ABOO DIL HOSSAIN v MR SHEIK FAROOK BOODHOO & ANOR

2017 SCJ 142

Record No. 74281

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

Aboo Dil Hossain

Plaintiff

1. Mr Sheik Farook Boodhoo

2. Mrs Sheik Farook Boodhoo

Defendants
JUDGMENT

After judgment had initially been reserved in the present case, the plaintiff passed away
and the case was mentioned before me in that connection, at the request of Attorney for the
defendants, on 23 September 2014. Subsequently, after Mr J. Tsang Mang Kin, Counsel for the
plaintiff, had filed an affidavit of succession and a dépot de procuration in respect of the heirs of
the plaintiff, the question arose whether it was necessary that a suggestion of record be effected
for me to proceed to judgment. In an interlocutory judgment dated 20 March 2015, I held,
upholding Mr Tsang Mang Kin’s contention and rejecting that of Mr Toorbuth, that the answer
was, in the light of the authorities cited, in the negative. Judgment accordingly stood reserved
on the merits of the case and is now being delivered.

In an amended plaint with summons, the plaintiff has averred that:-

(1) he is the owner of a plot of land situate at Chemin Sottise, Grand Baie
as per title deed transcribed in TV No. 1230 No. 69;

(2) in a letter dated 1989 his sister, the defendant No. 2, “stated that the
plaintiff remitted to the defendants a sum of Rs 200,000 to construct a
ground floor building to be used as a store” on the land mentioned
above;
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(3) the defendants (defendant No. 1 being the husband of defendant No. 2
and therefore plaintiff’s brother in law) have, without the plaintiff’s
consent or authorisation, caused an additional storey to be built on the
said property and put that storey to residential use;

(4) he is the owner of the plot of land as well as the ground floor of the
building standing thereon as it was erected with his monies.

On the basis of the above averments, the plaintiff has prayed for a judgment -

(a) declaring and decreeing that he is the owner of the building standing on the land
owned by him at Chemin Sottise, Grand Baie as per title deed transcribed in TV No.
1230 No. 69;

(b) ordering the defendants to vacate the said land “and the ground floor immoveable
property standing thereon within a delay to be fixed by Court”;

(c) in the alternative, “should the Court find that the defendants have contributed to the
construction of the ground floor building (the store),” fixing the indemnity to be paid
by the plaintiff to the defendants;

(d) ordering the defendants to pay to him Rs 1 million as damages.

In their amended plea, the defendants have admitted that the plaintiff is the owner of the
said land, but denied that the plaintiff remitted to them Rs 200,000 for the construction of the
ground floor to be used as a store and averred that “the plaintiff was aware that a one storey
building was intended to be built on the land in lite” and that “the ground floor was meant to be
used as a store for the sale of vehicle parts and accessories and the first floor to be used for
residential purposes.” They have further averred that in fact the ground floor was being used for
the sale of spare parts for motor vehicles and the first floor was being used by them for
residential purposes. They have also averred that the plaintiff in fact authorized them “to put up
their building” on the land in lite and that the building has been built with funds belonging to
them. They accordingly claim that they are entitled to a “droit de superficie and/or rétention” on
the land in lite.
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The defendants have also attached to their amended plea a counterclaim in which they
pray for a judgment -

(a) declaring and decreeing that they are the lawful owners of the building for having
erected it with their own funds and “au vu et au su” of the plaintiff;

(b) declaring and decreeing that they have a droit de superficie and/or rétention on
the land;

(c) ordering the plaintiff to pay to them the sum of Rs 2.5 million on the ground of
faute for having made baseless and unfounded averments in his plaint.

As per the plaintiff’s reply to the defendants’ amended plea and his plea to the
defendants’ counterclaim, he remitted to the defendants a sum of Rs 200,000 to construct a
ground floor building to be used as a store on the land. At that time, the defendant No. 1 was
acting as plaintiff’s agent in the retailing of motor vehicle spare parts that the plaintiff was
shipping from the U.K. It was agreed between the plaintiff and the defendants that the store
consisting of a ground floor only would be built on the plaintiff’s land and that the costs of putting
it up would not exceed Rs 200,000. The defendants, however, exceeded their mandate and,
without the plaintiff’s authorisation or consent, caused an additional storey to be built on the land
and put that storey to residential use. The plaintiff therefore maintains that the defendants are
not entitled to any droit de superficie and/or retention on the land in lite.

In examination in chief, the plaintiff stated that he provided the Rs 200,000 for the
construction of the store by authorising the defendants to use that sum from his fund which was
in their possession. In that connection he has relied on a letter written to him by the defendant
No. 2. That letter has been produced as Document A. While the defendant No. 2 was examined
on her personal answers, she admitted having written that letter. In my view, that letter contains
an implied admission that the plaintiff did provide Rs 200,000 for the construction of the building,
although it also contains a contention that more money, which she had had to disburse, had
gone into the construction of the building and the erection of a fence around it. The words “pas
ou 200,000 fin couté, mo l’argent aussi fine allé, arrange batiment, met barrage 3 coté, faire
l’entourage devant” are telling in that connection. I accordingly reject the contention of the
defendants that the plaintiff did not provide Rs 200,000 for the construction of the store and
accept as true the plaintiff’s testimony that he did provide that sum of money for that purpose as
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opposed to the defendant No. 1’s testimony that he built the ground floor out of his own monies.
I further accept as true the plaintiff’s testimony that the store had to be built with the Rs 200,000
provided by him and conclude that the defendants have not established a créance on the part of
the plaintiff in respect of any further expenses incurred in relation to the ground floor.

The next question I have to address is whether the plaintiff did authorise the defendants
to build a storey on the store. The defendants rely, in that connection, on document F5, which
was produced by Mr Girish Goburdhun, one of the witnesses called by the plaintiff. Witness
Goburdhun, an assistant Building Inspector representing the relevant District Council, produced
the development permit (Document F) dated 25 May 1990 and delivered to the defendant No. 1
in respect of the “construction of a reinforced concrete building to be used as a store for the
sales of motor vehicles spare parts and accessories on ground floor and for residential purpose
on first floor”. Document F5 produced by witness Goburdhun was a consent letter dated 22
February 1989. This consent letter, signed by the plaintiff reads as follows:

“Je soussigné Aboo Dil Hossain demeurant à Grand Baie déclare par ces
présents autoriser mon beau-frère Sheik Farook Boodhoo de construire
son batiment sur mon terrain de la contenance de 0 A 33 ¼ sis dans le
district de Rivière du Rempart lieu dit Grand Baie m’appartenant suivant
titre tennant au volume 1230 No. 69"

(emphasis added)

In evidence, the plaintiff has admitted having signed that letter which had already been
typed and sent to him in England. In view of the wording of that letter, I cannot accept the
plaintiff’s explanation in evidence that the purpose of the authorisation was solely to build the
store for which he had provided money. On the other hand I am more inclined to accept the
testimony of the defendant No. 1 that authorisation was also verbally given by the plaintiff for the
construction of the first floor as defendant No. 1’s residence.

Under cross-examination, the plaintiff came up with a contention that he had revoked the
authorisation given in Doc. F5 “as soon as it was granted”. That revocation was, to his mind,
contained in Document H, which he had produced in examination-in-chief. However, the
evidence of the plaintiff on that issue was far from convincing. In examination-in-chief this letter
had not been put forward as a letter of revocation of authorisation to construct and, in my view,
that letter could not be read as conveying such revocation. Besides the defendant No. 1
maintained, under cross-examination, that he did not receive that letter and the plaintiff did not
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establish that this letter had been received by the defendants. It is therefore my finding that
there was no effective revocation of the authorisation to construct.

It has been submitted by Counsel for the plaintiff that it was capital from the plaintiff and
profits thereon which were used to finance the construction of the building as the defendants
had no other source of financing. However, the defendant No. 1 has, in cross-examination,
testified to the effect that he sent money to the plaintiff in connection with spare parts sent by
him from England to Mauritius. According to the evidence of the defendant No. 1, he sent the
money for the spare parts to the plaintiff through the Bank of Mauritius, through the plaintiff’s
friends and also through the defendant No. 2 who travelled thrice to England and remitted
substantial amounts of money to the plaintiff. Defendant No. 1 admitted that spare parts were
first sent by the plaintiff in boxes and later in containers, but he pointed out, in that connection:
“Tant mo pas envoie li so cash, mo pas envoie labas, li pa metter meme dans container”.
Although the defendant No. 1 was unable to provide details which he said he had forgotten, his
evidence stands uncontradicted on that issue. Also, the defendant No. 1 upon being cross-
examined as to his sources for the funding of the construction did testify, under cross-
examination, in the following terms: “Goodlands mo ti aina aine ti terrain, mo ine vendre ça, mo
madame ti aina demi arpent, mo ine vendre ça. Mone plante pomme d’amour, mo ine prend
dette la banque”. It is to be noted that in his pleadings, the plaintiff, whilst denying that he had
authorised the defendants to erect the first floor, at no time averred that it had been built with his
money, and that, in examination-in-chief, he only said he believed that this was so. The
endeavours of Counsel for the plaintiff, in his cross-examination of the defendant No. 1, and in
his submissions, to show that the defendants did not have the means to build the first floor and
must have used money from the profits generated by the joint business with the plaintiff, have
not succeeded, in my view, in discharging the burden of the plaintiff to prove his allegation, not
to say his belief.

I accordingly conclude that the defendants, who applied for the relevant building permit
and built, on the strength thereof and following the authorisation of the plaintiff a first floor on top
of the ground floor, must be presumed to have financed the construction of that first floor.

In the circumstances, I hold that the defendants have a droit de rétention in respect of
the value of the first floor. According to witness I. Dhonye the value of the ground and first floor
together as at January 2010, when the witness gave evidence, would be Rs 2.2 million. The
witness did not give separate figures for the ground and first floor respectively. He only indicated
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that the rate for calculating the value of the building as at January 2010, when he was deponing,
would be “around 600 to 750 rupees per square foot”. The best way to calculate the value of the
first floor, based on the figures in witness Dhonye’s report, appears to me in the circumstances
to be as follows:

Total area of ground and first floor: 3888 (1533 + [2048 + 307] ) sq feet

Value per square foot: Rs 565.84 (Rs 2.2 million divided by 3888)

Value of first floor: Rs 1,332,553 (Rs 565.84 x 2355)

I conclude that the defendants in the main case who have, with the plaintiff’s
authorisation, built the first floor of the building in lite, have a droit de rétention over the land of
the plaintiff until the sum of Rs 1,332,553, representing the value of that storey, is paid to them.

In the light of my findings of fact, I also conclude that the defendants, by erecting the first
floor with the consent of the owner, have become the owners thereof and acquired a “sorte de
concession de droit de superficie temporaire” in respect of that floor: see Bonarien v Loloth
[1998 MR 26] and Lee Baw & Anor v Culliah [2005 SCJ 206].

I pause here to remark that, as revealed by the evidence, a further floor, not mentioned
in the pleadings, has been found to have been added on top of the first floor. That floor, referred
to as the “second floor”, is mentioned in the report of witness Imran Dhonye, a valuation
surveyor and property valuer called by the defendants. And the defendant No. 1 has, under
cross-examination, admitted having added that second floor without obtaining the relevant
permit. As no issue has been raised in the pleadings in connection with the second floor, either
in the context of the droit de rétention and the droit de superfice claimed by the defendants or of
the ownership of that floor, I shall refrain from making any pronouncement in relation to that
floor.

In the light of my above conclusions, I determine the main case and counterclaim,
respectively, as follows:

(1) I hold that the plaintiff, the owner of the land in lite, is also the owner of
the ground floor of the building standing on that land. However, as it
has not been established by the plaintiff in evidence that it is practicable
for the defendants to vacate the ground floor having regard to their
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occupation of the first floor, I refrain from making an order that the
defendants should vacate the ground floor.

(2) I hold, in relation to the plea of the defendants in the main case and
their counterclaim, that they are the owners of the first floor of the
building in lite and declare that they have in that respect a droit de
rétention and a droit de superficie temporaire on the plaintiff’s land, as
referred to above.

(3) I do not accede to the other prayers contained in the amended plaint
with summons and counterclaim. In particular, having regard to the
evidence on record and to all the circumstances of the case, I decline to
make any award of damages to either the plaintiff or the defendants,
and also make no order as to costs.

E. Balancy
Senior Puisne Judge

27th April 2017

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For plaintiff : Mr S. Baichoo, Attorney-at-Law

Mr J. Tsang Mang Kin of Counsel

For Defendants : Mrs S. Bundhun-Cheetoo, Attorney-at-Law

Mr S. Toorbuth, of Counsel