant for a declaration of title to a 37/82nd share of the land in question and for a mandatory order directing the defendant to demolish the building which he has erected on the laud without the consent of the plaintiffs. The Commissioner found that the plaintiffs were entitled to a 37/82nd share in the property and an order compelling the defendant to demolish the house. Mr. H. V. Perera on behalf of the defendant has not questioned the finding in favor of the plaintiffs with regard to their title to a 37/82nd share in the land. Mo maintains, however, that the order for demolition was not in accordance with the law. It would appear that after the writ of summons had been issued the plaintiffs applied for an interim injunction to prevent any further building of the house which was not completed. This injunction which had been granted was dissolved on June 9, 1943, on the defendant giving an undertaking that neither in the present action nor in any other action would he claim any preferential right to the site on which the building is by reason of the fact that he has put up the building on the site before other co-owners. .
   
The Commissioner was satisfied on the evidence that the defendant bad built a house on the common land without the plaintiffs? consent and that the house had deprived them of their right to put up a building on the road frontage, It was contended that in view of the terms of the

order canceling the order for the injunction the plaintiffs had impliedly consented to the erection of the house. I am of opinion that the Commissioner was right in rejecting this contention.
   
The only question that remains for consideration is whether the Commissioner was right in making an order compelling the defendant to pit11 down the house. In Vol. I of the 2nd edition of Nathan?s Common Law of South Africa at p. 427 the general principle with regard to the alteration by one co-owner in the form common the properly is stated as follows :-
   
?No alteration in. the form of the common property (such as a building) can ho made by one owner if the other objects. In such a vase, the person who objects is in a superior legal position, and he can compel the person making the alteration to restore the property to its former condition. But, if one of the joint-owners has knowingly permitted (but not authorized) a stranger, not having a share in the property, to make an alteration, such joint-owner is liable to pay damages for such alteration, but is not compellable to restore the property to its fo