Mudiyanse Et Al. V. Silva Et Al.,

1916. Present: Ennis J. and Schneider A.J.

MUDIYANSE et al. v. SILVA et al.

230-D. C. Ratnapura, 2,312.

Co-owners-Action by one co-owner against another co-owner for declaration of title-Joinder of other co-owners.

One of a number of co-owners cannot sue one or more of his co-owners either for possession or declaration of title or in ejectment without making all the other co-owners parties to the action.

THE facts are fully set out in the judgment.

R. L. Pereira, for defendants, appellants.-All the co-owners are not before the Court. It is difficult to find out the exact shares of the plaintiffs and defendants in the present state of the pleadings and evidence.

The plaintiffs should have brought a partition action; or they should have at least joined the other co-owners as parties to this  action.
 
G. Koch (with him A. Drieberg), for the respondent.-The objection as to non-joinder comes too late. The defendants must be taken to have waived the objection. See Civil Procedure Code, section 22. The other co-owners would not be bound by this judgments, and would not, therefore, be prejudiced. They do not dispute the plaintiffs' share.

It is not well settled that all the co-owners should be joined in an action like this. See I Br. 340. The Court may send the case back for joinder of all parties if necessary.

Cur. adv. vult.

July 5, 1916. SCHNEIDER A.J.-

In this action the plaintiffs pray to be declared entitled to an undivided share of a land, and to be " placed and quieted in the possession thereof. " There is no prayer for ejectment. But as an ouster by the defendants from the entirety of the shares claimed is pleaded as the cause of action, I shall assume that the plaint also prays by implication that the defendants be ejected from the possession of these undivided shares. Counsel on both sides admitted at the argument of this appeal that there were co-owners who are no parties to this action. But for the purpose of the application of the law, and to indicate the complicated nature of the title on both sides, I shall refer briefly to the devolution of the title as developed by the allegations in the pleadings and the admissions at the trial. The land is said to have originally belonged to three brothers, Sahanda, Kirisanda, and Pinsanda. The entirety of Kirisanda's one-third is claimed by the first plaintiff by right of purchase. According to the plaint, Pinsanda's one-third, as also Sahanda's one-third, devolved by intestate succession on the five children of Sahanda, viz., Kiribinda, Guneya, Ratta, Malbinduwa, and Setu. At the trial it is recorded that one of these children- Ratta--had no children. I believe that what was meant by this was that his share devolved on his four brothers and sisters. One of these four-Guneya-died intestate, leaving five children, viz., Pinsetu, Kirihatana, Kalu Heena, and Babonchi. One of the others-Setu-is alleged to have died leaving four children, viz., Hopi, Kirilamaya, Babi, and Batti. Besides Kirisanda's one-third the first plaintiff claims 5/36 by purchase from Pinsetu and Babonchi, alleging that Pinsetu had acquired a 1/18 from his sister Setu by purchase. Thus, according to the plaintiffs, the shares of Kiribanda, Malbinduwa, Kirihatana, Kalu and Heena, and a portion of the shares of Setu are unaccounted for. But the first

defendant claims Kiribinda's and Malbinduwa's shares, as also the shares of three of the children of Setu. Thus, according to  both parties, there is still outstanding the shares of two of the children of Guneya and of one of the children of Setu. These shares are not claimed by any of the parties to the action, and yet the plaintiffs claim 1/3 plus 5/36, which are equal to 17/36, the defendants 1/4 plus 13/36, which are equal to 22/36, and the added defendant 1/6, which are equal to 6/36. These shares total 45/36. This shows decisively the overlapping of the claims. As

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