Rockland Distilleries V. Azeez

1949 Present: Nagalingam J. and Windham J.

ROCKLAND DISTILLERIES, Appellant, and AZEEZ, Respondent

S. C. 14-D. C. Kalutara, 26,490

Co-owners-Action for damages caused to common property-Action by one co-owner-Need others be made parties ?-Civil Procedure Code, ss. 12, 17, 18.

One co-owner can institute an action for damages caused to the common property without joining the other co-owners either as plaintiffs or defendants.

APPEAL from a judgment of the District Judge, Kalutara.

H. W. Jayawardene, with Wijeratne, for the defendant appellant.

M. H. A. Azeez, for the plaintiff respondent.

Cur. adv. vult.

May 9, 1949. NAGALINGAM J.-

The question involved on this appeal is whether a co-owner can institute an action for damages caused to the common property without joining either as a party plaintiff or party defendant the remaining co-owners.

The plaintiff instituted the action without disclosing the fact that there was another co-owner of the property but in the course of trial it transpired that the plaintiff had subsequent to the date of the institution of the action but prior to the date of trial acquired the outstanding interest and he was at the latter date the sole owner of the land. On behalf of the defendant company objection was taken to the constitution of the action on the ground that the non-joinder of the other co-owner who admittedly had an interest in the land at the date of the institution of the action was fatal to the maintenance of the suit. The same objection has been pressed on appeal.

Section 12 of the Civil Procedure Code expressly permits one co-owner to institute an action in respect of his undivided share against a trespasser. The law in this sense has been laid down in a series of cases all of which are referred to in Hewavitarane v. Duncan Rubber Co. Ltd.1[(1911) 17 N. L. R. 49.] AND Pereira J. in his judgment said: -

" As regards the rights of owners of undivided shares of land to sue a trespasser I have always understood the law both before and after the coming into operation of the Civil Procedure Code to be that the owner of an undivided share of land might sue a trespasser to have his title to the undivided share declared and for ejectment of the trespasser from the whole land, the reason for this latter right being that the owner of the undivided share has an interest in every part and portion of the entire land."

Mr. Jayawardene for the appellant, however, without challenging the correctness of this proposition contends that the present action is one where no title and no claim to ejectment is involved and therefore does not fall within the principle enunciated.

The action is not, it is true, one for declaration of title or ejectment of the defendant Company, for the defendant Company does not claim title to the land. The action, however, is one for damages caused to the plaintiff's land, which is a field, for the damage caused to it by the discharge of spent wash from the distillery of the defendant Company. The plaintiff claims not only damages sustained up to the date of institution of action but also continuing damages as well as an order on the. defendant Company " not to discharge waste matter into the plaintiff's land." Mr. Jayawardene's contention is that the action is one for a declaration that the plaintiff's land is not subject to a servitude to have discharged into the land the spent wash from the distillery, more particularly as the defendant Company claims in fact such a servitude over the plaintiff's property ; and he argues that to such an action in any event every co-owner must be made a party as otherwise the action cannot be maintained.

But for the counter-claim of the defendant Company that it has a right of servitude the case of the plaintiff is simply that the defendant Company has committed waste on his property by draining into it noxious and deleterious waste matter from the d

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