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BONARIEN C v L.R.

LOLOTH

1998 SCJ 107

1998 MR 26

(107)
RECORD NO. 55911

IN THE SUPREME COURT OF MAURITIUS

In the matter of :-

C. Bonarien
Appellant
versus

L.R. Loloth
Respondent

JUDGMENT

The respondent, a lessee of a plot of State land, had applied to the Judge in
Chambers for a writ of habere facias possessionem to obtain the eviction of the appellant
whom he had allowed to stay in his house situate on the land since 1990.

In her defence, the appellant had claimed in substance that in 1988 she had
been approached by the respondent to live in his house made of wood, after her own
sister had left the house. In 1992, however, she caused the house which was in a
dilapidated state to be pulled down, with the consent and knowledge of the respondent,
and had a concrete building of four rooms built with her own money and that of her
husband. She also produced certain documents on the strength of which the learned
Judge was entitled and right, in our view, to find that the preponderance of evidence lent
colour to her version.

The appellant’s claim that she had two bona fide and serious defences,
namely “a droit de rétention” and “a droit de superficie” in respect of the concrete
building which she had built with the consent and knowledge of the respondent was,
however, set aside by the learned Judge who ordered the writ to issue.

With regard to the defence of “droit de rétention”, the learned Judge was
of the view that the appellant should vacate first the building and then work out the
compensation to which she was entitled in respect of the building. As for the appellant’s
defence of her “droit de superficie”, it was brushed aside on the ground that it had not
been seriously argued.

At the hearing before us, learned Counsel for the respondent conceded
that, on the facts of the present case, the Judge in Chambers had been wrong not to have
found that the appellant had “a droit de rétention” in respect of the building. He,
however, considered that the appellant’s other defence should fail.

Learned Counsel for the appellant, for his part, forcefully argued that the
appellant’s defences should succeed. According to Counsel, if in our example, X is
verbally allowed to build on a piece of land leased or owned by Y, then there can be
reasonably inferred from the permission to build given by Y to X, an agreement or “a
convention particulière” which confers on X a certain right, namely “a droit de
superficie”. Such a right is derived from the agreement or authorisation granted by Y to
X to build.

In other words, the consent given to X by Y to construct on his land is


productive of certain legal consequences and cannot be treated as a mere licence to be
revoked at will by Y or his successor in title.

Moreover, once X has been authorised to build pursuant to an agreement,


oral or otherwise, and does indeed put up a building, he acquires “a droit de rétention” in
respect of that building and cannot be evicted therefrom until he is paid the requisite
compensation to which he is entitled in law.

We shall first deal with the issue of “droit de rétention”. It is settled law
that for such a right to exist, the following four conditions must be met, as stated in
Seeboruth v Ghurburrun [1965 MR 254], Bhatoo v Goburdhun and Anor [1976
MR 301], Sham v Sham [1977 MR 238] and Damoo v Nuseeb [1990 SCJ 149] -

(a) the claimant must have the detention of the property;


(b) there must be a debt of which the claimant is entitled to demand
payment;
(c) the claimant must be of good faith;
(d) there must be a relationship between the debt and the property
detained.

It is to be noted that all four conditions are present here. We need only
underscore the fact that the debt of which the appellant is entitled to demand payment
stems from the verbal agreement she had entered into with the respondent whereby she
was allowed to build on the land leased by the respondent.

It is also settled law that a person who acquires “a droit de rétention”, as


does the appellant, is entitled “de demeurer en possession tant que le propriétaire ne
l’aura pas remboursé du montant des travaux, ou le lui aura pas réglé la plus-value”
vide Juris-Classeur Civil, Art. 553 à 555, PROPRIETE : FASC. F, note 57.

Consequently we hold that the learned Judge in Chambers was wrong not
to have found that the appellant had raised a serious and bona fide defence relating to her
“droit de rétention”.

We turn now to the second defence put forward by the appellant. Until the
decision reached in Jugoo and Anor v Lacharmante and Others [1996 SCJ 299],
where the uncontested facts were, in the words of the Court of Appeal, that the two
appellants were the owners of the land and each of the respondents had been allowed by
the previous owner to build a small house, at different points in time on parts of the land
and to stay therein and so claimed to have a “droit de superficie”, which claim was
accepted by the Judge in Chambers but rejected on appeal, our case-law vindicated the
stand taken by learned Counsel for the appellant on the issue of “droit de superficie”,
which we have indicated already. The two leading cases are Panchoo v Panchoo [1964
MR 131] and Dursun v Dursun and Anor [1982 MR 289] which lay down the
following propositions derived from a decision of the Cour de Cassation of France
reported in Dalloz, Jurisprudence Générale 1891 at page 181 -

“Lorsqu’une construction faite sur le terrain d’autrui l’a été au vu


et au su du propriétaire et sans protestation de sa part, qu’il est au
contraire démontré qu’il y a consenti, il ne peut en exiger la
destruction:

Dans ce cas, son consentement, lorsqu’il est gratuit, ne constitue


pas une donation, ni un abandonnement à un titre quelconque de
la propriété de la parcelle anticipée, mais une convention
particulière qui doit produire effet et qui empêche le propriétaire
d’exiger la démolition des constructions” (the underlining is ours).

It is pertinent to note that this agreement or “convention particulière”


referred to by the Court was not in writing and had “pour objet le droit général de
construire”. Moreover, such an agreement derived from the fact, to revert to our
example, that the owner of the land, Y, had allowed X to build on the land. This is made
clear by the note appended to the decision of the Cour de Cassation at page 181 -

“Le texte (art. 555) laisse donc en dehors de ses prévisions le cas
où celui qui empiête sur le fonds voisin a exécuté ses travaux au vu
et au su du voisin ... Il s’agissait, dès lors, uniquement de
rechercher quelles pouvaient être les conséquences juridiques de
ce fait que le propriétaire avait laissé élever les constructions sur
son propre terrain sans s’y opposer et même en y consentant,
puisqu’il avait déterminé la limite de l’anticipation qu’il
autorisait. Un tel consentement ne saurait rester sans effet .....”
(the emphasis is ours).
The note goes on to explain, as referred to in Dursun, cited already, that -

“Un propriétaire peut parfaitement renoncer au droit d’accession


établi en sa faveur par les art. 552 et 553 c. civ, et conférer ainsi
au constructeur le droit de jouir du terrain tant que les
constructions le couvriront. C’est là une sorte de concession de
droit de superficie temporaire, de servitude qui grève le fonds et
donc il sera affranchi quand le constructeur voudra rebâtir ou se
trouvera dans la nécessité de le faire” (the underlining is again
ours).

It is clear, therefore, that, to come back to our example, X acquires “a


droit de superficie temporaire” over the land of Y at most as long as the construction
which he had built lasts. Such “a droit de superficie” has been acquired by “titre”,
namely the verbal agreement entered into by X and Y whereby X is allowed to build on
the land of Y.

We have said enough to make it clear that, in the light of the principles
enunciated by the Cour de Cassation which hold good more than one hundred years on
and explained in the note referred to earlier, Dursun and Panchoo are still good law. We
consequently hold that Jugoo which misapprehended those principles as well as the note
and purported to overrule those two cases and F. Khodadin v J. Kareemun [1995 SCJ
409] have been wrongly decided. On the facts of the present case, the appellant must
succeed in relation to her defence of “a droit de superficie”, just as the respondents
should have succeeded in Jugoo, in their defence of their “droit de superficie”, the more
so as their allegation that the previous owner of the land authorised them to build houses
thereon was supported by the very existence of those houses which had indeed been built
on the land.
For all the reasons given, the appeal is allowed and we quash the judgment
of the learned Judge and substitute for the order made one dismissing the application with
costs. The respondent is to pay the costs of this appeal.

A.G. PILLAY
CHIEF JUSTICE

P. LAM SHANG LEEN


JUDGE

S. PEEROO
JUDGE

26 March 1998

Judgment delivered by Hon. A.G. Pillay, Chief Justice

For appellant : Mr Attorney S. Dawreeawoo


Mr I. Collendavelloo, Senior Counsel
Mr D. Dawreeawoo, of Counsel

For respondent : Mr Attorney M. Mardemootoo


Mr M. Sauzier, of Counsel