Supreme Court of Mauritius, 6 mars 2020, 2020 INT 49 – Motah L. v Langut S. & Anor.

1 Motah L. v Langut S. & Anor.

2020 INT 49

Cause Number 1422/11

IN THE INTERMEDIATE COURT OF MAURITIUS

In the matter of:

Lopwattee Motah Plaintiff

v.

1. Mr. Sureeya Langut 2. Mrs. Anitadevi Langut

Defendants

Judgment

The averments of the Plaintiff in this Plaint with Summons are reproduced below: 1. Plaintiff is the owner of a concrete house under slab of about 36 square metres composed of one bedroom, a small kitchen, bathroom/toilet, being Lot No. D 10 situate in the residential complex known as Residence Brise de Mer II in the District of Savanne, place called Souillac the whole more fully described in deed duly registered and transcribed in Vol. 2543 No.3. 2. Plaintiff avers that the residential complex ‘comprend un total de 42 maisons reparti en vingt et un blocs identiques de deux maisons chacun (chaque

2 maison etant accolee l’une a l’autre et separee par un mur commun et mitoyen et que chaque bloc de deux maisons a une dale commune.’ 3. Defendants are the owners of Lot No. D 09 found in the said residential complex. 4. Plaintiff avers that Lot Nos. D 10 and D 09 form one of the 21 blocks as described in paragraph 2 above. 5. Plaintiff further avers that Lot Nos. D10 and D09 are separated by metallic fencing in front and at the rear. 6. Plaintiff also avers that the Defendants have illegally, unlawfully and without having obtained the required permit from the local Authority caused a wall to be constructed of about ten feet high at the rear of his premises and have further caused extension in concrete under slab to be made to their house in front. 7. Plaintiff avers that such illegal construction is causing great prejudice to her and is contrary to ‘Titre IV-Servitude et Conditions Generales’ set out in the deed of acquisition. 8. Plaintiff avers that by the acts and doings of the Defendants which constitute “faute” she has suffered damages and prejudice which she values at the sum of Rs.300, 000/, which sum the Defendants are bound in law jointly and in solido to make good to her. 9. Plaintiff avers that although often times amicably requested to pull down the concrete wall at the rear, to remove the addition made in front and to reset the property to its original state the Defendants have so far failed and neglected so to do. 10. Plaintiff therefore humbly prays from this Honourable Court for a judgment condemning and ordering the Defendants jointly and in solido to: (i) pull down the concrete wall at the rear of the premises; (ii) demolish the addition made in front; (iii) replace the metallic fencing in front and at the rear within a delay to be granted by the Court; (iv) pay to her the sum of Rs.300, 000/- as damages WITH COSTS. (v) Should the Defendants fail to comply

3 with the Judgment of the Court, then Plaintiff prays for an order authorizing her to do so at Defendants’ expenses. Defendants, for their part, have denied liability in their plea by averring that the said wall and the said extension under slab were constructed with the Plaintiff’s consent and “au vu et au su” of Plaintiff who did not object to same. At this stage, it is imperative to note that the house of the Plaintiff, Lot No. D 10, and that belonging to the Defendant namely Lot No. D 09 form part of one of the 21 identical blocks of two houses each annexed to each other and separated by a common wall and having a common slab giving a total number of 42 houses forming part of the Residential Complex known as Residence Brise de Mer II at Souillac as averred. Ex facie the averments of the plaint, Plaintiff’s Lot No. D10 has not complied with the 21 identical blocks of two houses given that her house and that of Defendant are not separated by a common wall but by a metallic fencing. Furthermore, it has not been averred that the alleged constructions of the concrete wall and of the extension caused by the laying of the slab are not identical to the other 20 identical blocks of two houses forming part of the Residential Complex and as such they cannot be inferred as being illegal. It is also significant to note that it is not Plaintiff’s contention that Defendants have encroached on her property at all. In the same breath, based on the averments of the plaint itself, the acts and doings of the Defendants to render Lots Nos. D 10 and D 09 identical to the 20 other identical blocks of two houses forming part of the Residential Complex cannot be inferred as being unlawful or illegal or likely to cause prejudice to the Plaintiff. Furthermore, in the same vein, it is abundantly clear that to bring back the two blocks according to the taste of Plaintiff by pulling down the concrete structures so that the said block of two houses be separated by metallic fencing and not by a common wall and one common slab so that it is in an unidentical state with the rest of the 20 blocks of two houses forming part of the Residential Complex cannot be construed as being legal. Now, it cannot also be construed that in relation to all the 42 houses their owners have suffered prejudice because their houses are not separated by metallic fencing and as such the ‘Titre IV-Servitude et Conditions Generales’ set out in the deed of acquisition have been breached in relation to all of them. Obviously, the Court cannot condone an act which is not in conformity with the

4 21 blocks of two houses forming part of the same Residential complex by ordering a pulling down order and monetary compensation to Plaintiff under the guise that the Defendants have committed a faute in the circumstances or that no building permit has been obtained from the local Authority as it will lead to a serious misdirection and moreover, the substance of the present cause of action cannot be based on a mere conjecture – vide Bhuddoo v Hurry [1958 MR 113]. For the reasons given above, the case for the Plaintiff should fail. Accordingly, the plaint is dismissed with costs.

S.D. Bonomally (Mrs.) (Magistrate) 6.3.2020