SILVA v. PAULU et al.

C. R., Negombo, 3,974,

Partition-Action for, by party not in possession nor whose title, is admitted.

As the Partition Ordinance (No. 10 of 1863) provides for the contingency of the defendants appearing and disputing the plaintiff's title, the ruling in Perera v. Perera (2 N. L. S. 370) that an action for partition cannot be brought by a party not in possession whose title is disputed, is unsound.

In partition suits the Court ought not to proceed on admissions, but must require evidence in support of the title of all the parties, and allot to no one a share except on good proof.

PLAINTIFF purchased an undivided 8-10ths of a certain land from one Isaac and four of his five children. The outstanding child (second defendant), together with her husband

(first defendant), denying the title of Isaac and his four children, claimed the land for themselves and refused to give possession of it to plaintiff, who thereupon came into Court praying for partition. The only issue framed by the Court was whether the plaintiff's vendors were entitled to 8-10ths of the land Kumbukgahawatta.

The Commissioner, after hearing the case for