[FULL BENCH.]

1916 Present: Shaw A.C.J., De Sampayo J., and Schneider A.J.

HEENHAMI v. MOHOTIHAMI.

336-D. C. Ratnapura, 2,640.

Co-owners-Action by one co-owner against another for declaration of title and damages-Are all co-owners necessary parties to action ? Civil Procedure Code, ss. 17, 18, and 22.

There is no rule of law that a co-owner cannot maintain an action against another co-owner without joining all the other co-owners of the land.

No doubt in many cases they are proper parties, and would be joined on an application being made for the purpose. In some cases they may even be parties, whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon all the questions involved in the action, in which case the Court may add them of its own motion under section 18, but if they are not added, the Court should, in accordance with the provisions of section 17, deal with the matter in controversy so far as regards the rights of the parties actually before it."

THE facts are set out in the judgment.

R. L. Pereira (with him P. M. Jayewardene), for appellant.-The rule is well established that one co-owner cannot sue another co-owner without joining all the co-owners, whether it be for declaration of title, possession, or ejectment. The non-observance of the rule is bound to disturb the possession of the other co-owners if they do not admit the correctness of the shares decreed to the parties before the Court, and this will lead to a multiplicity of actions. The object should be to settle the dispute once and for all. Mudiyanse v. Silva1[(1916) 19 N. L. R. 120.] and D. C. Matara, No. 6,583. 2[ S. C. Mins., August 4, 1916.].

Samarawickreme, for respondent.-No objection on the ground of non-joinder of parties was taken at the trial. There is no invariable rule that all co-owners should be joined in an action where the dispute is between some only. The matter could be decided without involving the plaintiff in the expense of joining all co-owners. Any judgment will bind only the parties, and will not affect the rights of others. Section 17 of the Civil Procedure Code provides that no action shall be defeated by reason of the non -joinder of parties.

Cur. adv. vult.

September 22, 1916. SHAW A.C.J.-

In this case the plaintiff claimed a declaration of title to certain shares of land against the defendant, another co-owner, who contested his title and damages. The District Judge after hearing the evidence made the declaration asked for, and directed the defendant to pay Rs. 50 damages agreed upon.

The defendant appealed, basing his appeal on the ground that there were other co-owners of the land who have not been joined as parties, and it was contended that two recent cases (Mudiyanse v. Silva 1and D. C. Matara, No. 6,583 2) have decided that a co-owner cannot maintain an action against another co-owner without joining all other co-owners of the land. No. objection on this ground was taken at the trial, and no application was made by the defendant to add the other co-owners.

When the appeal first came before my brother De Sampayo and myself, it appeared to us that, in view of the provisions of sections 17, 18, and 22 of the Civil Procedure Code, it was doubtful whether the contention raised was sound. We accordingly reserved the case for the consideration of the Full Court.

I am by no means certain that the Judges who decided those cases ever intended to lay down the proposition contended for by the appellant. In view of the express provisions contained in the Civil Procedure Code, it appears to me impossible to contend that an action by one co-owner should be dismissed unless all the co-owners are made parties to the suit. No doubt in many cases they are proper parties, and would be joined on an application being made for the purpose. In some cases they may even be parties, whose presence