FERNANDO et al v. MOHAMADU SAIBO et al.

FERNANDO et al v. MOHAMADU SAIBO et al.

D. C., Chilaw, 1,632.

 

Partition suit-Ordinance No. 10 of. 863-Denial of plaintiff's title in toto -Denial of plaintiff's possession-Propriety of action for partition.

Where plaintiffs alleged common possession and common title with defendants and subsequent ouster by defendants, but defendants claimed the whole land as their own and pleaded that an action for partition was not open to the plaintiffs until they established their title in a separate action-

Held, it was irregular to reject the prayer for partition and to order the case to proceed as an action for declaration of title.

Per Lawrie, A.C.J.,-Neither the fact that the title of plaintiff or defendant is denied, nor the fact that neither plaintiffs nor defendants are in possession, is a good objection to an action for partition.

The Court must in all cases of partition carefully investigate all titles, and must refuse to make title on admissions or insufficient proof.

Perera v. Perera (2 N. L. R. 370) considered and explained.

THE plaintiffs in this case claiming to be the owners of three-fourths of a certain garden, paddy field, and tank called Sangattotam, by virtue of purchases made at Fiscal's sales in 1871 and 1882, and admitting the defendants to be the owners of the remaining one-fourth share, complained that the defendants had since the month of April, 1896, kept forcible possession of the whole of the said garden, paddy field and tank, to the exclusion of plaintiffs, and had taken and appropriated to themselves all the produce there from. They prayed for a declaration of title in their favour to an undivided three-fourths of the lands; that a fair and equitable division be made of the said premises; and that plaintiff's three-fourths share be partitioned off and separated from the share of the defendants.

Defendants claimed the whole land, but before answering to, the merits took the objection that, on the face of the plaint, plaintiff appeared not to be in possession of any portion of the land in dispute, and the plaintiffs were not entitled to maintain this action for partition until they proved title thereto in a separate action.

The District Judge rejected the prayer for partition, but ordered, the case to proceed as an action for declaration of title.

Plaintiffs appealed. Wendt, for appellant.

Dornhorst, for defendants, respondent.

Cur. adv. vult.

The Supreme Court set aside the order of the District Judge, and remitted the case to the lower Court for investigation of the

title of all the parties, under section 4 of the Partition Ordinance, and for proceeding thereafter in due course according to law.

5th May, 1899. Lawrie, A.C.J.-

The learned District Judge has refused to allow this action to proceed as a partition suit, relying on the judgment in the case of Perera v. Perera, D. C., Kalutara, 1,567, pronounced by me and concurred in by my brother Withers on 27th July, 1897, reported in 2 N. L. R. p. 370.

We have been asked to reconsider that judgment, and after careful consideration I recommend that the record be sent back for investigation of the titles of parties and procedure under the Ordinance No. 10 of 1863.

The earliest Partition Ordinance was No. 21 of 1844, sections 10-18. That Ordinance enacted that, when any landed property shall belong in common to two or more owners, it shall be competent to any one of such owners to compel a partition.

In a Galle case, D. C, Galle, 134 (reported Ram. 1843-55, p. 140), this Court in 1848 held that the sections 10, 11, and 12 of the Ordinance No. 21 of 1844 made no provision for the case of a disputed ownership nor contemplated such an event, and if such a case arises the parties must settle their rights by an action at law; in another case from Galle D. C, 152, Buller v. Koelman, 11th October, 1848 (reported Ram. 1843-55, p. 148), this Court more fully discussed t

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