JAYAWARDENA v. WIJEYESINHA et al. ATTORNEY-GENERAL, added Party Defendant.

JAYAWARDENA v. WIJEYESINHA et al.

ATTORNEY-GENERAL, added Party Defendant.

D. C, Chilaw, 788.

 

Procedure-Partition suit-Admission of the Crown into the case as an added defendant-Denied by Attorney-General on behalf of the Crown of plaintiffs and defendant's title-Who to begin.

Where in a partition case the plaintiff and defendant derived title from a common ancestor, and the Crown appeared and was allowed to file answer as an added defendant denying the title of such ancestor to the whole of the land, and itself claiming title to a great portion of the land, the proper procedure is for the plaintiff to begin his case.

THIS case was instituted in January, 1894, by plaintiff against several defendants, who were alleged to be part owners of a certain tract of land, for partition of the same among them.

Answers were filed by many of the defendants, and the trial was fixed for 8th October, 1897; but notice of trial not having been served on all the defendants, the case was postponed for 10th February, 1898, and thereafter for several other dates. In the meanwhile, on the 26th May, 1898, Mr. Proctor Koertz, appearing for the Attorney-General, moved that " as the Crown has an " interest in a portion of the land which forms the subject-matter " of partition, the name of the Attorney-General of Ceylon be " entered as an added party, and the trial of the case fixed for 3rd " June next. The motion being allowed, the Attorney-General's answer as an added defendant was admitted and filed.

His answer took exception to the plaint, in that it did not disclose how Tamby Mudaliyar, named in the plaint as the original owner of the land sought to be partitioned, became the owner, whether by sannas. grant, or otherwise. On the merits, the Attorney-General denied that the said Tamby Mudaliyar was the owner of the said entire land, or that heirs or descendants represented by the defendants were entitled to the same. For a further answer, the Attorney-General pleaded that within the boundaries set out in the plaint as containing 730 acres there were several allotments of land aggregating 442 acres which belonged to the Crown. And the Attorney-General prayed that in the event of a partition being decreed, the several allotments named by him as aggregating 442 acres be excluded, and the same be declared the property of the Crown.

On the trial day the issue agreed upon was: Whether the lots mentioned by the Attorney-General are the property of the plaintiffs and defendants, or the property of the Crown.

The District Judge called upon the Crown to begin, holding the burden of proof as to its claim to be upon it. The counsel for the Attorney-General declined to call evidence, on the ground that the nature of the land in dispute raised a presumption in favour of the Crown that the land belonged to it, and that plaintiff, having admitted that the original owner, Tamby Mudaliyar, had acquired the land under a grant from the Crown, did not pro-duce the grant itself, or lead any evidence in support of his title.

The District Judge dismissed the claim of the Attorney-General, as he declined to begin and call evidence.

The Attorney-General appealed.

Ramanathan, S.-G., for appellant.

Dornhorst (with him Jayawardena), for respondents.

Cur. adv. vult.

9th October, 1899. Lawrie, A.C.J.-

Our decision on this point of practice and procedure should depend on what we think is best for the numerous parties to the action, what order will enable to try the issues with the least delay and the best results.

In the ordinary case the plaintiff should begin. He has put the Court in motion. He must make out a prima facie case that there is a land to be divided which he owns in common with others.

Here the Crown has given notice that a considerable part of the land described in the plaint is land at the disposal of the Crown. I cannot say

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