SILVA et al. v. SILVA et al.

Present: Sir Charles Peter Layard, Kt., Chief Justice, and
Mr. Justice Moncreiff.

SILVA et al. v. SILVA et al.

D. C., Galle, 6,462.

Partition suit-Claim for damages-Misjoinder of claims-Ordinance No. 10 of 1863.

It is not competent for a plaintiff in a partition suit to join in such suit a claim for damages arising from a wrongful act committed by one of the co-owners.

Samarasinghe v. Balahami (5 N. L. R. 379) followed.

APPEAL from a judgment of the District Judge of Galle. The facts and arguments sufficiently appear in the judgment.

Sampayo, K.C. (E. Jayewardene with him), for appellants, (21st and 124th defendants).

H. J. G. Pereira, for respondents, (plaintiffs).

Cur. adv. vult.

28th March, 1905. LAYARD C.J.-

In this case the plaintiffs brought an action in the Distrcit Court of Galle for the purpose of partitioning a certain land under the provisions of Ordinance No. 10 of 1863. They further prayed for

an injunction restraining the 21st and 124th defendants from building  a house on the land pending this action.

With regard to the injunction prayed for, it is only necessary  to say that, although the plaintiffs asked for an injunction pending the action, they never sought to take out the injunction, and it is unnecessary for us in this suit to decide whether or not a plaintiff would be entitled to ask for an injunction in a suit instituted under the Ordinance No. 10 of 1863.

Certain of the defendants came forward and filed an answer or answers. By agreement between the parties an issue was settled. Are the 21st and 124th defendants entitled to the house No. 17 in plan filed with the plaint and No. 2 in deed or to any compensation therefor ? The issue on the face of it was a clear issue. The District Judge on that issue gave the plaintiffs damages against the 21st and 124th defendants. These two defendants object to the order and appeal to this Court, and they submit that damages are not recoverable in a partition suit, and that the learned District Judge was consequently wrong in awarding them damages. How this question of damages, which was not claimed by the plaintiffs and was not in issue in the Court below, came to be decided by the District Judge is not clear. It, however, enabled him to point out how he considered that this Court had erred in the case of Samarasinghe v. Balahamy(1), and it remains for us to decide in view of the conflicting decisions in this Court whether in our opinion the judgment which the District Judge has been pleased to over-rule is sound or not. Admittedly there have been conflicting decisions in our Court. The decisions in conflict with the decision above quoted have certainly not been followed for some years, because my brother Wendt, who had an extensive practice at the Bar for twenty years before he mounted the Bench, in his judgment, in that case stated that it was novel to him that in an action under the Partition Ordinance the plaintiff should join a claim for damages. It may be, as pointed out by Mr. Jayewardene in his book on the Law of Partition, that there was at one time a practice to join a claim for damages with an action under the Partition Ordinance. A predecessor of mine on the Bench so far back as 1890 pointed out in the case of Siyadoris v. Adrian(2) that he frequently expressed the opinion that a partition suit should not be encumbered with claims in the nature of accounts between the co-owners. That was the view of Chief Justice Burnside, and I believe also of my distinguished predecessor Chief Justice Bonser. It may be however that the law of these distinguished Judges may be wrong, and the

Foot Notes:

(1) (1902) 5 L. N. R. 379.

(2) S. C. Min. June 10, 1890.

question for me to decide is whether I should follow the later ruling of this Court, or whether I shall hold that a plaintiff can include A prayer for damages in an action for partition. I am wrong in expressing mysel

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