1948     Present: Basnayake J.

SOPIHAMY, Appellant, and DIAS,
Respondent

S. C. 24-C. R. Galle 25,966

Co-owners-Building by co-owner on common property-Seizure by creditor- Not liable in execution.

A building erected by a co-owner on common property cannot be seized and sold in execution of a debt of the co-owner who erected the building.

APPEAL from a judgment of the Commissioner of Requests, Galle.

C. R. Gunaratne for the plaintiff appellant.

No appearance for the defendant respondent.

Cur. adv. vult.

April 19, 1948. BASNAYAKE J.-

On September 29, 1945, the defendant-respondent (hereinafter referred to as the defendant) seized in execution of writ in D. C. Galle Case No. L. 503 " an undivided 1/4 of 1/7 of 1/14 parts of the soil and trees " on a land called Jambugahawatta " together with the entirety of the 7 cubits wattle walled house " thereon said to be the property of his judgment-debtor, one Carolis. On October 9, 1945, the plaintiff-appellant (hereinafter referred to as the plaintiff), who is Carolis's sister, claimed an undivided one-eighth share of the land and the house by virtue of a deed of transfer No. 2,418 dated January 4, 1933, attested by J. P. Jayawardena, Notary Public. She also claimed that she built the house. On February 18, 1946, the District Judge upheld the plaintiff's claim to three-sixteenths of the land, but he held that the house claimed by her belonged to her brother Carolis and dismissed her claim thereto. On February 25, 1946, she instituted this action under section 247 of the Civil Procedure Code to establish the right which she claims to the house. The defendant seems to accept the finding of the court in the inquiry into the claim to the seized property and has not instituted an action under section 247 in respect of the shares in the land declared to be exempt from seizure.

The learned Commissioner of Requests has formed the view that Carolis is a co-owner of the land and that he built the house. Carolis himself who is the best witness on the question of his rights to the land, has not given evidence in these proceedings, and the only evidence that he is a co-owner is the bare word of the defendant that Carolis is entitled to soil rights by maternal inheritance. As against this is his failure to assert this claim by an action under section 247. I am unable therefore to uphold the finding of the learned Commissioner that Carolis is a co-owner. It seems to me that he has misdirected himself on this question, for, he says, " Counsel for the plaintiff has raised the question that Carolis not being the soil owner cannot be entitled to the house even if he built it, his rights, if any, being a right to compensation in respect of the house against the owners of the land. As a bare proposition I can find no fault with his argument, for it is based on the maxim quicquid aedificatur solo solo cedit; but where is the evidence before me that Carolis is not a soil owner? The onus of proving this is on the person who asserts this, i.e., the plaintiff. There is no doubt that the plaintiff and his witness Hendrick Dias have said in their evi