1957 Present: Sansoni, J., and L. W. de Silva, A.J.



KANAGARATNAM, Appellant, and SUPPIAH et al., Respondents

S. C. 262-D. C. Nuwara Eliya, 3181

    Ownership of buildings-Exclusive right of soil owner-Erection of building by several persons-Claim to co-ownership of building-Maintainability-Jus super ficiarium.

A building cannot be owned apart from the land on which it stands. Accordingly, where several persons join in erecting a building on a land , one of them who has no interest in the land cannot maintain an action against the others to be declared entitled to an undivided share of the building. Nor can he claim, for the first time in appeal, a jus superficiarium, especially when there is no evidence of any agreement between him and the soil owner.

APPEAL from a judgment of the District Court, Nuwara Eliya.

H. W. Jayewardene, Q.C., with P. Somatilakam, D. R. P. Goonetilleke and P. Naguleswaram, for the substituted defendants-appellants.

S. J. V. Chelvanayakam, Q.C., with E. B. Wikramanayake, Q.C., D. J. Tampoe, for the plaintiff-respondent.

Cur . adv .vult

June 28, 1957. SANSONI, J.-

The plaintiff came into court in this action claiming that he and the three defendants built a theatre in Nuwara Eliya called and known as the Tivoli Theatre, and equipped it with plant and machinery. He further pleaded that he and the defendants became entitled to the said theatre together with the plant and machinery in the proportion of ¼ share each. He complained that the 1st defendant as a co-owner has, since June 1948, been in possession of and managed the theatre and collected the rents and profits for the benefit of himself and the other co-owners, but has at the same time unlawfully appropriated to himself all the mesne profits and rents of the theatre and refused to give the plaintiff his share. The plaintiff accordingly claimed that he had a cause of action to sue the 1st defendant for a declaration of title to, and possession of, an undivided ¼ share of the theatre and the mesne profits and rents. No relief was claimed against the 2nd and 3rd defendants whom the plaintiff has joined because he claimed they were co-owners.
In his prayer the plaintiff prayed:-

(1) that he be declared entitled to 1/4 share of the theatre and the plant and machinery thereof;

(2) that he be placed in quiet possesson of the said 1/4 share;

(3) that the 1st defendant be ordered to account to the plaintiff for his share of the rents and profits from June 1948 up to date of action and for judgment against the 1st defendant in such sum as may be found due at such an accounting.

The first defendant filed answer denying that the plaintiff and the defendants are co-owners. He pleaded that neither the plaintiff nor the 2nd and 3rd defendant had any right in law in the said building. He further pleaded that he was the lessee of the land on which the building stands on a deed of lease of 1946, and that the plaintiff and the 2nd and 3rd defendants with full knowledge of that fact contributed money and put up the said building along with the 1st defendant, with a view to carrying on business at the theatre. He pleaded that the claim for an accounting was not maintainable as the agreement to carry on business at the theatre was not in writing, and the said business was a partnership, of which the capital was over Rs. 1,000.

The case went to trial on several issues one of which was :- (10) Can the plaintiff ask for a declaration of title without a notarial writing giving him any share of the premises? After the plaintiff's case was closed, his counsel wanted to raise an issue as follows:-Is the 1st defendant in possession of the Tivoli theatre partly on his own behalf and partly on behalf of the plaintiff and the 2nd and 3rd defendants as trustees? The trial Judge then himself raised the question whether an action brought by a co-owner for a declaration of title to a share of a b