Supreme Court of Mauritius, 17 janvier 2020, 2020 INT 14 – RAVIN KUMAR THAJAH V CRISAN KUMAR THAJAH

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RAVIN KUMAR THAJAH V CRISAN KUMAR THAJAH

2020 INT 14

CN:- 1009/15 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Ravin Kumar Thajah Plaintiff v/s 1. Crisan Kumar Thajah 2. Binda Kumar Thajah Defendants RULING In an amended proecipe dated 19 July 2018, the plaintiff has averred that himself, the two defendants and 6 other named persons are the heirs of late Sahadeo Thajah who passed away on the 04 December 1990. The said Sahadeo Thajah was owner of a portion of land of the extent of 12.5 perches situate in the district of Plaines Wilhems more specifically at Hollywood No. 1 Vacoas, of which the plaintiff, along with the defendants and the other heirs, are now co-owners. There exist on the said portion of land three concrete buildings which are occupied by the plaintiff and defendant no. 1, defendant no. 2 and one Oogesh Thajah respectively and an exit road of 1.95m wide which is used by the abovenamed to access the said buildings. The house in which the plaintiff resides is found on the last position on the said portion of land. It has been averred that the defendants have maliciously and illegally obstructed the said access road by putting a fencing before the entrance of plaintiff’s house and laying several blocks, placed dust bins and a “piquet en fer” thereon, thus preventing the plaintiff from having vehicular access to his house. Defendant no. 1 has also illegally built a porch under corrugated iron sheets on part of the right of way and defendant no. 2 has erected another garage to be found at the back of his house and “has illegally placed an outdoor kitchen in between in the annexed fencing” causing prejudice to the plaintiff as the kitchen emits smoke.

It has also been averred that this state of affairs is causing great hardship and prejudice to the plaintiff inasmuch as the plaintiff is being denied vehicular access to his house and he has to park his vehicle on the main road during the night whilst the defendants are having free access to their buildings and can easily park their vehicles without any hindrance from the plaintiff. A notice mise en demeure was served on the defendant requesting them to clear the said obstructions and to reinstate the access road to its original state but the defendants have failed to comply with same. The plaintiff is thus averring that through the illegal acts and doings of the defendants, he has suffered and is still suffering damages and prejudice which he values at the sum of Rs. 500,000 and which the defendants are bound in law to make good to him, jointly and in solido. The plaintiff is therefore praying for a judgement from this court as follows: (i) Ordering the defendants to clear all illegal obstructions forthwith by reinstating it to its original state so as to allow the plaintiff proper access to his property to park his van to load and unload vegetables, (ii) Ordering the defendants to pay to him jointly and in solido the sum of Rs. 500,000 claimed as damages for the reasons set forth above; (iii) Making such other order and/or orders as the Honourable court may deem fit and proper in the circumstances of the case With costs.

Pleadings were exchanged and closed. The defendants have now raised a plea in limine litis to the amended proecipe of the plaintiff which reads as follows:

“1. The plaintiff has failed to put all interested parties, namely the other heirs of late Sahadeo Thajah into cause. 2. The defendants therefore move that the present action be set aside. With costs.”

It is the contention of counsel for the defendants that the present action being an action for damages and not being an “action conservatoire”, the plaintiff, as a coïndivisaire, cannot proceed with the present action alone and ought to have put all the heirs of late Sahadeo Thajah into cause. He further submitted that since the plaintiff is also praying for an order from this court ordering the defendants to clear all illegal obstructions on an alleged right of way on a terrain indivis, an order from this court regarding the said right of way would have an incidence on the rights of the co- owners of the said land and they ought to be put into cause.

Counsel for the plaintiff for his part rested his submissions on the provisions of Article 813-7 of the Code Civil Mauricien (CCM). He therefore submitted that the plaintiff is entitled to bring the present action without putting into cause the other heirs of late Sahadeo Thajah. I have duly considered the submissions of learned counsels appearing for both parties. It is settled law that a co-owner can assert his undivided rights against a third party without the other co-owners being put into cause in a law suit – Vide A. Choo Ping Fen and Ors v. M.B.Tickfine and Ors [1988 MR 38]. The particularity of the present case however is that the claim is not being directed against a third party but is being made against other coïndivisaires and thus particular attention should be given to the issue.

The plaintiff is averring that there exists on the terrain indivis “an existing road of 1.95m wide” and that the defendants caused the said road to be obstructed on or about October 2014 and he is praying for a judgement from this court ordering the defendants to clear such obstructions. Having gone through the proecipe, I find that although the aim of the present action against the defendants is the preservation of the legal rights of the plaintiff, the determination of such right will necessarily have an incidence on the rights of the coïndivisaires. It is indeed the contention of the plaintiff that he has a right of way and vehicular access to his building. This is however denied by the defendants in their plea. This court will therefore have to adjudicate on the existence of such right of way on the undivided property and incidentally the views of the other heirs regarding such right of way and the alleged obstruction would be crucial in order to make such determination. In the circumstances, this court finds that it would be in the best interest of justice that the other heirs of late Sahadeo Thajah be joined in the present action.

I find it apposite here to refer to the case of P. Gungah & Ors. v Mrs. Widow Vassoo Mootoosamy & Ors. [1999 SCJ 301] where the court highlighted that “…the court will necessarily have, in relation to the present statement of claim, to make a finding in relation to the boundaries of the land belonging to the plaintiffs on the one hand and that belonging to the defendants and the other heirs on the other hand. Accordingly, it is highly desirable that the other heirs be put into cause and I can hardly conceive how they could possibly say that they have no interest in the case.”

Counsel for the plaintiff relied on the provisions of article 813-7 of the CCM and submitted that the other heirs of late Sahadeo Thajah need not be put into cause. I however find that the tenor of the

provisions of article 813-7 does not lend support to the contention of counsel. Article 813-7 al. 1 expressly provides that “Chaque indivisaire peut user et jouir des biens indivis conformément à leur destination, dans la mesure compatible avec le droit des autres indivisaires et avec l’effet des actes régulièrement passés au cours de l’indivision. A défaut d’accord entre les intéressés, l’exercice de ce droit est réglé, à titre provisoire, par le Juge en Chambre.”(Emphasis added).

From the above section of the law, it follows that the rights of the plaintiff as a coïndivisaire is subject to the rights of the other coïndivisaires. Consequently I find that in order to determine the extent of the rights of the plaintiff, “it is highly desirable that the other heirs be put into cause.”

In addition to the above, I also find that the plaintiff is not entitled to bring an action for damages against the defendants without putting in cause the other heirs of late Sahadeo Thajah. Indeed the following extract from the case of Lemière v Malecaut [1983 MR 318], is directly in point with the present finding and it reads as follows:

“The action of the plaintiff as an indivisaire must necessarily be limited in scope to one of a ‘mesure conservatoire’ under article 813 of the Code napoleon and may not go beyond. The plaintiff may indeed be entitled to damages but he must bring that action together with the other co-owners so that a global assessment can be made. We cannot make a piecemeal assessment where only one of a number of ‘indivisaires’ is asking for damages.”

The above extract was quoted with approval in Peerally E v Ramalingum S.G.[2010 SCJ335], Appollon J.C. v Nobin L.A. & Ors [2012 SCJ 168], Sunassee S L P v Michel J [2016 SCJ 311] and Beejan S & Anor v Beejan B & Anor [2016 SCJ 112].

For all the reasons given above therefore, I find that the plea in limine raised by the defendants should succeed and I hold that plaintiff cannot proceed with the present claim unless he joins the other heirs of late Sahadeo Thajah in the present action under rule 19(2)(b) of the Supreme Court Rules, our District, Industrial and Intermediate Court Rules 1992 being silent on that issue. (Vide – Jhundoo v. Jhurry [1981 SCJ 98]).

The matter is fixed proforma on 30 January 2020 for the plaintiff to take a stand accordingly.

I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 17 January 2020