SEDOHAMI v. MAHOMADU ALI

SEDOHAMI  v.  MAHOMADU  ALI

D. C, Matara, 997.

Partition Ordinance, 1863-Preliminary decree-Plan of the land sought to be partitioned-Plan to be filed with the plaint.

    The preliminary decree in a partition suit should determine the limits and extent of the land sought to be partitioned or sold, with the same care and precision as it adjudicates on the individual interest of the parties to that suit. As such a decree has been held to be one in rem binding on all persons whomsoever, it is of the utmost importance that the extent and limits of the common land should be adjudged in the preliminary decree as well as the shares of the claiming co-owners.

    In an action for partition the plaintiff should append to his plaint a plan or sketch of the land sought to be partitioned, and should lead such proof of the metes and bounds of the land as will enable the Court to
adjudicate on that part of the case.

    The persons to whom the Commission issues should know precisely what the land is which he has to partition according to the instructions of his Commission.

    Section 8 of the Ordinance No. 10 of 1863 provides indeed that the Commissioner shall file with his return a survey of the property in which a survey shall have been directed by the Court. But this can only refer to cases where the sketch or plan, which the plaintiffs should file with their plaint, is of too rough a character to rest a judgment upon. It is useless to call in aid a survey after an adjudication on the shares of the respective parties.

    THE plaintiffs alleged they were owners of certain shares, in common, of a field called Gonawittawala alias Dalugodawila, situate at Ettalanadugalla, and that this field was bounded on the east by Kamanalageralagekumbura, south by Kepu-ela or river, west by Kepu-ela or Odege-ella, north by Demalatuppahi wila. The defendants were parties to a partition suit (in which

 present third plaintiff was a party defendant) relating to a field February 7. described in the libel as Demalatuppahigewila of eight amunams in extent, situate at Ettalanadugala, and bounded on the east by Dalugodawila alias Rammalaralagerella, west by Hinlipuella and Udawattakumbura, north by Gassarawila and Mahamestrigewila, south by the river and Hinpanwila.

    The preliminary decree in that suit adjudged the parties to be entitled to the land Demalatuppahigewila in the shares set forth thereunder, and ordered a partition of it unless the co-owners preferred a sale. There was no judgment as to the extent or limits of the land which was so ordered to be partitioned.

    This decree of partition was followed by the issue of a Commission to some person to execute the partition. Return was made to the Commission, and with it a survey showing the land and the scheme for carrying out the decree.

    This survey included, it was alleged, the field mentioned in the present plaint. To prevent that field being caught up in the final decree of the partition suit plaintiffs intervened in the partition proceedings, and were so far successful that the Judge postponed the final decree to enable the plaintiffs to institute an action to determine whether the plaintiffs herein or the parties in the partition suit were entitled to the Gonawittawala alias Dalugoda-wila, or, in other words, whether that field belonged exclusively to the plaintiffs or formed part of the land described as Demala-tuppahiwila in the partition suit. The field now in dispute was that which lay between the river and the dotted line indicated in the plan.

    No evidence was called in this case. It was decided on a question of law, viz., whether the plaintiffs were barred by the preliminary decree of partition in the former suit from bringing the present action.

    The District Judge ruled that the plaintiffs were barred by the preliminary decree in the partition suit; that the land to which it decla

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