Elpi Nona V. Punchi Singho Et Al.,

1950 Present .- Gratiaen J. and Gunasekara J.

ELPI NONA, Appellant, and PUNCHI SINGHO et al, Respondents

 S. C. 305-D. C. Avissawella, 5,272

Co-owner-His right to build on (lie common property-Scope of such right.

Where certain co-owners claimed a mandatory injunction for the demolition of a building which had been put up by another co-owner on the common-land contrary to their express wishes-

Held, that a co-owner has the right to build on the common property without' the consent of his co-owners, provided that he acts reasonably and to an extend which is proportionate to his share and does not infringe the co-proprietary, rights of his co-owners; more ever, he cannot,, except by mutual consent,, apply the common land to new purposes in such a manner as to alter the intrinsic: character of the property.

APPEAL from a judgment of the District Court, Avissawella.

N. E. Weerasooria, K.C with Frederick W. Obeyesekera and

B. S. C. Ratwatte, for the defendant appellant.

No appearance for the plaintiffs respondents.

Cur. adv. vult.

 November 21, 1950. GRATIAEN J.-

. The plaintiffs are jointly entitled to an undivided 11/24 share of the-land described in the schedule annexed to the plaint. The defendant" owns an undivided J share, while the remaining interests belong to as man named William Singho who is not a party to those proceedings.

The plaintiffs sued the defendant for a declaration that they were jointly entitled to an undivided 13/24 of the land; but in the course of the trial their claim was restricted to the admittedly correct share which is 11/24. The outstanding dispute relates to a building which the defendant had in February, 1948, commenced to erect on the common land for the exclusive use of herself and her family. It was completed before the trial commenced. The plaintiffs claimed a mandatory injunction for the demolition of this building. After trial the learned District Judge entered decree against the defendant ordering that the building should be demolished, and the present appeal is from the order for demolition. I am far from satisfied that such a decree could in any event be properly entered in proceedings to which one of the interested co-owners had not been joined as a party, but the appeal can be decided without expressing a definite opinion on this point.

Mr. Weerasooriya was content to argue the defendant's appeal on the basis that the relevant facts are correctly set out in the evidence led by the plaintiffs at the trial. His submission is that in law these facts do not justify the mandatory injunction ordered by the learned Judge. The plaintiffs were unfortunately not represented at the hearing of the appeal.

There can be no doubt that the defendant erected the building in question contrary to the express wishes of the plaintiffs, and that she had been forewarned of the plaintiffs' intention to seek the intervention of the Court should she persist in ignoring their protests. The building is described in the 1st plaintiff's evidence as "a big wattle and daub house with a cadjan roof worth about Rs. 300 ". There is no evidence as to the ground space covered by this building or as to its situation in relation to the plantations on the land. The plaint had alleged that it had been erected on that portion of the land " where the plaintiffs' plantations stand, causing irreparable damage to them ", but no attempt was made at the trial to substantiate this allegation. The case for the plaintiffs, as I understand it, was presented at the trial on the assumption that under the Horn an Dutch Law a co-owner is under no circumstances whatever entitled to put up a building on the common land without the consent of all his co-owners; and that in the absence of such consent any co-owner is entitled as of right to demand its demolition. No material was placed before the Court for the purpose of establishing that the erect

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