{"id":1059796,"date":"2026-06-07T19:21:30","date_gmt":"2026-06-07T17:21:30","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/supreme-court-of-mauritius-25-fevrier-2020-2020-int-45-etwaroo-buldee-v-suttyadeo-ramdani-and-anor\/"},"modified":"2026-06-07T19:21:30","modified_gmt":"2026-06-07T17:21:30","slug":"supreme-court-of-mauritius-25-fevrier-2020-2020-int-45-etwaroo-buldee-v-suttyadeo-ramdani-and-anor","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-25-fevrier-2020-2020-int-45-etwaroo-buldee-v-suttyadeo-ramdani-and-anor\/","title":{"rendered":"Supreme Court of Mauritius, 25 f\u00e9vrier 2020, 2020 INT 45 – ETWAROO BULDEE V SUTTYADEO RAMDANI AND ANOR"},"content":{"rendered":"
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1 ETWAROO BULDEE V SUTTYADEO RAMDANI AND ANOR<\/p>\n

2020 INT 45<\/p>\n

CN:- 31\/13 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Etwaroo Buldee Plaintiff v\/s 1. Suttyadeo Ramdani 2. Bunsylall Kallychurn Defendants JUDGEMENT In the proecipe dated 09 January 2013, the plaintiff is averring that he is the owner of a portion of land formed by three contiguous plots of land as more fully described in the proecipe, situate at Ripailles, St Pierre and that the defendants are each owner and\/or occupier of a plot of land adjoining the land belonging to the plaintiff. It has further been averred that as per the survey report of Sworn Land Surveyor (SLS) Roopun – Defendant no. 1 has illegally, unlawfully and without any right, title or capacity, caused (i) a garage made up of corrugated iron sheets, (ii) a concrete garage, (iii) part of a concrete residential building, for which defendant no. 1 is not the holder of any building permit and (iv) part of a block wall to be encroached on plaintiff\u2019s plot of land and has left a window which gives a \u2018vue directe\u2019 onto plaintiff\u2019s property thus breaching the plaintiff\u2019s right to private life and that of his family. – Defendant no. 2 has caused vegetable plantations to be encroached on plaintiff\u2019s plot of land.<\/p>\n

Both defendants have amicably been requested to remove the encroachments but they have failed and neglected to do so and plaintiff is averring that as a result of the defendants\u2019 illegal and unlawful acts and doings, which amount to \u2018fautes\u2019, he has suffered and is still suffering<\/p>\n

2 damages and prejudice which is estimated in the sum of Rs. 450,000 for defendant no. 1 and Rs. 50,000 for defendant no. 2, which both defendants are bound to pay to the plaintiff.<\/p>\n

Plaintiff is therefore praying for an order from this court condemning and ordering:- – defendant no. 1 (a) to remove the encroachments and the window as mentioned earlier, (b) to stop interfering with plaintiff\u2019s quiet and peaceful enjoyment of his plot of land and (c) to pay to the plaintiff the sum of Rs. 450,000 as damages; and – defendant no. 2 (a) to remove the encroachments, (b) to stop interfering with plaintiff\u2019s quiet and peaceful enjoyment of his plot of land and (c) to pay to the plaintiff the sum of Rs. 50,000 as damages. Prayers (a) and (b) are not insisted upon in view of the fact that the encroachment as averred has stopped. With costs.<\/p>\n

In his plea, defendant no. 1 has denied having encroached on the land of the plaintiff and has put the plaintiff to the proof thereof. He has averred that the survey report of SLS Roopun is not signed by all interested parties and the land surveyor, nor is it registered in accordance with the provisions of the law and is therefore null and void to all effects, intents and purposes. It has further been averred that in any event \u201cthe survey cannot support the averments of encroachment in as much as the alleged encroachment, if any, represent buildings which existed for more than 30 years and when the portion of land acquired by the plaintiff were bare land. If ever the Honourable Court finds that there has indeed been encroachment (a fact which is denied), the Defendant no. 1 avers that he and his vendor had already prescribed the encroached part by means of acquisitive prescription for having occupied same for more than 30 years with all the requisites of acquisitive prescription.\u201d As far as the averment of \u201cvue directe\u201d is concerned, the defendant has admitted that there is a window along the side of the building but has averred that the said window is found at a distance of more than six feet from the plaintiff\u2019s property and therefore does not constitute a \u2018vue directe\u2019 in law.\u201d The defendant no.1 has thus denied having committed any faute for which he is liable for damages in the sum claimed or in any sum whatsoever and therefore moved that the present action be dismissed.<\/p>\n

Defendant no. 2 has also denied the averments in the plaint in his plea and has averred that he is not the owner of the portion of land adjoining the land of the plaintiff. He has therefore moved that the plaint be dismissed with costs. He did not adduce any evidence in court.<\/p>\n

As for the plaintiff and defendant no. 1, they both adduced evidence in court.<\/p>\n

I have duly considered all the evidence on record as well as submissions of learned counsels. I do not propose to reproduce such evidence in the present judgement as it consists of numerous pages.<\/p>\n

Analysis The plaintiff is relying heavily on the report of SLS Roopun to establish the extent of encroachment by each of the defendants. Such report is however being challenged by counsel for defendant no.1 who submitted that the report cannot be relied upon as it has been drafted in breach of the provisions of the Land Surveyors Act, which was the operative law at the time the survey was effected, and thus for all intents and purposes the report is null and void. He further submitted that the report that has been produced in court is dated the 08.07.2014 whereas in the plaint which is dated the 09 January 2013, a full description of the encroachments has been given and it has further been averred that such encroachments are evidenced in a report signed by SLS Roopun. The date of the report being subsequent to the date of the plaint, counsel submitted that the report should not be acted upon.<\/p>\n

Counsel for the plaintiff submitted that the survey was done in March 2011 and whatever has been found by Mr. Roopun has been couched in the plaint with summons and thereafter Mr. Roopun produced his report which is thus dated the 08.07.14. He submitted that the report is valid.<\/p>\n

I have gone through the evidence on record. SLS Roopun was neither examined nor cross examined regarding the discrepancy in the date of his report. His evidence, in a gist, reveals that on the 08 April 2011, he went on locus for a site visit so that he could prepare a location plan. Thereafter he prepared a notice to attend survey which were sent on the neighbouring owners mentioned in his report, that is Mr Vishwamitra Saddochurn, Mr Suttyadeo Ramdani, Mr. Bunsylall Kallychurn, Mr. Mohiputh Kallotee, and afterwards Mr. Rajesh Kumar Kallychurn and the survey was presumably closed on the 03 April 2014. It is worth noting that a copy of the summons which were served on the parties were not produced in court. SLS Roopun further testified that he went on site on different occasions for the survey and that on all occasions the above named persons were present. Following the survey, he has put up a report containing his findings and the report is dated 08.07.14. Same was produced in court.<\/p>\n

4 I have perused the report and I have noted a few discrepancies in the report and in the testimony of SLS Roopun. The report shows that SLS Roopun went on site on three occasions. In court he stated that all parties were present on all occasions. I however find that this statement of SLS Roopun does not reflect the truth since Mr Rajesh Kumar Kallychurn could not have been present on all three occasions since he was only summons in March 2014 to attend survey. Therefore he could not be present on the previous dates mentioned in the report.<\/p>\n

In addition to the above, I note that the summons to attend survey that was served on Mr Rajesh Kumar Kallychurn was issued after that the defendant no. 2 had filed his plea where he has averred that he is not the owner of the portion of land. This tend to show that it was only after taking cognizance of the averments of defendant no 2 in his plea that SLS Roopun was made to reconsider his survey and his report, and thus a further survey was carried out on the 03 April 2014. I find that that it was most improper to do so and that the court ought to have been made aware of same.<\/p>\n

From the pleadings, it is indeed a fact that there is full description of the encroachments in the plaint and same has been couched in the exact terms as is provided in the report dated 08.07.14 except as regards Defendant no. 2, who has not been described as the owner of the land in the report. I pause here to highlight that in the original report of SLS Roopun, defendant must have been described as being the owner of the plot of land which is in fact owned by Rajesh Kumar Kallychurn and this is why presumably defendant no.2 has been described as the owner of the land in the plaint. It is further of note that in his plea defendant no. 2 has averred that \u201c\u2026as at the date of the report drawn up by SLS S Roopun, he was no longer the owner of the portion of land mentioned therein.\u201d It is also a fact that the SLS report was made available for inspection to the defendants well before their pleas were lodged (vide Answer 4 of the Answer to Particular dated the 16 May 2013) and that the defendants prepared their plea on the basis of such report. Bearing in mind all the above, the only irresistible conclusion that may be drawn in the circumstances is that there was an original report which had been prepared and on which the plaintiff relied when the plaint was lodged and that such report was ultimately amended in order to meet the requirements of the law and the court was misled and made to believe that such report was dated the 08.07.14 when in truth the report ought to have been dated prior to the 16 May 2013 \u2013 the date that appears on the answer to particulars.<\/p>\n

5 Apart from the above, I also note from the report that some adjoining owners have not been summoned at all to attend the survey and to produce their title deeds. Indeed, in the report, the property of the plaintiff is described as follows:<\/p>\n

\u201cThe said three portions of land was found to be of a total extent of FOUR THOUSAND ONE HUNDRED AND NINETY SIX AND FIFTY HUNDREDTH SQUARE METRES (4196.50 m\u00b2)[PIN 18120202532, PCR18268\/2014] and [PIN1812020425 PCR 18269\/2014] as per my survey operations and bounded as follows:-<\/p>\n

On the first side, by pavement along Ripailles \u2013 Nicoliere (B-49) on a length of seventeen metres and eighty centimetres (17.86 m)<\/p>\n

On the second side, partly by the property occupied by Mr. Viswamitra SADDOCHURN, on a line broken into two parts measuring respectively fifty seven metres and twenty two centimetres (57.22 m) and seventeen metres and eighty three centimetres (17.83 m) and partly by the property belonging to Mr. Rajesh Kumar KALLYCHURN and partly by the property belonging to Mr. Mohiputh KALLOTTEE, on a total length of fifty eight metres and fourteen centimetres (58.14 m)<\/p>\n

On the third side, by a common road of 3.90 m wide, on a developed line measuring fifty four metres and sixty nine centimetres (Dev: 54.69 m).<\/p>\n

On the fourth and last side, partly by Sundry owners, on a length of fifty seven metres and fifty four centimetres (57.54 m), partly by the property belonging to Mr. Suttyadeo RAMDANI, on a length of seventeen metres and eighty six centimetres (17.86 m) and partly by the property belonging to the same Suttyadeo RAMDANI and Mrs. Ww. Mitradeo RAMDANI and ors, on a total length of fifty seven metres and twenty two centimetres (57.22 m).\u201d<\/p>\n

It follows from the above that apart from the adjoining neighbourgs who had duly been summoned to attend the survey as stated by SLS Roopun, the plaintiff also had as adjoining neighbourgs \u201cSundry Owners\u201d, whose names have not been disclosed in the report and who were not summoned to attend the survey and to produce their title deeds were not considered by SLS Roopun when he effected the survey as provided in law. This tend to show that SLS Roopun did not carry out a proper ground work before effecting the survey. Had it been the case, all adjoining owners would have been summoned for the survey and he would have noted<\/p>\n

6 at the outset that defendant no. 2 was not an adjoining owner. It would seem that it was only after that defendant no. 2 had filed his plea that he became aware that the latter was not the owner of the land in lite.<\/p>\n

Now under section 9 of the Cadastral Survey Act which has been repealed and replaced section 9 of the Land Surveyors Act, no land surveyor shall for any other purpose survey a plot of land which adjoins the property of another person, unless the owner of the adjoining property is present at the survey or has consented in writing to the survey being made in his absence, or upon proof that the owner has been summoned to attend the survey.<\/p>\n

It is to be noted that the Cadastral Survey Act has repealed certain provisions of the Land Surveyors Act. Some of those provisions have been replaced by new provisions in the Cadastral Survey Act while others were not. The section of the law which is of interest to us is section 11(6) of the Land Surveyors Act which has been repealed by the new law.<\/p>\n

Under section 11(6) \u201cWhere a land surveyor has contravened section 9 or 10 or any provision of this section, the memorandum of survey shall be null and void.\u201d In light of such provisions of the law, I find that if the report had been governed by the Land Surveyors Act, the report of SLS Roopun would have been null and void for non-compliance with section 9 of the Land Surveyors Act. However, under the new law the validity of an SLS report is left to the discretion of the court.<\/p>\n

In the case of Roopnarain G A v Roopah P K [2011 SCJ 210] the Learned Judge explained that \u201cThe rationale behind section 11 (6) of the Act rendering the survey void on account of the non-compliance of section 9 is in conformity with the provision of our Constitution regarding the protection of the fundamental rights of the individual from the deprivation of property. It must not be overlooked that the purpose of having one\u2019s land surveyed is precisely to know the exact extent of one\u2019s property, no more and no less. To be able to know that, the fixing of the boundaries is necessary to demarcate one\u2019s property from those of the contiguous owners. It is in that spirit that the law makes it incumbent on a land surveyor to make sure that the adjoining neighbours, if any, are present at the survey, irrespective of whether there is a dispute between any one of them regarding his boundary and the owner of the land which is being surveyed.\u201d<\/p>\n

I am of the view that the same rationale would apply as far as non-compliance of section 9 of the Cadastral Survey Act is concerned. Taking the evidence as a whole therefore and bearing in<\/p>\n

7 mind the disturbing factors in the report of SLS Roopun, as highlighted above, this court finds that the veracity of the report of SLS Roopun is doubtful and that the report cannot be relied upon.<\/p>\n

Now the evidence on record also shows that despite his averments in the plea, defendant no. 1 conceded in court that he may have encroached on the land of the plaintiff. He however claimed that the encroachments date back to more than 30 years back such that he had acquired the encroached part by means of acquisitive prescription.<\/p>\n

Under Article 2219-1 of the Code Civil Mauricien (CCM), \u201cLa prescription acquisitive est un moyen d'acqu\u00e9rir la propri\u00e9t\u00e9 ou ses d\u00e9membrements par l'effet de la possession.\u201d<\/p>\n

However, Article 2229 CCM specifies that \u201cPour pouvoir prescrire, il faut une possession continue et non interrompue, paisible, publique, non \u00e9quivoque, et \u00e0 titre de propri\u00e9taire. Pour prescrire en mati\u00e8re immobili\u00e8re, la possession doit, en outre, pr\u00e9senter un caract\u00e8re apparent, manifest\u00e9 par des signes mat\u00e9riels ext\u00e9rieurs, tels qu'une construction, un mur b\u00e2ti servant de cl\u00f4ture, des plantations.\u201d<\/p>\n

In order to succeed in his defence therefore, the defendant had to establish that all the conditions under article 2229 al 1 had been met. However, I find that the defendant was unable to establish the above before this court.<\/p>\n

It is trite law that to plead acquisitive prescription, one must have been in possession knowingly that is he must have occupied the land knowing that the land did not belong to him.<\/p>\n

Indeed, in the case of Soci\u00e9t\u00e9 Civile Kamlaville v. Marie Joseph Paul Harel [2003 SCJ 209], the court highlighted that<\/p>\n

\u201cLaw requires an \u201canimus\u201d in a process for prescription. If a possessor sincerely but mistakenly believes that he is possessed of a property, he lacks the \u201canimus\u201d required for acquisitive prescription and the time does not start running until he becomes aware.\u201d<\/p>\n

At Paragraph 29, Rep Civ. Dalloz, Vo \u201cPrescription Acquisitive\u201d, one can read as follows: \u201cLa possession est l\u2019exercice paisible, public et non equivoque d\u2019un droit par celui qui, alors m\u00eame qu\u2019il n\u2019en serait pas titulaire, se comporte, en fait et en intention, comme s\u2019il l\u2019\u00e9tait.\u201d<\/p>\n

8 In the present case the evidence shows that defendant no.1 has at all times claimed his good faith in court. He explained that until his property and that of the plaintiff were surveyed by their respective Sworn Land Surveyor, he always thought that his property extended up to the bamboo hedge that had been planted by the plaintiff and he thought at all times that he was on his own property. He was not aware that he was encroaching on the land of the plaintiff. Given the nature of the evidence on record, this court finds the defendant no.1 has failed to establish that he had \u201canimus\u201d that is required in the process of an acquisitive prescription. For such reasons therefore, this court finds that the defence raised by defendant no.1 cannot succeed.<\/p>\n

Bearing in mind that there is an admission on part of the defendant no. 1 that he has encroached on the land of the plaintiff and that ex facie the pleadings the plaintiff appears to have an arguable case, I find that the best course to take in the given circumstances is to non- suit the plaintiff so that he is given the opportunity to come anew with the present case with a valid SLS report if he so wishes. I therefore invite the plaintiff to choose for a non suit or for a dismissal of the plaint.<\/p>\n

As for defendant no. 2, I find that the later has been described as the owner of the property in lite whereas it is clear from the evidence on record that such is not the case. Indeed SLS Roopun conceded in cross examination that the defendant no. 2 was not the owner of the portion of land bearing the vegetable plantation which had encroached over the land of the plaintiff and that as per his report, it was one Rajesh Kumar Kallychurn who caused the vegetable plantation to encroach over the land of the plaintiff. The witness further conceded that his report makes no reference of defendant no. 2 regarding the alleged encroachment but he highlighted that defendant no. 2 was present on site at the time he made the survey and that the latter told him that he was the one who was cultivating the vegetables in question. He agreed that he however did not make mention of such fact in his report. In the circumstances, I find that the present action has wrongly been entered against defendant no. 2 and the plaint is accordingly dismissed against him.<\/p>\n

I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 25 February 2020<\/p>\n<\/div>\n

\n

Sources officielles :<\/strong> consulter la page source<\/a> · PDF officiel<\/a><\/p>\n

Supreme Court of Mauritius – public domain<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

1 ETWAROO BULDEE V SUTTYADEO RAMDANI AND ANOR 2020 INT 45 CN:- 31\/13 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Etwaroo Buldee Plaintiff v\/s 1. Suttyadeo Ramdani 2. Bunsylall Kallychurn Defendants JUDGEMENT In the proecipe dated 09 January 2013, the plaintiff is averring that he is the owner of a portion of land formed by three…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":[],"kji_country":[92666],"kji_court":[92667],"kji_chamber":[127448],"kji_year":[41198],"kji_subject":[7646],"kji_keyword":[130301,106169,8457,15757,15594],"kji_language":[7611],"class_list":["post-1059796","kji_decision","type-kji_decision","status-publish","hentry","kji_country-maurice","kji_court-supreme-court-of-mauritius","kji_chamber-mrs-i-dookhy-rambarun-magistrate-intermediate-court","kji_year-41198","kji_subject-divers","kji_keyword-buldee","kji_keyword-etwaroo","kji_keyword-fevrier","kji_keyword-mauritius","kji_keyword-supreme","kji_language-anglais"],"yoast_head":"\nSupreme Court of Mauritius, 25 f\u00e9vrier 2020, 2020 INT 45 - ETWAROO BULDEE V SUTTYADEO RAMDANI AND ANOR - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-25-fevrier-2020-2020-int-45-etwaroo-buldee-v-suttyadeo-ramdani-and-anor\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Supreme Court of Mauritius, 25 f\u00e9vrier 2020, 2020 INT 45 - ETWAROO BULDEE V SUTTYADEO RAMDANI AND ANOR\" \/>\n<meta property=\"og:description\" content=\"1 ETWAROO BULDEE V SUTTYADEO RAMDANI AND ANOR 2020 INT 45 CN:- 31\/13 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Etwaroo Buldee Plaintiff v\/s 1. 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Suttyadeo Ramdani 2. Bunsylall Kallychurn Defendants JUDGEMENT In the proecipe dated 09 January 2013, the plaintiff is averring that he is the owner of a portion of land formed by three...","og_url":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-25-fevrier-2020-2020-int-45-etwaroo-buldee-v-suttyadeo-ramdani-and-anor\/","og_site_name":"Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris","twitter_card":"summary_large_image","twitter_misc":{"Est. reading time":"17 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"WebPage","@id":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-25-fevrier-2020-2020-int-45-etwaroo-buldee-v-suttyadeo-ramdani-and-anor\/","url":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-25-fevrier-2020-2020-int-45-etwaroo-buldee-v-suttyadeo-ramdani-and-anor\/","name":"Supreme Court of Mauritius, 25 f\u00e9vrier 2020, 2020 INT 45 - ETWAROO BULDEE V SUTTYADEO RAMDANI AND ANOR - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris","isPartOf":{"@id":"https:\/\/kohenavocats.com\/en\/#website"},"datePublished":"2026-06-07T17:21:30+00:00","breadcrumb":{"@id":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-25-fevrier-2020-2020-int-45-etwaroo-buldee-v-suttyadeo-ramdani-and-anor\/#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-25-fevrier-2020-2020-int-45-etwaroo-buldee-v-suttyadeo-ramdani-and-anor\/"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-25-fevrier-2020-2020-int-45-etwaroo-buldee-v-suttyadeo-ramdani-and-anor\/#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/kohenavocats.com\/en\/criminal-law-attorneys-in-paris-counsel-and-strategic-defense\/"},{"@type":"ListItem","position":2,"name":"Jurisprudences","item":"https:\/\/kohenavocats.com\/en\/jurisprudences\/"},{"@type":"ListItem","position":3,"name":"Supreme Court of Mauritius, 25 f\u00e9vrier 2020, 2020 INT 45 – ETWAROO BULDEE V SUTTYADEO RAMDANI AND ANOR"}]},{"@type":"WebSite","@id":"https:\/\/kohenavocats.com\/en\/#website","url":"https:\/\/kohenavocats.com\/en\/","name":"Kohen Avocats","description":"Ma\u00eetre Hassan Kohen, avocat p\u00e9naliste \u00e0 Paris, intervient exclusivement en droit p\u00e9nal pour la d\u00e9fense des particuliers, notamment en mati\u00e8re d\u2019accusations de viol. 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